Stojanovic v Transport Accident Commission
[2015] VCC 1741
•4 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-02177
| VIOLETA STOJANOVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 August 2015 | |
DATE OF JUDGMENT: | 4 December 2015 | |
CASE MAY BE CITED AS: | Stojanovic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1741 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – s93 Transport Accident Act 1986 – paragraph (a) – issues of credit – so-called “range case”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Richards v Wylie (2000) 1 VR 79; Hunter v Transport Accident Commission [2005] VSCA 1; Transport Accident Commission v Kamel [2011] VSCA 110; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Abbas v Transport Accident Commission [2015] VSCA 217; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Judgment: Judgment for the plaintiff. Leave is given pursuant to s93(4)(d) of the Transport Accident Act 1986 for the plaintiff to bring common law proceedings to recover damages in respect of a transport accident occurring on or about 13 January 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC with Mr A J Saunders | Zaparas Lawyers |
| For the Defendant | Ms R N Annesley QC with Ms J Frederico | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 30 April 2014, Violeta Stojanovic (“the plaintiff”), seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”), to bring common law proceedings to recover damages for a spinal injury (“the injury”) suffered by her arising out of a transport accident on 13 January 2011 (“the accident”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section—
serious injury means—
(a) serious long-term impairment or loss of a body function.”
5 The part of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident was said to be “the spine”, being a composite of the neck and low back (although Senior Counsel for the plaintiff advised that the low back of the plaintiff had been a significantly greater problem than her neck).[3]
[3]Transcript (“T”) 2, L6 – 10; See Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [11]; [138] – [139] wherein the Court of Appeal accepted (largely on the basis that it had never been challenged hitherto) that the “spine” can be one body function consisting of the neck and low back.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a)“The injury” suffered by her was a result of the transport accident;
(b)The requirements of the test set out in the seminal decision of Humphries & Anor v Poljak,[4] wherein a majority of the then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?.”[5]
(c)“Serious injury” as defined in sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment – however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[6]
[4][1992] 2 VR 129
[5]Humphries & Anor v Poljak (op cit) at 140. See also Mobilio v Balliotis & Ors [1998] 3 VR 833
[6]See Richards v Wylie (2000) 1 VR 79
The issues
7 When queried as to what the issues were, I was informed by Senior Counsel for the defendant that “fundamentally” it is a “range case”.[7] Further, Senior Counsel noted that there may well be some issue as to the plaintiff’s reliance upon the principles enunciated in Richards v Wylie.[8] In this respect, Senior Counsel indicated that the evidence would suggest that the plaintiff has a distinct separate psychiatric illness which, if it were to be assessed, would be more properly assessed under paragraph (c) of the definition of serious injury.[9]
[7]T15, L31
[8](2000) 1 VR 79
[9]In this respect, Senior Counsel for the defendant noted that the plaintiff had abandoned any reliance on paragraph (c) of the definition of “serious injury”
The evidence of the Plaintiff
8 The plaintiff relies on two affidavits – the first sworn on 11 November 2013[10] and the second affidavit sworn on 31 July 2015.[11] The plaintiff gave evidence that the contents of each affidavit were true and correct.[12]
[10]See exhibit 1 at page 4 Plaintiff’s Court Book (“PCB”)
[11]See exhibit 1 at page 10 PCB
[12]T21, L27 – 27; T22, L17 – 18
9 The plaintiff was referred to paragraph [15] of her second affidavit, wherein she described that on 19 July 2015, she was involved in a further car accident when she was a passenger. She was taken to hospital, stayed a few hours and has not seen anyone else about this accident. In particular, when queried by her counsel as to whether or not the recent accident had any effect on her low-back pain, the plaintiff responded by saying she had had pain for a few days and “then it went back to the state it was before”.[13] Furthermore, when queried whether the recent accident had any effect on her neck pain, the plaintiff responded that it has “stayed the same, it did not change”.[14]
[13]T22, L22 – 24
[14]T22, L25 – 27
10 The plaintiff also gave viva voce evidence that she presently takes three Diclofenac tablets a day, and such medication is prescribed by her doctor in Serbia. The plaintiff explained that she is taking such medication in Australia because she is not receiving any injections. The last injection she received was on or about 25 or 26 June 2015, when she left Serbia. Such injections are into her hip and give her relief for a few days, which is better than the medication. When having the injections, she does not take any of the tablets.
11 The plaintiff also gave evidence that she takes ibuprofen for pain in her back. She takes such tablets three times a day and because of all the medication, she gets an allergy, which is reflected on her face. Such medication can be bought over the counter in Serbia.
12 The plaintiff also gave evidence that she takes Bromazepam for Depression, which is prescribed by her neuropsychiatrist. She understood that such medication was taken to calm her down and to help her sleep, and her mood. She also takes Sanval to assist her with sleeping and again, this medication is prescribed by her neuropsychiatrist. She takes such medication because she has difficulty with sleep, because she wakes up with pain at night.
13 The plaintiff also stated she is prescribed by the neuropsychiatrist a further drug called Trittico, which is to control mood and depression.
14 The plaintiff gave evidence that she did not take any of these medications prior to the car accident.
15 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
· She is a single woman with no children who was born in Serbia in July 1967;
· On finishing secondary school, she went to trades school and qualified as a hairdresser, but was unable to find a job. The only job she could find was one cleaning a store;
· Prior to the accident, she did not recall having any physical or psychological problems but at the time of her swearing the first affidavit, she was unable to access any past medical records;
· On or about 10 December 2010, she came to Australia on a tourist visa for three months, intending to visit her family who live in Melbourne;
· On 13 January 2011, the plaintiff was a front-seat passenger in a motor vehicle when it was involved in a collision. The plaintiff describes the circumstances of the collision as follows:
“…My friend was driving and I was in the front passenger seat. We were both wearing seatbelts. We were crossing the Stud Road and Clow Street intersection in Dandenong. As we drove across the intersection, another car ran a red light and hit our vehicle on my side of the car.”[15]
[15]See exhibit 1 at page 5 PCB
· The plaintiff believes she was knocked unconscious as a result of the collision and she remembers that she hit her head on the side of the car. When she regained consciousness, there were people standing around the car and although the ambulance wanted to take her to hospital, she did not want to go. At that time, she was helped out of the vehicle, with her nose hurting significantly, her left eye had a cut and her left arm and leg were in a lot of pain, with bruises all over her body;
· In the several hours following the accident, she developed pain in her low back and neck, and two days after the accident, she consulted a general practitioner, Dr Vujosevic;
· Her tourist visa expired in March 2011 and although she tried to get an extension, this was not possible, and she returned home to Serbia. Up to that point, she had been prescribed Panadeine Forte but did not have time to have any treatment for her injury;
· When she returned to Serbia, she had treatment for her injuries and consulted specialists, a physiotherapist and a psychiatrist, and also went to a health retreat in the hope that this would help her. However, her pain continued and there was little improvement in her symptoms;
· Because the Transport Accident Commission would not fund treatment in Serbia, she arranged for a medical visa and returned to Australia in May 2013;
· When she returned to Serbia, she was not able to work because of the pain in her neck, back and left shoulder, and it was very difficult to be a cleaner with a back injury, as she could not bend or lift things as easily as she had before. As she was not able to work, she used up holidays and sick leave;
· At the time of swearing the first affidavit, she was taking one to two tablets of Tramadol per day, but they did not help the pain much, and she was also taking medication for her nerves;
· The pain in her low back is worse when she has to bend over, and such pain radiates down her left leg. Since the accident, she has a feeling of pins and needles in her left leg, especially in the toes, and also experiences cramps that go up and down her calf to about her ankle. If she stands in one spot for a small amount of time, she loses feeling in her leg and lower back, and that she has noticed that she walks with a limp;
· She continues to have pain in the left side of her neck and, like her back, this pain is constant and she feels it “all the time”. Sometimes, she has tingling down her left arm, however this only happens occasionally;
· She experiences regular headaches at the top and back of her head and although she has had scans in Serbia, to the best of her knowledge, they did not show anything abnormal;
· She finds it very difficult to sleep and sometimes takes medication to help her sleep but it is not very effective and she regularly wakes up because of pain in her neck, back and left leg, and the cramps that occur in her left leg. She has nightmares when she sleeps, and wakes up with thoughts of the accident on her mind;
· She has experienced feelings of depression since the accident and sometimes she cries because of the pain. At the time of the swearing of the first affidavit, she was worried that when she returned to Serbia at the expiration of her visa in early 2014, she might not be able to do any work;
· Prior to the accident, she loved to dance and really enjoyed dancing with friends. She finds it difficult to perform this activity because of pain in her neck and her back, and this is very frustrating to her;
· Prior to the car accident, she was a very social person, used to meet friends for coffee and dinner frequently but since the accident, she has become “socially isolated”, and this upsets her a lot. She does not enjoy life like she used to;
· Before the accident, she was a “very independent person” who was used to looking after herself and her apartment without assistance. She now struggles to cook and take care of her home and is dependent on her sister to take care of her and the house;
· Since the accident, she is unable to concentrate and has difficulty trying to read a book or watch a movie because she cannot keep her mind focussed on any activity other than for a few minutes;
· Prior to the accident, she took great pride in her appearance and would enjoy doing her hair and making herself look nice, but now she does not care how she looks and rarely goes out any more.
16 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
· Prior to the accident, she had been treated for bronchitis since about 2007 which required seeing her doctor and taking some time off work. She continues to take medication for this condition. She also had a period of leave in around 2009 when her mother was ill and she used this time to take care of her;
· Her attention has been drawn to a clinical file note in 2008 which refers to back pain. She describes such episode as a “minor episode of pain and was associated with my ongoing bronchitis”. She believed she had some time off work but this was mainly related to the bronchitis and she does not recall any other episodes of back pain;
· Since swearing her previous affidavit, she returned to her hometown of Nis in Serbia and was told by her employer that she must return to work by March 2014 or she would lose her job;
· She describes the plane trips to and from Serbia as being very difficult for her, causing her to take extra painkilling medication to help with the pain;
· Her back pain continues and is the worst of her pain and such pain is experienced every day, with some days worse than others. She does have pain that goes down her left leg, and feels pins and needles in the left leg and experiences cramps in her toes;
· She also has some pain in her neck which is not as bad as her low-back pain. Such pain in her neck is associated with pain in her left shoulder and it is mostly frustrating at night, as it restricts her ability to move around in bed;
· She describes how she continues to work as a cleaner, although she struggles to perform most of the tasks that she used to do. In particular, she states:
“…My work is divided into morning and afternoon shifts. I can mostly cope with the morning cleaning by myself as it is mainly just some light dusting. However, in the afternoon shifts, I struggle to cope and I almost always rely on help from my colleagues. In the afternoon, everything needs to be cleaned. I am much slower because of my back condition and so it takes me a lot longer. I am rarely able to finish the work without assistance from my colleagues.”[16]
[16]See exhibit 1 at page 11 PCB
· She continues to work because she needs the money – however, her back pain continues and, at times, prevents her from working. She explained that her doctor will give a medical certificate, and in Serbia, it is referred to as “commencing sick leave”. She deposed that she was allowed 30 days at a time of sick leave, during which time she is only paid a portion of her wages, and if she goes over 30 days, she needs to go to a Commission to get some payments. Because the Commission is “not so good” and she is not paid on time, she tends to work a few days, and when her back is in too much pain, she goes to the doctor to recommence sick leave, closing off the sick leave just before the 30 days;
· In Serbia, she has been treated with multiple injections into her low back and although the injections help relieve the pain for a little while, it will gradually increase again to the same level that it was before. Her treating neurosurgeon, Dr Petrovic, in Serbia, has advised that surgery may be an option for her, and she has not decided whether she will proceed with such surgery, as she is anxious that her injuries may possibly get worse because of surgery;
· Since returning to Serbia, she is very reliant on her sister to help her around the house. Her sister lives close by and will come to the apartment at least once a week and sometimes every day to help her around the house. Her sister does the vacuuming, washing and cooking and without her sister’s help, she would struggle to complete these tasks by herself;
· When staying in Australia, her family would cook for her, and since returning to Serbia, she has struggled to cook like she did prior to the accident. Before the accident, she enjoyed cooking and would enjoy hosting dinner parties for friends and now she feels she is unable to cook like she used to and it is necessary for her to sit down when preparing the ingredients;
· She continues to feel depressed and worried about her future and is not sure how much longer she will be able to continue working. She experiences panic attacks a couple of times a month. When these attacks happen, she starts to sweat a lot and is very anxious and scared. She takes medication for her psychological problems but even with the medication, she sometimes wakes up from a panic attack during the night.
The cross-examination of the Plaintiff
17 Under cross-examination by Senior Counsel for the defendant, the plaintiff confirmed she has been in Australia for the following periods:
(a) After her accident, she returned to Serbia on 19 March 2011;
(b) She returned to Australia on 17 May 2013 for “medical treatment” and stayed in Australia until 25 November 2013, a period of approximately six-and-a-half months;
(c) She returned to Serbia on 25 November 2013 and stayed in that country until she returned to Australia on 27 June 2015 and has been in Australia since that date.
18 When queried about the various doctors who have given her treatment in Serbia, the plaintiff gave the following evidence:
(a) She commenced to consult with Dr Vojsislav Cvetkovic, who she described as a “neuropsychiatrist specialist”. Later in her evidence, she confirms that this doctor is a “psychiatrist”. She was referred to Dr Cvetkovic by her general practitioner in March 2011, when she returned to Serbia after the accident, and has continued to see him – sometimes every month, sometimes every month-and-a-half, and he also prescribes medication;
(b) A person who the plaintiff referred to as “Dragana” (she was unable to recall the surname), who she described as a “physiotherapist”. She also commenced to see the physiotherapist in 2011 and during that year, she saw Dragana “very often” – maybe once a month or a month-and-a-half;
Later, in her evidence, when describing that she would have to wait to get in to see the “physiotherapist for a prescription of anything”, the plaintiff confirmed that a physiotherapist is a medically qualified specialist in Serbia who can prescribe therapy and medication or “whatever is required”. The plaintiff also confirmed that “Dragana”,[17] the physiotherapist, can and did prescribe “physiotherapy” which was done at another place;
[17]“Dragana” was later confirmed to be Dr Dragana Stefanovic
(c) The plaintiff also confirmed that she has consulted an orthopaedic specialist who she referred to as a “neurosurgeon” and identified as Dr Petrovic, who she attended on one occasion in or about June 2015. It was put to the plaintiff that Dr Petrovic, in June 2015, recommended that she continue with natural spa rehabilitation treatment and medication, to which the plaintiff responded that he “recommended” that the last solution would be an operation. The plaintiff accepted that Dr Petrovic only put surgery as an option if the other options did not work;
(d) The plaintiff identified the reference to “a health retreat” to be a place where she enjoyed mineral spas and she went there frequently at her own “cost”. Such “health retreat” is at Niska Banja, which is close to where she lives, so she is able attend the pool regularly. There is also some “healing in mud” at the retreat.
19 The plaintiff also confirmed under cross-examination that when in Australia, she attended Dr Miroslava Vujosevic, initially on 15 January 2011 (two days after the accident), who prescribed Panadeine Forte and also an x-ray. The plaintiff also accepted that on 18 January 2011, Dr Vujosevic again prescribed Panadeine Forte and also brufen, 400 milligrams, one tablet twice a day, which the plaintiff has continued to take. The plaintiff could not remember whether Dr Vujosevic referred her for physiotherapy but, in any event, no physiotherapy was undertaken before she returned to Serbia on 19 March 2011.
20 The plaintiff also accepted that she attended Dr Peter Pjesivac on 31 January 2011 but also on 22 May 2013, 3 June 2013 and 17 June 2013 when she returned to Australia on 17 May 2013. The plaintiff noted that Dr Pjesivac did not want to do “TAS” (sic)[18] and that she did not have the money to pay for such treatment. Furthermore, because he did not want to be involved, the plaintiff attended another doctor in 2013 which she thought was a Dr Ling, who was situated in Dandenong. The plaintiff commented that this doctor prescribed medication and suggested physiotherapy but the referral sent to the Transport Accident Commission seeking approval was not answered.
[18]The reference to “TAS” almost certainly refers to TAC
21 The plaintiff gave evidence that when in Serbia prior to the accident, she would attend a general practitioner, Dr Nezena Sokolovic, who was situated at a clinic call Zeleznicka Ambulanta. The plaintiff confirmed that she had been treated for bronchiolitis since 2007, causing her to take time off work for various periods.
22 The plaintiff confirmed that she attended on the neurologist, Professor Stephen Davis, in September 2013 and more recently on 2 July 2015. The plaintiff also accepted that when she returned to Serbia after the accident, that she went on “sick leave immediately” and that such sick leave extended for about twelve months with little breaks because she had to work some days because of money, even with that pain.
23 The plaintiff described her work duties as cleaning a school with others and making and serving coffee for about ten people at their breaks. In particular, the following evidence was given about the cleaning activities:
Q:“The cleaning that you do, how big is the school that you work at?---
A:Quite big.
Q:What does that mean?---
A:It has three floors and has two separate buildings on each side.
Q:How many children?---
A:It is over 1,000.
…
Q:And you clean in the morning and in the afternoon, do you?---
A:We are cleaning in the afternoon. In the morning we do dusting and if anything else is required.
Q:So how many hours do you do in the morning?---
A:From 6 to 2.
Q:And then in the evening how many hours do you do?---
A:From 1 to 9.
Q:How does that work? Do you do different shifts, do you, some days you do morning shift and some days you do afternoon?---
A:One week I do mornings, one afternoons.
Q:And you work as a team? There are other people who work with you?---
A:Yes.
Q:How many other people work with you in the mornings?---
A:In one shift, five people in the morning and five in the afternoon.
Q:And that’s always been the way, hasn’t it, since you worked at the school?---
A:Yes.”[19]
[19]T 46, L19 – T47, L9
24 The plaintiff confirmed that the morning work duties are easier than the afternoon duties. The cleaning could involve dusting, wiping surfaces, and using a mop or a broom. She also confirmed that when the children at the school are on holidays, there is a general clean, and this occurs from 20 June until 1 September, and she also indicated that as a result of “a new law”, holidays may also be from February for a period of time.
25 The plaintiff confirmed that when she came to Australia initially, she was on a tourist visa, during which time she was on unpaid leave from her work. On her return to Serbia, the plaintiff described entering into the sick leave system, although returning to work on some days to comply with the 30-day rule. In particular, the following evidence was given:
HIS HONOUR:
Q:“I’m having some trouble understanding this. It is right to say, as I think everyone agrees, you returned home to your country on 19 March 2011; is that right?---
A:Yes.
Q:And that was, obviously, a little while after the car accident?---
A:Yes.
Q:And normally, if you had not had the car accident, would you have gone back to work as a cleaner at the school?---
A:Yes, yes.
Q:And that job was a full-time job, was it?---
A:It was, yes.
Q:Sometimes working the morning shift, sometimes working the afternoon shift?---
A:Yes.
Q:I want you to tell me in that 12 months after you got back in March 2011, how much time did you go back to school for, how much time did you go back to work as a cleaner?---
A:I don’t know how long time. 80 per cent of my time I was on sick leave and a smaller percentage I was working, but I was more on sick leave.
Q:Just finally, to get the sick leave, can you get sick leave for a certain period and then you have to go back to work before getting any more sick leave?---
A:I don’t understand that.
Q:If you’re sick in your country and you have to go off work, can you just get continuous sick leave?---
A:If I’m not good, yes.
Q:And that can go on for months and months and months, can it?---
A:Yes.
Q:And when you get that sick leave, I think I heard some evidence you get a certain percentage of your normal wage, do you?---
A:Yes.
Q:And what is that percentage?---
A:I don’t know because I have minimal salary, so I don’t know how much they deduct.
Q:But do you know if there is some rule or some regulation which says you get 10 per cent or 50 per cent or 80 per cent of your salary?---
A:65 per cent. That is when it is - over 30 days it is Social Security, but with employer, I’m not sure.”[20]
[20]T49, L28 – T50, L31
26 The following matters were put to the plaintiff:
(a) That her payslips for 2008 record that she worked approximately one thousand hours for the year, which was said to be approximately 20 hours per week over 52 weeks. On a query from the Court, it was not clear, at that stage, whether the thousand hours were over 52 weeks or whether there were periods where there were continuous weeks of no work. In any event, the plaintiff responded that she did not know or remember but highlighted that in 2008, she was suffering bronchitis which gave her great difficulties, and also, she was caring for her mother who was in bad health;
(b) When she saw Professor Davis in July 2015, the plaintiff stated that she only works about 20 per cent of the time, and when queried about that, the plaintiff stated: “I’m more on sick leave than I’m working.”[21] In particular, when queried whether she worked 100 per cent prior to the transport accident, the plaintiff denied such a situation because of her bronchitis and the requirements of looking after her mother, but did state she worked “more” prior to the transport accident. She gave evidence her mother died in November 2009 and over all these periods she was having ongoing difficulties with bronchitis.
[21]T52, L28
27 Under cross-examination, the plaintiff confirmed that she still suffers from what was referred to as bronchiolitis which causes difficulties with breathing. She also confirmed that such condition requires her to attend a pulmonary specialist and the use of various pumps to assist her breathing when the condition is acute. She also confirmed that she continues to smoke 20 cigarettes a day and she commented that although the specialists “prohibit it”, she “can’t cope without cigarettes with this pain”.[22]
[22]T55, L21
28 In particular, the plaintiff was queried about her leisure activities and her bronchial condition. The following evidence was given:
Q:“And it stops you from engaging in leisure activities, such as basketball and tennis, doesn’t it?---
A:I can’t do anything, no.
Q:You can’t do anything when you’re suffering from the bronchiolitis?---
A:(No audible response.)
Q:So you gave up playing basketball, I suggest, at least in 2007, if not before?---
A:I was playing on weekends when I was good. Sometimes it was stable and was okay, when the weather is better, but if there is a lot of moisture, then it is bad. Winter is bad for me.
Q:And the same with the tennis, you gave that up a long time ago too, didn’t you?---
A:I was playing, it didn’t cause me that many problems, basketball or tennis, till I had that accident.
Q:You would only play occasional social weekend games of tennis?---
A:Yes.
Q:And only in the summer?---
A:Some time even in winter but inside, a closed space.
Q:And occasional basketball games. Were they just social on the weekend as well?---
A:Yes, inside, in closed space.”[23]
[23]T55, L28 – T56, L16
29 The plaintiff accepted that when she works at the cleaning job, she performs the same duties as that prior to the accident, but is slower and needs assistance from the other cleaners to complete the work. Furthermore, the plaintiff gave evidence that her sister does things like mopping and cleaning at the plaintiff’s home which is not a “big place” and generally clean.
30 In particular, the plaintiff gave evidence that she does not do any “cleaning at home” although she washes some cups and plates. However, she does no particular cooking and her sister washes the clothes. The plaintiff says that she really cannot do anything at all at home, and when queried why this is so, she stated:
“Pain in my back, my spine, and numb - leg gets numb.”[24]
[24]T58, L25
31 When further queried that she seems to be able to do these things at school, the plaintiff responded:
A:“At school I used to be some time first shift, some time second. When I was second shift, colleagues would come and help me out with the part that was difficult and I would work, because they are aware that I have problem with my back.
Q:You told His Honour today that in the morning shift you did light things, like dusting radiators and cleaning windows, and you said you did those in the morning and you did not say that you needed colleagues to help you, and I’m suggesting to you that if you can do those things at school unassisted, you can do them in your home? ---
A:I have to change somehow at school, otherwise I would lose that job and I don't have any means to live on.”[25]
[25]T58, L26 – T59, L7
32 When queried by the Court as to how much time the plaintiff would have been off work over the period from January 2015 to June 2015, the plaintiff was not sure, but she commented that it was “a long time” and that she was on “sick leave and then I was at work”. Ultimately, she thought she maybe had not been working for four months “even more”.
33 When queried as to whether or not she can go shopping, the plaintiff responded that she is buying “pieces” and she does not do “big shopping”. When pressed, she said she buys bread or milk or whatever at the milk bar next to her building and on occasion will go clothes shopping.
34 The plaintiff was also cross-examined about the motorcar accident in which she was involved on 19 July 2015. The plaintiff was unsure as to the speed of the vehicle which struck her vehicle as she was checking something on her phone. She gave evidence that she understood that somebody had driven through a red light and hit the car in which she was a passenger.
35 The plaintiff confirmed that the day after such accident, she attended a medical appointment with Dr Ales Aliashkevich, which had been pre-arranged by her solicitors. The plaintiff also confirmed that she gave that doctor a history of what she had been told about that accident and that someone had been travelling at about 60 kilometres per hour and had travelled through a red light. When queried about telling that doctor that the car in which she was travelling was “t‑boned”, the following evidence was given:
A:“It did hit on some side. It hit twice. I don’t know where it hit first time in the accident and it is better that I haven’t seen it.
Q:Are you saying you didn’t see where the car collided with your vehicle that you were travelling in?---
A:When that happen, a hit occurred, I was watching on my phone and it hit once and then it hit twice - a second time and then stopped.”
HIS HONOUR:
Q:“I understand you have given that evidence, you were watching or looking at your phone, and no doubt your mobile phone, but hearing a noise and the other car, where did it hit your car?---
A:I don’t know if it hit at the front or on side. A small child was next to me.”[26]
[26]T66, L5 – 18
36 Furthermore, when queried about any injuries to her neck and lower back, the following evidence was given:
Q:“Did you tell the doctor that after that accident you experienced a significant exacerbation of your neck, lower back and chest pain?---
A:It was the next day and then it settles, the next few days it settles, after few days was okay because problem most likely was problem with muscles. The pain stayed the same. At the emergency, when they did scans, I already said that I had prior injury.
Q:Do you not understand the question I’m asking you? Do you understand the question I just asked you?---
A:Yes.
Q:What I asked you was whether you told the doctor that you had experienced an exacerbation of neck, low back and chest pain. Can you answer that question?---
A:Yes, that was next day and then in a few days I was feeling better. Next day I had these bruises from the belt.”
HISHONOUR:
Q:“Ms Stojanovic, I understand what you’re saying, but I’m going to ask the cross-examiner to put the question to you again. Just listen to the question and answer the question. Put the question again.”
MS ANNESLEY:
Q:“Did you tell the doctor that as a result of that accident, you suffered significant exacerbation of your neck, back and chest pain?---
A:Yes.
Q:And that was true, wasn’t it?---
A:On that day, yes.
Q:And the day after?---
A:It was going there too and then that stopped and something was pinched, obviously, from the medication I was taking because I throw my head backwards, nothing else, and from my belt.
Q:Your pain that you experienced on that day of the accident in July was so extreme that you went by ambulance to the hospital, didn't you?---
A:Probably from fear something was wrong with my heart and they check.”[27]
[27]T66, L26 – T67, L24
37 The plaintiff was pressed about the extent of her pain and condition following the accident in July 2015. In particular, the following evidence was given:
Q:“… your pain was so much greater this time than it was in 2011?---
A:No, first pain was bigger.
Q:And I suggest that when you saw the doctor the day after the 2015 accident, you described the pain as being quite severe in your low back and it was 9 out of 10?---
A:That is what it was before the accident as well.
Q:You say that was what it was before the accident, before the July 2015 accident?---
A:Yes.
Q:So before the July 2015 accident, your low-back pain was 9 out of 10?---
A:Yes.
Q:And despite having this significant accident where you were taken to hospital and you told the doctor that you experienced significant exacerbation of your low-back pain, say it's still the same, 9 out of 10?---
A:Before the accident it was 9 out of 10 as well.
Q:Did you describe to the doctor, after the accident in July, that 30 the neck pain you had was 6 out of 10?---
A:I think I said that was the same kind of pain, the same number, but from that accident I don't have many further consequences, it was the problem that used to be, still there.
Q:Do you say that your neck pain was 6 out of 10 before the July 2015 accident?---
A:I said 5, 6 - I don’t know when I said - if he asked me up to 10.
Q:I’m asking you before the accident in July 2015, do you say to His Honour that your pain in your neck was six out of 10?---
A:Yes.”[28]
[28]T68, L14 – T69, L8
38 The plaintiff was shown the following DVD films:
(a) A DVD film which extended for approximately four minutes taken on 1 July 2015 showing the plaintiff walking to the city rooms of the psychiatrist, Dr Walton, during which time she was holding the arm of another woman walking with her;
(b) A DVD film which extended for approximately 20 minutes taken on 2 July 2015 showing the plaintiff in company with other people at the Waverley Gardens Shopping Centre. During the course of such film, a friend was pushing a supermarket food trolley through a supermarket. On or about three occasions, the plaintiff bent down to some extent to retrieve items from a deep freezer or reached to a shelf on occasion to obtain a food item. Later in the film, the group of people, including the plaintiff, entered an Optus store where, for a short time, the plaintiff leaned forward to some extent to read a computer screen with the knees slightly bent. The other woman pushed the trolley out to a car which was parked in the car park and the other woman unloaded the trolley into the boot of the car with the plaintiff watching, save for one occasion she put a loaf of bread in the boot. However, I did consider that the plaintiff seemed to be able to move her neck reasonably freely when talking to her friends and generally observing things around her;
(c) A DVD film which extended for about one minute taken on 10 August 2015 showing the plaintiff standing and smoking.
39 In relation to the first DVD film on 1 July 2015, the following evidence was given:
Q:“I suggest to you that the film shows you - where you are holding the lady’s arm you’re not doing that for any support are you?‑‑‑
A:She’s a fast walker and sometimes I sort of have to pull her back.
Q:So you were pulling her back from walking too fast?‑‑‑
A:Yes.
Q:You didn’t need her to assist you with your walking, though, did you?‑‑‑
A:I think at that time there was quite a lot of people and for the support I was holding onto her, and also she’s a fast walker.
Q:You don’t mention to any doctors that you have seen for the purposes of this proceeding that you have difficulties walking - that you have any sensation of falling when you are walking?‑‑‑
A:I said actually to the doctors occasionally I have a cramping in my leg and I find at that time that I don’t have stability in my leg.
Q:You don’t use any walking aids when you’re in Serbia do you?‑‑‑
A:No.”[29]
[29]T75, L20 – T76, L5
40 In relation to the DVD film demonstrating the plaintiff walking around the shopping centre on 2 July 2015, the following evidence was given:
Q:“When you were walking around the shopping centre in Waverley Gardens there’s a lot of people and you don’t need support doing that do you?‑‑‑
A:No, I don’t hold onto anyone. When I have pain I actually slow down with my walking.
Q:I suggest that the film shows you shopping without any apparent pain?‑‑‑
A:My walking is actually quite normal and I would say slow at times but I had a feeling on the film it was sort of faster than I thought I was walking at the time.
Q:Would you say that that film shows you walking in a free and unrestricted manner?‑‑‑
A:I think there was times actually that I was slowing down, there was times when my leg was pulling me back and I was slowing down in my walking.
Q:The film shows you’re able to bend down and to retrieve items from the deep freezer in the supermarket on more than one occasion?‑‑‑
A:Yes. Actually I was taking something from the freezer. I have more problems if I’m going backwards. I was actually leaning forwards, that’s true, yes.
Q:You are able to lean forward, I suggest, without any pain, apparent pain, or restriction?‑‑‑
A:I have constant pain but I put up with it.
Q:Do you agree that the film shows you able to lean forward into the freezer and retrieve something without any apparent pain or restriction?‑‑‑
A:I have pain. It doesn’t mean that I don’t have the pain when I’m actually bending down. I have pain at the moment.
Q:When went to the Optus store in relation to your telephone, I suggest that you stood up from time to time because you needed to have a better look at the computer screen. Do you agree with that?‑‑‑
A:Yes.
Q:That in fact when you did get up to look at the computer screen, you were able to squat and lean forward to read the computer screen?‑‑‑
A:I don't call that squatting. I was leaning forward.
Q:With your knees bent?”
HIS HONOUR:
Q:“When you use ‘squat’ you’re not suggesting, are you - if you are, I don’t recall seeing it. What I would call a squat is when someone goes down to a crouched position. You’re not suggesting that?”
MS ANNESLEY:
Q:“No, sorry, I wasn’t suggesting that, no. It’s just the knees bent.
… .”[30]
The plaintiff accepted that she may have been at Waverley Gardens for an hour and a quarter.
[30]T76, L26 – T78, L4
41 The plaintiff confirmed that she has a Facebook account which has been opened by her sister. The plaintiff asserted that she does little on the Facebook although sometimes she does write things with the assistance of others.
42 The plaintiff was shown a document said to be a summary of her payslips that have been provided between 2008 and 2015 and for which agreement had been reached between the solicitors for each of the parties.[31] The plaintiff accepted that she had taken time off work prior to her accident and such sick leave was either as a result of her bronchial condition or looking after her mother.
[31]See exhibit E
43 The plaintiff confirmed that she continues to have panic attacks a couple of times a month and they can sometimes wake her from her sleep. She also confirmed that she told Dr Kornan, who examined her on 1 July 2015, that she experienced “extremely elevated stress levels” and that she does not like being around people, becomes tearful a few times a month and there has been thoughts of suicide. Furthermore, the plaintiff accepted that she does suffer palpitations in the night sometimes – about two to three times a week – and that she has nightmares a few times a month. She continues to be nervous travelling in cars. The plaintiff also confirmed that since 27 June 2015, she has not seen any doctor here in Australia for pain medication and, in particular, not even after the car accident which occurred on 19 July 2015.
The re-examination of the Plaintiff
44 The plaintiff confirmed that when she returned to Australia from Serbia on 27 June 2015, she had with her a supply of medication obtained in Serbia. Furthermore, the plaintiff confirmed that the medication was enough for her to go through to 18 September 2015.
45 The plaintiff also confirmed that prior to the accident in January 2011, she played tennis nearly every weekend and since the accident, she has not played at all because of the back pain and also pain in her left arm running from the left shoulder. She described the tennis as “just social” and also described playing basketball – sometimes it was tennis, sometimes it was basketball – each weekend and again, she has not played basketball since the accident because of her back pain, leg and arm.
46 She described that her back pain was a bigger problem for her than her bronchitis.
The medical treatment of the Plaintiff
47 The plaintiff has obtained medical treatment both in Australia following the accident and during those times that she has returned to Serbia. Furthermore, the medical records relied on by the plaintiff which have been professionally translated from Serbian to English would suggest that she has had a substantial amount of treatment in her native country.
48 Before referring to any treatment, I do set out details of the radiological examinations undertaken by the plaintiff:
(a) A plain x-ray of, amongst other areas, the cervical spine and lumbosacral spine which was performed on 15 January 2011 (two days after the accident) at the request of her then treating general practitioner, Dr Miroslava Vujosevic.[32] The radiologist, in respect of the cervical x-ray, reports:
[32]See exhibit 5 at page 25c PCB
“The alignment is satisfactory. No fracture is detected. No evidence of prevertebral soft tissue swelling. Disc spaces are preserved.”
The radiologist, in respect of the lumbosacral spine x-rays, reports:
“The alignment is satisfactory. Disc spaces are preserved. No crush fracture is seen. Sacroiliac joints are unremarkable.”
(b) A CT scan of the lumbar spine undertaken on 23 February 2011 at the request of a further treating general practitioner, Dr Peter Pjesivac.[33] The conclusion of that report was:
[33]See exhibit 5 at page 25d PCB
“No evidence of right sided neural compression. A small focus of calcification along the course of the left S1 nerve at the level of the L5/S1 disc most likely to represent a small calcified disc fragment. No evidence of neural compression elsewhere.”
(c) An MRI scan taken of the lumbar spine on 1 June 2011 in Serbia.[34] The radiologist reports that:
[34]See exhibit 5 at page 25e PCB
“There are no signs of herniation or protrusion of IV disc.”
(d) An MRI scan of the cervical and lumbar spines undertaken on 13 June 2013 at the request of Dr Peter Pjesivac.[35]
[35]See exhibit 5 at pages 26 – 27 PCB
In respect to the cervical spine, the radiologist reported:
“Mild left foraminal narrowing C3-4 due to disc and uncovertebral joint disease. Shallow broad disc protrusion C5-6 causing mild bilateral foraminal narrowing. Small anterior osteophyte C5-6. No focal disc prolapse at this level.”
In respect to the lumbar spine, the radiologist reported:
“Small annular disruption L5-S1 to the right of midline adjacent to right S1 nerve root. Shallow bulge at this level. No focal disc prolapse identified. No fracture.”
(e) An MRI scan of the lumbar spine undertaken on 11 June 2015 in Serbia.[36] The radiologist concluded:
“L5-S1 disc protrusion degenerative change of IV L3-L4.”
[36]See exhibit 5 at page 28 PCB
49 The plaintiff relies on the following doctors from whom she has obtained treatment in Australia:
(a) Dr Miroslava Vujosevic, a general practitioner, who she initially attended on 15 November 2011, two days after the accident.[37] The doctor obtained a history of a motorcar accident on 13 January 2011 and at the time of examination, she was complaining of pain “everywhere” and, in particular, the doctor noted that there was “midline tenderness, decreased and painful ROM” in relation to the neck, and that there was a “tender low back and right lower ribs”. Dr Vujosevic arranged for x-rays to be undertaken (see earlier x-ray report) and also prescribed Panadeine Forte tablets and also advised that Nurofen may be used.
[37]See notes of Dr Vujosevic – exhibit 2 at pages 20ak – 20an PCB
The plaintiff was reviewed on 18 January 2011 when she was still complaining of ongoing pains and at which time, Dr Vujosevic prescribed further Panadeine Forte and also brufen tablets.
The plaintiff was later reviewed on 24 January 2011 when she was continuing to complain of neck and back pain, at which time a further prescription for Panadeine Forte was provided;
(b) The plaintiff initially consulted the general practitioner, Dr Peter Pjesivac, on 31 January 2011 complaining of injury to her neck and low back following the accident.[38] The plaintiff was subsequently seen by Dr Pjesivac on 11 February 2011 when she was complaining of headache, left-sided, right-sided mid low-back pain and she was prescribed further Panadeine Forte tablets and Mobic capsules.
The plaintiff was subsequently examined on 11 February 2011, 15 February 2011, 2 March 2011 and 11 March 2011, during which time she complained of low-back pain and, in particular, was complaining of poor tolerance to sitting, standing or repetitive bending (26 February 2011) “worsening low back pain” (2 March 2011), insomnia (11 March 2011) and as at the last consultation, taking two to four Panadeine Forte per day.
[38]See notes of Dr Pjesivac – exhibit 2 at pages 20a – 20ad PCB
50 The plaintiff returned to Serbia on 19 March 2011 and initially returned to Australia on 17 May 2013. It is convenient to refer to the further records of Dr Pjesivac, who conferred with the plaintiff on 22 May 2013 (some five days after her return), complaining of low-back pain with left sciatica. There was restriction of movement in her back and she was also complaining of neck pain, left upper arm pain and shoulder pain. However, there was no restriction of movement in that area of her body. She was prescribed Mobic capsules and Panadeine Forte.
51 The plaintiff was later seen on 3 June 2013 and made a complaint of ongoing neck pain with low-back pain and left sciatica. In particular, there was restriction of low-back movement, with flexion limited at 45 to 60 degrees and extension at 5 degrees, with straight-leg raising on the left side positive at 60 degrees. At that time, Dr Pjesivac arranged for an MRI scan of the neck and lower back (already referred to) and further prescribed Mobic capsules and Panadeine Forte.
52 Dr Pjesivac again saw the plaintiff on 17 June 2013, when she continued to complain of low-back pain and left leg pain, together with pain in the neck and left shoulder region. Again, flexion was restricted to 45 to 60 degrees and extension to 5 degrees, and straight-leg raising on the left was positive at 60 degrees. At that time, she was prescribed Tramal.
53 I refer to exhibit 2 (which save for the records relating to Dr Pjesivac and Dr Vujosevic), contained the balance of the records that relate to the treatment of the plaintiff undertaken in her native country. These records have been translated from Serbian to English and unfortunately, there are various references which cannot be deciphered. A perusal of such records does indicate that the plaintiff has received treatment for her low-back pain in Serbia over the years since the accident. The records also indicate that the plaintiff has also received intermittent treatment for a pulmonary condition (presumably her bronchitis) and for anxiety and psychological issues.
54 In particular, the records indicate that when the plaintiff initially returned to Serbia after the accident, she was complaining of back pain, walking difficulties and some degree of depression and insomnia. It would appear that by May 2011, she was to be referred for physiotherapy and for a report from what is referred to as a neuropsychiatrist.
55 During 2012, there are various attendances where there are complaints of pain at “L5” and, in particular, I refer to an appointment on 5 March 2012, wherein it is recorded:
“Bad back pain, presented herself accompanied by a relative, walks with difficulties, referred to physical therapy and to a psychiatrist.”[39]
[39]See exhibit 2 at page 20c PCB
56 Furthermore, I refer to a report from the Institute of Worker’s Safety dated 2 April 2012, wherein it is reported:
“Painful head, neck and back.
Finding and opinion; trauma following Motor car accident.
Traffic accident in January 2011.
Suffers pain in C and TH part of spine also pain in LS spine and along the left leg.
Numbness in left foot and toes.
Observed: difficulty in movements. Needs to continue with physiotherapy and medication. Time off work. Next checkup in three weeks.”[40]
[40]See exhibit 2 at page 20d PCB
57 A similar report is written, dated 25 May 2012.[41]
[41]See exhibit 2 at page 20e PCB
58 There is a further report from the Institute of Worker’s Safety dated 8 March 2013, wherein it is stated:
“Finding and opinion; Radiculopathy, L5-S1, headaches following trauma.
Pain and numbness in left leg, spreads to heel and toes.
Pain in neck, ribs area, back and leg pain down to heel and toes.
Traffic accident in January 2011.
Treatment at the moment: physiotherapy, multivitamins, analgesics, antidepressants without much success.
Observation: Restricted movements of C spine and back.
It is important to continue with treatment.”[42]
[42]See exhibit 2 at page 20f PCB
59 I also refer to a further report from Dr Dragana Stefanovic, who is described as a specialist in physio, medicine and rehabilitation. Such report is dated 24 March 2014. She states, in part:
“The patient is diagnosed with Discus hernia L5-S5 MSO, Radiculopathia G54. Pain in the left side of the spine and along the left leg still present.
Therapy: amp Dido Rapid 2x1.
Physiotherapy.
Rest from work during the therapy.
Follow up appointment in 3 weeks.”[43]
[43]See exhibit 2 at page 20g PCB
60 There are also various documents which would suggest that the plaintiff was given certificates off work because of pain in the back and down her left leg.[44]
[44]For example see exhibit 2 at page 20H PCB
61 I also refer to a report dated 8 April 2014 from a Dr Cvetkovic, who is described as a specialist in neuropsychiatry.[45] In that report, Dr Cvetkovic states, in part:
[45]See exhibit 2 at page 20i PCB
“I’ve found that the patient ill from:
Follow-up appointment.
Diagnosis: St post accidens cephalea post traumatica.
Radiculopathia l5 S1 depressin SY F 32
MRI of lower limbs necessary.
Patient has lost 10 kg – tests to be made with an internist.
Physiotherapy scheduled.
Symptoms of depression present.
Therapy: tbL Trytico 150 1/3 for three days, then 2/3 in the evening; tbl Bromazepam 3.2x1.5, follow-up appointment on completion of the physiotherapy course.”
(sic)
62 I also refer to a report dated 22 May 2014 from Dr Miodrag Zivkovic, whose specialty is described as “neurology”.[46] In that report, Dr Zivkovic states, in part:
[46]See exhibit 2 at page 20j PCB
“I have found that the patient suffers from: G54/Nerve root and plexus disorders
Findings and recommendations:
- Current pain in LS and down the leg with numbness.
- Secondary finding: radiculopathy.
- Diprophos ampoule N I, Brufen 400 tablet … rivotril tablet … .”
63 In particular, I refer to a further report from Dr Dragana Stefanovic dated 6 February 2015 (which was approximately three months prior to the plaintiff returning to Australia), wherein she states:
“I’ve found that the patient ill from:
Pain in the left side of the spine and along the left leg.
Cramps in toes of left foot.
Pain, especially when carrying things and lifting smaller objects, as well as after longer standing or walking.
Pains first began in 2011 following a traffic accident.
Objectively: Very limited mobility in the left side of the spine.
The patient is unable to walk on talons and toes … .
CT scan: Discus hernia L5-S1.
Therapy: Analgesics when needed.
Neurological therapy with medications.
Physiotherapy (… kinesitherapy, learning how to assume protective postures).
Follow-up appointment on completion of the physiotherapy course.”[47]
[47]See exhibit 2 at page 20 l PCB
64 On 27 March 2015, Dr Stefanovic further reports that following “ampoule treatment”, treatment reduced, but there was still continuing pain in the lumbosacral spine, with a limited range of movement of the lumbosacral spine.
65 Dr Stefanovic noted that the plaintiff continued to have time off work for the physiotherapy.
66 I also refer to a report from a Dr Budimir Petrovic, who is described as a neurosurgeon. In such report dated 12 June 2015, he notes the “findings” to be “Discus hernia L5-S1”.[48] He recommends natural spa rehabilitation treatment and medication therapy but if symptoms persist continuously, surgery is an option.
[48]See exhibit 2 at page 21 PCB
Medico-Legal reports relied on by the Plaintiff
67 The plaintiff relies on the following medico-legal reports:
(a) Reports of the neurologist, Professor Stephen Davis, who examined the plaintiff on 13 September 2013[49] and on 2 July 2015;[50]
[49]See report of same date, exhibit 6 at pages 29 – 33 PCB
[50]See report of same date, exhibit 6 at pages 34 – 39 PCB
(b) The report of the neurosurgeon and spinal surgeon, Dr Ales Aliashkevich, who examined the plaintiff on or about 20 July 2015;[51]
[51]See report of same date, exhibit 4 at pages 23 – 25 PCB
(c) The report of the orthopaedic surgeon, Mr Thomas Kossmann, who examined the plaintiff on or about 4 September 2013;[52]
[52]See report of same date, exhibit 6 at pages 39a – 39f PCB
(d) Reports of the psychiatrist, Dr Paul Kornan, who examined the plaintiff on 29 August 2013[53] and on 1 July 2015;[54]
(e) The report of the orthopaedic surgeon, Dr Peter Boys, who examined the plaintiff on behalf of the defendant on 3 July 2015.[55]
[53]See report dated 30 August 2013, exhibit 6 at pages 40 – 48 PCB, together with supplementary report dated 30 August 2013
[54]See report of same date, exhibit 6 at pages 49 – 58 PCB
[55]See report of same date, exhibit 7 at pages 33 – 42 DCB
68 It is also convenient to refer to other medico-legal reports relied on by the defendant. They are:
(a) The report of the occupational physician, Dr David Fish, who examined the plaintiff on 18 November 2013;[56]
(b) The report of the consultant psychiatrist, Dr Lester Walton, who assessed the plaintiff on 1 July 2015.[57]
[56]See report of same date, exhibit B at pages 17 – 23 DCB
[57]See report dated 9 July 2015, exhibit B at pages 24 – 32 DCB
69 On each occasion that Professor Davis examined the plaintiff, he obtained a history that she had no difficulties with her neck or back prior to the accident. Furthermore, on each occasion, the plaintiff predominantly complained of pain in the low back, radiating down the left leg to the foot, causing her to have cramps on occasion in the toes of the left foot. She described pain in the neck, above the shoulders and intermittent tingling down the left arm, although this was “not often”. The plaintiff also noted that she feels her nerves have suffered from the emotional viewpoint and she has been given medication in Serbia.
70 Professor Davis found the plaintiff quite co-operative on examination. She appeared to have some restriction of movement of both the neck and the lumbosacral spine. Professor Davis found no objective signs of radiculopathy, with no focal muscular atrophy wasting, weakness or reflex change. In particular, in his last report, Professor Davis states, in part:
“I would confirm that she suffered soft tissue strains in this accident to the low back and neck, complicated also by a degree of post-traumatic anxiety and depression.
She describes chiefly pain in the back with fairly typical left-sided sciatica but there are no objective signs of radiculopathy. She has had a recent MRI scan in June 2015 in Serbia which shows degenerative changes at L5/S1 and a disc protrusion. However, there are no clinical objective features of radiculopathy. She presumably does have some nerve root irritation in the lumbar spine but this would be managed conservatively.
The pain in the neck is also troublesome, radiates to both shoulders with some tingling down the left arm and again suggests some degree of cervical nerve root irritation with a complete absence of any objective or clinical signs. Similarly, cervical MRI scan does show some mild changes with bilateral foraminal narrowing at C5/6 without disc prolapse and one would assume that again soft tissue injuries to this region have precipitated some symptoms of brachial neuralgia without objective features of radiculopathy.
… .”[58]
[58]See exhibit 6 at pages 37 – 38 PCB
71 Professor Davis does state that one would generally expect improvement over time, given the relatively “unimpressive imaging and normal neurological examination” but psychological features are also playing a significant part.
72 When seen by Mr Kossmann on or about 4 September 2013, the plaintiff also gave a history of chronic lumbar back pain with associated pins and needles radiating down the posterior aspect of her left thigh and calf to the toes. The plaintiff described her back pain being aggravated by sitting, standing or lying down for any length of time, and bending forward.
73 Examination of the back, in particular, revealed flexion limited to 60 degrees and extension limited to 10 degrees. There was no neurological deficit.
74 Mr Kossmann made a diagnosis of Chronic Pain Syndrome lumbar spine on the basis of a small annular disruption at L5-S1 to the right of the midline adjacent to the right S1 nerve root. Such finding was partly based on the MRI scan of the lumbar spine on 13 June 2013. He considered that such condition was related to the accident and that her prognosis was “guarded”.
75 When Dr Ales Aliashkevich examined the plaintiff, it was the day after her involvement in the second collision on 19 July 2015.
76 At that time, the plaintiff had significant tenderness on palpation of the lumbar and cervical spines and the range of movements in both those areas could not be tested due to the severity of her pain following the car accident the day before. Ultimately, Dr Aliashkevich was of the opinion that the plaintiff suffered chronic and refractory mechanical neck and low-back pain after the motor vehicle accident on 13 January 2011 and aggravated by the accident the day before. He considered that there was a bulging intervertebral disc at the L5-S1 level (as demonstrated by an MRI scan dated 11 June 2015) but with no features of neural compression.
77 When examined by Dr Boys (on behalf of the defendant) on 16 July 2015, his report would suggest he had available to him details of the medical file from Serbia, together with various radiological reports, up to at least the MRI scan on 13 June 2013; however, seemingly not the MRI scan dated 11 June 2015 undertaken in Serbia. The examination by Dr Boys was three days prior to her motor vehicle collision on 19 July 2015.
78 Dr Boys obtained a detailed history from the plaintiff and, in particular, noted the following:
· The plaintiff described a degree of postural neck strain with cervical discomfort occurring with weather change. On occasions, she experiences discomfort around the muscles at the base of the neck, extending to the left posterior shoulder region. Such experiences are episodic, with no associated restriction of movement of the neck.
· The plaintiff described her “predominant” complaint to be a persistent mid and low lumbar pain, together with experiencing, on occasion, cramping sensations of the left calf and toes. She also reported a complaint of paraesthesia of the minor toes of the left foot, particularly after periods of protracted standing. The low-back pain is exacerbated by protracted sitting for greater than 30 minutes. A standing tolerance of approximately 10 minutes is described. A walking tolerance of 30 minutes is described. The plaintiff also reported that she tends to avoid bending activities, and states that she has to kneel to tie up her shoelaces.
· The plaintiff did state that she does have to have her family come to assist her with household duties and she does not perform hanging up heavy washing, and avoids lifting activities.
79 Clinical examination of the neck revealed it to be non-tender, with all cervical movements to be preserved (although there was muscle spasm accompanying movement).
80 In relation to the examination of her thoracolumbar spine, movements were limited by pain. The plaintiff was able to flex her thoracolumbar spine and place her finger tops onto her mid-thigh but would not extend past that point. Lateral flexion and rotatory movements were approximately two-thirds of the expected range, with complaints of discomfort end range. Straight leg raising was to 70 degrees bilaterally, inducing low-back pain.
81 Dr Boys diagnosed cervical spondylosis, left rotator cuff tendonitis and lumbar spondylosis.
82 In his report dated 15 July 2015, Dr Boys noted that although there was complaints of symptoms of episodic postural neck strain with minor tendinosis in the left shoulder area, the plaintiff’s predominant complaint was low-back pain and accompanied by a non-verifiable sensory radicular complaint relating to the left lower limb. Dr Boys did not think there was any specific clinical evidence of radiculopathy and that the radiological imaging studies did not show any specific evidence of left-sided neurological compression.
83 When queried as to whether or not the complaints of the plaintiff had an “organic basis”, Dr Boys stated:
“This lady’s symptoms of postural neck strain occur in the context of a degree of degenerative changes evident radiographically. Symptoms referrable to the lower back occur in the context of degenerative changes at the lumbosacral junction. There would appear to be an organic basis to this lady’s current level of complaint with associated psychological overlay.”[59]
[59]See exhibit 7 at page 39 DCB
84 When queried as to the prognosis of the plaintiff’s 2011 transport accident injuries, Dr Boys stated:
“This lady describes continuity of complaint referrable to the neck and lower back subsequent to the motor vehicle accident on 13.01.2011. Her level of complaint would appear to be stable. Her prognosis for recovery would appear to be poor at this time.”[60]
[60]See exhibit 7 at page 39 DCB
85 When queried as to whether the plaintiff’s transport accident injuries would interfere with her domestic and leisure activities, Dr Boys stated:
“This lady described symptoms which restrict her leisure activities at this time. She describes ongoing partial incapacity for domestic duties, and assistance being rendered by her sisters in Serbia. A motor vehicle accident would not in the normal course of events give rise to any requirement for gratuitous assistance, and this lady’s ongoing perceptions of perceived incapacity should be viewed in the context of an associated depressive condition.”[61]
[61]See exhibit 7 at page 39 DCB
86 Dr Boys was also queried about the impact of any non-transport accident-related conditions which may impact on the plaintiff in relation to her activities of daily living and work capacity. Dr Boys stated:
“I can identify no non-transport related condition which is contributory to this lady’s current capacity. The soft tissue injury sustained to this lady’s spine on 13.01.2011 has occurred in the context of constitutional degenerative change. Discogenic lower back pain experienced at this time reflects in all probability internal discal derangement within the degenerative L5/S1 disc occurring in the manner described.”[62]
[62]Exhibit 7 at pages 39 – 40 DCB
87 After his first consultation, the psychiatrist, Dr Paul Kornan, diagnosed the plaintiff to be suffering the following conditions:
(a) An Adjustment Disorder with Mixed Anxiety and Depressed Mood, with some features of traumatisation (dreams);
(b) Specific Anxiety Phobia, about further car accidents, and travelling in a car.
88 When more recently seen, Dr Kornan made similar diagnoses:
(a) An Adjustment Disorder with Mixed Anxiety and Depressed Mood;
(b) A Specific Phobia, regarding generally travelling in cars, as well as a fear of being involved in further car accidents;
(c) Indications still of some traumatisation (although she does not have Post-Traumatic Stress Disorder).
89 Dr Kornan considered that the quality of life enjoyed by the plaintiff has “significantly diminished, due to her injuries, both because of her physical pains, and because of her obvious psychiatric condition”.
90 When examined by the occupational physician, Dr Fish, in November 2013, the plaintiff was complaining that she had “pain all of the time, particularly cramping pains involving the left leg, left foot, left arm, neck and upper shoulder girdle”.
91 At that time, neurological assessment revealed no abnormality and there was “markedly restricted flexion” of the lumbar spine with lateral flexion and rotation preserved. There was also “diffuse low lumbar tenderness” which was centred on L3-4 and L4-5. Ultimately, Dr Fish was of the opinion that “investigations” available to date did not support any ongoing pathology involving the cervical spine”.
92 He notes that her major complaints centre on low-back pain with referred symptoms to the left leg. On the basis of the MRI scan, he noted that there was one desiccated disc at L4-5, but Dr Fish considered “her symptoms are clearly out of all proportion to the underlying pathology”. He further considered she had a significant component of Chronic Pain Syndrome.
93 When examined by the psychiatrist, Dr Walton, on 1 July 2015, he noted that the plaintiff was “thoroughly co-operative with the task of psychiatric assessment”. At that time, the plaintiff complained that she continues to suffer from pain mainly affecting her back and left leg, with sometimes cramping pain affecting her toes, which in turn affects her sleep.
94 Dr Walton considered her to be suffering from a “Chronic Mixed Anxiety/Depressive Disorder”. In particular, Dr Walton states:
“This woman’s psychiatric symptoms are consistent with the accident circumstances. There are some clear post-traumatic features such as motor-vehicle-specific anxiety, avoidance behaviour and some nightmares but not sufficient to warrant an additional diagnosis of post-traumatic stress disorder.”[63]
[63]See exhibit B at page 29 DCB
95 Dr Walton considered the prognosis to be mixed, in that on the one hand, she was not suffering from massively disabling psychiatric symptoms and, on the other hand, her pain and emotional disturbance are following a chronic course, “perhaps enduring indefinitely”.
Analysis of the evidence
96 There is no issue that the plaintiff suffered a transport accident on or about 13 January 2011, as a result of which she suffered some type of injury to her neck and or back.[64]
[64]See address of Senior Counsel for the defendant at T106, L26 – T107, L2
97 Furthermore, Senior Counsel for the defendant accepted that causation was not “broken” over time.[65] Also, Senior Counsel for the defendant stated, in her final address, that:
“We are not saying that there is no injury now to the back and neck and she is not suffering any symptoms from it.”[66]
[65]T107, L3 – 7
[66]T109, L9 – 11
98 I consider such concession appropriate and reasonable, being consistent with the preponderance of evidence. However, consistent with her opening remarks, the critical issue – an issue on which it is submitted the plaintiff fails – is that the plaintiff has not satisfied the relevant test set out in Humphries & Anor v Poljak[67] – to wit can the injury, when judged by a comparison with other cases in the range of possible impairments or losses be fairly described at least as “very considerable” and certainly more than “significant” or “marked”?
[67][1992] 2 VR 129 at 140
99 The principles for establishing a “serious long-term impairment” within the meaning of the definition of “serious injury” contained in s93(17)(a) are succinctly stated in Transport Accident Commission v Kamel,[68] wherein Kyrou AJA, with whom Warren CJ and Ashley JA agreed, stated:
[68][2011] VSCA 110
“[61] Paragraph (a) of the definition of ‘serious injury’ focuses on impairment or loss of body function, rather than on the injury resulting from a transport accident. A body function must not be equated with an injury, as the impairment of a person is not the same thing as the impairment of a person’s body function. Paragraph (a) of the definition focuses upon impairment or loss of body function and requires that the impairment or loss be both ‘serious’ and ‘long-term’.
[62] The test for determining whether an applicant for leave under s 93(4)(d) of the Act has suffered serious long-term impairment or loss of a body function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered. That determination, however, must be objectively made: it is the judge’s opinion as to the seriousness of the impairment or loss — not that of the applicant or his or her medical practitioners — that is decisive.
[63] …
[64] The applicant has the burden of proving, on the balance of probabilities, that he or she has suffered an impairment or loss of a body function that, as a result of the infliction of the injury complained of, is both serious and long-term. In order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both. Moreover, it must be established that the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[69]
[69]See Transport Accident Commission v Kamel (op cit) at paragraphs [61] – [64]
100 Senior Counsel for the defendant made essentially the following submissions:
(a) That because there was such a “paucity of adequate material from treating general practitioners” seen by the plaintiff over the years since the accident, such material should not permit a finding that the plaintiff has discharged her onus in relation to the proceeding.
It was submitted that the plaintiff “did not seek to rely upon any material, medical report, from the general practitioner, the psychiatrist or the physiotherapist, despite her evidence, and borne out by the records to have regularly attended the general practitioner and seen a psychiatrist on numerous occasions over the years, and physiotherapy”.[70]
[70]T105, L10 – 15
Furthermore, Senior Counsel for the defendant submits that an inference ought to be drawn that any reports from these practitioners would not have assisted the plaintiff in her case. Also, in this sense, Counsel also referred to the absence of medical reports from the Melbourne treating general practitioners, Dr Vujosevic and Dr Pjesivac – although Counsel conceded that the notes of each doctor were part of the evidence before the Court.
In respect to the notes from her native country, Senior Counsel for the defendant notes that they are hard to decipher and some are illegible. In this sense, the Court has not been “furnished with material that enables you to be satisfied that the spinal injury is ‘serious’ within the meaning of the Act”;
(b) Senior Counsel for the defendant submitted that the plaintiff is an “entirely unreliable witness” and when queried why that was submitted, it was submitted that the plaintiff was “evasive”. In support of the submission that the plaintiff was evasive in her evidence, reference was made to:
(i) the evidence of the plaintiff when cross-examined about the further collision in July of 2015;
(ii) that initially, the plaintiff gave evidence that she played occasional weekend tennis and occasional basketball, and later stated that tennis was every weekend, but when queried about basketball, she said sometimes she was playing basketball and sometimes she was playing tennis at the weekend;
(iii) that many of the plaintiff’s answers were implausible – for example her reason for returning to Australia in 2013 to seek medical treatment when the records would indicate that she only attended Dr Pjesivac on three occasions between May 2013 and 25 November 2013, when she returned to Serbia;
(iv) with the use of the interpreter, she seemed able to answer the questions if she wanted to but she chose not to when it suited her;
(v) that the plaintiff at various times gave “conflicting” evidence about the time that she has had off in her native country;
(c) Because of the unreliability of the plaintiff, it was – so it was submitted – important to have corroborating evidence and, to this end, there was no evidence from either her sister or others in Serbia who attend to her needs or indeed, evidence from people she has lived with in Australia who, according to her, assist her with her activities;
(d) The DVD film of the plaintiff was suggestive that the plaintiff can bend her back when required and, in particular, there was frequent movement of the neck. Such evidence has to be seen in the context that no Australian doctor, with the exception of Mr Kossmann, suggests there is any radiculopathy and further, no MRI support for any nerve compression. Again, it is important then for the plaintiff to be a credible witness to accept her complaints;
(e) The plaintiff should not be entitled to rely on the case of Richards v Wylie,[71] in circumstances where she is suffering full-blown psychiatric or psychological conditions. In particular, Senior Counsel for the defendant referred to her cross-examination of the plaintiff at T94-95, when the plaintiff accepted that she informed Dr Kornan in July 2015, she was experiencing extremely elevated stress levels, that she did not like being around people, that she became tearful a few times, that she has ongoing thoughts of suicide, suffers palpitations at night (two to three times a week) and nightmares a few times a month. Such conditions should be appropriately assessed under paragraph (c) of the definition of “serious injury” which the plaintiff has chosen not to pursue. In such circumstances, any assessment of the plaintiff is confined to any organic consequences of her spinal injury – it is those consequences which have to satisfy whether or not the impairment is “serious” within the meaning of the Act.
[71]Op cit
101 Senior Counsel for the plaintiff submitted that his client had satisfied the test set out in Humphries & Anor v Poljak,[72] and leave should be granted to bring common law proceedings in relation to the transport collision. Although not discarding the neck, the thrust of his submissions were in relation to the low-back part of the spine. In particular, he made the following submissions:
[72]Op cit
(a) That there was no reason to doubt the credit of the plaintiff and that she “presented well in the witness box and that there was nothing about her presentation which would suggest she was dishonest or an exaggerator”. Although accepting that some of her answers may not have been directly responsive, there was no element of cunning or being deliberately evasive or second guessing the cross-examiner. Furthermore, rather than dint her credit, the DVD films do no harm to her credit whatsoever. In this respect, it was submitted:
(i) in relation to the DVD film taken on 1 July 2015, such film “bolsters her credit rather than damages it” as “she was walking pretty gingerly and slowly and it was consistent with a person with a sore back rather than consistent with a person who was injury free”;[73]
[73]T139, L2 – 5
(ii) the DVD film taken on 2 July 2015 revealed her bending three times into the frozen food area and also bending her knee and bending her upper back when looking at the computer screen. Again, it was submitted that such activity was not damaging, as she has never asserted that she is incapable of bending and freely admits in her affidavit material that she continues to do her cleaning work at the primary school in Serbia “albeit with some difficulty”. Furthermore, the shopping trolley was pushed by another woman throughout the shopping expedition, and essentially unloaded by the other woman at the car, with the plaintiff doing very little;
(iii) the third DVD film taken in August 2015 shows the plaintiff no more than smoking;
(b) Reference was made to what was referred to as “eight separate consequences which we say cumulatively gets her across the line”. They are:
(i) the plaintiff has frequently and consistently complained of low-back pain to doctors, both in Australia and in Serbia, for which medication has been prescribed on a frequent basis. Counsel referred to Kelso v Tatiara Meat Co Pty Ltd,[74] wherein, at paragraph [199], it was stated:
[74](2007) 17 VR 592
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
(ii) that as a result of her spine injury, she is unable to continue her recreational sports of tennis and basketball, which one or the other was done reasonably frequently on weekends;
(iii) that prior to her injury, she enjoyed dancing very much, which has been brought to an end by her spinal injury;
(iv) that prior to the transport accident, she lived alone and had the ability to do all her own housework but now is dependent on her sister;
(v) that prior to the transport accident, she performed cooking and enjoyed cooking but is now limited to what she can cook;
(vi) that as a result of the transport accident, she has a “reduced capacity for work”. Counsel accepted that it was difficult to construe the employment records but submitted, in general terms, that because of her back injury, she had a reduced capacity for performing work;
(vii) that as a result of her spinal condition, her sleep has been affected, and reference was made to Haden Engineering Pty Ltd v McKinnon;[75]
[75](2010) 31 VR 1
(viii) that the case of Richard v Wylie[76] does have application to the proceeding.
(c) In general terms, Senior Counsel for the plaintiff submitted that when a comparison is made of the plaintiff’s life prior to the transport accident compared to her present existence, which involved constant problems with her low back and, to a lesser extent, her neck, in particular, her low-back pain has “markedly diminished her quality of life and had an adverse effect on a range of activities including her capacity for work and her ability to engage in sporting activities, namely tennis and basketball”.[77]
[76]Op cit
[77]T143, L15 – L23
102 Before making any findings of fact, it is perhaps apposite to indicate that I found the plaintiff at all times was attempting to give accurate answers to the questions posed to her.
103 The plaintiff was extensively cross-examined, and I had the advantage of observing her demeanour and listening to her answers over a period of time. I also came to the view that the plaintiff was not a particularly sophisticated witness, was injury focussed and reasonably flat in her presentation, consistent with some type of psychological overlay.
104 Furthermore, I do accept that there was some inconsistency in her evidence when relating the periods of time that she was off work over the years because of her back condition, bearing in mind that she was also off work for various periods because of her bronchial condition and also, she was at various times looking after her now deceased mother.
105 I reject the submission that the plaintiff was an evasive witness and that any perceived hesitation in responding to a question was brought about by her lack of sophistication, her psychological overlay, and the vagaries of using an interpreter.
106 I also reject the submission that the DVD film of the plaintiff dinted her credit in any material way, save for, as I have already noted, the plaintiff did seemingly move her neck reasonably frequently with no apparent restriction. However, the film taken when going to the appointment with Dr Walton on 1 July 2015 and the film taken on 2 July 2015, when the plaintiff was filmed in a supermarket, demonstrates, in my view:
(a) That the plaintiff does need the assistance of family and or friends when attending town or indeed, shopping. In this sense, such film supports her allegations of the need for assistance from others when visiting Australia;
(b) The film taken in the supermarket is particularly pertinent – at no time did the plaintiff push the shopping trolley but rather, walked next to her relative or friend. Furthermore, when the shopping trolley was brought to the car, the plaintiff stood by while the relative or friend unloaded the trolley, placing goods into the boot of the vehicle. On one occasion, the plaintiff lifted what I believe to be a loaf of bread and placed that in the boot;
(c) Although the plaintiff did bend to some degree on several occasions during the course of the supermarket shopping, such movements are not inconsistent with her own evidence and indeed, the clinical examinations by the orthopaedic surgeon, Mr Kossmann, on 4 September 2013, when he found flexion to be to 60 degrees, and the examination of the orthopaedic surgeon, Dr Boys, who found the plaintiff able to flex so that her fingertips would reach mid-thigh.
107 I make the following findings of fact:
(a) The plaintiff is a forty-eight-year-old single woman who, at all material times, has been a native of Serbia. Although trained as a hairdresser, the only work she has performed over the years is manual work, involving cleaning;
(b) On a visit to Australia to visit relatives, the plaintiff was involved a in transport accident on 13 January 2011 when she was a front-seat passenger and the vehicle in which she was travelling was struck on the passenger side by a car allegedly running a red light;
(c) As a result of the transport accident, the plaintiff suffered, relevantly, an injury to her low back and neck. In this respect, I refer to the unchallenged notes of Dr M Vujosevic (who commenced to treat the plaintiff two days after the transport accident) and Dr Pjesivac. Although there are no detailed reports from either doctor, the overwhelming inference from the notes is that the plaintiff was being treated, in particular, for a low-back injury for which x-rays were undertaken and Panadeine Forte, brufen and Mobic capsules were prescribed;
(d) Prior to the transport accident, there is no history of any neck injury or back injury save for a reference in medical notes from Serbia which records, on 10 November 2008: “Swelling in joints and back pain.” In respect to this complaint, I accept the evidence of the plaintiff that her recall is that this was only a minor episode of pain and associated with her ongoing bronchitis;
(e) The plaintiff has had ongoing treatment in Serbia for her back condition in particular, and also her neck. I accept the observation made by Senior Counsel for the defendant that there are no reports from treating doctors in the form readily used in this country. However, there are limited reports from Dr Dragana Stefanovic (who is described as a specialist in physio, medicine and rehabilitation), from Dr Vojsislav Cvetkovic (who is described as a specialist in neuropsychiatry) and from Dr Bojan Petrovic (who is described as a neurosurgeon). There is also a short report from Dr Miodrag Zivkovic (whose speciality is described as “neurology”). Of course, there are various notes and entries seemingly made by doctors at various clinics.
After perusing all of the material from Serbia, I do find, as a matter of probability, that the plaintiff has received active and ongoing treatment from a variety of medical practitioners in Serbia which have been related relevantly to her low back, left leg and neck. In this sense, there has been a continuum of complaints and treatment over the periods that the plaintiff has been in Serbia from the transport accident up to now.
In particular, I again refer to the report of Dr Dragana Stefanovic dated 6 February 2015,[78] wherein she reports the plaintiff having ongoing pain in the left side of her spine or along the left leg, cramps in toes of the left foot, pain, especially when carrying things and lifting small objects, as well as after standing or walking, all of which commenced after the transport accident. Furthermore, Dr Stefanovic objectively found very limited mobility in the left side of the spine, with a CT scan interpreted to show “discus hernia L5-S1” and the need for analgesics, neurological therapy and physiotherapy;
[78]See exhibit 2 at page 20L PCB
(f) I consider that the nature of the back injury suffered by the plaintiff as a result of the transport accident is best described by Dr Boys, who examined the plaintiff on behalf of the defendant on 3 July 2015, which was sixteen days prior to the other transport accident on 19 July 2015. In relation to the back, Dr Boys stated:
“I can identify no non-transport related condition which is contributory to this lady’s current capacity. The soft tissue injury sustained to this lady’s spine on 13.01.2011 has occurred in the context of constitutional degenerative change. Discogenic lower back pain experienced at this time reflects in all probability internal discal derangement within the degenerative L5/S1 disc occurring in the manner described.”[79]
[79]Exhibit 7 at pages 39 – 40 DCB
The finding by Dr Boys of discal involvement is consistent with the opinion of the other orthopaedic surgeon involved in this matter, Mr Kossmann, who examined the plaintiff on 4 September 2013. In particular, he diagnosed:
“Chronic Pain Syndrome lumbar spine on the basis of a small annular disruption at L5-S1 to the right of the midline adjacent to the right S1 nerve root.”
I also note that the neurosurgeon and spinal surgeon, Dr Ales Aliashkevich, who examined the plaintiff on 20 July 2015 (one day after the second transport accident), diagnosed:
“Chronic and refractory mechanical neck and low-back pain after the motor vehicle accident on 13 January 2011, aggravated by the motor vehicle accident on 19 July 2015.”
I should also add that much of the material from Serbia would be indicative of a disc injury;
(g) The consensus of opinions from doctors in Australia is that there are no clinically objective features of radiculopathy. (See reports of Professor Davis dated 13 September 2013 and 2 July 2015; Mr Kossmann dated 4 September 2013, and Dr Boys dated 16 July 2015). However, Professor Davis, after both of his examinations, proffered the opinion that “she presumably does have some nerve root irritation of the lumbar spine but this would be managed conservatively”.
It is to be noted that there is, in the material from Serbia, various references to radiculopathy but ultimately, I accept the view of the neurologist, Professor Davis, that whilst there are no clinical objective features of radiculopathy, the plaintiff does have some nerve root irritation at times;
(h) The current level of complaints of the plaintiff are associated with some degree of psychological overlay. In this respect, I again accept the opinion of Dr Boys that when referring to the low-back condition, he states:
“There would appear to be an organic basis to this lady’s current level of complaint with associated psychological overlay.”[80]
[80]Exhibit 7 at page 39 PCB
Such opinion is inferentially supported by Mr Kossmann, who reports that:
“Psychological or psychiatric input may be warranted and may improve Mrs Stojanovic’s prognosis.”[81]
[81]Exhibit 6 at page 39d PCB
Of course, Dr Kornan (who medico-legally examined the plaintiff on behalf of the plaintiff) and Dr Walton (who medico-legally examined the plaintiff on behalf of the defendant) respectively found that the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood and “Chronic Mixed Anxiety/Depressive Disorder”. Dr Kornan further found the plaintiff to be suffering a specific phobia regarding generally travelling in cars, as well as a fear of being involved in further car accidents. Both psychiatrists accepted that there were some post-traumatic features but insufficient to warrant a further diagnosis of Post-Traumatic Stress Disorder.
I again refer to Transport Accident Commission v Kamel,[82] wherein there is further elucidation of what was stated in Richards v Wylie.[83] In particular, the Court of Appeal stated:
[82]Op cit
[83]Op cit
“The definition of ‘serious injury’ in s 93(17) of the Act intends to maintain a division between injuries with physical consequences, which fall within para (a) of the definition, and injuries with mental consequences, which fall within para (c) of the definition. The inquiry that must be made under para (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under para (c) rather than under para (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within para (a) unless it is predominantly the product of the organic condition.[84]
[84]See Richards v Wylie (op cit) at paragraphs [16] – [17], [19] (per Winneke P); paragraphs [23] – [24] (per Buchanan JA); paragraph [98] (per Chernov JA)
The ‘textual distinction’ between the physical and mental consequences of an injury that is maintained by the definition of ‘serious injury’ in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within para (a) of the definition.”[85]
[85]See Richards v Wylie (op cit) at paragraphs [17], [24] and [28]
(My emphasis).
After a consideration of all of the evidence, I do find that the plaintiff has suffered impairment of her low back which is likely to be “long-term” within the meaning of the Act. In this respect, I again rely on the evidence of Dr Boys, who notes that the plaintiff’s prognosis for recovery would appear to be “poor at this time” and the opinion of Dr Ales Aliashkevich, who was “pessimistic” about her prognosis for functional recovery in relation to her back injury.
After a consideration of all of the evidence, I do find that the impairment of the low back caused by the accident is a product of both organic and mental conditions. However, I consider that the impairment is predominantly the product of an organic condition as evidenced by the opinions of Dr Boys, Mr Kossmann and Dr Aliashkevich, and should be assessed under paragraph (a) of the definition of “serious injury”;
(i) That any aggravation of the condition of the plaintiff as a result of the transport accident on 19 July 2015 was relatively short lived, consistent with the evidence of the plaintiff. Indeed, this is relatively clear, that there was no particular treatment ongoing after the second transport accident;
(j) Prior to the transport accident, the plaintiff had been an active woman who lived by herself and enjoyed cooking and entertaining, loved dancing and engaged in recreational pastimes of tennis and basketball on a social basis at weekends. I do find that as a result of her low-back impairment, she no longer involves herself in dancing, sporting activities and requires the help of her sister in a variety of household duties;
(k) I accept that the plaintiff has been prescribed injections by her treating doctors in Serbia and furthermore, presently takes the following medications in relation to her back pain:
(i) Diclofenac for pain in her back, which she was taking three times a day;
(ii) Ibuprofen for pain in her back, which is taken also three times a day;
(iii) Sanval, which is taken to help her sleep and is prescribed by a doctor in Serbia;
She took none of these medications prior to the transport accident;
(l) I do accept that the plaintiff has taken various periods of time off work as a result of her back injury. It was hard to grasp the details of the system pertaining to sick leave in Serbia. However, in essence, it would appear that someone in Serbia can take sick leave up to 30 days and thereafter, it is necessary to obtain leave through a tribunal. As I understood the plaintiff, if she was ever off work for whatever reason, she attempted to return to work within the 30 days so as to allow a further period of sick leave to commence rather than having to go through the slow process of a tribunal hearing.
The defendant tendered exhibit E, which is a summary of payslips from 2008 to 2015 prepared by and accepted by both parties. Such document would suggest that the plaintiff was off work for various lengthy periods prior to the transport accident which she explained to be because of her bronchial condition and caring for her now deceased mother. The plaintiff also accepted that she has had time off for her bronchial condition since the transport accident. Furthermore, it was not clear from that document whether the plaintiff was always working full time and, if not so, what periods she was supposedly working full time.
Senior Counsel for the plaintiff submitted to me that he would only rely on “pain and suffering” consequences in support of the application because, on the evidence before the Court, he could not prove the quantum of any loss suffered by the plaintiff by being unable to attend her employment because of her low-back injury.[86]
[86]T140, L17 – 22
However, Senior Counsel for the plaintiff submitted that the plaintiff has a “reduced capacity for work” and that consequence can be construed as a pain and suffering consequence.
I do find that the low-back injury and impairment suffered by the plaintiff does have impact on her ability to perform her work. I accept her evidence that she has difficulty performing the heavier forms of her work and frequently needs the assistance of other workers to help her. Furthermore, I do accept that she has lost time off work because of her back condition – although it is impossible to be precise as to how much time has been lost.
108 I refer to the Court of Appeal decision of Ellis Management Services Pty Ltd v Taylor[87] which involved a decision under s134AB of the Accident Compensation Act 1985, as amended. In particular, the critical issue was whether or not the trial judge had aggregated pain and suffering consequences with loss of earning capacity consequences when coming to a view that the plaintiff had succeeded in satisfying the relative narrative test under s134AB to entitle that plaintiff to recover pain and suffering damages.
[87][2013] VSCA 326
109 It must be borne in mind that there is a critical difference between s93 of the Transport Accident Act and s134AB of the Accident Compensation Act, in that the latter requires that the two categories of consequences – pain and suffering and loss of earning capacity – must be considered separately in deciding whether an injury is “serious”. However, the Court, in Ellis, did state:
“While pecuniary disadvantage consequences may not fall for consideration in a pain and suffering damages only case, as was acknowledged by the appellant, that does not mean that in all cases a worker’s inability to engage in employment of a particular kind has no relevance in an application for leave to commence a proceeding for pain and suffering damages. As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[88]
[88]See Ellis (op cit) at paragraph [35]
110 I also refer to the recent Court of Appeal decision of Abbas v Transport Accident Commission.[89] That matter involved, in part, a plaintiff who was experiencing increasing income since the transport accident but because of the injury suffered in the transport accident, was no longer able to work as a chef (although as the Court found, he was well educated and hoped to obtain accountancy qualifications). The Court accepted that by losing the capacity to work as a chef, notwithstanding the potential to earn greater income as an accountant, the injury suffered by the plaintiff had caused a loss of flexibility in the workforce. The Court ultimately held that such loss of flexibility in the workforce gave rise to a pecuniary disadvantage and such consequence should be considered with any pain and suffering consequences to determine whether the plaintiff had suffered a “serious injury”.
[89][2015] VSCA 217
111 In the circumstances of this matter, I do not consider that the evidence permits any consequences in relation to reduced capacity of employment to be considered as part of any pain and suffering consequences and, in this respect, I rely on what is set out in the matter of Ellis Management.[90] However, I do consider that as a result of the injury, the plaintiff has suffered pecuniary disadvantage and that should also be one of the consequences which is taken into account as to whether or not she has suffered a “serious injury” consistent with the test set out in Humphries & Anor v Poljak.[91]
[90]Op cit
[91]Op cit
112 I also wish to refer to one of the submissions made by Senior Counsel for the defendant that the plaintiff failed to call, in particular, any evidence from her relatives or friends in Serbia who have assisted her in her day-to-day activities. In this respect, I understood Counsel to be relying on the well-established line of authority of Jones v Dunkel,[92] including O’Donnell v Reichard.[93] I refer to O’Donnell, wherein it was held:
“(1) Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’ evidence would not have helped that party’s case; if the jury draw the inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact which are open to them upon evidence which has been given, in relation to matters with respect to which the person not called as a witness could have spoken.”[94]
[92](1959) 101 CLR 298
[93][1975] VR 916
[94]See O’Donnell (op cit) at 917
113 I also refer to the decision of Ghazal v Government Insurance Office of New South Wales,[95] wherein the then Kirby P, stated:
“… The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. It is important to note that this is a facility. It is not an obligation in the reasoning of the decision-maker: … The rule has no application if the failure to call the witness is satisfactorily explained or readily understood. The usual explanations are the absence of a witness from court and a reasonable explanation for not compelling the witness’ attendance by subpoena. … .”[96]
[95](1992) 29 NSWLR 336
[96]See Ghazal v Government Insurance Office of New South Wales (op cit) at 343
114 In this matter, I decline to draw any inferences against the plaintiff in respect of the lack of any evidence from any lay witnesses in Serbia. It is to be recalled at the outset of this proceeding, Senior Counsel for the plaintiff made application to have an aural “hook up” with a sister of the plaintiff said to be one who was assisting her in her day-to-day activities. When queried as to why this had not been arranged earlier or, more particularly, why arrangements had not been made for a visual/audio link between the sister in Serbia and the Court, I was informed that given the whereabouts of the sister, there had been difficulties in relation to obtaining appropriate interpreters and also, I gained the impression that there may well have been an element of tardiness on the part of the solicitors for the plaintiff.
115 Those acting for the defendant opposed such an application for an audio link and indeed, I expressed a variety of concerns about such a link in the absence of any video coverage. Ultimately, Senior Counsel for the plaintiff withdrew his application and proceeded with the application.
116 Although appreciating that far better efforts could have been made to obtain evidence in one way or another from those in Serbia, I do not consider that it is appropriate that I draw an inference in circumstances where the plaintiff, through her legal advisors, were attempting to have some evidence given by one of her helpers in Serbia.
117 Furthermore, I reject any submission that any adverse inference should be drawn against the plaintiff because no evidence by way of direct reportage had been obtained by doctors from Serbia. As I have already found, I consider that the variety of notes and smaller reports from a number of doctors support the case of the plaintiff. I make similar comments in relation to Dr Vujosevic and Dr Pjesivac.
118 After a consideration of all of the evidence, I do consider, on the basis of the findings that I have made in relation to “pain and suffering” only, the plaintiff should succeed in her application, in that she satisfies the test set out in Humphries & Anor v Poljak.[97]
[97]Op cit
119 However, for completeness, I should add I do consider that the evidence does establish that as a result of the low-back injury, the plaintiff has also suffered pecuniary disadvantage within the meaning of the Humphries & Anor v Poljak test, and such consequence should also be considered and taken account of. I have expressed the matter this way, given the submission of Senior Counsel for the plaintiff that he only relied on pain and suffering consequences, albeit he submitted that a reduction of earning capacity was a relevant pain and suffering consequence.
120 I do not consider that the neck injury, taken alone, constitutes a “serious injury” within the meaning of the Act. Although I accept that there was some injury to the neck as a result of the transport accident, I am not satisfied that such injury has resulted in any permanent impairment or indeed, has given rise to any particular consequences. In this respect, I note that the film showed the plaintiff using the neck frequently and seemingly without restriction and indeed, again, I rely on the evidence of Dr Boys, who found the cervical spine to be non-tender with all movements preserved, although there was some muscle spasm accompanying some of the movements.
121 Given my finding that the impairment of the low back of the plaintiff is a product of both organic and mental conditions (although predominantly the product of an organic condition), I do not consider it appropriate to apply Richard v Wylie[98] in assessing the organic impairment of the low back for the purposes of paragraph (a) of the definition of “serious injury”. I should add that although I would consider it tolerably clear that a specific phobia, as diagnosed by Dr Kornan, would clearly be a condition which would fall within paragraph (c) of the definition of “serious injury”, an Adjustment Disorder with Mixed Anxiety and Depressed Mood may well have the potential to be something that the dicta in Richards v Wylie would contemplate insofar as any such Anxiety and Depression do not play a role in the causation of the low-back pain, but rather, are a consequence of such pain. I make no particular findings on this aspect of the matter.
[98]Supra
122 Accordingly, I grant leave to the plaintiff to bring common law proceedings in relation to her spine (in particular, her low-back injury) resulting from a transport accident on or about 13 January 2011.
123 I will hear the parties on the question of costs.
Annexure “A”
1 The plaintiff tendered the following documents:
Exhibit 1:
–Two affidavits of the plaintiff sworn on 11 November 2013 and 31 July 2015
(Such affidavits are found at pages 4 – 14 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2:
–Clinical notes of Dr Peter Pjesivac (at pages 20a – 20aj PCB)
–Clinical entries of Dr Miroslava Vujosevic (at pages 20ak – 20an PCB)
–Clinical note entry as found in Health Care File (at page 20b PCB)
–Clinical note entry as found in Health Care File (at page 20c PCB)
–Clinical note entry as found in ‘Assorted translated medical material’ (at page 20d PCB)
–Clinical note entry as found in ‘Assorted translated medical material’ (at page 20e PCB)
–Clinical note entry as found in ‘Assorted translated medical material’ (at page 20f PCB)
–Clinical note entry of Dr Dragana Stefanovic (at page 20g PCB)
–Clinical note entry as found in clinical file (at page 20h PCB)
–Clinical note entry of Dr Vojsislav Cvetkovic (at page 20i PCB)
–Clinical note entry of Dr Miodrag Zivkovic (at page 20j PCB)
–Clinical note entry as found in clinical file (at page 20k PCB)
–Clinical note entry of Dr Dragana Stefanovic as found in translation medical material (at page 20l PCB)
–Clinical note entry of Dr Dragana Stefanovic as found in clinical file of Institute for Health Care of Workers of Serbian Railways (at page 20m PCB)
–Clinical note entry of Dr Vojsislav Cvetkovic as found in clinical file of Institute for Health Care of Workers of Serbian Railways (at page 20n PCB).
Exhibit 3:
–Translated file note of Serbian neurosurgeon, Dr B Petrovic, dated 12 June 2015 (at pages 21 – 22 PCB).
Exhibit 4:
–Report of neurosurgeon, Dr Ales Aliashkevich, dated 20 July 2015 (at pages 23 – 25 PCB).
Exhibit 5:
–Right rib views and lumbosacral x-ray dated 15 January 2011 (at page 25c PCB)
–CT scan of the lumbar spine dated 23 February 2011 (at page 25d PCB)
–MRI scan of the lumbar spine dated 1 June 2012 (at page 25e PCB)
–MRI scan of the cervical and lumbar spine dated 13 June 2013 (at pages 26 – 27 PCB)
–MRI scan of the lumbar spine dated 11 June 2015 (at page 28 PCB).
Exhibit 6:
–Medico-legal reports of the neurologist, Professor Stephen Davis dated 13 September 2013 and 2 July 2015 (at pages 29 – 39 PCB)
–Report of the orthopaedic surgeon, Mr Thomas Kossmann, dated 4 September 2013 (at pages 39a – 39f PCB)
–Medico-legal reports of the psychiatrist, Dr Paul Kornan, dated 30 August 2013 and 1 July 2015 (at pages 40 – 58 PCB).
Exhibit 7:
–Report from the orthopaedic surgeon, Dr Peter Boys, dated 15 July 2014 (at pages 33 – 42 of the Defendant’s Court Book (“DCB”)).
2 The defendant seeks to tender the following material:
Exhibit A:
–Surveillance DVDs of the plaintiff dated 1 and 2 July 2015 and 10 August 2015.
Exhibit B:
–Medical report of the occupational physician, Dr David Fish, dated 18 November 2013
–Report of the psychiatrist, Dr Lester Walton, dated 9 July 2015
(Such reports are found at pages 17 – 32 DCB).
Exhibit C:
–Bundle of clinical records from Health Care as found in “Health Care file” (at pages 49 – 119 DCB).
Exhibit D:
–Certificate from Mr Divna Stevanovic dated 12 May 2015 (at page 120 DCB).
Exhibit E:
–Summary of payslips 2008 – 2015 prepared and accepted by both parties.
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