Stojkova v TAC
[2012] VCC 1097
•20 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. 07-03553
| STALINKA STOJKOVA Plaintiff | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | JENKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 2 August 2012 | |
DATE OF JUDGMENT: | 20 August 2012 | |
CASE MAY BE CITED AS: | Stojkova v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1097 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident; Application under section 93(4)(d) Transport Accident Act 1986; claimed “serious injury” under paragraph (a); prior asymptomatic degenerative lumbar spine; aggravation; T4 crush fracture; chronic pain; non organic signs; no objective radiculopathy; part time employment unchanged; pre injury invalid pension; no surgery; pain relief medication; credit issues; pain and suffering consequences fail to meet threshold; Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Moulds with Mr S. McGregor | Verduci Lawyers |
| For the Defendant | Mr R. Gorton QC with Ms M. Rozner | TAC |
| Ms Ivanka Petrovska | Macedonian Interpreter |
TABLE OF CONTENTS
Application.......................................................................................................................................... 2
Significant Issue for Determination............................................................................................. 2
Evidence.............................................................................................................................................. 3
Evidence of the Plaintiff.................................................................................................................. 3
Personal History............................................................................................................................ 3
Pre Accident Employment........................................................................................................... 4
Transport Accident........................................................................................................................ 5
Initial Treatment............................................................................................................................. 5
Continuing Symptoms and Treatment....................................................................................... 6
Current Symptoms........................................................................................................................ 8
Current Medication..................................................................................................................... 10
Pre Injury Health......................................................................................................................... 10
Pre Injury Activities..................................................................................................................... 11
Post Injury Activities................................................................................................................... 12
Employment........................................................................................................................... 12
Domestic................................................................................................................................ 12
Social...................................................................................................................................... 13
Recreational........................................................................................................................... 13
Daughter’s Condition.................................................................................................................. 15
Evidence of Treating Doctors..................................................................................................... 16
Medico-Legal Opinions requested by the Plaintiff................................................................ 25
Medico-Legal Opinions requested by the Defendant........................................................... 29
Video Surveillance......................................................................................................................... 33
Applicable Law................................................................................................................................ 34
Meaning attributed to “serious” injury under paragraph (a)................................................. 34
Consequences............................................................................................................................ 36
Evaluating the “pain and suffering consequence”........................................................... 37
Subjective Test............................................................................................................................ 40
Pre-Existing Conditions............................................................................................................. 41
Work Capacity............................................................................................................................. 41
Credit............................................................................................................................................ 42
Assessment of Evidence and Findings.................................................................................... 42
Credibility...................................................................................................................................... 43
Diagnosis...................................................................................................................................... 44
Medication and Treatment......................................................................................................... 47
Employment................................................................................................................................. 48
Social, Recreational and Domestic.......................................................................................... 48
Video Surveillance...................................................................................................................... 49
Conclusion....................................................................................................................................... 49
Orders................................................................................................................................................ 50
HER HONOUR:
Application
1 This is an application pursuant to section 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) for leave to bring a proceeding for the recovery of damages in respect of injury, pursuant to section 93(4)(b) of the Act, made by Originating Motion filed 23 February 2011.
2 The Plaintiff claims that, as a result of a transport accident on 11 December 2007, she suffered a serious injury or injuries under paragraph (a) of the definition of serious injury, under section 93(17) of the Act.
3 Pursuant to s.93 (17) of the Act, ‘serious injury’, so far as it is relevant to this application, means:
(a) serious long term impairment or loss of a body function;
4 The particulars of injury claimed under paragraph (a) are:[1]
Thoracic and lumbar spine
Right hip;
Right buttock;
Right leg and ankle.
[1]PCB 24.
5 The onus of proof is on the Plaintiff to prove that the consequences arising out of the impairment to the thoracic and lumbar spine, can be described as at least as very considerable and certainly more than significant or marked having regard to where this injury fits in a range of similar impairments.
Significant Issue for Determination
6 The Defendant concedes that the Plaintiff suffered a compensable injury, but denies that she has suffered a serious injury as defined. In particular, the initial injury has substantially resolved; and the Plaintiff’s symptoms are now referable to multi-level degenerative changes in her lumbar spine.
7 Furthermore the Defendant contends that, on the medical evidence, the Court cannot be satisfied that the Plaintiff suffered a compression fracture at T4 in the transport accident.
8 I propose to deal with this application as follows:
a) I will briefly summarize relevant evidence from the Plaintiff’s three affidavits and her oral evidence, which attests to the occurrence, nature and extent of her injuries and the effect upon her;
b) I will refer to relevant medical evidence which characterise such injuries and the clinical findings; and
c) I will then give my factual findings and reasons as to the nature of the injuries suffered and the consequences for the Plaintiff.
Evidence
9 In support of the Application, the Plaintiff relied upon:
(a)Documents referred to the exhibited Plaintiff’s Court Book comprising medical reports, affidavits and other documents; and
(b)Oral evidence given to the Court by the Plaintiff, her current General Practitioner, Dr Rainsford; and her former General Practitioner, Dr Ch’ng.
10 Opposing the Application, the Defendant relied upon documents referred to in the Defendant’s Court Book comprising medical reports, affidavits and other documents; together with covert video surveillance.
Evidence of the Plaintiff[2]
[2]Summarized from Affidavits 27 January 2011; 2 May 2011; 29 June 2012; and oral evidence
Personal History
11 The Plaintiff was born in Macedonia on 1 January 1949 and is now 63 years old. She left school at the age of 16 after completing Year 10; worked as a cleaner for four years; and then married in Macedonia in 1970. The Plaintiff has some broken spoken English speaking skills but is unable to read or write in English.
12 The Plaintiff migrated to Australia with her husband in 1970 and had two children; a daughter, now aged 39 years; and a son who died in 1995. Her husband also died in 2007, but she had been separated from him since 1998.
Pre Accident Employment
13 After arriving in Australia:
a) The Plaintiff worked for 3 months at a rope factory in Ballarat Road, Footscray as a process worker;
b) The Plaintiff then remained out of the workforce while she raised her two children, until about 1976;
c) Between 1976 and 1981, she worked for Repco at Maidstone as a process worker, working at a machine which made metal washers; and
d) Between 1981 and 1988, she again ceased work to spend more time with her family.
14 In 1988 the family moved back to Macedonia where they remained for about 13 years, until 2001.
15 While overseas, her son died suddenly and her marriage eventually broke down. Accordingly, when she returned to Australia in 2001, she did so only with her daughter.
16 The Plaintiff’s daughter suffers from a mental disorder and has been in receipt of a disability pension over many years.
e) In 2005 the Plaintiff commenced working as a part time children’s crossing supervisor for approximately 5 hours per week during school periods, earning approximately $103.00 per week. She continues to work in this capacity.
17 Prior to the transport accident, the Plaintiff says that she had never suffered from any low back pain or right leg pain or mid‑back pain or had any problems with any osteopenia or bone‑related matters.
Transport Accident
18 On 11 December 2007, the Plaintiff was escorting her daughter on the bus to a break up party for her English language school. The Plaintiff and her daughter were both standing in the aisle when the bus braked suddenly and she fell forwards to the floor. Other bus passengers were standing behind her and fell on top of her, including her daughter who was 95 kilos in weight.
19 Under cross examination, the Plaintiff clarified that she was facing towards the front of the bus and fell forward onto her front.[3] This account differs from the description given to Dr Rainsford, and the account given by the bus driver.
[3]Transcript 26.
20 In her affidavit, the bus driver described the incident as follows:[4]
I clearly remember that the mother and daughter boarded the bus via the front door and stood near the driver's cabin at the front of the bus. The daughter entered the bus before the mother did. I remember I felt that no other passengers should enter the bus after the two ladies did as the bus was so full. I recall that the oldest lady stood near the red line with her back to the front of the bus, while the daughter stood behind her mother with her back to the rear of the bus. Both ladies were facing each other. They weren't holding onto any poles as there is nothing to hold onto right at the front of the bus.
When I applied the brakes I saw the older lady move backwards before sliding down onto her bottom. She fell on her bottom up against the barrier. At the same time I saw the daughter lean up against the mother.
[4]DCB 3
21 Immediately following the happening of this accident, the Plaintiff was aware of pain in the middle part of her back and extending into her lower back and through her right buttock and down to her right side. The degree of pain was such that the bus driver drove her to the Western Region Health Centre (‘WRHC’) in Paisley Street Footscray, which was along the way.
Initial Treatment
22 Upon arrival at the WRHC, the abrasions to her right leg were dressed and she was seen by Dr Rainsford General Practitioner.
She presented to the medical clinic on 11 December 07 for urgent assessment, stating she fell over in a crowded bus that morning. The bus stopped suddenly, she landed on her back and leg. She reported pain over her back and also her right posterior ankle. She was able to weight-bear. I arranged an x-ray of her thoracic spine and provided analgesia in the form of paracetomol and Nurofen. I advised her to have an x-ray of her thoracic if she still had severe pain in two days.[5]
[5]PCB 123a; Report of Dr Rainsford dated 7 July 2012.
23 An X Ray of the Plaintiff’s thoracic spine on 12 December 2007 reported:[6]
A wedge compression fracture of the T4 vertebral body…decreased to about 60% of normal height.
[6]PCB 40.
24 Dr Rainsford referred her back to Dr Levar, who was her usual General Practitioner, with the X‑Ray. She attended Dr Levar on one occasion a few days after the accident. However, thereafter she attended a local General Practitioner, Dr . Wee Beng Ch'ng, whose surgery was much more proximate to where she lived.
Continuing Symptoms and Treatment
25 Dr Ch'ng continued to treat her during the early part of 2008 with various pain‑killing medications ‑ Tramal, Panadeine Forte and Endep. He also referred her for an X-Ray of her right hip.
26 In April 2008, there being no improvement in her condition, Dr Ch'ng referred her to Dr Alex Stockman, Rheumatologist, who treated the Plaintiff on three occasions through 2008, as well as examining her again, at the request of her solicitors, in July 2009; and May 2012.
27 A CT scan of the Plaintiff’s lumbosacral spine on 30 April 2008 reported:[7]
The L3/4 and L4/5 discs show moderate generalised posterior and postero lateral bulging. This is most pronounced on the right at L4/5 where there is some encroachment upon the right L4/5 nerve root Canal. No focal disc herniation detected.
[7]PCB 42
28 Dr. Stockman recommended treatment, by way of epidural injection, to help the pain in her right leg, but she declined this treatment because she feared becoming worse.
29 In the meantime, she decided not to return to Dr Ch’ng but again attended the WRHC, where she was initially seen by Dr Wellington for three or four occasions and thereafter again by Dr Rainsford, who has continued to treat her from that time.
30 A CT Scan of the Plaintiff’s thoracic spine on 26 May 2008 reported:[8]
Minor broad-based disc bulging is present at several levels in the mid-lower thoracic spine region.
Minor degenerative changes are present predominantly in the mid-lower thoracic spine region involving the adjacent vertebral bodies and costo vertebral joints.
There is mild anterior wedge compression of the T4 vertebral body by approximately 10-20%
[8]PCB 43.
31 A CT Scan of the Plaintiff’s lumbosacral spine on 27 May 2008 concluded:[9]
degenerative changes are present as described, with disc bulging at multiple levels, particularly at the L4/L5 level. Narrowing of several intervertebral foramina is also present as described, particularly on the right side at the L4/L5 level.
[9]PCB 44.
32 Dr Wellington referred the Plaintiff for hydrotherapy exercises and also prescribed medication, including analgesia and Tramadol. The hydrotherapy was undertaken at a clinic conducted by Mr Feldman, a physiotherapist and hydrotherapist. She has continued to receive hydrotherapy treatment subsequent to that time.
33 Despite these conservative treatments she felt that she was suffering from persisting spinal pain and right leg pain, which did not appear to be diminishing in nature.
34 Dr Rainsford prescribed Amitriptyline [Endep] which is an antidepressant but which was prescribed for its analgesic and sedative properties. This medication led to some improvement in the Plaintiff’s sleeping habits, which up until that time had been disturbed constantly by reason of the pain and discomfort that she was suffering.
35 The Plaintiff was reviewed by Dr Stockman. He considered that the compression fracture to the vertebral body was gradually healing but that she had persisting problems due to the disc degeneration throughout her lumbar spine, most particularly at L4-5 level. Furthermore, he thought that much of the spinal pain may have been coming from the lumbar region as opposed to the thoracic region.
36 A CT Scan of the Plaintiff’s lumbar spine on 8 June 2012, was reported, in part:[10]
At L4‑5 there is a shallow broad‑based posterior disc protrusion with associated reduction in disc height. There is moderate spinal canal narrowing and compression of the thecal sac. There is some mild facet joint degeneration more marked on the left. There is moderate bilateral L4 foraminal narrowing. Disc bulging into the right L4 foramen does distort the right L4 nerve root within the foramen.
Conclusion: There is degenerative disc disease at L4‑5 and L5‑S1. There is a broad‑based shallow posterior disc protrusion at L4‑5 with moderate spinal canal stenosis and compression of the thecal sac and disc bulging into the right L4 foramen flattening the exiting nerve root.
[10]PCB 103-104, query Mr Khan disagrees with the conclusion.
Current Symptoms
37 The Plaintiff states that ever since the transport accident she has been troubled by constant varying levels of spinal pain, present at both areas, which have been a source of ongoing discomfort and disruption to her lifestyle activities. After the transport accident her anxiety and depression returned and became worse.
38 She continues to have pain between her shoulder blades and also in a wide region across her lower back. The pain also goes down her right leg to the foot. Her right knee and foot also have some numbness, which starts when she walks for more than about fifteen minutes.
39 Her back is aggravated by walking or standing for long periods of time and also when she gets up after sitting. She also has difficulty walking long distances.
40 She has been able to continue working as a school crossing supervisor, but the standing for long periods causes her to suffer increased pain, even though she is only standing for perhaps a little over an hour.
41 The Plaintiff now suffers back and leg pain at night which causes her to wake up and get up after 3 hours. Sometimes it may take 2 to 3 hours to get back to sleep. She is helped by special patches, which she places on her body around the pain area at night and in the mornings after her shower. These were given to her by a neighbour who is a chiropractor.[11]
[11]Transcript 79. In her affidavit the Plaintiff states that the packet of patches is printed in Vietnamese; and she uses a patch when she has strong pain episodes, between three and four packets a week.
42 A magnetic back support belt was given to her by her friend Maria. She wears it for most of the time on most days but takes the belt off at night. When she wears the belt she experiences less pain and has a slightly greater range of movement. Even so, she can really only lift about 2 kilograms of weight before she feels some pain in her back, and the pain then increases if she has to lift something heavier than that. If she goes shopping she can usually only carry a litre of milk and a loaf of bread. Anything more than that will hurt her. Five kilograms would be the most she could lift. She is also still restricted in her bending, twisting and turning in any direction.
43 The Plaintiff considers that she still has the bruises on her buttocks, which have not gone away since the accident.[12] She confirmed under cross examination that the bruise is still painful.[13] Her legs now feel weaker. For instance it is hard to stand up from chairs, especially chairs that are low to the ground or have no armrests. For these chairs she needs her daughter or a friend’s help to get up. She needs help to get up from the couch at her house, although this is a good place for her to rest after work.
[12]Both Dr Rainsford, in oral evidence, and Dr Fraser in his report, state that there is no bruising but merely discolouration from capillaries.
[13]Transcript 66
44 Before the accident the Plaintiff only had the occasional headache, but now she has headaches about once a week or more, if experiencing particular stress. When she gets a headache she take one of the Panadol Osteo tablets and lies down for two to three hours. I note that in her oral evidence the Plaintiff said that she does not take tablets for headaches but for the back pain, which she said was associated with headaches.[14]
[14]Transcript 64-66.
45 She continues with a range of conservative treatments, including hydrotherapy and limited physiotherapy on a once weekly basis, although she was attending twice weekly until TAC ceased funding for this treatment.
46 She continues to be treated at the WRHC by Dr. Rainsford, who prescribes tablets for the pain. She has also been referred for chiropractic treatment.
Current Medication
47 She takes Panadol Osteo medication both at morning and at night - up to four tablets a day depending on the level of pain. She takes an anti-depressant Endep/Amitriptyline, which has been prescribed to help her sleep.
48 Despite these measures she says that she continues to suffer the symptoms of spinal pain which are aggravated if she places undue strain upon her spine, for example by walking or standing for long periods or by engaging in activities requiring her to bend and stretch and place strain upon that part of her body.
Pre Injury Health
49 Prior to the transport accident the Plaintiff said that:
a) her general health was good; and
b) she had not experienced any significant pains in her back.
50 Under cross examination the Plaintiff conceded that prior to the transport accident, she had been treated for anxiety and depression, which was related to the death of her son and subsequent problems with her husband. She said she was prescribed medication for her nerves, not because she could not sleep. However, her condition improved and she said that medication ceased by 2005.[15]
[15]Transcript 18-20
51 The Plaintiff agreed that she had been prescribed Effexor initially and then Amitriptoline [Endep], for anxiety and to help her sleep. She also agreed that she was in receipt of an invalid pension from 2002, because of her mental state, which has continued.[16] This had been organised by Dr Vladimir Bosanac, Psychiatrist.
[16]Transcript 22.
52 I note that the TAC Claim for Compensation Form, completed by or on the half of the Plaintiff, does not disclose any such prior treatment or condition.[17]
[17]DCB 7-19
53 In her affidavits, the Plaintiff makes no mention of having ever been in receipt of a disability pension for herself; or a carer's pension or allowance in relation to her husband or daughter.
54 Under cross examination the Plaintiff said she received a pension in 1985 to care for her husband; and she receives a carer’s allowance in relation to her daughter.
55 When asked what she had to do, as carer for her daughter, she said:
Generally, I have to give her directions what tasks she needs to do and also I give her money to go and buy things and I also state which items she needs to buy so she doesn't spend the money on something that is not necessary.[18]
[18]Transcript 27.
56 Under re examination she said that after her husband died in 2007, she was sad but relieved and her sleep was not disturbed.[19]
[19]Transcript 79.
Pre Injury Activities
57 Before the transport accident the Plaintiff said she used to do all of the housework and most of the cooking. Her favourite hobbies were gardening and social dancing. She used to garden every day for about half to one hour. She grew vegetables and also some ornamental plants. She did all the work in the garden. She would also walk at least 2 hours per day.
58 She used to go to:
a) Macedonian and Croatian community dances and would go to these occasions for five to six hours once a fortnight or once a month;
b) the local church about once a fortnight,
c) visit friends or had visitors at her place every week;
d) pensioner morning teas in Yarraville, Footscray and St. Albans and enjoyed talking to people. Now there is a lady from Yarraville who will come and collect her but otherwise she does not feel well enough to get herself to the other ones.
Post Injury Activities
Employment
59 The Plaintiff went back to work in January 2008, after about two months, because she thought the walking would be healthy and she was also just getting sad and depressed being at home all the time. Under cross examination, she agreed that she only missed about 2 weeks work because the schools were closed over the Christmas school holidays.[20]
[20]Transcript 67-68.
Domestic
60 Her daughter now:
a) does most of the cooking at home, under instruction;
b) does most of the housework; the Plaintiff can dust and wipe a bit, but cannot make beds, wash clothes, hang out the laundry, sweep or vacuum the house, nor do many odd jobs; and
c) helps out with washing and drying her back three or four times a week and also puts on cream . The Plaintiff can dress herself but is slow. She can no longer wear shoes with laces.
61 The Plaintiff was independent in shopping despite not having a drivers license, but now relies on her daughter or friend Maria’s husband who can drive. She is limited in the weight she can carry to about one litre of milk and one loaf of bread. When Maria’s husband takes her shopping in the car it is uncomfortable and slow for her to get in and out of the car but she can manage.
Social
62 The Plaintiff does not feel like doing anything or mixing with other people. She does not go out nearly as much as she used to do.
63 She will now attend the local church only on special occasions, such as Christmas and Easter time. She is still in touch with the people and they occasionally ring or visit but she sees them much less than she did.
64 Now she goes to the occasional Croatian community dance but cannot actually dance because of her back. She no longer feels confident enough to go on a vacation anywhere. However, under cross examination the Plaintiff admitted that in 2010 she returned to Macedonia for 3 months.[21]
[21]Transcript 67.
65 Now friends come to visit about once a month and she no longer visits them, apart from occasional visits to her best friend Maria’s house.
Recreational
66 The Plaintiff’s main exercise is walking and she still walks fifteen minutes each way to and from the school where she works as a school crossing supervisor. She does this every school day. Before the accident she could get this walk done in about seven minutes, but now it takes twice as long. Also she now needs to rest for about an hour after. Before the accident she did not need to do this. She also uses an exercise bike for about five minutes at a time about three times per week. Her pain flares up if she goes for any longer. She did feel better when having hydrotherapy once a week for about forty minutes, but cannot afford to pay since TAC ceased funding it.
67 She also now feels tense and never felt this before during the other episode [presumably referring to her pre accident nervous tension]. She is anxious that she cannot do things around the house and cannot give her daughter the help she needs around the house.
68 The Plaintiff has bad dreams about falling inside a bus about one to three times a month. Sometimes this wakes her up. She did not have regular nightmares before the accident. Otherwise she now only sleeps for about six hours each night as opposed to ten hours before. Further, she now wakes up about every two hours, either because of pain or feeling anxious, whereas before her sleep was uninterrupted. She is tired all the time but this has been going on for so long she is used to it.
69 The Plaintiff has noticed her memory is not as good as it used to be. She now has to read things about ten times to understand them, whereas before she just had to read them once. She also gets embarrassed when she realises she has said things to people they have heard before, or she does not remember what they have said.
70 Under cross examination, the Plaintiff agreed that she performed some light housework, but mainly it was done by her daughter, under her instruction. She said she used to perform house maintenance, like cleaning out the gutters, and painting, which she can no longer do. She will only occasionally perform some gardening.[22]
[22]Transcript 71-72.
71 Under re examination the Plaintiff confirmed that:[23]
[23]Transcript 77-78.
a) She received a carer’s pension in relation to her husband in 1985;
b) After returning to Australia in 2001, she commenced receiving an invalid pension for herself in 2002, for her ‘nervous tension’;
c) In addition she now receives additional money for caring for her daughter; and
d) She suffered nervous tension because she was unable to do more in the house and garden.
Daughter’s Condition
72 The Plaintiff confirmed that her daughter suffers a mental disability. She sometimes loses her balance; and has paranoid thoughts. She has worked in a factory for 2 years, being employment arranged through a friend, but had to cease because she was feeling dizzy and falling asleep. She is prescribed Effexor; and Zyprexa which is Olanzapine, an antipsychotic for either schizophrenia or bipolar.
She is able to work under instructions - that is, when I tell her what to do; like, she can do the bed, she can take the linen and place the linen into the washing machine. But I do not allow her to actually start the machine, because she already wrecked two machines prior because of the way she handles it, and she also has a poor memory how to do things, so I have to remind her of those things. …[24]
This morning I had to clearly give the instructions of her taking Cornflakes in the morning. Then, because, last night she cooked some sausages with leek, to use that for lunch. Take the tablets after that. The heater was already put on, so she doesn't touch it, all … And she's just to sit and do nothing else until I return.
[without those instructions] She will keep eating - she will open the fridge and eat there whatever it is there, without me - if I'm not at home, she will keep eating. [25]
She has four doctors. One of them is to look after her weight because she's overweight, and the second one is about her bad thoughts in her head, and the third one is to check her up and things like that. That's how it is.
[24]Transcript 88.
[25]Transcript 89.
73 The Plaintiff said that her daughter likes to go out with her and always accompanies her to medical appointments and when she attends the Clubs. Her daughter now complains that they do not go out as much as they used to. Her daughter also belongs to a group who take her out, which she enjoys.
74 While attending Court and working at the school crossing, her daughter is looked after by neighbours.
75 Under cross examination the Plaintiff confirmed that her daughter will occasionally suddenly become fearful and start crying. She always needs to be accompanied.
Evidence of Treating Doctors
76 Prior to the transport accident the Plaintiff attended Dr Lavar, whose clinical notes for 2001 to 2005 were tendered. Dr Lavar has recorded that the Plaintiff’s daughter had some kind of intellectual [including a speech] disability and a dysfunction of the motor system, which markedly influenced the examination. He further noted that following the tragic death of her son the Plaintiff’s husband abused them regularly: financially, emotionally and physically. Upon their ‘escape’ back to Australia, both mother and daughter commenced Effexor and Oxazepam. In 2002, the Plaintiff commenced receipt of a disability pension.
77 Throughout 2002 and 2003 there is a history taken of distress. By January 2003, Oxezapem is ceased, but the Plaintiff continues to be prescribed Effexor 150 and Lipitor [for cholesterol). She is trialled on Avanza, but suffers terrible headaches as a result. Dr Lavar notes: ‘Waking every night several times, mood varies’.
78 From June 2003, the Plaintiff is in receipt of a Carer’s pension. Throughout 2003 there are notes recording sleep disturbance, a change of medication from Effexor to Avanza, which is then ceased by about March 2004; and distress in March 2005. By about October 2006 she is again prescribed Effexor and references to sleep disturbance and problems with her husband. Effexor appears to have been decreased in April 2007, and then stopped and started again in June 2007; and stopped again in September 2007…’feels okay, counselling’.
79 Dr Kathryn Rainsford General Practitioner[26] practices at the WRHC where she first saw the Plaintiff on 11 December, 2007, the day of the transport accident, for urgent assessment.
[26]PCB 123a
80 Dr Rainsford recorded that the Plaintiff was a passenger in a crowded bus when it stopped suddenly causing her to fall over, landing on her back and leg. The Plaintiff reported pain over her back and right posterior ankle. On examination, Dr Rainsford noted:
weight bearing but walking slowly, no swelling of right ankle, small abrasion to skin, tender over the mid thoracic spine and also paravertebral areas, able to bend over to take shoes on and off.
81 Dr Rainsforf provided analgesia in the form of Paracetamol and Nurofen and advised her to return for an X Ray of her thoracic spine if she still had severe pain in 2 days.
82 An X Ray taken the next day showed a crush fracture of the T4 thoracic vertebrae.
83 After consulting Dr Lavar for a period, who was her original General Practitioner, the Plaintiff returned to the WRHC which was more convenient where she initially saw Dr Wellington, before returning to Dr Rainsford, whom she has seen ever since.
84 Dr Michelle Wellington General Practitioner first saw the Plaintiff on 14 April 2008 when she noted that the Plaintiff reported:
Ongoing back pain – aches ‘everywhere’ unable to be specific – does not sound like any radicular pain [T4] region – or anywhere else. Has been seen by another doctor – prescribed pain relief medications only paracetamol and tramadol.
85 Dr Wellington reported that the Plaintiff continues to have pain and stiffness; her neurological examination is normal; and continues to take Paracetamol and Tramadol for her pain. She referred the Plaintiff for hydrotherapy.
86 On 5 May 2008, Dr Wellington was contacted by the Plaintiff’s physiotherapist who was:
Concerned about constellation of symptoms – organic screen
87 Dr Wellington reviewed the Plaintiff on 26 May 2008, when she recorded:
Bus accident, sudden brake, fell from standing, pain after 10 minutes thoracic and lumbar spine and right leg. Doing physio and hydrotherapy, but improving more slowly than expected…taking Paracetamol with little effect. Still having a lot of pain, difficulty sleeping. Physiotherapist had expressed concern that Stalinka should be checked out for other causes of her pain...[27]
[27]PCB 123b
88 Dr Wellington ordered a range of blood tests and imaging which were normal, except for the T4 crush fracture and degenerative changes in her lumbar spine.
89 Dr Wellington reviewed the Plaintiff on 2 June 2008 when she recorded:
complaining of pain in the head, upper and lower back, radiating down anterior thighs into knees. Results - multiple degenerative changes including protruding disks. Worst at L4/L5 - this does not fit with the constellation of symptoms or clinical signs. Inflammatory markers are all normal. Stalinka reports that she had no pain prior to the accident, but is now disabled by pain.
90 Dr Wellington commenced the Plaintiff on anti-inflammatory medication Meloxicam.
91 On 28 July 2008, Dr Rainsford took the following history:
chronic pain since the fall in bus in December last year. Pain over mid thoracic area, lower lumbar spine, right hip/leg. Been going to physiotherapist… regularly. Doing swimming/hydrotherapy once a week for past month. Sometimes helps. Now can walk further for 20 min since started swimming. Has massage with physio which gave some relief.
Continues to work as school crossing supervisor Monday to Friday in afternoon. Has been doing this for four years. Didn't have to take time off from this work as accident coincided with Christmas school break. Was able to return to this work in January. Often walks to work which takes 15 to 20 minutes.
Sleep disrupted since accident… Gets 5 to 6 hours / night. Prior to accident got 10 hours/night. Thinks right side has been swollen since fall and tender over the lumbar area. Says gets nervous if stays at home all day. Says only nervous since accident…
Lives with daughter. Daughter does laundry. Stalika does cooking
92 On examination, Dr Rainsford noted:
straight leg raise to 45° bilaterally limited by pain. Tender over the lower thoracic spine and lumbar spine. Tearful
93 Dr Rainsford commenced the Plaintiff on Amitripyline 12.5 mgm, an antidepressant. The doctor chose to utilise this medication’s anxiolytic, antidepressant, analgesic and sedative properties. This resulted in an improvement in her sleep disturbance, with no pain at night but no improvement in her daytime pain. The Amitripyline was increased to 25 mg with limited improvement. The Plaintiff was also taking Panadol Osteo twice daily.
94 Dr Rainsford further noted that over the past 4½ years, the Plaintiff has continued attending hydrotherapy and her own home exercise program including walking, using an exercise bicycle and treadmill.
95 Dr Rainsford confirmed in her most recent report of July 2012 that she has been reviewing the Plaintiff regularly over the past four years, initially monthly and more recently every 2 to 3 months. In conclusion she noted:
The prognosis for Mrs Stojkova's chronic back pain remains guarded. The fact that she has had persistent pain four and a half years post the initial injury makes it highly likely she will continue to have some pain indefinitely. Her physical function has improved in that she returned to work as a school crossing supervisor in January 2008 and is able to walk daily. To her credit, she has been very consistent with daily exercise, which has enabled her to maintain her mobility.
Her sleep has been disrupted since her accident, which is only partially improved by the Amitriptyline medication … Her daughter has been assisting with some of the household duties and any duties she does herself are slower than previously.[28]
[28]PCB 123c
96 Under cross examination, Dr Rainsford confirmed that: [29]
[29]Transcript 35-43.
a) The Plaintiff presented with no objective signs of ongoing injury, as distinct from the symptoms of which she complains;
b) There were no neurological signs present in December 2007;
c) A compression fracture of the T4 vertebra would produce pain radiating around the upper chest wall, and if it was impinging on the spinal canal, then it could cause problems in the lower limbs as well, but that would be a very extreme case;[30]
[30]Transcript 36-37.
d) Dr Wellington’s note that the Plaintiff complained of ongoing back pain ‘aching everywhere unable to be specific’
It's a concerning symptom … we suspect that there may be other issues going on that are affecting the presentation.[31]
[31]Transcript 38.
e) The Plaintiff’s subsequent complaint to Dr Wellington of pain in the head could not be related to any T4 injury or lumbar spine injury;
f) Once the Plaintiff started Amitriptyline, the pain ceased at night, but the improvement did not persist and she subsequently again complained of disturbed sleep;
g) She has not referred the Plaintiff to a chronic pain specialist or a rheumatologist again;
h) The examination findings recorded by Dr Fraser did suggest exaggeration by the Plaintiff;
i) A diffuse change of sensation in the Plaintiff’s leg is a non anatomic finding and cannot be attributed to a physical injury alone;
j) She was not aware that the Plaintiff was in receipt of a pension;
k) When recently examined in July, the Plaintiff exhibited tenderness over her thoracic spine, without any muscle spasm;
l) At her recent presentations, the Plaintiff’s walking and movement was slow and restricted;
m) When she viewed the video surveillance of 27 June 2012, she did not see any signs of restriction or limitation in the Plaintiff’s movement; whereas, when she presents at the Clinic the Plaintiff:
walks a lot slower when she comes in… noticeably slower than it was in the film [and] she has difficulty getting on and off the examination couch.[32]
[32]Transcript 44.
97 Under re examination, Dr Rainsford:
a) Agreed that the video did not show any movements, such as sitting, bending or twisting which were inconsistent with clinical examination;
b) Did not refer her to a pain specialist because she was able to continue with her job as a school crossing supervisor; was managing to walk each day; and was maintaining an exercise program
n) In relation to her pain said:
I think she is still likely to have ongoing chronic pain. The video imaging showed her mobility as better than when I've seen her, but I do think she will likely have ongoing pain.[33]
[33]Transcript 48.
98 Dr Wee Beng Ch’ng General Practitioner first saw the Plaintiff in March and again in April 2002 and March 2004. She presented distressed and was prescribed Oxazepam, as well as being treated for unrelated physical ailments. Dr Ch’ng next saw the Plaintiff in December 2007; on five occasions during 2008; in August 2009; and finally on 8 April 2011. He also referred the Plaintiff to Dr Stockman Rheumatologist for assessment and treatment.
99 When he saw her on 21 December 2007, he took a history of a fall to the floor from a standing position when the bus jerked forward suddenly and the Plaintiff's daughter fell on top of her. The Plaintiff complained of pain in her back, knees and particularly the right hip. On various occasions she was prescribed: Brufan; Panadeine Forte; Tramadol SR 100; and Mobic.
100 In his hand written report of March 2012, Dr Ch’ng noted that when last seen she complained of persistent pain in the right hip, which has also affected her sleep; and pain in her lower back. He concluded that the Plaintiff's fall:
… Has led to soft tissue and ligamentous muscular injury. According to Dr Stockman, the disc bulging and L3/4 L4/5 could be contributing to the pain as well. I believe that with time she probably would improve.
101 Under cross examination, Dr Ch’ng confirmed that:
a) He had not made any note that the Plaintiff was in receipt of an invalid pension;
b) They spoke to each other in English without the assistance of an interpreter;[34]
[34]Cf evidence of Plaintiff that she had an interpreter ‘almost all the time’ – Transcript 64.
c) In December 2007 she complained of symptoms in the lower thoracic and lumbar region, not at the T4 level, which he thought initially flowed from a hip condition;
d) He referred the Plaintiff to Dr Stockman and agreed with the following assessment when Dr Stockman reported back to him as follows:
Her pain is mainly due to soft tissue bruising around the right buttock region, but lumbar disc bulging could be contributing.
e) He fully supported Dr Stockman’s recommendation to try an epidural injection to relieve the pain;
f) When the Plaintiff was last seen by him he was still prescribing analgesic for pain relief and at the same time some anti-inflammatory; and
g) The Plaintiff’s fall has led to soft tissue and ligamentous muscular injury; and acknowledged that the disc bulging could be contributing to the pain as well. He also agreed with the opinions given in Dr Stockman’s most recent report.
102 Dr Stockman Rheumatologist first saw the Plaintiff on 29 April 2008 upon referral by Dr Ch’ng. He took a history that the Plaintiff had fallen in a bus after it had stopped suddenly and her overweight daughter also fell, landing on top of her. The Plaintiff developed bruises in the right buttock and the right ankle as well as pain in the mid-thoracic and low lumbar region, which had not improved by the time she first saw Dr Stockman.[35]
[35]PCB 63.
103 On examination, Dr Stockman noted that:
… there was marked limitation of movement of the lumbar spine in all directions but she had almost normal straight leg raising test although the femoral stretch reflex was positive bilaterally. There were no neurological abnormalities in the lower limbs. There were two areas of tenderness, one in the mid-thoracic region and another in the lower lumbar area over the spines. A number of bruises were noted in her right buttock.
104 When next seen by Dr Stockman on 20 June 2008, the Plaintiff said there had been a response to physio and hydrotherapy but that she could not afford ongoing treatment. She was complaining of rather diffuse back pain but particularly in the lower lumbar region and the right buttock. Examination was unchanged with limited movement of the lumbar spine.
However, most of the pain is in the low lumbar region and in the right buttock….
105 Dr Stockman noted from her history that there was no evidence of pre-existing back condition or any other significant illness. She seemed to be coping with house work but obtains some assistance from her daughter. He did not feel that she was capable of performing any type of work but may well respond to a rehabilitation program.
106 Dr Stockman recommended an epidural injection of steroids to ease the pain in the right leg. However she was fearful of such injection and denied such treatment. Dr Stockman recommended hydrotherapy and continuation of the medication: Endep; Mobic ; and Panadol Osteo.
107 After taking into account the X Rays and CT scan, Dr Stockman reported to the Transport Accident Commission as follows:[36]
Ms Stojkova developed rather diffuse pain in the lower lumbar region and the right buttock and to a lesser extent pain at the back of both knees following a fall in a bus in December 2007. The cause of her symptoms is likely to be lumbar disc degenerative bulging especially at L4-5. I would recommend hydro and physiotherapy and she will continue with Mobic and anti-inflammatory drug.
Ms Stojkova still has some evidence of bruising in the right buttock, but I feel that most of her pain is originating from intervertebral discs in the lumbar region.
[36]PCB 64.
108 Dr Stockman examined the Plaintiff on two further occasions at the request of her solicitors. On 1 July 2009, the Plaintiff again said that her condition was unchanged and her medication and examination also remained unchanged. She continued to complain of pain in the right buttock and pain in both the legs all the way to the ankles, more in the right leg. The pain was aggravated by getting up from a chair and was particularly severe in bed at night and disturbs her sleep.
109 At this stage Dr Stockman concluded:
I am of the opinion that Mrs Stojkova’s low back pain and pain in the right leg is the result of lumbar disc degeneration/bulging at L3/4, but particularly at L4/5.
There is a wedge compression fracture at T4 which may have been caused by the fall in a person with pre-existing risk of fracture (reduced bone density). However, most of the pain is in the low lumbar region and in the right buttock. It is therefore very likely that the fracture has now healed. Indeed in more recent visits, Mrs Stojkova did not complain of thoracic back pain.[37]
[37]PCB 67
110 On 23 May 2012 the Plaintiff said that her condition remained unchanged. She continued to complain of wide spread pain in the low lumbar region with radiation to the right buttock and numbness in the right leg all the way to the foot. The pain is worse at night when it wakes her about three times. She has less pain when she is walking and more pain at the end of the day. There is additional pain in the thoracic region of her spine.
111 She continues to take Panadol Osteo twice a day, to control her pain and also Endep 25mg. She uses a lumbar corset most of the time and attends exercises in water every few weeks. Her daughter performs the heavier housework and a friend and her husband helped with the heavy shopping.
112 In conclusion, Dr Stockman found that:
Mrs Stojkova’s symptoms and signs have remained essentially unchanged since the last visit in July 2009. I am of the view that her lumbar back pain is the result of disc degeneration/bulge at L3‑4 and L4‑5. The symptoms are likely to continue into the foreseeable future. She seems to be functioning at a low level of physical activity, as discussed above, and she will need to continue at this functional level indefinitely. She is fit for light work only on a very part‑time basis of 5 to 10 hours per week.[38]
…It is my opinion that the motor vehicle accident of 11/12/2007 was to a large extent or entirely responsible for [the Plaintiff's] current back condition.[39]
[38]PCB 69.
[39]PCB 70.
Medico-Legal Opinions requested by the Plaintiff
113 Dr H. Sutcliffe Occupational Physician examined the Plaintiff twice, in March 2011 and March 2012.
114 In her first report, Dr Sutcliffe records that the Plaintiff:
a) had been in good health prior to the transport accident;[40]
[40]PCB 107. Whereas the Plaintiff was in receipt of an invalid pension.
b) can only walk for a few minutes;
c) experiences increased pain with walking for a few minutes, sitting for 20 minutes and standing for 10-20 minutes;[41]
[41]PCB 108. Transcript 69, Plaintiff admitted giving this history, because that is how she feels sometimes.
d) exhibits decreased musculature in the right thigh;[42] [a feature not observed by any other doctor]; and
e) now has no capacity for employment and has restriction of activities of daily living, permanently.[43]
[42]PCB 109.
[43]PCB 107
115 I agree with Defendant’s Counsel that each of the above findings are inconsistent with other histories given and medical evidence. It is not apparent whether the Plaintiff told Dr Sutcliffe that she was continuing to work at that stage.
116 In her second report, Dr Sutcliffe records that the Plaintiff had a slow gait; and was assisted with dressing and undressing by a friend, who accompanied her. The Plaintiff demonstrated a decreased range of movement of the cervicothoracic spine.
Ms Stojkova informed me that she continued to work as a crossing supervisor for one hour a day at a location about 10 minutes' walk from home. [44]
Ms Stojkova provided a history of restricted activity, persistent pain and very substantial loss of capacity of activities of daily living as a result of the injury sustained in the transport accident. In particular she has night pain and pain throughout the day.[45]
The prognosis is poor and there is no likelihood of resolution or improvement.
Her social activity was now confined to attending the club one day a week whereas she had previously attended three to four times a week.[46]
[44]PCB 113b
[45]PCB 113d
[46]PCB 113c
117 In her affidavit the Plaintiff said:
I used to go to Macedonian and Croatian community dances. I liked dancing and would go to these occasions for five or six hours once a fortnight or once a month. Now I go to the occasional Croatian community dance.[47]
[47]At paragraph 16
118 Under cross examination the Plaintiff agreed that she still attended Clubs where dancing is conducted, but only once last year at Easter.
119 In re-examination the Plaintiff said that she used to accompany friends to the Serbian Club once a month; and the Croatian Club 2 or 3 times per year; and church services monthly. Now she does not attend the Clubs as often, and is not able to dance; and now attends church services only on special occasions.
120 The Plaintiff’s friend Maria Melik said in her affidavit:
She used to come with my husband and I to all the Croatian club dances and she told me she went to other community dances as well. Now she comes with us only about once every second month whereas before she came every fortnight.[48]
[48]PCB 38 at paragraph 2.
121 Mr Khan Orthopaedic Surgeon examined the Plaintiff at the request of her solicitors in September 2011 and June 2012. In 2011 he took a history of the Plaintiff falling forwards, when the bus she was travelling on, braked suddenly:
As a result of this she lost her balance falling forwards and her daughter, who is apparently heavy, fell on top of her.[49]
[49]PCB 89
122 The Plaintiff said that she was not sleeping well; had an aching type of pain in her back; could sit for short periods satisfactorily, but not for long; and could manage to walk within her limitations. She appeared depressed and often cried. She did the cooking at home and could manage limited amounts of housecleaning and washing and limited shopping, but was helped by her daughter. Mr Khan noted that she is managing her light duties as a lollipop lady but could not perform heavy strenuous type of work. He found no muscle wasting and no radiculopathy
123 After examination Mr Khan concluded: [50]
As a result of the jarring and twisting injury with falling and flexing the spine with considerable force as two other people fell on top of her, she has developed symptoms of compression fracture of the T4 vertebra consequent to the injury… She had pre‑existing osteopenia which apparently was not causing her any problems and it could have given a minor contribution to developing the fracture.
As a result of the above injury, she has also developed symptoms of a disc prolapse at L4‑5 with right leg pain, but without radiculopathy. She has also developed multiple disc bulges in the lower part of the lumbar spine, as described above. These changes in the lumbar spine are consistent with the injury in the bus accident …and as a consequence of this she has developed low back pain, pain in the right buttock and sciatica pain with pins and needles and numbness in the right foot.
Over a period of time, her condition has improved to some extent, but she has been left with residual stiffness and pain in her thoracic and lumbar spine and mild pain in the right leg.
She has also developed non-organic symptoms over a period of time, as at times the pains have been very diffuse and her general practitioner and physiotherapist have observed these findings. She's required anti-anxiolytic drugs [referring to the Amytriptyline] and appropriate medication to control her pain.
[50]PCB 92.
124 Accordingly, Defendant’s Counsel submitted that, while finding an organic cause for the Plaintiff’s symptoms, it was already complicated by a non organic presentation.
125 When Mr Khan examined the Plaintiff in 2012, he recorded that she was regularly seeing a psychologist. In her oral evidence, the Plaintiff denied the accuracy of that part of the history saying that she was not and had not regularly seen a psychologist. Mr Khan also noted that her daughter also had some psychological problems and had been treated by a psychiatrist.
126 Mr Khan also noted that the Plaintiff had been accepted for an invalid pension in 1985, as she had developed depression and anxiety.
127 On examination, again he could not detect any evidence of muscular wasting or neurological deficit in her lower limbs. There was no weakness in the musculature of her thighs or lower legs including the ankles; she could move the joints satisfactorily; and she did not have any bowel or bladder complications. Her complaint was of ‘persisting aching type of pain’ in the back of her right buttock and the back of the thigh. She walked without a limp. Mr Khan recorded her current symptoms as follows:
She had difficulty in sleeping on account of the pain in her lower back. The pain seemed to radiate from the mid thoracic spine going down and was mainly across the lower part of the back and the right buttock, with intermittent ache going down the back of the right thigh and leg to the heel. The pain was worse on turning in bed to the right and left and when she tried to get up after lying down in bed. Although she preferred to stand rather than sit. She could manage to walk, but had to rest after 30 minutes or so. She did not have a driver's license and depended on public transport, catching a bus to the shops.
She was taking Panadol Osteo, Endep and Lipitor [for cholesterol] tablets.[51]
[The Plaintiff and her daughter] shared the household chores such as cooking and cleaning She could only do limited household duties. Her friends came and helped her with the gardening and her daughter shares the shopping trips [52]
[51]PCB 98
[52]PCB 99
128 In conclusion, Mr Khan stated that his opinion had remained essentially unchanged: [53]
As a result of the road transport accident… She had sustained injuries and has injured both the thoracic and lumbar part of her spine… She has been left with residual after‑effects of the injury. She has sustained a compression fracture of the T4 vertebra with 40 per cent compression of the vertebral body, consistent with the after-effects of the above injury, as the symptoms have developed in her back since then.
She has also sustained low back pain, with pain radiating down the right leg, but without radiculopathy. She does not have bowel or bladder complications. The symptoms of lumbar injury are associated with a disc prolapse at L4‑5 level which is causing irritability of the right L4 nerve root and is associated with a flare‑up of pre‑existing disc degeneration and facet joint arthropathy at L4‑5, more on the right side than the left.
Her condition has stabilised from the physical aspects of her injury. She is unable to perform activities requiring excessive bending, twisting and turning of her spine, keeping her spine bent for long periods or lifting weights more than 5 kg at a time…
She continues to require medication to control her pain and help with her sleep.
[53]PCB 100
Medico-Legal Opinions requested by the Defendant
129 Mr Robert Dickens Orthopaedic Surgeon examined the Plaintiff once in September 2008.
130 On examination Mr Dickens noted:
When walking she appeared to have an antalgic gait on the right side.[54] …
Neurologically she had normal reflexes. With me supporting her … she was able to stand up on her toes and on her heels suggesting that there was no significant muscle imbalance or weakness. Her sensation seemed to be altered involving the whole of the right leg. Attempts to assess strength resulted in a collapsing type of response. She had normal pulses in the lower limbs. I thought her hips, knees, ankles and feet were normal… [55]
[54]Effectively a limp protecting the right leg.
[55]DCB 26.
131 He noted that she had a very restricted range of movement in flexion and extension, slightly improved in lateral flexion and rotation.
She was able to sit on the couch with her legs out in front of her.[56]
Similarly sitting over the edge of the couch she could bring her hips to 90 degrees when straight leg raising. Spine was tender around T5 to T10 area and in the lumbar region from L3 down to the sacrum. The overall contour of the spine was normal.
[56]A finding which is consistent with the findings of Mr Fraser.
132 In conclusion, Mr Dickens found that:
This lady has multi‑level degenerative changes in her lumbar spine. There is a compression fracture at T4, which probably is related to the osteopenia. Whether this occurred at the time of the accident on the bus is impossible to state. There did not appear to be any other injury or disease pre‑existing the accident, aggravating or being aggravated by the accident. There has been no other injuries or diseases arising since the accident aggravated or being aggravated by the accident. The injuries are consistent with the accident; namely, an aggravation of underlying degenerative arthritis in the lumbar and thoracic spine with radicular symptoms, but no definite signs of radiculopathy.[57]
There was no pre‑existing injuries or diseases influencing the course of the current injury, apart from almost certain pre‑existing degenerative changes. There has been no injury or disease arising since the accident influencing the course of the current injury. The treatment has been conservative which is appropriate.
…the symptoms currently complained of …have an organic basis. They can be attributed to the transport accident on the basis of aggravation of underlying pathology…
I am sure that this lady had pre‑existing degenerative changes and possibly osteoporosis influencing the current presentation. I do not believe there are any psychosocial issues impacting on her presentation.
I doubt if physiotherapy has a great place in the treatment of this lady. I believe that attendance at a pain management rehabilitation unit would be appropriate where an appropriate treatment plan can be developed. A treatment plan would essentially be teaching the patient in self-help activities and providing her with appropriate advice on medication and management of her pain and her osteopenia.[58]…
I have indicated that there is almost certainly pre-existing and non accident‑related degenerative changes in the thoracic and lumbar spine and possibly osteopanea or osteoporosis prior to the accident.[59]
[57]DCB 24.
[58]DCB 27
[59]DCB 28
133 Defendant’s Counsel submits that at most, Mr Dickens was prepared to accept that there could well have been aggravation of degenerative changes by the accident.
134 Mr Paul Kierce Orthopaedic Surgeon, examined the Plaintiff once in November 2010. The Plaintiff complained of pain in the inter scapular area of her spine, the central low lumbar region with referral into the back of the right thigh. Overall she felt that the pain is getting worse and is aggravated by bending, sitting for one hour, standing for one hour and sneezing. She walks for about 20 minutes, three or four times a week; and rides an exercise bike for about 10 min each day. Her sleep is disturbed. She was still continuing with hydrotherapy but the physiotherapy had ceased.
135 Mr Kierce accepted that, as a result of the transport accident, in all probability, because she never had any symptoms beforehand, the Plaintiff had suffered a crush fracture of the fourth dorsal vertebra and an aggravation of pre-existing lumbosacral spondylosis, without any clinical evidence of radiculopathy.[60]
The injuries have definitely interfered with her domestic activities as she is not able to do any housework. She can only walk for about 20 minutes maximum.
The prognosis for [her] injuries is that there is unlikely to be any deterioration in the injuries to her dorsal and lumbo sacral spine.[61]
[60]DCB 115-116.
[61]DCB 121
136 Both Mr Kierce and Mr Khan made similar observations in relation to work restrictions: that is, the Plaintiff should avoid work in occupations requiring prolonged or frequent bending, sitting for more than an hour or standing for more than an hour or lifting more than 5 Kgms.
137 Dr Kevin Fraser Rheumatologist, examined the Plaintiff once in July 2012 and had all previous radiological investigations available to him.
138 Dr Fraser took a history of no significant improvement in the Plaintiff’s condition with ongoing back pain in the lumbar region, extending to the inter scapular area.
The pain is aggravated, in summary by walking, sitting or standing and she has difficulty standing from a sitting position. It also troubles her at night. The right leg pain and numbness persists. She also complained of persistent ‘bruising’ of the right buttock since the accident…
At home, she tries to do as much work about the house as she can but said that her… Daughter… Provides some assistance.[62]
[62]DCB 72-73
139 On examination, Dr Fraser noted that:
a) movements of the cervical spine were not restricted or painful;
b) movements of the dorsolumbar spine were restricted;
c) there was local tenderness in the mid thoracic and lumbosacral region's and over the right sacro iliac joint;
d) the Plaintiff actively resisted movements of the right hip and right knee, complaining of pain;
e) there was no bruising of the right buttock, but rather prominent capillaries;
f) straight leg raising was restricted to 45° on the right, with pain at the extremes of the range, yet she was able to sit upright on the examination couch without difficulty;[63]
[63]Transcript 70, the Plaintiff agreed with these results.
g) the lower limb reflexes were present and equal;
h) she complained of a diffuse sensory deficit to light touch throughout the right leg,[64] a non-anatomical distribution;
[64]Transcript 70, the Plaintiff agreed with these results.
i) there was no motor weakness; and
j) there was very marked overreaction on physical examination.
140 After noting the radiological investigations Dr Fraser concluded:
I do not consider that there are any ongoing injury as a result of the transport accident… Rather the marked overreaction on physical examination leaves no doubt that she is exaggerating her symptoms and signs.
The wedge compression of T4 is probably an incidental finding related to osteopaenia, particularly as she localised the initial pain to the lumbar region, with subsequent extension to the mid thorasic region although not as high as T4. Even if it was caused by the fall there is now no localised tenderness at that level and she has recovered from any such trauma in this regard.
Similarly there were obviously pre-existing minor age-related degenerative changes in the thoracic and the lumbar spine. If there was any aggravation as a result of the fall, it was temporary and has also resolved.
To the doubtful extent that there is in fact any organic basis for her current symptoms, I consider that they are due to such age related degenerative changes and that her condition now is no worse than it would have been regardless of the injury…
In my view her current symptoms and signs are due to non-organic factors. [65]
[65]DCB 74.
141 Plaintiff’s Counsel submitted that Mr Fraser’s seems to have discounted any pain in the thoracic region immediately following the transport accident, when in fact Dr Rainsford ordered an X Ray of that region which demonstrated the T4 crush fracture.
142 Defendant’s Counsel concedes that Dr Fraser is not denying the chance of some sort of symptomatic aggravation of the degenerative changes, but submitted that there is nothing that establishes that the changes shown on radiology were actually caused by the fall; and there is no conclusion that can be drawn just from the radiology to say that the changes identified on radiology are causative of symptoms.
Video Surveillance
143 Covert video surveillance of the Plaintiff was shown to the Court for the dates 27, 28 and 29 June 2012, which showed the Plaintiff walking to and from the location where she works as a school crossing supervisor; and also performing her work as such supervisor.
144 Upon viewing the video the Plaintiff agreed that it did not appear to show any restrictions in her neck and shoulders and upper back. However she said it did demonstrate that she walked much slower than before the accident. Now she takes 15 to 20 minutes to walk home [about 1.3 kms] whereas previously she would take 7 minutes.[66] She denied that she would previously have taken about the same time.
[66]Transcript 28-29.
145 The Plaintiff is shown:
a) Walking to and from the school crossing, which takes about 15 to 20 minutes each way;
b) Supervising the school crossing for about one hour;
c) Greeting passers by;
d) Conversing with a number of females;
e) Walking in an apparently normal and unrestricted manner, at a moderately brisk pace;
f) Moving her head freely to the left and right;
g) Carrying a shoulder bag over her left shoulder, while swinging her right arm freely;
h) Holding and walking with a stop sign on the school crossing; and
i) Waiting for, boarding and alighting a bus, without apparent difficulty.
146 The Plaintiff is also shown escorting a young girl from the school to her home. She does this at the request of the girl’s mother, who is a near neighbour and friend, who has also helped her with such things as shopping. She would also sometimes stop at her friend’s house on the way home.
Applicable Law
Meaning attributed to “serious” injury under paragraph (a)
147 For the purpose of the current application, the Court is concerned with the principles and guidelines applicable to the definition of serious injury under paragraph (a) only of section 93(17) of the Transport Accident Act 1986.
148 In Humphries and Anor v Poljak[67] Crockett and Southwell JJ formulated an appropriate test to determine whether an impairment is “serious”:
“...the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed on sub-s.(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think “long term” is not an expression likely to give rise to difficulty. To be “serious” the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgement 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”?” [emphasis added]
[67][1992] 2 VR 129 @ 140
149 It is the impairment and not the injury which is assessed as being serious,[68] as at the date of the Application.[69] In consequence, the medical evidence and the lay evidence must satisfy the Court, as at the date of the hearing, of the Plaintiff's impairment to the requisite extent.
[68]Humphries at 143
[69]Belcher v Wolfenden (unreported - Court of Appeal 24 April 1996)
150 In Mobilio v Balliotis, Mobilio and Transport Accident Commission,[70] the Court of Appeal, reaffirmed the Humphries v Poljak test and further stated that in reaching a conclusion, the judge must form an opinion which involves elements of fact, degree and value judgment, of a kind dependent on the judge’s appreciation of the whole of the relevant circumstances:
… the test formulated in Humphries v Poljak is intended for the guidance of those concerned with the words of the statute, ’serious long-term impairment or loss of a body function’. It is not to be treated as if it was itself a statutory formula.[71]
[70][1998] 3 VR 833 see Brooking J.A. @ 836-7, Ormiston J.A. @ 853, Phillips J.A. @ 858.
[71]Per Brooking JA @ 845
151 In applications under the Transport Accident Act as distinct from the Accident Compensation Act, for the purpose of paragraph (a) the seriousness of the impairment can be:
… measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[72]
[72]Richards and TAC v Wylie (2000) 1 VR 79 per President Winneke @ para 17
152 In the latter case the serious injury falls to be determined under paragraph (c).
153 In this case, the Plaintiff has suffered a pre existing nervous condition which required anti depressant/sedative medication over a period of about 5 years; and apparently led to her qualifying for an invalid pension. As further indicated below, the evidence in relation to the circumstances which justify the Plaintiff’s continued entitlement to an invalid pension were not presented to the Court.
Consequences
154 I note, particularly from Humphries v Poljak[73], that I am required to focus not so much on the injury itself, but rather on the consequent impairment or loss of the body function. My determination must be objectively made. It is my opinion as to the seriousness of the impairment, not that of the Plaintiff or her medical practitioners, which is decisive.[74]
[73]@ p.134
[74]@ p.137
155 The statutory definition requires that the degree of seriousness of an impairment be judged in two parts:
a) By its consequences to the Plaintiff (subjective). This requires an examination of the Plaintiff's before and after position - an internal evaluation; and
b) By comparison with other cases in the range of possible impairments or losses (objective)[75]. This necessitates a comparison of the identified impairments with other cases in the range of possible impairments or losses - an external evaluation.
[75]Humphries at 140
156 Accordingly, it is not enough to perform a `before and after' evaluation of the Plaintiff and say whether the identified differences are serious for her. The differences (i.e. the impairments and their effects) must be judged on an external comparative basis. These other impairments should not be limited to other impairments in the same category.[76]
[76]see Humphries at 140
157 In Cropp v Transport Accident Commission[77], Ormiston JA noted at 359:
Lest it thought that, by approving the statement referring to a "body function" (in the singular), the court was acceding to the view that the seriousness of an impairment must be judged only by reference to other possible impairments of the specific "body function in question", it should be noted that in opening their reasons (apparently delivered orally) the High Court did not so confine the test and said as 211:
The term "serious" in s.93(17) of the Transport Accident Act 1986 (Vic) imports a test which is relative to the range of possible impairments or losses of body functions or permanent disfigurements.[emphasis added]
Thereby I would understand the High Court to be accepting a test which is to be satisfied by comparison across the whole range of possible losses or impairments of body functions and thus not confined to a specific body function.
[77][1998] 3 VR 357 @ 359;
158 In R.J. Gilbertson Pty. Ltd v Skorsis[78] Buchanan J.A. commented that:
…an injury might properly be described as slight yet been responsible for serious and long term impairment or loss of a body function.
[78][2000] VSCA 51 at para. 25
159 Recent decisions of the Court of Appeal have endeavoured to analyse in some detail, almost by way of a checklist, the kinds of matters which should be considered when assessing the seriousness of the consequences.[79]
[79]Maxwell P's comments in Haden Engineering [cf Buchanan and Nettle JJA who both took a different view] have been followed in Sutton v Laminex Group Pty Ltd (2011) VSCA 52.
160 In Haden Engineering Pty Ltd v McKinnon[80] Maxwell P. undertook a useful analysis of the kinds of considerations to which judges have routinely had regard, when considering pain and suffering consequences. His Honour pointed out that the following summary was intended to be more descriptive than prescriptive.
[80][2010] VSCA 69 @ paras 9-17; cited with approval in Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ paras 46-50
Evaluating the “pain and suffering consequence”
[T]he "pain and suffering consequence" of an injury encompasses both the Plaintiff's experience of pain as such and the disabling effect of the pain on the Plaintiff's physical capabilities (including capacity for work) and enjoyment of life ...
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the Plaintiff experiences. For this purpose, pain intensity is often classified on the scale "mild/moderate/severe". Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a)what the Plaintiff says about the pain (both in court and to doctors);
(b)what the Plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the Plaintiff's pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
161 Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a Plaintiff's credit. He said:13
As to (a), the weight to be attached to the Plaintiff's account of the pain experience will, of course, depend upon an assessment of the Plaintiff's credibility. The Court will make its own assessment of the Plaintiff's credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the Plaintiff's accounts of pain.
162 His Honour recognized that an assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Maxwell P observed:[81]
As to (d), the cases recognise that some Plaintiffs may be more "stoical" than others. This means that such a Plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the "stoical" Plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the "objective" evidence of the disabling effect may be of less significance than usual.
[81]Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 by Nettle JA
163 To identify the disabling effect of pain requires an understanding both of a Plaintiff's pre-injury and post-injury employment and activities, although this does not amount to a simple comparison.[82] As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the Plaintiff's physical functioning, and interferes with the Plaintiff's enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): " ... [I]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained."
As to capacity for work, it is necessary to identify whether and to what extent the Plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the Plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which "an area of work which [the Plaintiff] enjoyed has been closed off to [him or her]."
[82]Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 49
164 In Sutton v Laminex Group Pty Limited[83] Tate AJ adopted the approach taken by Maxwell P. and further observed that: :[84]
[83][2011] VSCA 52
[84]Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a Plaintiff's daily life and activities.[85] In this respect, Maxwell P said:[86].
[85]Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
[86]Hadden Engineering Pty Ltd v McKinnon [2010] VSCA 69 @ paras 16 to 17
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the Plaintiff's:
· sleep;
· mobility;
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.
Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.
When judging the pain and suffering consequences for the Plaintiff by comparison with other cases, it is relevant to look at the Plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.
165 There are two further considerations worthy of specific mention:
· First, in addition to a consideration of the limitations now experienced by the Plaintiff as a consequence of injury, it is also relevant to consider what activities she is still able to engage in post injury; and
· Secondly, a court must be careful not to inadvertently disadvantage the stoic Plaintiff whose pain and suffering may appear to be minimised by an attitude of perseverance and strength of character.[87]
[87]For instance refer to comments of Nettle JA in Dwyer v Calco Timbers (2008) VSCA 260
166 I will be guided by these cases.
Subjective Test
167 The subjective approach was defined by Marks J in Ninkovic v Pajvancek[88]:
I think that for an impairment to be serious, it must have consequences which are serious for the Plaintiff , and having regard to the context of the statute in which this definition appears, I am of the opinion that a serious impairment which is long-term is one which has a serious consequence for the Plaintiff in the form of disablement from work or interference with enjoyment of life. [emphasis added]
[88][1991] 2 VR 427 @ 429 This proposition was approved by the Full Court in Humphries v Poljak @ 137, and in Petkovski v Galletti [1994] 1 VR 436 @ 442.
168 In applying a subjective test in this context, it must be kept in mind that the object of the inquiry under subsection (a) is to determine the seriousness of the impairment - in other words, whether the impairment is, on the appropriate comparative basis, certainly more than significant or marked, and at the least very considerable. For this purpose, it is necessary to see how the impairment has affected the plaintiff and whether the impairment causes pain and suffering. However, it does not mean that the particular anguish or distress suffered by the plaintiff as a result of the plaintiff's attitude towards the impairment is to be taken into account. In other words, impairment is not more or less significant or marked or very considerable by reason of the attitude of the plaintiff to the impairment. The plaintiff's perception of the impairment is not the test.
169 The impairment's seriousness should be judged on its own terms and not on the basis of how the Plaintiff perceives or responds to it. This proposition was endorsed in Ingram v Ingram:[89]
...accepting the appellant's evidence that the degree of self-consciousness, loss of self -esteem and insecurity to which she deposed are legally relevant, her application would still fail. Personal distress of the kind to which she testified, however genuine, does not, in my view, elevate a misfortune to the level of serious injury.
[89][1996] 2 VR 435 at 438 -439 per Callaway JA
170 This aspect has some relevance in the context of this case where the Plaintiff’s clinical presentation demonstrates non organic signs; and the histories given to some doctors contain clear exaggerations of her limitations. Furthermore, her current psychological state may continue to be compromised by the tragic and inexplicable death of her son and the acrimonious breakdown of her marriage and early death of her husband.
Pre-Existing Conditions
171 The statutory definition requires that the impairment results from the injury sustained in the subject transport accident. Therefore if there is a pre-existing condition or other unrelated medical condition, the court must consider what the evidence discloses as to such conditions of the Plaintiff to see whether the additional impairment resulting from the transport accident injury was `serious' as defined.
172 In this case, there is no dispute that the Plaintiff suffered extensive asymptomatic degenerative changes in her lumbar spine prior to the transport accident. The Defendant has also challenged the occurrence of the T4 crush injury in the transport accident or alternatively, that such injury has now resolved. I will address the nature of the Plaintiff’s injuries shortly.
Work Capacity
173 While not definitive, where the income earning capacity of an injured worker is significantly reduced or lost altogether, particularly where the worker has been previously engaged in full time employment, the consequences for the worker will more readily satisfy the serious injury threshold.[90].
[90] Cropp v TAC 1998 3 VR 357 at 360-361 per Ormiston J.A who addressed how loss of income earning capacity is relevant to a determination of serious injury for the purpose of the Transport Accident Act 1986; See also Maloney v Mulling 1994] 1 VR 436 at 442
174 In this case, the employment undertaken by the Plaintiff before and after the transport accident, has remained unchanged.
Credit
175 In the first instance, the perception of pain is by its nature extremely difficult to measure. An examining doctor will always take their patient and their patient’s history, at face value. Medical experts will assess pain and its underlying cause by employing objective clinical techniques, assessing the plausibility of complaints as well as correlating all of these matters with diagnostic results. Assessment of a plaintiff's credit and reliability are important factors to take into account in the overall mix, but they are not necessarily determinative. Some plaintiffs are simply poor communicators, poor historians, and/or are easily confused.
176 In this case, in my view, the credibility of the Plaintiff in giving a frank account of her condition; in giving a relevant history to doctors; and in her clinical presentation; are all matters which bear significantly upon her reliability and the likely seriousness of the consequences of any compensable injury. I will address the Plaintiff’s credibility shortly.
Assessment of Evidence and Findings
177 While the consequences of the impairment to the Plaintiff’s lower back may at most be described as considerable, I am not persuaded that they satisfy the requisite test for serious injury. In reaching this conclusion I have had particular regard to the following.
Credibility
178 The Plaintiff was a somewhat difficult witness to assess. She gave her evidence through a Macedonian interpreter, although she clearly understood many questions before they were translated and would give direct Yes and No answers. Dr Rainsford makes no reference to an interpreter in her reports; and both Dr Ch’ng and Dr Stockman saw the Plaintiff without an interpreter.
179 In my view, the Plaintiff frequently gave vague or non responsive answers. Some of her answers were clearly exaggerated, such as the assertion that she used to walk to her school crossing job in half the time she now takes. Dr Fraser also records that she halved her school crossing work after the accident,[91] when her evidence was otherwise that the hours remained unchanged.
[91]DCB 73.
180 There are three significant omissions in the Plaintiff’s affidavit material which in my view reflect adversely upon her credibility; and have made the task of assessing the Plaintiff’s pre and post injury lifestyle more problematic.
181 First, the Plaintiff has been in receipt of an invalid pension since about 2002 for what she would only describe as ‘nervous tension’ occasioned by the death of her son and subsequent behaviour of her husband.[92] Notwithstanding that she claims to have recovered from these precipitating factors, she continues to receive such pension. Most assessing doctors, including her treating general practitioners and Dr Stockman, appear to have been unaware of such pension.
[92]I note that Mr Khan refers to the Plaintiff being in receipt of an invalid pension in 1985, but this may be a reference to a Carer’s pension in relation to the Plaintiff’s husband.
182 In my view, the evidence relating to the Plaintiff’s invalid pension and her continued entitlement to it, was unsatisfactory.
183 Secondly, during the period 2002 to about September 2007, according to the clinical notes of the Plaintiff’s general practitioner, she was variously prescribed Effexor, Oxazepam and/or Avanza for her nervous condition and to assist with her sleep disturbance. Under cross examination, the Plaintiff continued to minimise the period over which she continued to take such medication; and continued to deny that she suffered sleep disturbance.
184 Thirdly, the Plaintiff has been in receipt of a carer’s pension or allowance in relation to her daughter. There was no medical report in relation to the daughter’s diagnosis or other professional assessment as to the requirements for her care. The daughter is apparently medicated with antipsychotic medication; exhibits symptoms of paranoia; may be left alone for short periods with strict instructions, but otherwise requires constant supervision. On its face, the care of the Plaintiff’s daughter entails a significant responsibility. Although this matter was explored to some extent by Counsel, after I had raised concerns as to the paucity of evidence, I consider that this aspect of the Plaintiff’s life was not presented before the Court in a frank and fulsome manner.
Diagnosis
185 Defendant’s Counsel challenged the circumstances of the Plaintiff’s injury as described by her. In particular, it was submitted that, consistent with the affidavit of the bus driver; and the history first taken by Dr Rainsford; it is most likely that the Plaintiff fell backwards rather than forwards. A number of histories taken by other doctors do not in fact specify whether the Plaintiff fell on her front or back. In my view, the account first given to Dr Rainsford, on the day of the incident, is more likely to be accurate. However, it is difficult to assess the significance of such occurrence. Neither Dr Rainsford nor Dr Ch’ng were prepared to attach any significance to whether the Plaintiff fell on her back or her front, in terms of the likely nature of the back injury or aggravation to pre existing pathology.
186 More significant are the assessments made by her treating doctors of her initial and progression of complaints:
a) Dr Rainsford initially recorded pain over the Plaintiff’s back and right posterior ankle, with tenderness over the mid thoracic spine and para vertebral areas;
b) In her oral evidence, Dr Rainsford admitted that there were no objective signs of which she was aware,[93] and she had not seen any muscle spasm upon examination;[94]
[93] Transcript 36.
[94]Transcript 49
c) There is no objective neurological involvement demonstrated on the latest radiological investigations; and no objective radiculopathy demonstrated on clinical examination;
d) Dr Rainsford, in her oral evidence, and Dr Fraser in his report, both confirm that no bruising persists on the Plaintiff’s buttock;[95]
[95]Whereas the Plaintiff says that she still has a bruised buttock which is painful: Transcript 41 and 66.
e) Dr Wellington’s clinical notes highlight the generalised and non specific complaints of pain which, following similar concerns raised by the physiotherapist, caused further tests to be ordered. Dr Wellington otherwise treated the Plaintiff with pain relief medications: Paracetamol and Tramadol; and anti inflammatory medication, Meloxicam. Dr Wellington is already raising the spectre of non anatomic symptoms and presentation;
f) In his oral evidence, Dr Ch’ng confirmed that there were no symptoms in relation to T4;[96] and he otherwise diagnosed soft tissue and ligamentous muscular injury; and acknowledged that the disc bulging could be contributing to the pain as well;
g) Dr Stockman’s initial clinical opinion, as reported back to Dr Ch’ng, was of significant bruising on the buttock that was the probable cause of the pains of which she was complaining; and
h) Subsequently, Dr Stockman seems to have focused more upon the lower lumbar spine, indicating that ongoing pain was related to disc degeneration and lower lumbar disc bulges. Furthermore, he considered that the T4 crush fracture had most likely resolved.
[96]Transcript 55
187 Dr Rainsford is the only treating doctor to have observed the Plaintiff from the day of her accident until the present time. She did not receive an entirely accurate history; and readily acknowledged that the Plaintiff’s presentation at her Clinic was more disabled than her appearance in the video surveillance. Nevertheless, Dr Rainsford accepted that the Plaintiff suffers a degree of persisting chronic lumbar back pain and associated right buttock and leg pain.
188 The precise nature of the underlying physical injury referable to the transport accident, in my view, remains unclear. At its highest, consistent with Dr Stockman’s opinion, it may be described as an aggravation of a pre existing degenerative lumbar spine together with associated pain in the right buttock and leg. Whether or not the T4 crush fracture occurred as a consequence of the transport accident is somewhat academic, as it now appears to have resolved.[97] Furthermore, Plaintiff’s Counsel conceded that no reliance needed to be placed upon it.
[97]Both Dr Stockman and Mr Dickens left open the question of whether this injury occurred prior to the transport accident. Dr Fraser considered this to be an incidental finding related to her osteopaenia from which she has otherwise recovered.
189 No doctor, except Dr Sutcliffe, recorded any muscle wasting; and no doctor recorded any signs of radiculopathy.
190 In relation to the medico legal opinions: the conclusions of Mr Khan, Mr Dickens and Mr Kierce, are essentially consistent with Dr Stockman, except that:
a) Mr Khan also referred to the non organic symptoms;
b) Mr Dickens referred to the pre existing degenerative changes and possibly osteopanea or osteoporosis, also influencing the Plaintiff’s current presentation; and
c) Mr Dickens endorsed attendance at a pain management rehabilitation unit where an appropriate treatment plan could be developed;
191 Mr Fraser has strongly dismissed any continuing contribution from the transport accident to the Plaintiff’s current symptomotology. He has concluded that any aggravation caused by the transport accident to pre existing degenerative changes, would have now resolved, leaving age related degenerative changes as the cause of her current condition. Furthermore, Dr Fraser, who has examined the Plaintiff most recently, has emphasized the exaggerated presentation and non organic signs.
192 In my view, the opinion of Dr Fraser attains greater force, after taking account of the Plaintiff’s variable histories given to doctors; the extent of exaggeration of limitations and non anatomic symptoms;[98] and the Plaintiff’s failure to adequately explain her current invalid status and the extent of the responsibilities undertaken for her daughter.
[98]Although a minor point, the Plaintiff’s claimed relief from a magnetic belt and body patches
Medication and Treatment
193 Dr Rainsford initially treated the Plaintiff with Paracetamol and Nurofen and subsequently treated her with Endep, to assist with her disturbed sleep. Dr Rainsford confirmed under cross examination, to the effect, that referral to a chronic pain specialist was not indicated on the basis that the Plaintiff’s condition is being adequately managed.
194 The Plaintiff otherwise manages her pain using over the counter Panadol Osteo; attending hydrotherapy and performing her own self managed exercise program.
195 The Plaintiff has not required and does not in the foreseeable future require any surgery.
196 The Plaintiff has not received any invasive treatment, such as cortisone injections.
Employment
197 Prior to the transport accident the Plaintiff was engaged in employment for approximately 10 hours per fortnight. Subsequent to the transport accident, she has resumed the same employment. There is no evidence that the Plaintiff has ever entertained working longer hours and presumably, the responsibilities for her daughter would influence that decision.
198 She is likely to be capable of a normal working life as long as she adheres to the kinds of physical restrictions outlined by Mr Khan and Mr Kierce.
199 She has at all relevant times been in receipt of an invalid pension. As indicated already, the Plaintiff did not give any detail in her affidavits about this pension or the circumstances which warrant its continuation.
Social, Recreational and Domestic
200 It is difficult to make a meaningful comparison between the Plaintiff’s before and after transport accident recreational activities, given that there has been no objective evidence in relation to either, the continuation of the Plaintiff’s invalid pension; or the requirements for the care of her daughter.
201 I note that the descriptions given to assessing doctors, as to her domestic and social activities, has varied considerably, from time to time. She has admitted to continuing to engage in a range of social activities, albeit at a lower level than previously. Indeed, apart from the more vigorous activities such as dancing, lawn mowing and cleaning out the gutters, she appears to engage in most pre injury activities, but to a limited extent. At the same time, she is now 62 years old and it is reasonable to expect that her participation in certain kinds of activities, would be likely to naturally decline over time.
202 In my view, there has been a pervasive tendency to minimise her capabilities, even to the extent of failing to mention a 3 month trip to Macedonia, when she attested to being unable to go on vacation any longer.
Video Surveillance
203 As indicated above, whilst the video does not demonstrate the Plaintiff engaging in any strenuous activities, it does show that she is capable of walking normally and at a moderately brisk pace, standing and raising her arms, boarding and alighting from a bus; and engaging in normal social interaction.
Conclusion
204 I have carefully considered the range of factors outlined by Maxwell P in Haden Engineering Pty Ltd v McKinnon. I am not satisfied that the Plaintiff’s experience of pain is constant or continuous. I cannot be satisfied as to the frequency or duration of such pain in the context of the Plaintiff’s inconsistent clinical presentation and variable histories given to doctors. I am also not satisfied that the pain, when experienced, is more than mild to moderate; and appears to be adequately controlled by a self managed exercise program and over the counter analgesia. I am not satisfied that the Plaintiff’s claimed sleep disturbance is entirely a result of the transport accident.
205 In making an assessment of the Plaintiff, I have had regard to the matters affecting her credit, as outlined above; and the medical assessments made upon clinical examination.
206 I accept that the Plaintiff’s pain and suffering consequences, at most, are considerable. However, after taking account of the extent to which the Plaintiff is still capable of engaging in activities, including the same albeit limited employment; and the relative minimal level of ongoing treatment and medication; and the degree to which she has exaggerated her limitations and presented non anatomic symptoms; I am not satisfied that the pain and suffering consequences, when judged by 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’.
207 Accordingly, I do not find that the Plaintiff suffers a serious injury for the purpose of paragraph (a) of the definition of serious injury as a result of the transport accident.
Orders
208 The Plaintiff’s application for leave to commence common law proceedings is refused.
209 The Plaintiff’s Application is dismissed.
210 After hearing the parties on the question of costs the following orders were made:
211 The parties agree on costs, however in default of agreement the following orders shall apply:
a) Plaintiff to pay the Defendant’s costs, including reserve costs, in accordance with the County Court Scale of Costs, to be assessed by the Costs Court in default of agreement; and
b) Certify for the reasonable costs of the preparation, filing and service of the Court Books, the first copy at scale and each subsequent necessary copy at the commercial rate to be determined by the Costs Court, including any necessary attendances.
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