Syaranamual v TAC
[2011] VCC 406
•18 April 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-03875
| DONNA LEANNE SYARANAMUAL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 and 28 February 2011 |
| DATE OF JUDGMENT: | 18 April 2011 |
| CASE MAY BE CITED AS: | Syaranamual v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 406 |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application; s 93 Transport Accident Act 1986; injuries resulting from fall from motor cycle; prior history of psychological conditions including drug addiction; whether serious injury under part (a) and/or part (c) of definition; incapacity for pre-injury occupation.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer QC with | Nowicki Carbone |
| Mr G Worth | ||
| For the Defendant | Ms R Anneston with | Solicitor for TAC |
| Dr R McNeil | ||
| HER HONOUR: |
1 On 21 March 2008, Ms Donna Syaranamual was injured when she was thrown from a motorcycle on which she was travelling as pillion passenger. She applies for leave to bring a claim for damages for such injuries, and to succeed, must satisfy the Court that she suffered a “serious injury” within the definitions and restrictions imposed by s.93 of the Transport Accident Act 1986 (“the Act”)[1].
[1] Ss 93(4)(d) & (6)
2 She brings her case primarily under part (a) of the definition of “serious injury”[2], claiming to have suffered serious long-term impairment of the function of her spine. Alternatively, she relies on part (c) of the definition of “serious injury”, claiming to have suffered a severe long-term mental or behavioural disturbance or disorder.
[2] Definition of “serious injury” in s 93 (17)
3 The test for whether an injury constitutes “serious long-term impairment of a body function”[3] requires consideration of whether the consequences of the injury to the particular plaintiff, when judged by comparison with other cases in the range of possible impairments, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”[4]. To satisfy part (c) of the definition, the consequences of the injury must meet the description “severe”, which is “a stronger word” than, and connotes something more than “serious”[5].
[3] ie whether it satisfies the definition under part(a)
[4] Humphries v Poljak [1992] 2 VR 129 at 140.
[5] Mobilio v Balliotis [1998] 3 VR 833 at 846
4 There is no dispute that Ms Syaranamual did suffer injury in a transport accident on 21 March 2008. The defendants say that her injury was soft tissue injury to her lower back or, at its highest, aggravation of pre-existing degenerative change of the cervical and lumbar spine. They argue that such injury does not satisfy the definition of a “serious injury” because:
(i)
Her physical injury has fully resolved or, alternatively, any lingering consequences do not reach the level that could satisfy the test for “serious injury”.
(ii)
As to the case under part (c) of the definition, there was no psychological injury that resulted from the transport accident and, while she may have continuing psychological issues, they result from other aspects of or stressors in her life.
(iii)
So far as work capacity is concerned, she has a current physical and psychological capacity for work, and there is no lasting effect of any injury resulting from the transport accident that now prevents her from working.
5 The evidence consisted of the documents set out in the attached schedule, and the oral evidence of the plaintiff who was the only witness required to be called for cross-examination.
6 As in most applications of this type, the credibility and reliability of the plaintiff’s own evidence is very important because not only the Court, but also doctors whose opinions form part of the evidence, are heavily dependent upon the plaintiff’s history of the timing, extent and duration of symptoms, and their impact on the plaintiff’s life.
7 In this case, I have considerable hesitation about the reliability of the plaintiff’s own evidence. She presented as having a pleasant and quite engaging personality, but I was unsure whether what appeared to be her obfuscation in answering some questions was due to “simplicity” of mind or was deliberate. The accuracy of her evidence as to time frames, both in her affidavits and orally, was also doubtful.
8 My doubts are due, first, to a number of errors, or at least ambiguities or anomalies, in her affidavits as originally sworn, and not corrected in subsequent ones. Whether or not those were due to her lawyers’ errors or misunderstandings of her instructions, she is clearly fully literate in English and did not correct any before she swore to the accuracy of the affidavits. Further, it emerged through cross-examination, that her account of her pre- accident condition was misleading in that she had described her addiction to heroin as being “under control” for five years before the transport accident whereas she had certainly been relapsing into using illegal drugs during that period. Further, and particularly relevant to the case for a mental or behavioural injury, due to her 15 to 20 year history with drug abuse, the reliability of her perceptions of how she coped with various aspects of life before the accident compared with since are, in my view, less reliable than they might otherwise have been.
9 I have weighed her evidence carefully before accepting it on any particular issue, and have given more weight to more objective or independent evidence where available.
Plaintiff’s background
10 Ms Syaranamual is now aged 45. She lives with her two teenage daughters, one of whom is still at school, and the other who has left school and is working but still lives with and assists her. One of her brothers lives at the same address. Her parents used to live nearby and assist her in domestic tasks, but last year moved to northern Victoria.
11 Ms Syaranamual attended high school in Melbourne until the end of Year 10, then worked in the footwear department of Kmart for approximately three and a half years. At about the age of 18, she moved to Queensland, where she lived in a long-term relationship – which she has described to some doctors as abusive - and became a heroin user. She says that she worked for some years for an air freight company and then at Broadbeach Food Hall in sales or customer service, but ceased that when her first daughter was born in 1992. She did not work for approximately the next six years, concentrating on raising her two children. She then began working in the hospitality industry, as a waitress, from 1997. All such work I take to have been casual and part-time.
12 In 2000, she returned to live in Melbourne, with her daughters. She obtained part-time work at the Broadmeadows Sporting Club as a bar attendant and gaming attendant. She continued working there until about 2004, then worked at the Brunswick Club for approximately three years, again as a bar attendant and gaming attendant, and rose to a supervisory (and better paid) position.[6] She left that employment to remove herself from a broken relationship.
[6] Resulting in higher pay; see Exhibit N.
13 From about December 2007, she was employed at the First and Last Hotel in Coburg, as a bar attendant and TAB seller, and that is where she was working at the time of the transport accident in which she suffered injury.
14 She recalls a previous car accident, in about 1987, causing neck pain for a while, but says that it had totally resolved many years before the current accident. There is nothing to indicate ongoing complaint of neck pain or its interference in her daily life in the years leading up to the 2008 accident.
15 The plaintiff originally swore that prior to the transport accident she had had her substance abuse under control for more than five years[7]. In cross- examination, she said there had been some short-term relapses. It emerged that having tried and failed at methadone and buprenorphine programs, she had stabilised and, to a considerable extent controlled, her heroin addiction by use of naltrexone implants, at least by 2004. However, these were effective for only approximately six months, and at various stages there were long interludes between having an implant replaced because of its cost, and during some of those periods she clearly relapsed into heroin use as well as use of other drugs, and alcohol.
[7] Exhibit A; Affidavit of 5 November 2008 para 13; Affidavit of 16 October 2009 at para 14.
16 Nevertheless, and despite relapses in drug abuse and also other disruptive and stressful events in her life over the years, the evidence from her tax returns[8] supports her statements that she had maintained employment for most of the time since her return from Queensland. She bought a house and committed to a substantial mortgage in approximately 2005. Over the five years preceding her injury, she had managed to sustain and each year increase her earnings from employment. This corroborates her evidence that, having committed to a mortgage, she was determined to maintain employment, meet repayments on the mortgage, and thereby establish a secure home for herself and her daughters.
[8] Exhibit N; Summary of income
17 Ms Syaranamual claims that before suffering injury she led an active social life, as well as being active in domestic activity, especially relating to her children and after purchasing her own home. She says she was a very keen gardener and in her new home had established an extensive garden.
18 She also says that she was a keen dancer, and used to enjoy burlesque dancing, a field in which her brother operates and makes DVDs, in one of which she performed before her injury. She also claims to have been active in zumba exercise dancing. She was also used to riding on motorcycles.
The transport accident
19 On 21 March 2008, the plaintiff was a pillion passenger on her then partner’s motorcycle when it was struck from behind and she was thrown off, apparently landing on her buttocks and skidding along the ground for some distance.
20 She was taken to the Northern Hospital where records[9] show that she complained of pain in her coccyx, said she had not struck her head, or lost consciousness, and had multiple grazes to her right hand. She disclosed the naltrexone implant, no known drug allergies and no past medical history. On examination the midline of her neck was tender, but with good range of movement. Peripheral nervous system tests in respect of cranial nerves were normal. She was to be given analgesia, central sacrum/coccyx x-rays, was to mobilise and, if the x-rays were normal, then to be sent home on simple analgesia, namely Panadol and Nurofen. Four hours later, she was seen again, felt better, was able to walk and was sent home. It was said the x-rays showed no abnormalities but also that follow-up x-rays were to be done and she was to be contacted if any abnormality was shown on formal report.
[9] Exhibit 1
21 The accident had occurred on Good Friday, and the plaintiff worked the following two days at the hotel and then went ahead with a pre-booked trip to Queensland. She says that during that holiday she was suffering pain in her low back and neck, and spent much of the time resting. Although there is no independent evidence of this, it is consistent with her attendance on a doctor for these injuries within a day or two of returning to Melbourne.
22 On 31 March, she consulted a general practitioner, Dr Chris Towie. She has continued to attend that clinic for these injuries[10], although Dr Towie left the practice in late 2008. Dr Towie ordered a renal and lumbar spine CT scan which was conducted on 4 April 2008 and reported[11] as showing that her lowest mobile lumbar segment was L5, disc heights were well preserved, a small left posterolateral disc protrusion was noted at L3-4, no significant disc protrusion apparent elsewhere and there were minor dorsal annular bulges at L4-5, L5/S1. Overall, the report was that there was mild L3-4 left posterolateral disc protrusion.
[10] Mainly seeing Dr Malek Kallab
[11] Exhibit D, PCB28.
23 After her return from Queensland, Ms Syaranamual did not return to work, telling her employer that Dr Towie recommended that she not. Apart from recent voluntary work, she has not engaged in any employment since.
24 She says that she has continued to suffer pain in her low back and neck.
25 She attended an osteopath, Mr Wilms, from about May to November 2008, and a physiotherapist for about three times but says she stopped attending because she could not afford the cost when the TAC would not agree to pay those expenses. She also attended a chiropractor, Carl Roston, but I am unclear whether that occurred as early as 2008, or whether it was only since the beginning of 2010. The chiropractic treatment continues regularly now, her doctor having arranged for it to be paid through Medicare, and the plaintiff says that this does provide some relief from back pain for short periods after treatment.
26 By September 2008, the plaintiff’s life and health were adversely affected by a number of factors. She had become pregnant, and then suffered a miscarriage in about October 2008. She had resumed using illegal drugs. She was not working, and was depressed. She had or was in the process of breaking up with her then partner. She told a psychologist[12] that she was struggling to cope with the deaths of close friends and relatives. She had expressed thoughts of suicide.
[12] Sheree McDonald, clinical notes of 7 August, 2008 – Ex 5
27 She saw a psychologist, Sheree McDonald, for counselling, between August and October 2008.[13] This was at the clinic of Dr Gunzburg where she had been attending over previous years for her drug addiction problems. She was also referred by Centrelink for psychological counselling to Vivienne Sullivan[14], the purpose being assessment for return to employment. Over six sessions with Ms Sullivan she obtained assistance with managing various stressors in her life, which included ongoing pain from her transport accident injuries, and loss of self-esteem resulting from the pain and loss of income.
[13] Exhibit 5.
[14] Exhibit E.
Medical Evidence
28 Dr Kallab who took over as general practitioner from Dr Towie[15] in late 2008, reported to the TAC in February 2009 that a CT scan showed L3-4 disc protrusion in her lumbar spine and that she was suffering from neck pain radiating to her left shoulder, and a CT scan of neck showed mild C3-4 and C5-6 foraminal stenosis. He reported that she was still suffering from pain, her current management plan was to continue with physiotherapy and analgesics, and that while unable to work for another month, that is until March 2009, she would be able to do modified duties after that until her condition improved.
[15] Exhibit F
29 In his next report of March 2010, he said that she was still complaining of pain in her back, not improving and radiating down to the left thigh without numbness or weakness of muscles. The pain came “in attacks” lasting a few days sometimes. Between the attacks she could be pain free or in mild pain. She was also complaining of pain in the left hip, more at night, but no hip x-ray had been done. Pain in her neck from her accident was said to be constant and causing headaches and radiating to the left arm and shoulder but without numbness or weakness. Lumbar and neck movements were mainly normal except for restricted flexion of the back. He also noted that she had developed post traumatic stress syndrome after the accident, but had by the time of his report shown a lot of improvement after treatment by a psychologist and psychiatrist. She was managed with analgesia, physiotherapy and anti-depressant medication. He related the neck and back pain, and the psychiatric conditions to the accident. As at March 2010 he considered that her depression was still affecting her motivation and she was still feeling tired, but she was gradually improving and in the near future he thought she would be capable psychologically of doing light duties, if she could avoid heavy lifting, standing for long periods of time, although her aching neck might affect her ability to work.
30 Mr David de la Harpe, orthopaedic surgeon, saw her in December 2008[16] on referral by Dr Towie. On examination he found her to have a normal gait and normal stance, a full range of movement of her lumbar spine and no neurological abnormality in her lower limbs. He considered her CT scans showed age-related changes only, and he did not feel that any surgery was required. He recommended continued conservative management but perhaps an increase in exercise to include some hydrotherapy.
[16] Exhibit H
31 Mr Nicholas Martens,[17] neurological surgeon, provided reports after assessing the plaintiff in April 2009 and April 2010[18]. He diagnosed extensive soft tissue trauma and bruising to her neck, lower back and pelvic girdle, and post traumatic stress disorder. He considered an MRI scan of cervical and lumbar spine taken 30 April 2009 demonstrated moderate central disc extrusion at T3-4, indenting the thecal sac and cord without obvious cord signal abnormality. No other obvious source of her ongoing pain was identifiable and in particular no acute disc injury or lumbar degenerative disc disease, and no fracture. He considered that her injuries were still causing her considerable pain and dysfunction despite the radiological imaging demonstrating that there was no lesion either explaining her pain or requiring neurosurgical attention. He considered that her socio-economic situation and personal circumstances, and the additional post traumatic stress disorder, would have reduced her ability to cope with her pain and disability. He advised that her psychological counselling should continue, and thought it was possible that her pain symptoms would resolve with time but likely that they might become chronic and eventually require specialist pain assessment and therapy.
[17] Exhibit G
[18] His first report appears to be for medico-legal opinion, but in his second report he stated that he had been treating her in the meantime, and it was not a medico-legal examination. She did not mention seeing him for treatment.
32 He considered that her symptoms from the accident caused inability to undertake work that involves lifting or bending. He anticipated her requiring chronic pain management at some stage.
33 On review in April 2010 she was still complaining of lower back pain, neck pain and headaches and also left-sided sciatica. She was seeing both a chiropractor and an osteopath but for financial reasons had to stop seeing the osteopath. On examination he had difficulty getting full cooperation with the power on the left with ankle dorsa flexion and plantar flexion, but there appeared to be some weakness of dorsa flexion. There were no features of cervical spondylotic radiculopathy. Her neck movements were restricted and uncomfortable. His overall assessment was that nothing had changed since the last appointment other than the payments from TAC having been ceased had a knock-on affect on cessation of treatments from which she had been benefitting.
34 Mr Russell Miller,[19] orthopaedic surgeon, provided a medico-legal assessment in November 2010. She complained to him of neck pain and discomfort radiating into the shoulders but not further down the arms, and frequent headaches and significant sleep disturbance. She regarded her low back as her major problem with low back pain and discomfort radiating into the buttocks and into the left leg, worse with prolonged sitting and prolonged standing, and causing significant sleep disturbance. Her symptoms were said to fluctuate but with no pattern towards overall improvement. She complained of pain and discomfort in her left shoulder, worse with overhead activities and repetitive activities. She had problems with anxiety and depression which he said required separate assessment.
[19] Exhibit L
35 His diagnosis was a musculo-ligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine. As there had been a poor response to conservative measures he thought the prognosis for this was only fair. He also diagnosed a musculo-ligamentous strain to the lumbar spine and aggravation of degenerative disc disease in the lumbar spine, documented radiologically and consistent with clinical features. The symptoms in the lumbar spine were worse than those in the cervical spine, and the prognosis was fair/poor. He considered that she probably had a rotator cuff pathology in her left shoulder, although a significant amount of the pain in the left shoulder was likely to be referred from the cervical spine.
36 Mr Miller considered that on the information available to him of no prior low back problems, and a very old neck injury having resolved in the 1980s, her current clinical status reflected the effects of the March 2008 accident. He acknowledged a co-existing mental state reaction which required separate assessment. He considered she will require ongoing pain management, analgesics, anti-inflammatory agents and other medications, would benefit from a combination of osteopathic, chiropractic treatment and physiotherapy, and it was unlikely she would benefit from surgical intervention for her neck or back. His view was that she would have difficulty with work that involves repetitive bending, twisting, turning and carrying items of more than 2 kilograms, and did not believe she could return to pre-injury duties as described to him. These restrictions on her work capacity were likely to be permanent, and were accident related.
37 Dr Charles Castle, occupational physician, examined the plaintiff.[20] She described her pain as six out of ten and, at its worst, nine out of ten and, at its best, four out of ten. She described having nightmares every night and told him she does not want to get out of bed. She said it takes her about 40 minutes to get out of bed each morning and she has a lot of anxiety. She had been doing breathing techniques to reduce her anxiety levels, but was very tearful about the future and said she was depressed and wakes several times at night because of pain, cramps and nightmares. She had no suicidal ideation at that stage but had been suicidal in September 2008, around the time that she suffered a miscarriage. However, she had not made any suicide attempts. She told Dr Castle that she was very introverted and could not hold on to a relationship although she enjoyed her family. On examination, he found some limitation of cervical spine and lumbar spine movement, and tenderness over the C6-7 intervertebral segment and L5-S1 intervertebral segment and the left facet joint at that level. Reflexes were normal. Muscle power was decreased in the left leg and arm, calves were of equal measurement and there was decreased sensation over her left lateral thigh. She scored abnormal results on the hospital anxiety and depression test that he administered.
[20] Exhibit K – 22 December 2009
38 Dr Castle’s opinion was that Ms Syaranamual suffered an injury to her neck and lower back as part of the motor accident, and subsequently developed psychological difficulties aggravated by the incident. She was currently suffering from depression and anxiety. He considered that the injury to her neck suffered in the accident was an aggravation of existing facet arthropathy at C3-4, C4-5 and C5-6 that was moderately severe. The injury to her lower back was pain surrounding disc bulges at L3-4 and foraminal protrusion displacing the left L4 nerve root, and a posterior disc bulge at L4-5 with mild facet arthropathy and a disc bulge and facet arthropathy at L5-S1. He considered these moderately severe and restricting her activities substantially. He diagnosed that she was also suffering from a generalised adjustment disorder with anxiety and depression. He considered she did have some features of a post traumatic stress disorder but not a full post traumatic stress disorder. He considered her cervical spine injury to be as a result of the motor vehicle accident as she had no history of neck injury or neck symptoms, although the facet arthropathy identified on the MRI would have been of longer standing. In relation to her lower back injury, he considered the transport accident aggravated underlying problems of her lumbar spine although again there was no history of previous lower back symptoms. He considered it more likely than not that the disc lesion shown on MRI at T3-4 occurred during the motor vehicle accident. He considered the restrictions resulting from her neck injury to be of a long term nature. This was because, although she had adequate and appropriate treatment, there had been little improvement in her neck pain. He considered the same applied to her lower back injury.
39 He considered she clearly had prior psychiatric problems. His views on the contribution of the transport accident were based on the understanding that she had overcome her previous heroin addiction, and as I am satisfied that that was a misleading impression given by the plaintiff, I put much more limited weight on his opinion that the transport accident contributed about 50 per cent to her relapsed addictive condition.
40 Dr Castle considered the neck injury and lumbar spine injury each precluded her from undertaking full or part-time employment, because she had reduced sitting, standing and walking tolerances as well as restricted ability to carry weight and that these restrictions prevented her undertaking her pre-injury employment. He did not consider that her anxiety and depression were sufficient to prevent her from undertaking her pre-injury employment. He considered that her neck and low back injuries meant she had no residual capacity for alternative full or part-time employment.
41 Dr David Elder, consultant in occupational and environment medicine, examined the plaintiff twice for the TAC. On the first examination in August 2008, she complained of continuing lower back pain radiating to her left groin and lateral left thigh, ongoing headaches and intermittent neck pain. Dizziness had settled. She was having osteopathy treatment, seeing her general practitioner fortnightly, and also having treatment for her drug addiction, seeing that specialist every two weeks, and also having psychological counselling. On examination Dr Elder found a full range of cervical spine movement, no tenderness, and normal sensation and neurology. There was decreased range of movement in the lumbar spine, but not tenderness and neurological signs were normal. He diagnosed mechanical back pain, probably related to the small left-sided disc prolapse which he described as being at L4/5, and he thought it attributable to the transport accident. He also thought it important for her to undergo an active rehabilitation program (rather than passive such as osteopathy) and that a return to employment was important, although she would have difficulty with manual handling bar worker tasks.
42 When re-examined in May 2010 she was still describing ongoing neck pain, headaches, lower back pain and pain radiating into the left thigh. On examination Dr Elder found slight decrease in range of movement in her cervical and lumbosacral spines, no tenderness in either, no neurological signs and no spasm nor muscle wasting. He noted that she had not returned to the workforce but was keen to do so, and he repeated his view that she should. He said he was “still” of the opinion that any physical injury that she suffered in the motor vehicle accident has long since resolved. However, as he had not previously expressed that view , I give it limited weight without further explanation.
43 Dr Timothy Entwisle, consultant psychiatrist, examined the plaintiff three times for the TAC. He diagnosed an Adjustment Disorder with anxiety and some features of traumatisation and an opiate dependency. He found a strong psychological component to her experience of symptoms (of pain) which were heavily influenced by her psychosocial as described in the report, both in regard to pre-existing matters and more recent issues in regard to her boyfriend. He considered that she is a vulnerable woman with a long history of substance abuse, and that she was clearly attending her psychologist at the time he saw her in August 2008 in the context of non-accident related factors essentially to do with once again finding herself in an abusive relationship. He considered any psychological treatment should be short-lived and focussed very much on her pain management and functional restoration and return to work.
44 Dr Entwisle examined the plaintiff again in June 2009, when she was still complaining of mild low back pain and left neck pain, but had improved since going to gym, and felt those matters were under control. On mental state examination, she was intense and anxious, tearful at one point, and restless. His opinion was that she presented with symptoms of an opiate dependency, personality and non-accident related relationship issues, which were pre- existing. He did not consider that her symptoms were at that stage attributable to the accident but related to longstanding, pre-existing narcotic dependence and relationship issues. Even in her then state, including attempting to re-emerge from a bout of narcotic dependence, he considered that she had a work capacity from a psychiatric perspective, and that it would improve once she had stabilised again in respect of her substance abuse.
45 In May 2010, Dr Entwisle re-examined the plaintiff. She had, in August 2009, attended a detoxification program for alcohol and heroin for ten days and then attended Dr Gunzburg who provided her with another implant. She had also attended further programs for rehabilitation to learn coping skills. He recorded that while she had given up alcohol, she had now developed a gambling addiction which had significantly impacted upon her disability payments. Her mood was positive as to what she had achieved and she no longer described herself as being depressed. On mental state examination, her affect showed normal range and generally she provided an animated account of her circumstances in the absence of distress or agitation. Her memory and concentration was intact and there were no perceptual abnormalities noted. Dr Entwisle’s diagnosis was that, at that stage, she did not present with a current psychiatric condition related to her transport accident although she continued to struggle with a variety of pre-existing and non-accident related addictive behaviours. He did not consider that she suffered from any psychological or psychiatric conditions occurring in the context of the accident which affect her ability to work, nor her domestic and leisure activities, although she was not working at that time.
Was there a serious injury under part(a)
46 I am satisfied that in the transport accident of 21 March 2008 the plaintiff suffered musculo-ligamentous injury to her spine in both the cervical and lumbar regions, and aggravation of pre-existing but asymptomatic degenerative changes in her lumbar spine and cervical spine. These all arose from the same incident of falling from a motor cycle, and I am satisfied that they should be regarded as injury leading to impairment of the one body function, namely her spine[21].
[21] Lu v Mediterranean Shoes Pty Ltd [2000] 1 VR 511 at 520
47 I am satisfied that the plaintiff is still experiencing pain in her neck and back from that injury, the back being the more troubling, with some referred pain from her neck in her left shoulder and arm, and referred pain in her left thigh. The pain is not constant, but flares up for days at a time, although even then not rendering her completely unable to cope with basic activities. Although she has taken comparatively little in the way of medication as anti- inflammatory or analgesic for this injury, that is understandable due to her pre- existing addiction to narcotic drugs. She has tried to submit to treatments such as osteopathy and physiotherapy but these have ceased when payment from an outside source was not available as she could not afford to pay herself. In this case I accept that there has been ongoing pain of a greater level than is reflected in the medication taken and treatment undergone, for the stated reason.
48 All of the medical evidence supports that there was a significant enough physical injury to be still causing pain and preventing her from returning to her previous work, for more than six months after the transport accident. The only doctor who opines that her ongoing symptoms are no longer attributable to the transport accident is Dr Elder, but he does not explain that change of opinion and indeed writes in his later report that his view “remains” as given previously. If his change of opinion as to ongoing contribution from the accident is because he had recommended active rather than passive treatment, that could not tell against the plaintiff in this case. First, there is no evidence that she was told his recommendation, and secondly there is not evidence that she refused to undergo active rehabilitative treatment offered, but rather that the TAC stopped paying her gym membership as well as for osteopathy. I therefore give minimal weight to Dr Elder’s later opinion. Contrary to it is the view of her general practitioner, as well as the opinions of Mr Miller, orthopaedic surgeon, and Mr Maartens, neurological surgeon, and Dr Castles, another occupational specialist.
49 The consequences of the injury to her spine are perceived by the plaintiff as having substantially interrupted and limited her everyday activities. Her subjective perception is not the test; the court must look at the effects of the injury objectively, but taking into account the particular plaintiff’s circumstances.
50 I find from her history and the psychiatric opinion that Ms Syaranamual’s pre- existing mental health and personality made her more vulnerable and susceptible to greater impact on her lifestyle from an injury such as occurred. The stability she had achieved, insofar as maintaining employment and coping with her household and children, was more readily disrupted by her back injury than might have occurred had she been of more stable or stalwart personality with better coping skills. The defendants must take the plaintiff as they found her.
51 On the other hand, I do not regard as very significant the limitations on her ability to perform the heavier of the household tasks, for which she receives assistance from her daughters and to an extent her brother now that her mother has moved away, nor the need to do some other tasks more slowly or in shorter bursts, such as shopping. I accept that she finds gardening more difficult and has given up part of the garden she had cultivated and enjoyed, but she can still do the mowing albeit slowly. The extent to which her social life, and dancing, has been limited by these injuries is difficult to guage, given the unreliability of some of her evidence. Overall, I would not regard her pain and the restrictions on her social and domestic activities alone as satisfying the description “very considerable”.
52 In my view, and as her case was argued, the most significant consequence to the plaintiff has been the effect of the injury on her ability to engage in employment. The defendant argues that I should not be satisfied that even initially her reason for ceasing work was a result of the injuries from the transport accident. I do not agree. Notwithstanding my hesitation about the reliability of some of her account, I consider the objective evidence to be that this plaintiff was suitably motivated to keep working at the time of an in the months after the accident, and that she should be believed that it was the injury that sent her to Dr Towie and off work. She worked on for two days and the took a pre-booked holiday, but went to Dr Towie within a day or so of her return in relation to these injuries. Within months she was telling psychologists that she was very stressed by her inability to return to her work and earn money, and I accept that that was one of the stressors causing her heightened psychological problems at that time.
53 The weight of the medical evidence of her physical injuries is that they have to date, and are likely for the long term to render her incapacitated for the type of work she had been doing at the time of the accident, as a bar attendant. Her low back pain, and any referred symptoms in her left leg, render her unsuited to work that requires prolonged standing, and also bending over tables, vacuuming and other strenuous cleaning, and heavy lifting as is required in some bar jobs although there was no specific evidence of whether she had had to lift heavy weights in her previous jobs. She was questioned as to why she could not do just the TAB attendant aspect of her last job. I accept that at each of the jobs in which she had been employed over the 5 years preceding her injury, the duties were mixed with bar work which would often be predominant.
54 The defendant emphasized that on her own admission she has not applied for alternative work. It would seem that from about August 2008 until about mid 2009 she was attending to the more immediate needs of rehabilitation programs to address her relapse into drug abuse and psychological problems. The counselling sessions with psychologists in that period reflect that there was considerable contribution to her anxiety from her inability to work and her concern about that, and I am satisfied that the causal contribution from the transport accident in that regard answers any criticism of her for not applying for alternative work in that period.
55 She has no experience in other type of work except for many years ago in retail sales, but such jobs such as in a department store usually require prolonged standing if not also bending and lifting of stock. It was suggested that she could work in a dedicated TAB betting outlet, but there was no evidence of what that work would require in hours.
56 I am satisfied that the plaintiff is capable of undertaking some retraining. She has undergone a basic computer training course at a Neighbourhood house – 1 ½ hours a week over 6 weeks - saying she was computer illiterate before that, and can now open a file and write a letter. She can use the internet, and enjoys being on Facebook, and used to play games on it but says she has not done so for six to twelve months because she found it boring. I am satisfied that she would require considerably more skills than she presently has in using a computer for her to be able to undertake any employment that centred around computer use.
57 At the time of the hearing she had enrolled and was about to start a part-time course through TAFE to train for a Community Certificate III. I am satisfied that she has come to this interest through voluntary work over the last three or so months at the Glengowrie Aged Care facility. This has included assisting with Bingo games, and taking residents shopping. She has been enjoying working on activities with the elderly, but has been working there only once a week for two hours, so her ability to cope with similar duties on a sustained basis of even part-time employment is untested and in my view uncertain. Suggestion to a doctor that she was interested in retraining as a lifeguard would indicate a possibly unrealistic outlook by her.
58 Unlike in applications under s 134AB of the Accident Compensation Act 1985, for this application the onus is not on the plaintiff to prove that she has taken reasonable steps to undergo rehabilitation, retraining and seeking of alternative employment before her loss of earning capacity can be taken into account as a consequence of her injury. Further, in this application it is not necessary to analyse the number of hours per week she could work or her prospective earnings after any retraining. Notwithstanding that Dr Castle is of the opinion that she is and will remain totally disabled from employment, whether full or part-time, I consider it probable that she will be capable of some part-time work, although that may not be constant and may well be for fewer hours than she had been working in the two to three years before her injury.
59 I am satisfied that her work history in the five years before the transport accident was sustained and indicated a likely ongoing increase in earnings and possibly in hours worked as her children grew more self-sufficient. I am satisfied that her back injury has prevented her from continuing in the type of occupation in which she had worked, in which she had established that work momentum, and for which she had relevant experience for prospective employers, and that she will remain unsuited to that type of work for the foreseeable future. I am satisfied that she is and will remain unsuited to other work requiring sustained standing, walking, sitting or bending and lifting. I am satisfied that she remains limited in her capacity for alternative work, and that that has been and remains of great concern to her for financial reasons and security for her future, and that that concern has been a stressor to her psychological condition, which can be taken into account as part of her pain and suffering and loss of enjoyment of life as a consequence of the physical injury [22].
[22] Richards v Wylie [200] 1 VR 79
60 In my view the impact on her ability to work and earn income has been so significant in this case, that the consequences to the plaintiff of the injury to her cervical and lumbar spinal regions can fairly be described as “very considerable”, when compared with other possible impairments of body function, and therefore satisfies the test for “serious injury”.
Serious injury under part(c)
61 In view of my findings under part(a), I shall deal only briefly with the case as put under part (c) of the definition.
62 The records of Dr Gunzberg’s practice indicate that while struggling with a drug addiction – and in 2006 alcohol - Ms Syaranamual had periods of unstable psychological health. For example in July 2005 “anxiety and depression” was noted, and Luvox prescribed, although in her oral evidence she disclaimed actually taking it before the transport accident. I accept that she was not regularly taking medication for mental health problems, but that she had had periods of depression and anxiety, and did not cope well with stressful events, which unfortunately included the death of a nephew from an overdose of heroin in October 2007.
63 She clearly underwent a period of significant psychiatric ill health from about August 2008 until possibly mid-2009. Given the previous history, any effect of the transport accident must be viewed as an aggravation or exacerbation of the previous condition, and only the consequences of the aggravation from the transport accident taken into account as to whether they meet the description “severe” [23].
[23] Petkovski v Galletti [1994]1 VR 436
64 I accept that the effect of her back and neck injuries from the transport accident were a significant contributing cause of the heightened state of anxiety and depression she reached in late 2008, notwithstanding other life stressors, particularly a miscarriage, broken relationship and pre-disposition to drug addiction, the latter of which I note that Dr Entwistle considered to be the cause to the exclusion of the transport accident. I do not find it necessary to analyse his view as compared with those of Dr Weissman and Dr Nathar, or others who have commented including her general practitioner, Dr Castle and Mr Maartens, because I am not satisfied that the aggravation of her psychological problems caused by the transport accident are likely to disable her from work in the long-term. Without that consequence, she could not in my view approach meeting the threshold test of having suffered consequences that fairly meet the description “severe”.
Conclusion
65 I am satisfied that in the transport accident of 21 March 2008 the plaintiff suffered injury to her cervical and lumbar spine which satisfies the test for “serious injury” under part (a) of the definition. I propose to grant her leave to bring proceedings for damages in respect of that injury.
SCHEDULE OF EXHIBITS
Donna Leanne SYRANAMUAL V Transport Accident Commission
CI-09-03875
| Number and | Tendered |
| Identifying | Short Description of Exhibit | By |
Mark on Exhibit
A Affidavits of Plaintiff dated 05/11/08, 16/10/08 Plaintiff and 8/2/11 B Affidavit of Dawn Syranamual dated 04/11/09 Plaintiff C Affidavit of Rodney Syranamual dated 12/11/09 Plaintiff D CT Scan of cervical spine dated 22/05/08 Plaintiff CT Scan of renal and lumbar spine dated Plaintiff 30/04/09 MRI cervical and lumbar spine Plaintiff E Report Vivianne Sullivan dated 11/12 Plaintiff Report Vivianne Sullivan dated 05/02/09 Plaintiff F Report Dr Malek Kallab dated 03/02/09 Plaintiff Report Dr Malek Kallab dated 05/03/10 Plaintiff G Report Dr Nicholas Maartens dated 07/07/09 Plaintiff Report Dr Nicholas Maartens dated 16/04/10 Plaintiff H Report Dr David De La Harpe dated 17/12/10 Plaintiff J Report Dr David Weissman dated 25/02/09 Plaintiff Report Dr David Weissman dated 05/05/09 Plaintiff K Report Dr Charles Castle dated 22/12/09 Plaintiff L Report Mr Russell Miller dated 10/11/10 Plaintiff M Report Dr M.J. Nathar dated 22/12/10 Plaintiff N Plaintiff’s Taxation Summary dated 21/02/11 Plaintiff 1 Extracts from a file of Northern Hospital relating Defence to the plaintiff 2 Reports of Dr David Elder dated 13/08/08 and Defence 12/05/10 3 Reports of Dr Timothy Entwisle of 26/08/08, Defence 11/06/09, 24/05/10 4 Printouts of payments made to and on behalf of Defence the plaintiff as at 07/01/10 (pp 70-77 of the
defendant’s court book)5 Pages 97 – 109 of the defendant’s court book Defence being extracts from Gunzsberg’s clinical notes
on the plaintiff6 X-ray report on sacrum dated 21/03/08 Defence
0
0
0