Taylor v Transport Accident Commission

[2021] VCC 1764

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-00003

SKYE PATRICIA TAYLOR	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2021
DATE OF JUDGMENT:	12 November 2021
CASE MAY BE CITED AS:	Taylor v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1764

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – impairment to the spine

Legislation Cited:      Transport Accident Act 1986, s93

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Richards & Anor v Wylie (2000) 1 VR 79; Dordev v Cowan & Ors [2006] VSCA 254; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I McDonald SC with Mr P A Czarnota	Shine Lawyers
For the Defendant	Mr W R Middleton QC with Ms A Bannon	Wisewould Mahony

HER HONOUR:

Introduction

1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 9 June 2011 (“the accident”).

2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a):

“Serious long-term impairment or loss of body function.”

4The body function relied upon by the plaintiff in this application is the spine.

5An application relating to an impairment of the jaw, including a TMJ disorder, was withdrawn.  The defendant no longer relied on the Limitation of Actions Act.[1] 

[1]Transcript (“T”) 2

6The enquiry under ss(a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term. 

7The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[2]

[2]Richards & Anor v Wylie (2000) 1 VR 79

8In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least ‘very considerable’ and more than ‘significant’ or ‘marked’”.

9The plaintiff relied on two affidavits and gave viva voce evidence.  She was cross-examined.  She also relied on an affidavit affirmed by her former partner, Dean Robins, on 17 February 2021.

10In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

Pre-accident

11The plaintiff is presently aged thirty-eight, having been born in February 1983.  She is in receipt of a single parent pension. She lives with her ex-boyfriend, Dean, and their six-year-old old daughter, Summer.  Dean works full time.  They broke up in 2014, when she was pregnant.[3] 

[3]T28

12The plaintiff left school in Year 10 and then became her grandmother’s full-time carer.  She found that very stressful, and when her grandmother died, it took her three years to deal with her loss and the resultant grief and depression.

13She started work at about the age of eighteen for a superannuation company, where she worked for about eight or nine years, and became the secretary to the general manager of business and finance.  While working there, she obtained a gaming licence and worked casually after work and on weekends.  She also worked at a pet store in Thomastown for about eight years, doing different jobs.

14For about a year, she worked at a company that constructed disability accessible entries, including Transport Accident Commission (“TAC”) modifications.  She then obtained a job with Complete Office Supplies (“Complete”), where she was working at the time of the accident.

15After the accident, she worked for Petplan Insurance for about two to three years, and also did some volunteer work at an animal hospital as a foster carer.

16She had a previous history of depression and anxiety, commencing with the loss of her grandmother, some relationship troubles, and anxiety and depression during her pregnancy.  She was prescribed anti-depressants, which she found helpful.

17She had some upper back and shoulder stiffness linked to her anxiety, and it was suggested she may have fibromyalgia.  At times, she had migraines.

18In about 2006, she had an MRI scan of her spine which she was told was normal, with no disc bulges.  She did, however, have treatment at Heidelberg Osteopathic Clinic (“Heidelberg”) for her back and neck to relieve muscle tension, commencing in January 2006 and continuing until 2007.

19In about 2009, she returned for about two sessions of further osteopathic treatment for her neck pain and associated jaw pain and headaches, but despite those conditions, she was able to work and engage in activities without significant restrictions.

20She had muscle tightness, but not pain pre accident.  Her issues were muscular – “They’re very different in my mind, suffering for (indistinct) now for a significant amount of time.  Muscle soreness, not as deep and severe as pain.”  Prior to the accident, it was very minimal, she would now say “one or a two, and currently we would be at a five plus on a minimum”.[4]

[4]T16

21Her pain since the accident has been in specific areas in her neck and back, whereas before the accident, the whole of her neck was tender – the muscles of her neck.[5]  Now, her neck pain starts at the base of her neck and she gets it up to a particular spot in her neck, just above where her ponytail starts.  When the pain runs up her neck, it is on the right side.[6]

[5]T17

[6]        T18

22Her lower back pain now is at a very specific spot in her back.  Before the accident, she was confident she did not have pain in her lower back, she had muscle tension.[7]  She had problems in multiple areas of her back which she was told by Dr Francis, and the Heidelberg osteopath, was linked to her anxiety disorder.[8]

[7]T18

[8]T19

23She told Mr Grossbard about muscle tension pre accident.  She was very clear with all medical practitioners about her anxiety and muscle issues before the accident.[9]

[9]T22

24She agreed the 2006 and 2007 Heidelberg treatment notes contained references to back and neck pain, for which she was initially referred in 2006.  While she had denied she had pain before the accident, she now knows the difference between pain and muscle tightness and soreness.  The pain she “is here about today is not a simple muscle ache or pain”, which is what she was going to the osteopath for back in 2006.  She did not write the osteo notes, “all that [she] knew is what [she] could remember”.[10]

[10]T24

25She did not have any problems with her jaw and had not been diagnosed with TMJ before the accident.[11]  She assumed an entry of 23 April 2009,[12] which mentioned painful swelling in the right jaw related to one of her many wisdom tooth infections.[13]

[11]T19

[12]Dr Georgy of Mill Park Super Clinic (“Mill Park”)

[13]T26

The accident

26On the said date, the plaintiff was driving to work when she came to a stop at a traffic light where there were two cars in front of her.  A car behind failed to stop, and pushed her vehicle into the two cars in front.  She did not know whether her air bags were deployed.[14]  Her car had to be towed.  No police or ambulance attended the accident scene.  Someone had to come and collect her.  She made a TAC claim and a police report.

[14]T15

27The plaintiff saw her general practitioner, Dr Vincent, about four hours after the accident, and she was prescribed Norgesic and Celebrex for back pain.

28In about July 2011, she had an x‑ray and a CT scan of her lumbar spine.  She was told there was a loss of lordosis and osteoarthritis and a disc bulge at L5‑S1 with the beginning of degenerative changes of the facet joints.

29On around 20 October 2011, she saw physiotherapist, Wendy Peake, at Austin Hospital for assessment as to whether she should have an orthopaedic review.  At the time, her lower back pain was travelling into both thighs and going as far as her left knee.  She had pain on sitting or standing up.  Ms Peake referred her to the Austin Physiotherapy Service, where the plaintiff was told there was little that could be done for her, and she was discharged home.

30In about November 2011, she aggravated her lower back pain carrying a big pot.  She was again referred to physiotherapy and to swim, and she was prescribed Celebrex.

31She managed her low level and occasional pain for several years thereafter, and she did not believe that her neck or back pain would be a significant ongoing problem for her.

32In around 2012, she attended the Rex Medical Centre in Bundoora (“Rex”) for vertigo and tinnitus.  She attended for neck and back pain in about 2013.  On 7 February 2014, she was referred for a neck x‑ray because she was having neck pain.  She was told this was normal, and she was prescribed Endone and Panadol for pain.

33In February and March 2014, she also consulted with the general practitioners at Mill Park when her doctor was not available.

34In about 2015, her back pain flared up during her pregnancy, and she was referred for treatment with Dr Adele Tsai, osteopath.  Her back pain and pelvic instability gradually recovered following her pregnancy.

35On around 19 July 2016, she had a further flare-up of her back pain.  She had an MRI scan which she was told showed a disc bulge at L5‑S1 with drying out of the discs.[15]

[15]MRI scan organised by Danaher Drive – Dr Chinnaswamy

36From around 26 June until 5 October 2017, she had physiotherapy with James Lundberg at Greensborough Physiotherapy Clinic.  He requested funding of a gym/swim program, which the defendant agreed to fund in September 2017.

37She had a further flare-up on around 3 November 2017, following which she saw another general practitioner at her usual practice, Dr Fatima.  She had been standing in the garden, and suddenly could not move.  She had pain in the right side of her back.  She was prescribed Brufen, Voltaren Gel and Valium, and shortly afterwards, Panadeine Forte.

38In about March 2018, she was referred back to Dr Tsai for further osteopathic treatment, which continued in 2018 and 2019.  She was referred to Dr Tsai again in January 2020, and as at July 2020,[16] Dr Tsai was treating her neck, back and jaw pain.

[16]July 2020 affidavit

39In about April 2018, the plaintiff began to experience worsening jaw pain, and on 16 April 2018, she was referred to the Eye and Ear Hospital, but not treated there.  On around 5 March 2019, she had an OPG scan of her teeth and was told she had a temporo­mandibular “TMJ” disorder, and was given a night splint.

40On or about 10 October 2019, she was referred to neurosurgeon, Dr Hazem Akil, who told her spinal surgery was not required, and she was referred for pain management.

41On about 7 November 2019, she had a lower back MRI scan which she was told showed an L5‑S1 disc bulge with some new contact of the thecal sac and with some drying out of the discs.

42On about 12 November 2019, she was referred to Dr Akilan Velayudhan, pain management specialist, for a twelve‑week course.

43As at mid-2020, the plaintiff was still consulting with Dr Chinnaswamy at Doreen Family Medical Practice, having previously attended Rex and Mill Park.  She was then being prescribed Cipramil for anxiety and depression, and for pain had been prescribed Norgesic, Celebrex, Panadol, Nurofen, Brufen, Voltaren, Panadeine Forte and Endone.

44She was still having lower back and neck pain, which she rated at 3 out of 10 on a normal day and could rise to as high as 8 out of 10.  Her neck pain extended into both shoulders and head and up the back of her head.  When the pain was really bad, she had trouble walking, and occasionally limped.

45She had pain in her jaw and had tension headaches and jaw pain.  Her jaw pulled to the left.

46She had pins and needles in her hands on virtually a daily basis, particularly after waking.  She had problems picking up things at times, and tended to drop objects more often.

47Her back pain varied, and was aggravated by walking and sitting, and at times, she walked with a limp.  She experienced some sciatic pain into her legs.  On one or two occasions, she had had numbness extending down her left leg into her foot, and she tended to get shooting pain into her legs when bending over, such as when dressing.

48She continued to be irritable, upset and frustrated by her physical injuries and the restrictions they imposed on her daily activities.  She felt withdrawn and often irritable with those around her.

49Her injuries had restricted her work capacity.  At the time of the accident, she had been working at Complete for about three or four years.  She has not gone back to work since Summer’s birth.[17]  She did some volunteer work, mainly sending emails and raising funds for an animal rescue.  She was no longer able to foster pets due to her back pain.  She could not work in animal care, as she struggled with the physically demanding tasks of the role.

[17]February 2015

50The plaintiff gave further details of her work history in cross-examination.  She had resigned from Complete and was serving out her notice when the accident happened.  She was also working at Best Friends Pet Store (“Best Friends”) and had been for a couple of years.[18] 

[18]T39

51Complete had moved from Tullamarine to Truganina and the travel became too much for her day-to-day life, especially after she had chronic fatigue, since coming back from Thailand.  It was a lot of driving, a lot of traffic, it was just too much for her and she was having the time off work, and they were not happy with her.  As much as she loved the job, it was just not working for her.[19]

[19]T50

52After the accident, Best Friends was primarily her job and she was available to work for them when she could and when they had hours for her.[20]  She did get to full time there, even though she could not remember if that happened immediately after the accident or later on.  Then the Petplan insurance job came up after about six to eight months and she had applied for it because she loved animals.[21]  That job was in customer service and she helped out with some claims.  It was full time, including Saturdays on multiple occasions.[22] 

[20]T50

[21]T39

[22]T51

53“From Petplan”, she was having some issues with her back, and anxiety and vertigo, and it was causing issues at work, and there was a bit of bullying at work around it so she decided it was best to leave.  She then obtained a job at Independence Australia, working in customer service.[23] 

[23]T52

54Independence Australia is a disability support service which provided aid and products, like nappies and catheters.  She was there maybe a month when she became pregnant.[24]  She thought she left Independence Australia at the end of July and she had Summer in February 2015.[25]

[24]T53

[25]T52

55She had really bad hormonal anxiety issues and really bad back pain, and pelvic instability.  A combination of the three led her to say she could not do the work, it was just too much, because she could not take any pain medication, such as the Celebrex “or anything”.  She resigned and was effectively put on disability by Centrelink, and “we are here today”. 

Work future

56As at June 2020, Summer was at an age where the plaintiff could now return to work, but she was restricted in her ability to perform administrative tasks due to her back pain, with sitting at a desk and driving to and from work aggravating that pain as did prolonged sitting at a computer.

57She also used to work in hospitality, and she could not work on her feet for prolonged periods or do any bending and lifting associated with such work.

58She is currently not working.  She left work in about 2014 because she was experiencing physical limitations due to her back injury as well as pelvis instability brought on by her pregnancy.  She has not returned to work because of her back pain, which has continued and persisted long after Summer was born.  Her pelvic pain substantially resolved within a year of Summer’s birth with treatment.

59She does not know what sort of work she could realistically perform on a regular or reliable basis.

Other activities

60The plaintiff’s injuries had reduced her enjoyment of life, and capacity to perform daily activities.[26]

[26]        June 2020 affidavit

61Her injuries had impacted her performance of domestic and daily tasks.  Her back and neck pain were aggravated by taking care of Summer, particularly when she was younger. That pain was aggravated by making beds, cleaning, doing the laundry, bathing Summer, and doing other household tasks and gardening.  Dean helped her in all of those tasks, in particular vacuuming and mopping, to save strain on her back and neck.  She was able to bathe and dress Summer.  Dean did the mowing.  Occasionally, the plaintiff would sit in the garden and pull weeds for a short time.

62Before she was pregnant, she was seeing Dean.  She was still able to do some of the mopping and vacuuming.  She lived alone from 2011 to 2014.  She could do the housework because she was able to take Celebrex, but since the recent flare up in 2018, she cannot do so now and it is way too much for her.[27]

[27]T54

63She enjoyed cooking, and had considered it as a career before the accident.  She still did some cooking, however, standing at the stove or bench aggravated her back pain, and lifting pots and pans aggravated her neck.

64She had one dog and two cats.  She used to have two dogs, but was unable to walk them, and when one had to be put down she did not buy another one.

65When she had a bath or shower, she was often scared of falling, and she preferred to have the sides of the bath to help her out.  She had trouble toileting due to back pain, and getting dressed also aggravated that pain.

66Her social life had been very restricted.  Even before COVID, she had been socially withdrawn due to her physical pain and restrictions.  She had pain when she walked anywhere, particularly standing up in a pub.  She rarely went to family events.  She put on a brave face for Summer and went to some parties so she would not miss out, but she struggled through them.

67Her recreational life had been restricted by her injuries.  Prior to the onset of neck and back pain, she did women’s kickboxing and running, and enjoyed taking her dogs to events and for long walks.  Since the deterioration of her back and neck, she had been restricted in her ability to walk her dog. 

68Pre accident, she went horse riding on holidays and enjoyed it.  She would now not be able to ride a horse, as she would be too scared now of jarring her back or re‑injuring it.  She had last been horse riding probably around 2006.[28]

[28]T61

69The plaintiff enjoyed kickboxing two or three times a week for a year or two before the accident.  It was part kickboxing and part fitness, and sometimes she did double classes and went running with the teacher.  While she deposed she had not returned to kickboxing since the accident, she thought she tried up to about four months after the accident, but did not last long, as it was just too difficult for her.[29]

[29]T59

70Her sleep had been interrupted by her neck and back pain, and it was difficult to get comfortable in bed.  When she rolled over, she tended to wake up, and she woke with extreme pain in her lower back nearly every morning – like it was twisted up.

71Her mobility had been restricted by her injuries.  Her ability to walk was restricted by back pain, and she had a limp at times.  She had taken Summer to the Melbourne Show in 2019 and had had horrific pain by the time she got back in the car.  It was good for her to take Summer out and for her to get out, but she had difficulty driving due to neck and back pain.  Sitting in the car aggravated her back pain.  Steering and doing head checks aggravated her neck pain.

Current situation

72The plaintiff continues to experience constant, daily pain in her neck and lower back, which she feels is getting worse with time.  On a normal day, it is now 5 out of 10, and can rise to 8 or 9 out of 10.  Her neck and back pain is generally aggravated by prolonged walking, standing, sitting, bending, twisting and lifting, and on some days, her back pain flares even after a short drive.  She regularly experiences referred pain down her legs, every second day on average, with the pain worse on her right leg.

73She has regular osteopathic treatments for her back and jaw, about once a fortnight.  She is funding it, and cannot afford to go more often.  The TAC no longer pays for it.  These treatments help manage her pain and increase her range of movement, but do not cure her.

74While osteopathy treatment had been very helpful, her pain is increasing – “So it helps to keep my pain down towards the five as opposed to it being at the eight and nine constantly” – for both her back and neck.[30]

[30]T62

75Often, her back is worse at the start of the day, but then her neck gets worse.  If she does not go to the osteopath, she ends up taking four to six Panadeine Forte a day, but takes less if she has treatment, and sometimes can get away with a day where she pushes through without any medication.[31]  Her understanding was that she had sciatic pain “from [her] butt down to her legs, like a warm throb of pain”.[32]

[31]T62

[32]T63

76She takes Panadeine Forte, mainly for her back pain, and most days takes about two tablets.  About once a week, she takes between four to six tablets when her pain is at its worst.  It does not take away her pain; it just takes the edge off.  Occasionally, there are days when she does not take any medication, like when it runs out.  On those days in the past, she has tried Panadol, but this does nothing, so she just tries to take it easy.[33]

[33]        August 2021 affidavit

77She completed the pain management course in about August 2020, but it did not cure her.[34]

[34]T12 – November 2019 funded by TAC

78Her jaw pain continues.  She regularly drops things, at least once or twice a day on average, due to the numbness, tingling, weakness and instability in her hands.

79Most nights, she has problems with sleep due to neck and back pain.  It generally takes her anywhere from 20 minutes to two hours to get comfortable and fall asleep, and she regularly wakes up with pain.  She also has a lot of trouble getting out of bed in the mornings due to pain.

80Prior to COVID, she was going to a personal trainer maybe once or twice a week for strengthening exercises, depending on her pain.  After most sessions, her back and neck were very painful and she generally took Panadeine Forte.

General Practitioner attendances

81There was lengthy cross-examination in relation to the plaintiff’s attendances at a range of medical practises.

82Dr Francis at West Heidelberg Medical Centre was her regular doctor, but it was very hard to get an appointment with her.[35]  The plaintiff used to have to wait months to see her, so she would go to other clinics.[36]

[35]T30

[36]T36 – fourteen visits from November 1999 to August 2014

Mill Park Super Clinic 11.2.07 – February 2015 (28 visits, two notes  back/neck/spine)

83There was an entry on 27 January 2011 of “Pain moved to the back this morning”.[37]  She thought that was a stomach thing.

[37]T28

84On the first post-accident visit on 7 January 2012, she complained of a sore throat but did not mention the accident.  She did not mention it because she “assumed” she was going there because she had a sore throat and a runny nose.[38] 

[38]T29

85The plaintiff agreed when seen on 22 April and 30 July 2012 and 22 November 2013, there was no mention of the accident.  Every time she goes to the doctor she is not going to mention neck and back pain if she is managing it with medication herself.  She was going to see the doctors for the problems they noted.  She disagreed she did not complain about her neck and back because it was not much of a problem.  She had medication she was told to take, and she was told it would resolve, or they hoped it would resolve.[39] 

[39]T32

86Chronic back pain was noted on 3 February 2014.  On 3 March that year, there was a mention of lower back pain and the first mention to that clinic of the accident.[40]  She would have been going to her regular doctor at that stage, but could not have got in, so she went to this clinic because she was in increased pain.[41]

[40]LBP and MVA three years ago, pain since then on and off, ask for Endone refused/Tramadol prescribed

[41]T32

Thomastown Super Clinic 11.4.11 - 7/15.11.11 (ten visits, seven notes neck/back/spine)

87She agreed she first attended Dr Vincent on 11 April 2011.  He did some tests for chronic fatigue later that month.  She was having a lot of trouble with tiredness and she was having a lot of issues with tiredness at work.  The tiredness was a really significant factor.[42]

[42]T33

88She could not recall having reported back pain in the interscapular region on 23 April 2011.  That was in a different area – in the scapula area.[43] 

[43]T33

89She saw Dr Vincent on 9 June 2011, the day of the accident, complaining of neck and lower back pain.  There were subsequent attendances on 29 June and 7 July 2011, when he organised a lumbar CT scan and she was prescribed Celebrex.  On 9 July 2011, the results of the investigations were discussed, and the plaintiff was noted as not improving.  Physiotherapy, an orthopaedic referral, back brace and back strengthening formed part of a management plan. 

90On 26 July 2011, the plaintiff attended again for back pain, and was prescribed Celebrex, complaining of severe pain constantly and for the whole day. On examination, there was lower back tenderness.  On 11 October 2011, she attended and reported that her back pain had reduced.

91On 12 October 2011, she filled out a TAC Claim Form for a back injury.  On  7 November 2011, it was noted she was having lower back pain since Thursday, having carried a big pot and hurt her back.  The accident was mentioned.  That was the last visit.  The clinic is closed.[44]

[44]T35

Rex Medical Bundoora 11.9.12 - 28.3.14 (40 visits, four notes neck/back spine)

92There was a note of neck and pack pain on 7 June 2013[45] and 24 February 2014.[46]

[45]C/o of neck and back pain, muscle pain in thighs

[46]T35

93There were forty visits from September 2012 to February 2014 and on four occasions, there was a complaint of spinal pain.  She disagreed that the records suggested she made no attribution to her spinal problems connected with the accident, because she “cannot say what is written in the notes.”[47]

[47]T38

94She confirmed that she was having problems with her spine, as noted on 24 February 2014, from working in an office facing a computer every day.[48] 

[48]T38.  Endone 5-milligram prescribed, 28.3.14 flare up LBP Panadol Osteo prescribed 

Danaher Drive Medical Centre  14.3.14 - December 2019 (74 visits, eight notes neck/back/spine)  

95The main doctor at Danaher was Dr Chinnaswamy, who had also been at Doreen.

96There were notes of neck/back pain on 24 June 2014,[49] 14 April and 14 August 2015,[50] 13 October 2015, [51]12 March 2016 [52], 14 July 2016,[53] 20 July 2016[54] and 2 August 2016.[55]

Doreen Family Medical Practice  7.12.16 - 18.3.21 (112 visits, 21 notes   neck/back/spine) (Dr Chinnaswamy)

[49]H/o L/5 S1, back pain manageable

[50]Back pain, wants to see osteo- leave antiflams for now

[51]Woke up with back pain, using Valium as muscle relaxant

[52]Lower thoracic intermittent pain x-ray, taking Nurofen

[53]Worsening LBP MRI lumbar

[54]Endone, Valium, MRI lumbar spine

[55]Low back pain, unable to do exercises. joined gyms

97On 3 November 2017, the plaintiff attended having hurt her back while standing in the garden.  She was just getting some weeds.[56] 

[56]T43 - Hurt back in garden, suddenly could not move, heat packs, has Valium, took one with Brufen and Voltaren gel.  3 January 2018, Panadeine Forte LB pain

98The attendance on 26 August 2018[57] was the first mention of the accident, “ongoing pain since then”.  Back pain was also noted on 18 September and 29 September, 1 October 2018 and 9 January and 7 October 2019.[58] 

[57]Celebrex c/o LBP , h/o MVA 2011, ongoing pain since, tender C4

[58]T44

99On 11 October 2019, Dr Chinnaswamy recorded the history of the accident in some detail, noting the plaintiff wanted osteopathy for her neck.  He also wrote - “Advised unable to comment that her neck issue is due to the accident”.  He said to her it was too long ago and he was not the appropriate person to comment.[59]

[59]        T44

100She did not believe she first mentioned the accident to Doreen on the thirty-eighth of one hundred and twelve attendances.  She had always been very clear with her doctors that she had a transport accident and that the pain had always been from that.  She cannot say why it is not noted every single time, she “has not seen half the records”.[60] 

[60]T47

101There were regular visits for spinal issues from November 2019 to early 2021.[61]

[61]T45

102The plaintiff had a significant flare up in 2018 and she “is still in it today”.  All of a sudden, she woke up one day and she was in a huge amount of pain, and in the same area it has always been, her neck got really bad and she has been in pain ever since.  She woke with the spot in the back where her pain is and has been since the day of the accident.  Her current back pain, “it’s like just above my butt crack, around there”.[62]

[62]T46

103She agreed that from 2018 she had had some problems with right knee pain which she thought is “a secondary issue” to her back pain.  She also agreed that she had recently had right shoulder pain and she thought it was possibly linked to the issues with the muscles around her neck – “related to the motor accident secondarily”.[63]

[63]T48

104The most recent severe flare up started in 2018, but there had been some others, including the gardening episode in 2017.  There had been many more flare ups for which she did not seek medical assistance, because she had Celebrex to help out.[64]

[64]T60

105She denied that she was not genuine or cooperative when examined by Mr Wilde – “I believe I am genuine and I disagree that I’ve exaggerated anything … I am a person of a character that will give something my all irrespective of the pain if it’s important, i.e., if my daughter falls over, pain is irrelevant.”[65]

[65]T64

106While there was no mention of the accident in clinical notes from November 2011 for the next five years, the plaintiff was taking Celebrex and had it in her possession all the time.  She did not “claim off” the TAC after her claim had been accepted because she paid for her own medication.[66]

[66]T65

107There was an increase in her treatment after she had seen solicitors in October 2019 because she was finally offered it by her doctor and the TAC said she could get it.  TAC started paying for her osteopath and she ended up claiming a lot of past treatment she had paid for herself.  Prior to that, her injury had been reasonably well managed with Celebrex and then it stopped working and was “causing heart stuff”.  Since 2018, there have been the flare ups, and so many that she has not gone to the doctor every time because she used to have medication to manage it, but it just does not work anymore.[67] 

[67]T66

108The plaintiff agreed she saw Dr Tsai around the time of her pregnancy and then went back to that osteopath in 2018.[68] 

[68]T67

109She could not remember when she had been given Endone, but she thought it must have been a bad flare up.  She wanted to avoid taking something like that for that long if she could.  She is now at a point where she cannot deal with the day-to-day pain.[69]

[69]T67

110There was no re-examination.

Summary of the Plaintiff’s Taxation Returns

Financial Year	Gross Earnings from Personal Exertion	Amount
2008	Vision Super Pty Ltd	$57,803.00
2009	Vision Super Pty Ltd   Morris Walker Consultants	$9,696.00 $32,491.00
2010	Morris Walker Consultants Complete Office Staffing   BF Thomastown	$7,669.00 $31,950.00 $1,913.00
2011	Complete Office Staffing   BF Thomastown	$39,682.00 $5,097.00
2012	Petplan Australasia   BF Thomastown	$3,557.00 $32,410.00
2013	Best Friends Retail   Petplan Australasia	$2,632.00 $41,819.00
2014	Independence Australia Group                    Best Friends Retail	$3,865.00 $502.00
2015	Independence Australia Group	$1,498.00

Lay evidence

Dean Robins

111The plaintiff’s former partner, Dean Robins, affirmed an affidavit on 17 October 2021.  He is thirty-eight, and works full time as a carpenter.

112He did not know the plaintiff prior to the accident.  They met on an online dating website in about 2013 and moved in together in about 2014.

113They are no longer a couple, but continue to live together, and he helps her with many aspects of her life.  Their daughter, Summer, is almost six, and they care for her together.

114The plaintiff’s pain and functioning has changed for the worse after the accident.  She tries to do her part and contribute to chores around the house, but will usually need a hand finishing what she started.  When cooking, there are many occasions where, after 20 minutes standing over a stove, he can see that she is in pain.  She struggles with the laundry, as it may be too heavy for her to carry without risking aggravating neck or back pain, and picking up things left on the floor, like toys, can often cause her further pain and stiffness.  She knows to leave the heavier tasks around the house, like mopping, vacuuming and gardening, to him.

115He goes with her to do the grocery shopping, so she can avoid pushing the shopping trolley, picking up heavy bags of food, unloading the trolley and unpacking when arriving home.

116She needs to go and lie down and rest her back and neck when having pushed herself too hard.  On bad days with increased pain, he sees her taking painkillers to try and get herself up and going.  She tries to cope with pain and the changes in her life because that is the type of person she is, but he can see that many things continue to be hard for her.

117Her injury has impacted her ability to look after Summer, who is active, and be a ‘hands-on’ mum.  Brushing Summer’s hair and bending over to tie up her shoes cause the plaintiff increased pain.  It is difficult for her to manage Summer on her own.

The Plaintiff’s medical evidence

Dr Adele Tsai, osteopath

118Dr Tsai reported in October 2020.  She has been treating the plaintiff intermittently since 23 July 2015.

119The initial treatments in 2015 were primarily focused on the lower back, hip and pelvis, as a result of pelvic girdle pain associated with pregnancy and subsequent delivery of her daughter.  The pelvic girdle pain seemed to improve, but the lower back pain that Dr Tsai put down to being as a result of a past L5‑S1 disc bulge seemed to persist.  The plaintiff also presented with neck and shoulder pain, along with headaches later in 2015.

120From March 2018, the plaintiff presented with neck and shoulder pain and in August 2018, with lower back pain.  Since then, she had been presenting intermittently with low back pain, although she claimed she had been experiencing constant low back pain since the accident, and reasonably frequently with neck and shoulder pain, along with associated headaches.

121The diagnosis from the latest MRI scan of November 2018 was minor disc desiccation at L5‑S1 and L4‑5.

122The very nature of disc bulge made it very hard to predict the prognosis.  The varying nature of the plaintiff’s symptoms suggested the injury had not stabilised.  She had done an intensive bout of physiotherapy at Advanced Healthcare in April 2020 which seemed to assist in pain management initially, but did not seem to provide long-term results. 

123The plaintiff found intermittent osteopathic treatment helped with pain management and stiffness, and kept her able to perform activities of daily living.  Without treatment, she found pain resulted in mood changes and further interruptions to her limited daily activities. 

124The plaintiff was adamant she needed osteopathic treatment to lead a reasonably normal, functional life.  She was worried about the potential impact her injury would have on her ability to work in the future.  She could not sit or stand longer than ten minutes without increased pain and stiffness.  It was hard to find a job that did not require either of these limitations.

125Dr Tsai detailed the effect of the injury/condition upon activities of daily living and domestic, leisure and social activities.

Dr Srinivasan Chinnaswamy, general practitioner

126Dr Chinnaswamy from Doreen, reported on 5 April 2021.

127The current diagnoses of injuries included chronic neck and low back pain with flare-ups.  He was not able to comment on prognosis, as the plaintiff was getting flare-ups often and needed to see the osteopath for pain relief.  The condition was not stabilised, and further osteopathic treatment for pain relief was needed.

128Dr Chinnaswamy thought the condition was unlikely to deteriorate in the future.  The plaintiff will likely have flare-up of pain and mobility restrictions.  Any further injury on her neck or back can deteriorate her condition.

129The plaintiff is functional at home, although after using painkillers.  She is functional with respect to leisure and domestic activities.  This can be impacted during periods of flare-up when she needs to rest a bit and take more analgesics to ease pain.  The injury does not have any major impact on her social activities.

130With respect to work, the plaintiff is limited with respect to physical jobs which involve lifting, standing or moving through the day, and would need to consider her current medical conditions and risk of flare-ups.  She can look for jobs and seek occupational therapist input before starting a new job.

Pain management

131Mark Tamaray, physiotherapist, associated with Advance Healthcare, Bundoora, reported in April 2021. 

132The plaintiff attended multi-disciplinary pain management on 30 March 2020.  The diagnosis was chronic primary pain, musculoskeletal cervical and lumbar of moderate to marked severity.  She was also provisionally diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

133He thought she was likely to need self-management strategies to manage her chronic pain into the longer term.  He considered the injury had stabilised and was not likely to deteriorate in the long term.  He thought she appeared to likely most benefit from a self-management approach, including continuing with her exercise and activity program commenced during pain management.  She did not appear to require any further medical or surgical management.  She had a limited capacity for sitting, up to 30 minutes, and repetitive bending and would be best suited to an administration role.

134The plaintiff reported the main problem as being the right cervical spine.

135The treatment recommendation was the plaintiff would likely benefit from a multi-disciplinary pain management program two to three times a week for eight to twelve weeks, which would provide treatment targeting the specific barriers to recovery.[70]

[70]There is no report as to the plaintiff’s condition on completion of the program in August 2020

Dr Hazem Akil, neurosurgeon

136Dr Akil reported in November 2019, after the plaintiff had been referred to him by Dr Chinnaswamy.  There was a review in January 2020.

137The plaintiff told him that since the accident, she had been complaining of neck pain, as well as low back pain, although according to her, the TAC approved only lower back injury.

138The plaintiff felt she had had some improvement with osteopathy and physiotherapy exercises, but now, given the fact the TAC was not supporting them anymore, she felt these conditions had relapsed.

139Since August 2018, the plaintiff had had a flare-up of back pain that started radiating towards her leg all the way to calf and buttocks.  She used to take Celebrex on a prn basis, but now she did not take much of an analgesia.

140The plaintiff was not currently working, as she was looking after her four-year-old.

141On examination, the range of neck movement was normal and no motor or sensory deficit in the upper limbs was detected.  Straight leg raising was to 45 degrees bilaterally and no motor or sensory deficit in the lower limbs was detected.

142Dr Akil reviewed a lumbar MRI that showed an L4‑5 and L5 annular fissure.  He did not detect any neural compression.

143Given the fact the plaintiff’s neck was giving a significant amount of discomfort and pain, he suggested performing an MRI scan.  He understood that may not be approved by the TAC, although, in his opinion, it was very plausible her cervical symptoms were caused by whiplash in the accident.  The mechanism of injury was very consistent with that.

144With regard to her lumbar spine problem, he did not believe that surgery would offer any particular solutions for her and was aware she was waiting to see a pain specialist.  He told her to contact him once an MRI scan of the spine was available.

145On review on 23 January 2020, the scan was discussed.  It showed a reversed lordosis of the cervical spine but no obvious neural compression.  He understood the plaintiff was seeing a pain specialist some time next month, which he thought was the best course of action, and he did not see any indication for surgery.  He did not have any particular plans to see her in the future.

Investigations

146The plaintiff had brain scans in July 2003 and January 2006.

147It was reported in 2003 that no significant focal intracranial abnormality was identified, no haemorrhage, infarct or extra axial collection was seen, and no mass legion was identified.  The sulcal pattern and ventricular system appeared normal.

148The 2006 scan showed that ventricles and cisterns appeared normal, no masses were seen, no shift in midline structures was evident, and the grey/white matter appeared unremarkable.

149The plaintiff had a whole spine and pelvis x‑ray in March 2006, a cervical x-ray in February 2014 and a thoracic spine x-ray in March 2016 and September 2018.

150Following a CT scan of the lumbosacral spine in July 2011, it was reported at L3‑4 level and L4-5 level, the disc appeared normal.  At L5-S1 level, there was a minor disc bulge.

151Following an MRI scan of the lumbar spine on 19 July 2016, it was reported there was mild disc desiccation at L5-S1 and no significant stenoses.

152Following an MRI scan of the lumbosacral spine on 7 November 2019, mild desiccation at L5-S1 was found, unchanged when compared to the previous study.  There was new mild disc desiccation at L4-5.  New small central disc protrusion was seen at L5-S1 that contacted the thecal sac without compression.  A new L4‑5 broadbased disc bulge contacted the thecal sac without compression.  No significant thecal compression or neural exit foraminal narrowing was identified.

153Following an MRI scan of the cervical spine on 9 January 2020, it was reported there was non-neural compressive central protrusions at C5-6 and C6-7.

The Plaintiff’s medico-legal evidence

Mr Garry Grossbard, orthopaedic surgeon

154Mr Grossbard examined the plaintiff in April 2021.

155She told him she was working part time at the time of the accident.  She had not returned to work since the birth of her daughter six years ago.

156The plaintiff described the onset of neck and back pain after the accident.  She saw her local doctor and was referred for physiotherapy.  Overall, her situation improved to the point she felt things were manageable.  Her neck pain improved but she had episodes of tinnitus and vertigo in 2012-2014, with no cause identified. A neck x-ray in 2014 was relatively normal.  Flareups of back pain had been reasonably controlled by Celebrex.

157The plaintiff told him her back continues to be intermittently troublesome.  She had never fully recovered from the back pain, which ranged from 4 to 5 out of 10.  There was a flare-up of neck pain in August/September 2018, for which no cause could be established.

158The plaintiff began to complain of shoulder pain in December 2020.

159She described neck pain largely in the suboccipital area and at the base of her neck posteriorly.  There was low back pain at the lumbosacral level, slightly to the right.  It was constant but variable.  It sat at about 4 to 5 out of 10 on the visual analogue scale.  Neck pain was constant, although the intensity varied.

160On examination, there was a mildly reduced range of flexion and extension causing increased pain in the cervical spine.  Lateral flexion was greater to the left than the right, whilst rotation was greater to the right than the left, but there were no neurological abnormalities in the lower limbs.

161In the lumbosacral spine, there was mild lumbosacral tenderness on the right side.  There was poor flexion with increased pain on extension.  There was limited but equivalent lateral flexion in each direction and there were no neurological abnormalities.

162Mr Grossbard noted the 2016 and 2019 lumbar MRI scans and also a cervical spine MRI scan of January 2020.

163He thought the plaintiff had suffered soft tissue injury to the cervical and lumbar spines as a result of the accident.  These injuries had been of an intermittent nature but had become progressively more troublesome, particularly with respect to the lower back.  Many of the physical signs would suggest much of her pain is facet joint mediated.

164He believed ongoing treatment should remain conservative and did not consider surgical intervention would be appropriate in the absence of any significant neurological involvement.  He thought the plaintiff’s pain would persist and the treatment was one of pain management with exercises and medication, if necessary.

165He believed the plaintiff’s capacity for work was significantly diminished.  She would not be able to undertake a job where she was required to repeatedly bend or lift, stand or sit for long periods.  However, he believed she had a work capacity, but this would be restricted to non-physical activity where she could sit and stand as required and move about as required.  

166Mr Grossbard noted the plaintiff had experience in office activity and that may provide an environment where appropriate adjustments be undertaken to make a return to some form of employment feasible.  He suspected she would require a very understanding employer for this to occur.

Dr David Weissman, psychiatrist

167Dr Weissman saw the plaintiff in July 2020. 

168She told him that she experienced worsening deteriorating low back pain over many years and over the last couple of years, her neck pain worsened.

169She told him she experienced mild anxiety around driving a car and being in a car.  There were no complaints of specific bad dreams or nightmares about the accident.  However, she struggled to sleep, and physical pain “plays a part” in this.  Her interests, energy, motivation and drive were not great.  In relation to her mood, she “feels as if there is depression there, but she finds it difficult to vocalise it.  She feels ashamed.”

170He thought this was a complex case, and having conducted a psychiatric assessment, concluded the plaintiff was suffering from a pre-existing/premorbid Generalised Anxiety Disorder, pre-existing/premorbid Panic Disorder, pre-existing/premorbid chronic dysthymia with anxious distress or Persistent Depressive Disorder, pre-existing/premorbid chronic recurrent Major Depressive Disorder with anxious distress, cross-sectionally, accident-related only slight and residual traumatisation features, cross-sectionally, mild accident-related chronic Adjustment Disorder with anxious and depressive features; representing a mild aggravation of a moderate pre-existing condition and Somatic Symptom Disorder with predominant pain, persistent.

171He thought her premorbid psychiatric prognosis would have been quite uncertain and guarded because of moderate pre-existing psychiatric conditions and moderate premorbid psychological and emotional vulnerability factors.  Overall, he would say she is suffering from a moderate group of pre-existing and unrelated psychiatric conditions.  In terms of the accident, overall he would say she is suffering from a mild to moderate group of accident-related psychiatric conditions and mental injuries.

Dr Brendan Hayman, psychiatrist

172Dr Hayman examined the plaintiff in May 2021.

173He noted she continued to have a constellation of low-grade symptomology, including a worsening in panic symptomology, some post-traumatic anxiety when driving but no re-experiencing phenomena, and the re-emergence of some low-grade depressive symptoms in the setting of the chronic pain and the limitations on her life.  She did not wish for psychological or psychiatric treatment and was disinclined to take Cipramil. 

174Her depressive symptoms very much related to her ongoing experience of pain.  The ongoing mild post-traumatic anxiety symptoms saw her avoiding driving, if possible, but she was pragmatic and continued to drive when necessary.

175He thought she had developed a Chronic Adjustment Disorder with Depressed and Anxious Mood consequent to the accident and its sequelae.  That incorporated a degree of post-traumatic anxiety and there had also been worsening in the pre-existing Panic Disorder.

176He thought the plaintiff presented as a matter-of-fact woman who very much would like to return to work.  It was primarily her physical issues and experience of pain which impacted on employment.  She would like to do some part-time work, but was aware that most workplaces would not be amenable to her limitations given pain.

The Defendant’s evidence

Medico-legal evidence

Dr Peter Wilde, orthopaedic surgeon

177Mr Wilde examined the plaintiff in April 2021.

178The plaintiff told him that at the time of the accident, she was working at Complete. She took a week off after the accident and was able to resume this job and also did some part-time work at a pet store – on and off till 2013.

179In May 2012, she commenced work at Pet Plan insurance, an office job.  Her memory of various times she did these jobs was poor and she could not give exact dates.

180Post-accident, with a period of rest and Celebrex, she was able to return to normal duties six to seven days a week.  Although she felt better, her pain did not go away and in the early days, it was her neck, and then her back became more troublesome but presently, her neck was more troublesome.

181Over the years, she had had a number of episodes where symptoms would get worse for a while and then settle.  When she bent over in the garden, her back “went again”.

182After the birth of her child, she could not work as her relationship with her partner failed and they separated.  She would like to go back to work but felt her anxiety and depression, migraines, neck and back pain were preventing this.

183On examination, she complained of neck pain, especially referring to the suboccipital region on the right, frequently associated with headache.  The pain was always there, 3 out of 10 on a good day, but 10 out of 10 on a bad day.  When that happens, all she can do is lie down and take Panadeine Forte and strong painkillers.

184She also complained of numbness in both feet and hands in a non-dermatomal pattern.

185Her back pain was always present, maybe 4 out of 10 on a good day to 9 out of 10 on a bad day.  She had difficulty using her back such as bending over, lifting things, carrying things or standing for long periods.  She could not drive for more than 30 minutes.

186On physical examination, the plaintiff was anxious and depressed.  There was no deformity in her spinal posture.  Movements of the lumbar and cervical spine were restricted slightly by pain, 25 per cent.  Her movements in the back and low back were not associated with dysmetria or muscle spasm.  The neurological testing of upper and lower limbs was entirely normal, although she said sensation on the whole right side of her body was different to the left.

187He thought the January 2020 cervical MRI and the 2019 lumbar MRI scans were normal for her age.

188Mr Wilde concluded that the plaintiff reported symptoms consistent with longstanding anxiety and depression and migraine headaches and neck pain and back pain of fluctuating severity since the accident.  Prior thereto, she told him she did not suffer with neck or back pain.

189The plaintiff had suffered soft tissue injuries to the neck and low back which had never completely resolved.  The imaging showed minimal change, so he was not able to account for her overstated symptoms.  From an orthopaedic perspective, those injuries were minimal.

190As the plaintiff stated she had experienced pain since the accident, he must conclude that these diagnoses are unresolved and relate to the accident.  He felt anxiety and depression were heavily impacting on the stated severity of her pain.

191The description of the accident could have produced soft tissue injuries, although he was not sure why the plaintiff’s symptoms had continued for so many years given the very minimal changes seen on cervical and lumbar MRI scanning.  Non-organic factors were contributing to her perceived disability.

192There was little to find on clinical examination.  Movements were restricted slightly due to stated pain, but there were no other objective neurological findings or other features and neurological assessment was normal.

193There were inconsistencies between the stated spinal pain when he compared stated symptoms to minimal changes on MRI scans.  Indeed, he passed the minor changes (disc bulges) as normal for her age and not representing significant pathology.

194He thought the plaintiff should be assessed by a psychiatrist as part of her pain management program and that she would benefit from anti-depressant medication.

195Her stated symptoms do not prevent her from attending to activities of daily living, although she felt that neck pain and headaches stopped her from doing certain heavy housework which was done by her ex-partner, who still lives with her.

196There is no reason why this “girl” could not return to full-time work in retail or warehousing jobs she had done in the past. He thought, from a physical perspective, her prognosis was very good, given the minimal pathology demonstrated on the MRI scans.

Overview

Compensable injury

197There is no dispute the plaintiff injured her low back in the accident.  Her TAC claim lodged in May 2012 was accepted. The current application also includes her cervical spine.

Diagnosis

198Medico-legal orthopaedic surgeons, Mr Grossbard and Mr Wilde, both diagnosed soft tissue injuries to the cervical and lumbar spines, with the latter somewhat reluctantly making this diagnosis on an acceptance of the plaintiff’s history of ongoing pain since the accident, being unsure why her symptoms had continued for ten years, given the very minimal changes shown on MRI.

199General practitioner, Dr Chinnaswamy, in his very brief report of April 2021, simply described chronic neck and low back with flareups.  Neurosurgeon, Mr Ali ,did not provide a diagnosis.

Credit

200As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71]

“… 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.”

[71](2010) 31 VR 1 at paragraph [12]

201There was no significant attack on the plaintiff’s credit other than a submission that she did not give examiners full details of her pre-accident osteopathic treatment for her spine.

202Counsel for the plaintiff submitted the plaintiff was “a highly credible witness and any attacks on her credibility had sort of been chipping away at the edge – She’s done her best in the witness box to recall events going back now over many years … the credit attacks on her are quite minimal.”[72]  There was no surveillance film.[73]

[72]T82

[73]        T86

203In my view, credit was not a significant issue in this case, however, the plaintiff’s affidavits did not give the true picture of her situation pre and post-accident, particularly in relation to work.

Pre-accident spinal condition

204While the plaintiff had osteopathic treatment for spinal “muscle tension” in 2006-2007 and two sessions in 2009, I do not consider she had a spinal condition of any significance before the accident.  It is therefore not an aggravation case per se.[74]

[74]T70

205However, it became apparent in cross-examination that some time prior to the accident, she was diagnosed with Chronic Fatigue Syndrome (“CFS”) and had resigned from her full-time job with Complete two weeks before the accident due to “tiredness” relating to this condition.  Complaints of this nature continued after the accident.   She also declared in her TAC Claim Form that pre accident, she was suffering from “fibromyalgia in line with anxiety”.  She was seeing an osteopath wen required and regularly taking Cipramil and Valium.[75]   

[75]T76

206The plaintiff attended the Thomastown Super Clinic complaining of tiredness numerous times in April 2011 and CFS was diagnosed on April 2020.  When seen on 23 April 2020, interscapular pain was noted.  There was further mention of “tiredness” and CFS on 4 May 2020.

207CFS complaints continued after the accident.

208At Doreen on 6 October 2012, it was noted the plaintiff was taking diazepam for anxiety – “on duromine for CFS?”

209The plaintiff’s “main” treater, Dr Francis at West Heidelberg, noted on 14 September 2013, that there was increased fatigue since June 2012, and diagnosed CFS, noting – “been affecting work because of falling asleep”.  Fatigue was again noted on 5 October 2013.

210When seen at Doreen between 7 September 2016 and 18 March 2021 by Dr Chinnaswamy, he noted CFS under “Active past history”.

Causation

211I must be satisfied as at the date of hearing, that any spinal impairment is as a result of the transport accident and that such impairment is serious and long term.

212The plaintiff’s case was there had been a deterioration in her condition which dated back to about 2018 and it had been progressive, corroborated in the clinical notes.[76]  There had been an increase in symptoms, “not an attempt to drive this sort of application”.[77]   

[76]T80

[77]T85

213It was submitted when the plaintiff’s evidence and the medico-legal evidence was taken into account and the fact it was a “heavy accident” with contemporaneous complaints, on balance, the Court would have no difficulty connecting her current situation to the accident.  Mr Wilde did not disagree.[78] 

[78]T83

214In my view, however, the plaintiff’s task is particularly difficult in this case, given the largely unexplained onset of significant symptoms some seven years after the accident in circumstances where she was able to work full time for three years thereafter and required very little treatment.   

Medical evidence – causation

215While Mr Grossbard and Mr Wilde diagnosed accident-related soft tissue injuries, neither explained why minor flare ups in 2014, 2016 and more significantly since 2018, were accident related after such a lengthy relatively stable period from the end of 2011.

216Further, both examiners based their opinion on a history of ongoing spinal pain since the accident – a situation I do not accept.[79]

[79]Dordev v Cowan & Ors [2006] VSCA 254 per Chernov JA at paragraph [14]

217Neither examiner found much on the available investigations or examination to explain the significant level of pain she currently describes.

218As counsel for the defendant submitted, there was not much to find on investigations, even on the July 2016 lumbar MRI scan, with mild disc desiccation and no significant stenosis.  Mr Wilde thought there was no significant pathology and that the minor disc issues were normal for the plaintiff’s age.  Mr Grossbard  thought there was an absence of any significant neurological involvement, either clinically or radiologically.

219On 30 March 2021, Mr Wilde found no spasm, neurological examination was normal and movements of lumbar and cervical spine restricted slightly by pain 25 per cent.

220A month later, on 29 April 2021, Mr Grossbard found tenderness and a mildly reduced range of cervical movement, lumbar, also mild tenderness and poor flexion 

221When seen by Dr Akil in 2019, range of neck movement was normal.  There were no motor or sensory deficits in the upper or lower limbs and straight leg raising was reduced to 45 degrees bilaterally.

222Evidence from the plaintiff’s treaters does not assist on the question of causation.

223General practitioner, Dr Chinnaswamy, treated the plaintiff at Danaher Drive from April 2014 to September 2016 and then at Doreen from December 2016 to date.

224His clinical note of 11 October 2019 set out that he was unable to comment that her neck condition was due to the accident.

225In his very brief 2021 report, despite having treated the plaintiff for the last seven years, he provided no explanation or analysis of her progress since first seeing her in 2014 or as to the cause of the 2018 flare up, or explained the apparent deterioration in her condition from that time.[80]

[80]T75

226Dr Ali attributed neck pain to whiplash but did not comment on the cause of the plaintiff’s lumbar complaints.  

Lack of complaint/attendances on medical practitioners post accident

227While the frequency of attendances on medical practitioners and complaints of pain are not determinative of serious injury, they are relevant matters when assessing pain and suffering consequences.[81]

[81]Haden Engineering (supra) at paragraph [14]

228Counsel for the plaintiff relied on clinical records of ongoing complaints of back and neck pain and prescription of relevant medication, such as Celebrex, Endone, Panadol Osteo, Valium and Panadeine Forte.[82] 

[82]T84 – see Dodds-Streeton J in Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 952

229Further, it was submitted that regular osteopathic treatment 2018 is entirely consistent with the plaintiff’s case.[83] 

[83]T86

230Counsel for the plaintiff also submitted that the plaintiff cannot be criticised for not availing upon the TAC for more treatment –“ She might border slightly on the naïve side, which is somewhat consistent with her very, very limited education and background generally.”[84] 

[84]T85

231However, when the numerous clinical notes are closely examined, there are limited accident-related spinal complaints to the many clinics the plaintiff has attended since the accident in relation to a wide range of other health issues.

232There were a number of attendances with Dr Vincent in the latter half of 2011, following the accident, when Celebrex was prescribed for back pain.  However, in October that year, five months after the accident, Dr Vincent noted accident-related back pain had reduced.  When next seen on 7 November that year, he noted the plaintiff had hurt her back carrying a pot.

233The next mention of spinal pain was at Rex, eighteen months later, in June 2013, when there was simply a note of ”also neck and back pain” when the plaintiff attended for chest pain.

234Chronic back pain was noted at Mill Park on 3 February 2014.  Four days later there was a note of neck pain for past few weeks and later that month, low back and neck pain for the past few days.  On 3 March 2014, the entry read “LBP Had MVA 3 years ago - Pain then on and off”.  On 18 June 2014, Danaher Drive reported back pain was “manageable”.

235The next entries mentioning back pain were at Danaher Drive in August 2015, when the plaintiff was wanting to see an osteopath, and on 13 October 2015, when she woke with back pain and was using Valium as a muscle relaxant.  She saw osteopath, Dr Tsai ,at that time for pelvic girdle pain associated with her pregnancy. She deposed that her back pain and pelvic instability gradually recovered following her pregnancy.

236The plaintiff also deposed to a further flare up of her back in July 2016 and attended Danaher Drive.  A lumbar MRI scan was arranged.

237The next entry of back pain was 3 November 2017, when it was noted at Doreen that the plaintiff hurt her back standing in the garden and could not move.  She first mentioned the accident to Doreen in August 2018, when it was noted she had had had ongoing back pain since then.

238While the plaintiff has described her “main” doctor as Dr Francis, clinical records indicating attendances from November 1999, no report has been provided by that doctor.

239The plaintiff’s attendances with Dr Francis pre accident focussed on the plaintiff’s anxiety.  She did not see Dr Francis around the time of the accident in June 2011. It was not until 30 January 2014 that Dr Francis first mentioned anything about the any back pain, noting that because of her back injury and history of panic attacks, the plaintiff did not like public transport.  In March 2014, Dr Francis did note the plaintiff had a TAC claim for back pain.

Other treatment

240Although the plaintiff’s TAC claim was accepted in 2012, there has been limited treatment claimed.

241Osteopathic treatment in 2015 was to largely due to pelvic pain due to pregnancy. The plaintiff did not see Dr Tsai again until March 2018.

242She had physiotherapy for several months in 2017 and a gym/swim program was funded by the TAC in September that year. 

243There was no referral to a specialist until Dr Akil in 2019, eight-and-a-half years after the accident.  He found little on examination.  He endorsed pain management and did not recommend surgery.

244The plaintiff completed a pain management program at Advance in August 2020. There is no report from Dr Velayudhan, who managed that program, only a report from the Advance physiotherapist, Mr Tamaray, who assessed the plaintiff in March 2020 before the program commenced. 

245While the plaintiff has been prescribed a lot of medication for various conditions both before and the after the accident, painkilling medication for her accident-related spinal condition has been spasmodic.

246Although the plaintiff maintained Celebrex had been regularly prescribed since the accident, this was not the case.  Celebrex was prescribed in the second half of 2011 for back pain and on odd occasions since then.  It seems painkillers were next prescribed for spinal pain in March 2014, when the plaintiff was refused Endone and prescribed Tramadol at Mill Park.  Endone was however prescribed in July 2016 at Danaher Drive for worsening back pain.  Panadeine Forte was prescribed by Doreen in the first half of 2018 and then again from January 2020.  

247The plaintiff’s initial complaints were of lower back pain and the claim was accepted in relation thereto.

248In her recent August 2021 affidavit, the plaintiff described constant daily low back and neck pain 5 to 8-9 out of 10, having rated her pain at 3 out of 10 in July a year earlier.  She also complained of regular referred pain down both legs, moreso the right.

249When seen by Mr Wilde in late March 2021, she reported neck pain 3 out of 10 to 10 out of 10, and back pain 4 to 9 out of 10.  The following month, when seen by Mr Grossbard, she described constant neck pain of varying intensity and lower back pain of 4 to 5 out of 10.

250Although the plaintiff presently complains of a significant amount of spinal pain, I am not satisfied, with these significant gaps in treatment and complaint, that the plaintiff’s worsening spinal condition –  ten years after the accident – results from the accident.  

Ability to work full time after the accident

251Counsel for the plaintiff conceded that “if you mounted a serious injury application in July 2014, you wouldn’t have any chance at all”.  However, the Court had to assess the plaintiff’s situation as at the date of hearing and whether there is now, and in the future, a loss of earning capacity.  It was submitted there was some medical support in this regard “albeit it’s probably not the strongest part of our case”.[85]  Mr Grossbard had a fairly careful history and his opinion was a sound one.[86] 

[85]T83

[86]T86

252However, I am not satisfied that as at the date of hearing, there are any accident-related work consequences of any significance.  Further, the plaintiff’s ability to work full time for three years after the accident without treatment or restriction militates against ongoing spinal pain of any consequence resulting from the accident.

253It only became apparent during cross-examination that at the time of the accident, the plaintiff had recently resigned from her full-time job at Complete because of “tiredness”.  It is unclear what, if any, time she had off work after the accident.  She resumed her other pre-accident job with Best Friends, increasing to full-time hours soon thereafter.  Six to eight months later, she successfully applied for the Petplan insurance job in customer service, working full time, including Saturdays on multiple occasions.[87] 

[87]T51

254She left Petplan for a variety of reasons – “[her] back, and anxiety and vertigo, and it was causing issues at work, and there was a bit of bullying at work as well around it and she decided it was best she leave”.   She then worked in customer service at Independence Australia for a month, leaving at the end of July when she became pregnant. [88]

[88]T53

255She explained that at that time, a combination of really bad hormonal anxiety issues and really bad back pain, and pelvic instability meant the work was too much for her and she resigned and went on Centrelink.[89]

[89]T52

256I do not accept the plaintiff ceased work because of back pain.

257When Dr Chinnaswamy at Danaher Drive saw the plaintiff on 23 July 2014, he noted “not coping anxiety issues has resigned from work, reports not being able to concentrate, anxiety just thinking about work, irritable, feels unable to handle difficult clients, sometimes feels like giving it back to them sometimes dizzy”.

258When last seen by Dr Francis in August 2014, she noted the plaintiff felt her Panic Disorder and depression were at their worst.  She diagnosed a Major Depressive Disorder, noting the plaintiff having fleeting suicidal thoughts.

259During the time the plaintiff worked post accident, there were no restrictions on her duties or the need to take time off due to any spinal condition.  It is clear from contemporaneous medical evidence that the plaintiff eventually stopped work as she was pregnant and had a range of other health issues, albeit back pain was among the complaints noted by Dr Francis at that time.

260The plaintiff has not applied for work since Summer’s birth, explaining to Mr Wilde that was for a number of reasons – she could not work, as her relationship with her partner failed and they separated.  She would like to go back to work but felt her anxiety and depression, migraines, neck and back pain were preventing this.

261Further, while there is some medico-legal support in terms of employment consequences, I am mindful of what was said by the Court of Appeal in Dordev v Cowan & Ors[90] that the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them.

[90](supra) per Chernov JA at paragraph [14]

262Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim, must be looked at in the light of the histories they are based on.

263While Mr Grossbard considered the plaintiff’s work capacity was significantly diminished, he did not say why, or take into account that she worked right up until her pregnancy.[91] 

[91]T77

264He was not aware of the CFS diagnosis before the accident and the plaintiff having resigned from Complete because of it.  He thought she was working part time when the accident occurred.  He made no mention of any work post accident, simply noting the plaintiff had not worked since Summer was born.  In any event, he thought the plaintiff has a capacity for nonphysical, office administration work with a sympathetic employer.

265As counsel for the defendant submitted, Mr Grossbard’s report did not deal with the plaintiff’s condition in a fulsome way and was based on symptom report, not supported by radiological evidence or clinical evidence.[92] 

[92]T78

266The plaintiff’s work history to Mr Wilde was also inaccurate.  The plaintiff did not return to Compete, having had a week off after the accident.  She had resigned a fortnight earlier because of “tiredness” and was working out her notice when the accident happened.  He described her history of work at the pet shop and Pet Plan after the accident as “vague”.  He noted she had not returned to work after Summer’s birth because she had separated from Dean.  Further, he noted that the plaintiff would like to go back to work but a combination of depression and anxiety, migraine headaches, neck and back pain are preventing this.  He thought she is limited in terms of physical work, with risk of flareups.  She can look for jobs and seek occupational therapist input before starting a new job.

267Dr Chinnaswamy considered there were some limitations in respect of physical work but thought the plaintiff could look for jobs and seek occupational therapist input before starting a new job. 

268While no specific financial loss is claimed, the plaintiff earned more in the 2011-2012 and 2012-2013 financial years after the accident than she had prior thereto.[93]

[93]        See table of earnings at page 19 of my Judgment

Other consequences

269Submissions in terms of the plaintiff’s pain and suffering consequences were brief and largely related to her pain and need for treatment.

270The plaintiff deposed to a number of other consequences – sleep disturbance, restrictions in home duties/gardening and the inability to look after her daughter and an inability to do kickboxing.  But for the reasons above, I do not accept that any restrictions in relation to these activities relate to the accident, now over ten years ago.

271In any event, Dr Chinnaswamy commented that the plaintiff is functional at home after using painkillers.  She is functional with respect to leisure and domestic activities which can be impacted during flareups when she needs more medication and to rest a bit.

272The plaintiff’s former partner, Dean, did not know her prior to the accident.  They met online in 2013 and have lived together since 2014.  He simply corroborated her evidence as to her difficulties with domestic activities and caring for their daughter.

273I am not satisfied, taking into account all of the evidence, that the plaintiff’s current spinal condition results from the accident ten years earlier.  Given her level of activity, particularly at work in the three years after the accident, and her lack of treatment during that time, her pregnancy in 2014 and related health issues, the flare ups, particularly in late 2017 and 2018, cannot be explained by the deterioration of what was at most a soft tissue injury.

274Accordingly, the application is dismissed.

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