Thomas v Transport Accident Commission
[2023] VCC 555
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-02221
| NICOLA JAYNE THOMAS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2023 | |
DATE OF JUDGMENT: | 14 April 2023 | |
CASE MAY BE CITED AS: | Thomas v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 555 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – cervical spine impairment – range
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jones v Dunkel (1959) 101 CLR 298; Kelso v Tatiara Meat Company Pty Ltd (2017) 17 VR 592; Richards and Anor v Wylie (2000) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Bezzina v Phi [2012] VSCA 161; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Hawkins v DHL Express (Aust) Pty Ltd (2013) VSCA 26
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Coote with Mr J Harris | Shine Lawyers |
| For the Defendant | Mr D Oldfield with Ms J Ryan | Russell Kennedy |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 16 July 2019 (“the said date”).
2Section 93(6) of the Act 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) – “a serious long term impairment or loss of a body function”. The body function pursuant to sub-paragraph (a) relied upon is the cervical spine, however, an application in relation to the left shoulder was not abandoned.[1]
[1] Transcript (“T”) 1
4The enquiry under sub-paragraph (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.
5The 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, of itself, constitute or be the producer of, the impairment of a body function.
6In 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”?[2]
[2] See Humphries and Anor v Poljak [1992] 2 VR 129 at 140-141
7The plaintiff affirmed two affidavits, one on 13 October 2021 (“the first affidavit”) and the second on 16 November 2022 (“the second affidavit”). She was cross-examined. She also relied on an affidavit affirmed by her husband, Carl Thomas, on 20 October 2021, and an affidavit of Nikola Sparks, gym manager, affirmed on 17 February 2023. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8There was no issue that as a result of the accident, the plaintiff suffered some neck and left shoulder pain.[3] In issue was the nature and extent of impairment to those body functions and whether the consequences thereof were serious.[4]
[3] T29
[4] T30
The Plaintiff’s evidence
9The plaintiff is presently aged thirty-two, having been born in June 1990 in the United Kingdom (“UK”). She is right hand dominant. She is married with a baby daughter, Callie.
10Having finished secondary school, the plaintiff completed a Bachelor of Laws in the UK. She then worked as a waitress and had a variety of jobs, including customer service at a call centre. Her last job in the UK was as a software implementation consultant.
11After arriving in Australia in 2016, she commenced full-time employment as a fleet manager with SG Fleet Australia Pty Ltd late that year. From about 2 March 2020, she worked full time as an account manager with Fleet Partners Pty Ltd.
12Prior to the said date, her general health had been up and down.
13She had suffered from migraines and chronic headaches for some years and before she got glasses, she suffered headaches as a result of working on a computer.[5]
[5] The first affidavit affirmed 13 October 2021
14She then said she was having headaches, but not migraines, a number of times a week, going back as far as when she was at university. The headaches were behind her eyes into the back of her head.[6]
[6] T7
15She had problems with asthma and bronchial infections in the past. She had also had back pain “for a while”.[7]
[7] T7
16In mid-October 2018, while attending a hen’s night, she fell down ten steps and hurt her neck and back. She attended The Alfred hospital Emergency. She had left and right-sided neck pain, dizziness and blurred vision, but the symptoms resolved over time.
17In April 2020, when seen by the Austin Hospital on videolink, she was diagnosed as suffering from asthma. She now uses a daily preventer and takes Ventolin.
18In 2018, she started going to the gym and lost 22 kilograms just prior to her wedding in November that year. During 2018, she started to have some left hip pain, which her general practitioner (“GP”) told her was most likely osteoarthritis. She was prescribed Voltaren and started taking Oxycodone as her hip was causing significant pain. She had a left hip ultrasound in February 2019, which showed some minor calcification. She saw a physiotherapist a couple of times, and then her left hip pain resolved. She did not have any ongoing hip issues. At the time of the accident, she was able to run, walk, squat and had full functional movement of her lower limbs.[8]
[8] T9
19She was highly motivated to lose weight for her wedding day. She agreed she was “smashing it” at the Coaching Zone gym in the lead up to her wedding, doing five or six sessions a week and sometimes back-to-back sessions. She later joined F45 gym.[9]
[9] T8
The accident
20On the said date, the plaintiff was a passenger in a vehicle being driven by a co-worker, they were going out to lunch on their break. Their vehicle was stationary at a set of traffic lights, turning left into Northland Shopping Centre. As the lights turned green, and as they were turning left, the car in front of them halted to give way to pedestrians. The vehicle travelling behind their vehicle failed to stop and collided with the rear of their vehicle (“the accident”).
21The plaintiff agreed that it was a low-speed collision. After the collision, her co-worker and the driver of the other vehicle spoke to each other, and she got out of the car. The boot was damaged but not “popped” and the car was okay to drive.[10]
[10] T4
22She and her co-worker drove back to work after having lunch. She completed her workday.[11] The accident was reported to the state manager and OH&S.
[11] T5
Treatment
23After the accident, the plaintiff felt immediate pain in her left shoulder and neck, but the sharp pain subsided, and she just felt a little bit sore. It was not until the following day that she had significant pain, and she attended her GP, Dr Effie Frangoulis, who prescribed Mobic and an analgesic. The plaintiff could not remember having a good range of movement of her neck and shoulder as Dr Frangoulis recorded that day.[12]
[12] T5
24She was referred to Marty Ayers, physiotherapist, at Back in Motion. She first saw him on 29 July 2019 and continued to see him on a varying schedule until July 2021, when she moved to Brisbane. He usually treated her with massage, dry needling and exercises.
25Mr Ayres became her primary treater for her neck and shoulder, and she did not see Dr Frangoulis until the middle of the next year for these issues, although she saw her for other issues.[13]
[13] T10
26She did not work on 18 July 2019, but apart from that day, had no time off work as a result of her accident injuries and continued normal duties.
27In August 2019, she went to the UK with her husband for five days to visit her father-in-law, who was seriously ill.
28The plaintiff reported the accident to police on 23 September 2019 and lodged a WorkCover claim, which was accepted.
29During September and October 2019, she travelled overseas with her husband, spending a week in the UK and two weeks in Bali on their honeymoon. While in Bali, they stayed in a hotel resort, spending most of the time by the pool. She was not doing any travelling around, so she managed okay.
30She struggled with the flights to and from the UK and had to take painkillers and sleeping tablets. Afterwards, she felt pain and pressure in her neck and left shoulder.
31While in Bali, they stayed a week at two different resorts. During that time, they participated in two activities. On one occasion, they sat on a large automatic swing, and the operator just let it go. It was more of a romantic and leisurely activity rather than high speed one.[14] On another occasion, they went to an elephant park, where they rode an elephant.[15]
[14] Photographs of the plaintiff and her husband on the swing were tendered
[15] T12
32When they returned from Bali, she saw Mr Ayres on 24 October 2019. Potentially, his description of how she was going that day was correct – “neck and shoulder going well, a bit stiff now, but less constant, just tender when turning to the right side.”[16]
[16] T12
33She saw Dr Frangoulis on 17 March 2020, having had a flare up of her left-sided neck and shoulder pain. An MRI scan of her neck undertaken in June 2020 showed central bulging discs at various cervical levels. No neural compression was found. An ultrasound of her left shoulder was undertaken on 24 June 2020.
34The plaintiff was subsequently referred to Associate Professor (“AP”) Yi Yang, adult and paediatric spine surgeon, whom she saw in July 2020. He recommended she have a nerve block injection, which was subsequently undertaken at the Epworth Hospital.
35After this CT-guided left C6 extraforaminal nerve block, her left arm pain resolved only for two days before returning to the pre-injection level and her cervical spine pain flared up as a result of the injection. In the days following, she had constant neck and left arm pain and worsening headaches, and had to attend Austin Hospital Emergency, where she was prescribed opioid medication and Endone to assist with pain relief.[17]
[17] T22
36AP Yang requested funding for either disc replacement surgery or an anterior cervical discectomy and fusion (“the surgical procedures”). However, WorkCover denied liability for this treatment.
37As at October 2021,[18] at Mr Ayres’ suggestion, the plaintiff was using a special support pillow in bed to take pressure off her neck. It helped her get a good sleep on some nights.
[18] The first affidavit affirmed 13 October 2021
38She started to work from home in March 2020 during the lockdown. Her new work environment was not ideal and aggravated her neck condition. Her employer gave her instructions how to set things up at home ergonomically and she did her best. Nonetheless, working at home aggravated and caused further injury to her neck.[19]
[19] T22
39Primarily, before going to Brisbane in June 2021, she was having treatment from Mr Ayres which gave her some relief, maybe for a couple of days, and then things would start to tense up again. She was able to have treatment during the lockdown. In addition to his dry needling, she took Panadol from time to time.[20] That was the extent of treatment. She had massage therapy from “Marty” and Panadol occasionally.[21]
[20] T21
[21] T23
40In about July 2021, she moved with her husband to Brisbane and that meant stopping all the physical therapy she was having in Melbourne. Her pain increased when this treatment ceased.
41Since moving to Brisbane, she continued working for the same company.
42As at October 2021, the plaintiff was awaiting details from her new Queensland GP of pain management that had been approved by WorkCover. A further nerve block injection was suggested, but, because of her move to Queensland, that did not happen. She had recently seen an osteopath, Dr Andy Hepke, in Brisbane, for treatment.
Pain consequences
43She continued to have frequent headaches almost daily, and the left side of her jaw ached. The pain radiated down her left arm. Her neck constantly ached and got worse without treatment.
44She usually took two Panadol and Nurofen when required and usually took painkillers four to five times a week.
45She rated her neck pain from 3/10 on a good day to 10/10 with a flare up. Her neck was stiff, and the pain was constant, radiating up from her neck and into the occipital region of her head, and from there into the top of her head.
46She had limited left shoulder movement. It ached constantly and was painful, with good and bad days.
47Her sleep had become badly affected by her neck pain and she tried to sleep on her right side. She woke in the morning feeling tired and unrefreshed.
48Her daily activities were affected by pain. She needed help from her husband with the shopping trolley and lifting heavier items. She just managed to wash her hair. She did so in small stages, as her shoulder ached.
49She had put on about 20 kilograms since the accident because of her lack of physical activity. She felt less attractive to her husband. She was concerned about her ability to have children. Her husband helped with the cleaning around the house, and if she had to do things, she did them in stages.
50She had to stand up every hour or so to stretch her neck and shoulders as they started to ache at work.
51She could not really lift any weights above head height using her left hand.
52When she moved to Brisbane, she was still working full time, largely from home. Her employer provided her with a modified chair and desk. She would have a day off here and there. She continued to work full time until she took maternity leave.[22]
[22] T23
53Her mental health had been affected by her pain and physical limitations, having previously always been very independent.
Gym
54Prior to the accident, she attended the gym six or seven times a week, often doing back-to-back sessions, working out for 90 minutes or more. A few times a week, she walked up to 5 kilometres at lunchtime.
55In the months after the accident, she managed to get back to the gym doing modified exercises. She spoke to her instructors about her issues, to limit the amount of weight she was lifting as her neck and shoulder were giving her some problems. They recommended modified exercises.[23]
[23] T13
56Occasionally, from July to December 2019, she was able to do F45 which involved 45-minute sessions. It was high intensity and involved cardiovascular exercises. Battle ropes were part of the circuit. This involved holding onto two ropes and trying to make them “worm” across the ground. That activity could be done at any time during the circuit. She would do as much as she could do.[24] On 26 August 2019, one month after the accident, she was shown on social media doing battle ropes for one minute.[25]
[24] T14
[25] T19
57Anything between 20 seconds to a minute would be spent on each exercise. The circuit varied, but there could be bikes, ropes, body weight exercise, weighted exercise and jumping as part of a group. She would sometimes just run. She occasionally used dumbbells, lifting no more than 4 to 5 kilograms in each hand.[26]
[26] T15
58It was not unusual for participants of varying capacity to be in the F45 group, so she was not being left behind.[27]
[27] T14
59She would not often do band assisted pull-ups on a pull-up bar, but she would try. That activity obviously involved exercising her shoulders and upper back muscles. She could do lower body work unrestricted.[28]
[28] T15
60Ten seconds of film taken on 20 June 2021 which had been uplifted from the plaintiff’s Instagram account, showed her doing pull-ups with some bands assisting her. She could not get her chin up to the bar.
61Before the accident, she was not able to do that activity completely un-banded. Having her feet in the bands helped her get started on the lift up.[29] Pre-accident, she was using bands with the least resistance to do the pull-ups.[30]
[29] T17
[30] T18
62Since the accident, she has been able to do planks but not with the pulling of the weights. She would describe her current circuit as a modified. It would be fair to say she used to do those things a bit better before the accident, but these are all things that she now does.[31]
[31] T20
63Even after she got married, she kept going to the gym with the same frequency. After the accident, she went three or four times a week. She agreed there was a social aspect at the gym and there was a small community developing and starting to get to know each other. She enjoyed gym pre and post-accident.[32]
[32] T20
64She finished up at the F45 training in mid-2021 when she moved to Brisbane. Having moved to Queensland, she was still going to the gym occasionally. She started to go to F45 but only used very light weights, and the gym was aware of her injuries. She had to adjust most of her movements to accommodate her physical limitations and could not now spend more than half-an-hour at the gym.
65She has not returned to the gym “or anything like that” after her pregnancy. That has not been discussed. She has been cleared for exercise. She just has not had time yet, as a result of having had surgery postpartum. She does not now have any restrictions on lifting around the house or activities of daily living. She has been “cleared for all that”.[33]
[33] T25
Current situation
66Both her neck and left shoulder injuries have deteriorated and gotten a little worse. She continues to experience pain, discomfort and stiffness on a daily basis.
67She fell pregnant with Callie in about January 2022. She continued to work until August 2022, when she commenced maternity leave. Callie was born in September 2022. After Callie’s birth, the plaintiff suffered a postpartum haemorrhage and remained in hospital for four days, and later, had to have a pregnancy-related gynaecological procedure.
68She has remained at home on maternity leave, looking after Callie. She has noticed an increase in her neck and left shoulder symptoms with the demands of being a mother and caring for Callie.
69The plaintiff saw a physiotherapist in Queensland once, but did not return for more treatment during her pregnancy. Following Callie’s birth, she started seeing a new GP, Dr Hillary McVie. Most attendances have been in relation to post-pregnancy and Callie, rather than her neck and shoulders.
70She has continued to feel pain in her neck each day, which varies in intensity, depending on her level of activity. The pain generally fluctuates between a dull nagging discomfort to a quite severe, intense throbbing pain, mainly located around the back and left side of her neck. Neck pain gradually builds up if she keeps her neck flexed forward for extended periods.
71Most of the time, her neck feels quite stiff and tight, and this becomes even more pronounced when she has a flare up. These are unpredictable, but typically caused by increased activity.
72The pain continues to radiate into her left shoulder, down her arm. Arm pain varies from a dull heavy ache to a sharp burning sensation going to about her elbow. As a result, she has left arm weakness and reduced grip strength. She also experiences intermittent tingling and altered sensation in her left upper arm.
73She continues to experience frequent headaches which interfere with concentration. Over the last year, they seem to last from anywhere between an hour to most of the day and feel like the beat of some drums playing over and over in her head.
74At night, her neck pain continues to interfere with sleep.
75Her persistent neck pain continues to impact heavily on her mood, and she remains frustrated by her pain and its restrictions.
76In order to manage her pain, she takes between four to six Panamax daily. She is reluctant to take any stronger painkillers while breastfeeding. She regularly uses heat packs.[34]
[34] The second affidavit affirmed 16 November 2022
77She takes Panamax more frequently because it is cheaper than Panadol. Prior to becoming pregnant, she took it several times a day. Now, she has had to cut back because she is not too keen on taking it while she is breastfeeding. She now takes Panamax maybe once or twice a day.[35]
[35] T27
78Her Queensland GP, Dr Aye Mon Han, referred her to a pain management specialist and osteopath.[36] She could remember attending Prince Charles Hospital in October 2021, when there was some suggestion of pleurisy with insomnia, headaches and shortness of breath. She could recall Dr Han sending her off for some tests, but not to any other specialists.
[36] T23
79During her pregnancy, she had stopped all physical therapies for her neck and shoulder.
80Her personal grooming has been more difficult due to her neck injury.
81While she still tries to do some cooking and cleaning, she has become increasingly reliant on her husband to help out and she paces herself when she does domestic tasks. He helped with house cleaning before the accident. She was just very particular. They now split up the cleaning tasks, but he does the majority of household chores. She is able to continue activities of daily living like cooking and cleaning and self-care. Washing her hair takes a bit longer.[37]
[37] T26
82Before the accident, her hobbies were reading, hiking and going to the gym, but each have been heavily impacted by her accident injuries.
83She has continued to socialise since the move to Brisbane, but not as frequently as they had the lockdowns. She hopes this will change and improve with time, especially with the new baby.[38]
[38] T27
84Prior to maternity leave, she was still working full time and was finding things at work increasingly difficult due to headaches and neck stiffness.
85Since her earlier affidavit, her neck and shoulder injuries have continued to impact heavily on her quality of life and her pain has become even more prominent and distracting since Callie’s birth.
Lay evidence
Carl Thomas
86The plaintiff’s husband, Carl, affirmed an affidavit on 20 October 2021. They met in 2013 when they were living in the UK. They later moved to Australia and married in 2018.
87Prior to the accident, the plaintiff was “bubbly, outgoing and cheerful” and enjoyed going to the gym most days a week. She cooked meals most nights and regularly went walking and hiking.
88She was different since the accident. She was limited by her physical capabilities which had deteriorated since then. She had told him about her constant pain and restrictions and complained about severe shoulder and neck pain about three or four times per week.
89She avoided basic household work such as cleaning, vacuuming or lifting because of the pain. He had not seen her reach for anything from the top shelf of the cupboard since the accident.
90She was quieter since the accident and frustrated by the restrictions and pain caused by the accident. She found it difficult to sleep and often tossed and turned in the bed to find a comfortable position. She regularly ate unhealthy food, which she told him was to cope with the pain.
91The pain and restriction in her neck and shoulder continued impacted on her ability to enjoy recreational activities such as attending the gym, hiking and socialising with her friends.
92The plaintiff had returned to full-time work as an accounts manager, but found it difficult to concentrate because of the pain. She had told him that she was considering reducing her hours because of the pain and was now unable to progress in her career.
Nikola Sparks
93The plaintiff’s friend, Nikola Sparks, manager at F45 Training Preston, affirmed an affidavit on 17 February 2023. She has known the plaintiff since about 2018 when she worked as a personal trainer in a different gym.
94F45 training involves various workouts which last for 45 minutes and are designed to exercise different muscle groups. These workouts include both cardiovascular and resistance training.
95The plaintiff had told her about the accident around July 2019.
96The plaintiff had attended the gym approximately five to six times per week prior to the accident and often was able to do back-to-back 45-minute sessions. She was able to participate in all exercises, including lifting heavy weights and pushing exercises. She saw that the plaintiff was passionate about fitness and really enjoyed working out.
97Following the accident, she saw the plaintiff had a bad neck and shoulder. The plaintiff told her she could not do heavy weights and other exercises as they increased her neck pain. She also told her that she experienced pain and limited movement in her left shoulder.
98She and the other personal trainers at the gym modified the plaintiff’s exercises so that she was still able to participate in the classes. They focused primarily on lower body exercises. The plaintiff was able to participate in the classes, adopting the modified exercises, which she continued to do until she left to move to Queensland.
The Plaintiff’s medical evidence
Treaters
Dr Effie Frangoulis, general practitioner
99Following an attendance that day, by letter dated 22 July 2019, Dr Frangoulis referred the plaintiff to Back in Motion Physio.
100She advised the plaintiff was seen on 17 June 2019, the day after a motor vehicle accident when she was a passenger in a stationary vehicle “and another vehicle crashed at [the] rear back of their car”. The plaintiff described “sore … neck area - left side and back of left shoulder and down left elbow area”.
101On examination that day, Dr Frangoulis advised there was “no neck stiffness, [a] good range of cervical spine and Left shoulder good range of movement mild left shoulder dis[c]omfort on extension, no local tenderness (sic)”.
102In a report to the plaintiff’s solicitor dated June 2020, having mentioned the initial attendance on 17 July 2019 and follow up the next week, Dr Frangoulis noted that on 17 March 2020, the plaintiff presented reporting an exacerbation of her left-sided cervical spinal pain, with referred pain down to her left shoulder area. She was then advised to take analgesia and was referred to physiotherapist, Martin Ayres, for further treatment.
103To date, the plaintiff had been treated with simple analgesia and referred for physiotherapy. She had undergone an MRI scan in June 2020, which revealed disc bulges but no neural compression on the cervical spinal cord. There had been a referral to AP Yang.
104Dr Frangoulis thought that the plaintiff’s condition was stable, however, noted a one off, transient episode in which the plaintiff experienced pins and needles sensations down to her left fingers.
105The plaintiff was then working from home on a computer and answering phone calls. She declined any time off work and said she was coping well doing work from home. She was able to perform activities of daily living and socialise, however, if pain occurred, that may limit her during these activities. She needed to avoid heavy lifting or sitting for prolonged periods.
106Dr Frangoulis was then “awaiting specialist assessment/opinion/further management. [She] need[ed] specialist opinion re whether he considers cervical disc bulge is pre-existing and exacerbated by MVA in July 2019 (as works in front of computers) or whether directly associated to MVA in 2019.”
Martin Ayres, physiotherapist
107The plaintiff was referred to Mr Ayres at Back in Motion, Eltham, by Dr Frangoulis on 22 July 2019. She received weekly treatment from 29 July 2019 until she moved to Brisbane in July 2021.
108On 5 August 2020, Mr Ayres completed a WorkCover Medical Health Practitioner Questionnaire. He diagnosed whiplash with thoracic outlet syndrome and recommended once weekly physiotherapy treatment over a period of two to three months until restrictions reduced, and the plaintiff returned to her workplace, followed by monthly sessions thereafter.
109Weekly sessions with Mr Ayres involved massage, dry needling and exercises.[39]
[39] T23
110While the plaintiff saw Mr Ayres until she went to Brisbane in mid 2021, there were only notes of attendances from July 2019 to 15 January 2020 detailing about twelve visits.
Associate Professor Yi Yang, adult and paediatric spine surgeon
111AP Yang saw the plaintiff in July 2020 on referral from Dr Frangoulis.
112In his letter to the GP in July 2020, AP Yang noted the plaintiff was a passenger in a rear-ending accident, with the impact at about 20 kilometres per hour.
113Since the accident, the plaintiff had been experienced ongoing exacerbations of left arm radiculopathy, starting at the base of her neck and radiating into the left shoulder, down her triceps and into primarily her middle and index fingers. She reported weakness on the left side and was unable to do push-ups with her left arm, which she was able to do pre-accident. She experienced difficulties manipulating things with her left hand.
114The June 2020 cervical MRI scan demonstrated left-sided disc herniations at C5-6 and C6-7. These were expected to compress and impinge upon the traversing C7 nerve root. An ultrasound of the left shoulder demonstrated a very small tear which had mostly been there chronically. There was very mild bursitis.
115He thought the majority of her shoulder symptoms are actually secondary to her cervical disc herniations as the C7 nerve root is generally responsible for the innovation and sensation of the posterior aspect of the shoulder.
116The accident most likely caused an acute exacerbation of chronic physiological degeneration within her cervical spine.
117He recommended a C7 nerve root injection, which the plaintiff underwent on 22 July 2020.
118He wrote to Dr Frangoulis following review of the plaintiff on 27 August 2020.
119The plaintiff advised that the injection caused a mild flare up of her neck pain, but overall, it had excellent results in regard to relieving her arm pain for at least two days. She had been experiencing constant neck and left arm pain in the interim. She complained that she felt like her hand was being constantly affected by pain and tingling, which impacted her sleep and work. She reported no further improvement with analgesia and physiotherapy.
120On clinical examination, he noted that the plaintiff had mild left-sided weakness in her C6 and C7 myotomes, particularly seen with triceps and wrist flexion. This would represent grade 4. She had altered sensation, primarily in her C7 dermatome. Reflexes were equal on both sides.
121Given that the plaintiff’s condition was not improving with ongoing conservative treatment and the injection, he recommended surgical intervention for left-sided disc herniations at C5-6 and C6-7.
122On 7 September 2020, he sent a request to the WorkCover insurer seeking approval for a C5-6 disc replacement and C6-7 ACDF and/or, in the alternative, a 2 level ACDF at C5-6 and C6-7 procedure. This request was rejected by WorkCover.
123There is no report of any examination after 27 August 2020.
124In his report to the plaintiff’s solicitors of 28 November 2022, AP Yang concluded the plaintiff suffered from exacerbation of underlying cervical disc degeneration following her accident. This had caused aggravation of cervical degeneration and cervical radiculopathy through compression of the exiting nerves to her hand from her neck.
125Given the persistence of pain, he thought there was also likely an element of Chronic Pain Syndrome.
126The plaintiff had fairly classic signs of aggravation of previously asymptomatic degeneration of her neck following the accident. Therefore, he considered the accident to be a significant contributing factor to her current impairment.
127He thought she would be restricted in movements involving lifting, bending, twisting and stooping, which all increased pain through the neck. She struggled to sit upright for very long. She may be precluded from performing suitable employment due to her chronic and persisting pain and symptoms, limiting her to being in a single position from 20 to 30 minutes at a time.
128The plaintiff may be only able to work for a few hours at a time for a few days a week for the foreseeable future.
129The plaintiff may still require surgery to address her disc degeneration in the form of anterior neck fusions at C5-6 and C6-7. There had been a trial of conservative management without durable relief. He was guarded about her prognosis, even if surgery was successful, as her symptoms had been severe and persisting and there will now be aspects of Chronic Pain Syndrome in her presentation.
130The plaintiff should be reviewed by an experienced pain management physician. The prognosis was poor due to the severity and chronicity of her symptoms since the accident. Even if she had successful surgery, there might not be complete resolution of her symptoms or full return to previous activities.
Dr Aye Mon Han, general practitioner
131Dr Han reported in October 2022.
132The plaintiff first saw him on 9 August 2021 after relocating to Queensland. He referred her to a pain specialist and Northside Osteopathy.
133On 13 September 2021, the plaintiff requested a repeat MRI scan of her cervical spine as a result of pain and a pinching sensation in her left arm. There was a telephone consultation on 21 September 2021 following the MRI scan.
134There were a few visits in November 2021 for different issues, not related to the accident. They only discussed this current presenting complaint in these visits. She did not raise anything about her WorkCover situation.
Investigations
135On 5 June 2020, the plaintiff underwent a cervical MRI scan, which was reported to show central bulge discs at C3-4, C5-6 and C6-7 levels. No cord or neural compression was found.
136On 24 June 2020, a left shoulder ultrasound was undertaken which was reported to show the supraspinatus contained an 8 x 8 x 2-millimetre hypoechoic focus suspicious for a small intrasubstance partial tear. There was mild fluid in the subdeltoid bursa.
137A repeat cervical MRI scan was ordered on 17 September 2021.
138It was reported the scan showed a C5-6 left paracentral disc protrusion with probable compromise of the existing left C6 nerve root. Mild central canal narrowing with effacement of the anterior CSF space in the thecal sac and indentation of the left anterior cord but no abnormal cord signal. A C6-7 asymmetric annular bulge, most pronounced in the left paracentral position, with mild central canal narrowing. C7-T1 shallow central disc protrusion. No canal narrowing.
Medico-legal evidence
Dr Hazem Akil, neurosurgeon
139Dr Akil saw the plaintiff on 6 December 2022.
140The plaintiff told him of the accident circumstances in which her head moved forward and backward. She felt immediate neck pain but was able to return to her work. The next day, she felt increased intensity of the pain in her neck which radiated towards her left shoulder, involving the left triceps to the elbow.
141The plaintiff’s GP prescribed Maxigesic and she had physiotherapy treatment for a total of eighteen months. The plaintiff reported she was not making any progress on this treatment, and it was then decided to proceed with an MRI scan and specialist review. AP Yang suggested surgery.
142On examination, the plaintiff described constant and significant left-sided neck pain. The pain was particularly bad when she sat for a prolonged period and increased in intensity when she sat for longer than 20 minutes, causing issues with her ability to perform her job.
143The plaintiff reported persistent left shoulder pain involving the shoulder region and triceps all the way to the elbow. The pain occasionally referred to the hand but mostly stopped at the elbow level.
144On examination, there was a significant restriction of forward flexion of the cervical spine but otherwise, he did not find any motor deficits of the upper limbs. The plaintiff’s deep tendon reflexes including both triceps jerks were present and normal.
145The plaintiff’s ability to flex her neck was significantly limited. Her ability to lift, bend, twist and stoop depended on the intensity of her pain. Restrictions on these movements and difficulty with prolonged postures was likely to be permanent.
146He reviewed the radiological investigations, including the June 2020 MRI which showed the presence of multilevel disc bulges but no cord or neural compression. There was a moderate narrowing of the foramen at the C6-7 level. He reviewed the repeat cervical MRI scan of September 2021, which showed a loss of cervical lordosis centred around C5-C6 and C6-C7, with narrowing of the foramen on the left of C6-C7.
147In his view, the accident caused a whiplash-type injury to the plaintiff’s cervical spine, resulting in an aggravation of cervical spondylosis with an associated left-sided C7 radiculopathy. He associated her diagnosis to the accident.
148He believed the plaintiff’s prognosis was guarded. He agreed with AP Yang’s suggestion of a C5-C6 and C6-C7 anterior cervical decompression and fusion/arthroplasty as future treatment. However, he suggested the plaintiff undergo a nerve conduction study with an EMG component to confirm the presence of a C7 radiculopathy and to “support her diagnosis further”.
The Defendant’s medical evidence
Medico-legal evidence
Mr Armin Drnda, neurosurgeon, and Dr Tony Weaver, pain medicine physician
149Mr Drnda and Dr Weaver were engaged by WorkCover to provide a second opinion on AP Yang’s proposed surgery. Their opinion provided the basis of WorkCover’s denial of funding for the surgery.
150They examined the plaintiff on 21 December 2020 in the presence of her husband.
151The plaintiff reported experiencing quite severe pain in her neck and shoulders on most mornings, as well as frequent headaches. She said that she dropped things and had to sleep on a special pillow. If she did not sleep on that pillow and slept on her right side, she woke up with a numb left arm.
152The plaintiff advised that she received consistent physiotherapy treatment, massage, dry needling and exercises. She experienced a lowering of her pain and discomfort for a period of about 48 hours before the pain returned.
153The plaintiff advised that she took two Panadol tablets per day on average and Nurofen occasionally. She had a nerve root injection in July 2020 which did not help her pain. In fact, it produced an episode of severe neck pain and headaches for which she had to attend the Emergency Department for some relief.
154On examination, the plaintiff’s left shoulder had a slightly limited range of movement in all aspects and was painful at the end of range of the movement. Her left trapezius and deltoid area was quite painful to gentle squeezing. Cervical spinal movements showed very limited flexion to 10 degrees. Her arms were all normal and there was no evidence or cervical radiculopathy.
155They diagnosed multilevel cervical spondylosis with disc degeneration and referred left arm pain. There were no signs clinically or on MRI of nerve root compression.
156They concluded that the plaintiff’s left shoulder was in fact more of a problem for her than her cervical spine. They diagnosed cervical spondylosis with disc degeneration and referred arm pain but no signs of nerve root compression. Her left shoulder showed signs of soft tissue injury and bursitis.
157With respect to AP Yang’s request for surgery, they opined that:
“The surgery proposed is not appropriate because of the absence of radiculopathy clinically and on MRI and the disc pathology is not severe enough to warrant replacement or fusion at young age. Further we felt that the shoulder was a very significant part of her overall pain burden and was certainly the major cause of her left arm weakness and loss of movement. We felt that at 30 years of age she was quite young to have a two-level fusion or even one level of fusion with the adjacent level disc arthroplasty.”
158They recommended the plaintiff participate in a formal pain management program for education, physiotherapy and have further investigations of the left shoulder.
Dr Ian Dickinson, orthopaedic surgeon
159Dr Dickinson examined the plaintiff on 21 November 2022 in Brisbane.
160Inter alia, he was provided with medical reports from Dr Frangoulis, AP Yang, Mr Drnda and Dr Weaver.
161Dr Dickinson described a minor rear-end car accident. The plaintiff returned to work following the accident but awoke the following day with aching in the left side of the neck, shoulder and arm. She took Maxigesic following the accident and found these helped the pain.
162The plaintiff told him that her symptoms had become worse, particularly since she had her daughter, who was about nine weeks’ old. She reported difficulty with bending and picking up her daughter. She described the pain as still being “knots” in the left side of her neck in the trapezius region. The pain radiated to the back of her head and also over the shoulder down to the elbow. The pain no longer radiated down her arm to her hands.
163The plaintiff treated her pain using Panadol, which she took about two times a day.
164On examination, there was tenderness to light touch in the trapezius region. There was a full comfortable range of cervical flexion and extension. There was a minor restriction of rotation and lateral flexion but otherwise, the plaintiff had normal power and sensation in the upper limbs and the deep tendon reflexes were brisk and equal.
165He viewed the images and report of the June 2020 MRI scan which showed a disc osteophyte complex dorsally and a little to the left side at C5-6 and C6-7. There was no nerve root compression. He also noted the further MRI scan dated 17 September 2021, stating “the images are unchanged from the earlier MRI. No report was available.”
166The radiology findings showed degenerative change at C5-6 and C6-7 with disc osteophyte complexes. There was no nerve root compression.
167He thought the plaintiff’s symptomatology had largely resolved but consisted of pain around the left side of her neck, out towards her shoulder. She had no residual arm pain.
168It was reasonable for the plaintiff to continue to take intermittent Panadol for the effects of the spondylotic changes in her spine, and no further treatment was required as a result of the effects of the accident.
169There was no evidence of any significant injury effect in either the cervical spine or the left shoulder.
170The plaintiff had slight restriction of lateral flexion and rotation of the cervical spine. There were no neurological findings in the upper limbs. The radiological and clinical findings were consistent. There was a full range of shoulder movement consistent with what was essentially a normal ultrasound, and there was no diagnosis in relation to the shoulder.
171There was evidence of degenerative spondylosis, particularly at the uncovertebral joints of the cervical spine. The alleged accident did not materially contribute to the cervical spine pathology.
172The pre-existing degenerative changes were cervical spondylosis, particularly evidenced as uncovertebral osteoarthritis. These were chronic changes. The accident did not cause any contribution to any identified pathology.
173The prognosis was good. He believed the surgeries recommended by AP Yang should not occur. The minor restrictions of movement were consistent with the radiological findings, which he did not consider to be attributable to the accident.
Overview
174While the application in relation to the left shoulder was not abandoned, the primary focus was on the cervical spine impairment.
175Save for Dr Dickinson, all medical examiners accept that the accident continues to materially contribute to the plaintiff’s neck and left shoulder complaints.
Credit
176As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[40]
“… 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.”
[40](2010) 31 VR 1 at paragraph [12]
177As I indicated during the hearing, while there was film and photographs of the plaintiff engaging in various gym activities, I did not consider this to be a case where the plaintiff’s credibility was in issue.[41]
[41] T48
178Counsel for the defendant did not put forward the gym film or photographs as a “got you” moment. They were relied on the basis that the plaintiff is still doing a fair bit of gym.[42] She is still doing the exercises, albeit in a modified form. She is still participating in the activity in a fulsome way, doing a range of exercises.[43]
[42] T31
[43] T32
179Counsel for the plaintiff described the plaintiff as a stoic,[44] having missed no time off work, although she had unremitting pain. Her evidence was buttressed by the affidavit of her gym instructor, who described the plaintiff continuing to attend gym under difficulty.[45]
[44] T49; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [14] per Nettle JA
[45] T49
180Overall, I found the plaintiff was a truthful witness, although at times she was prone to exaggerate the effects of her accident injury on her life when one considered the range of activities she retained, including her ability to continue full-time work and attend the gym.
181In Haden Engineering Pty Ltd v McKinnon,[46] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in Court and to doctors);
(b) what the plaintiff does about the pain (for example medication, rest, seeking medical treatment);
(c) what doctors say about the extent and the intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[46] Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
(a) what the Plaintiff says about the pain
182The plaintiff experiences daily neck pain, which increases with activity, and radiates into the left shoulder and arm, neck stiffness and tightness most of the time, left arm weakness and reduced grip strength.
183She told Dr Dickinson in November 2022 that her pain was still like “knots” in the left side of her neck in the trapezius region. The pain radiated to the back of her head and also over the shoulder down to the elbow but no longer radiated down her arm to her hand.
184She complained to Dr Akil in December 2022 of constant and significant left-sided neck pain which is particularly bad with prolonged sitting. She also had persistent left shoulder pain involving the shoulder region and triceps all the way to the elbow.
185There is no up-to-date report from Dr Han, the plaintiff’s treater in Queensland, as to the plaintiff’s current complaints of pain. She last complained of accident-related pain in September 2021.
(b) what the Plaintiff does about the pain
186In submissions, both counsel largely focussed on the issue of accident-related treatment.
187Counsel for the defendant submitted the plaintiff’s treatment for her hip before the accident was an indication that she is not a person “who just walks it off” but reasonably seeks treatment.[47]
[47] T30
188It was submitted “it was a low-speed accident with little happening afterwards”.[48] While the plaintiff has described significant pain, she has not sought that much treatment, which was reflective of the nature and extent of the injury to her neck and shoulder.[49]
[48] T33
[49] T30
189Further, when first seen by Dr Frangoulis in the days after the accident, there was little to find on examination and the plaintiff did not mention any neck or shoulder issues until a visit eight months later. Dr Frangoulis’ most recent report of June 2020 is outdated, as she treated the plaintiff until June 2021 when she moved to Brisbane.
190Counsel for the defendant submitted the accident-related treatment is very minor. There is now no prescription medication. This is not a plaintiff who says no to analgesia, having taken Oxycodone for the fall before the accident. Mobic was prescribed at an early stage but is not ongoing.[50]
[50] T45
191It was submitted Dr Han’s report really provides no insight or opinion about the plaintiff’s condition, which is not surprising, as he has not treated her for it. Further, there is no report from the primary treater, Mr Ayres, physiotherapist, who is significant in this case.[51] A Jonesv Dunkel inference was invited.[52]
[51] T41
[52] T42
192Counsel for the plaintiff relied on the plaintiff’s need for ongoing painkilling medication. The plaintiff now needs to take Panamax, one or two daily, but is reluctant to take it because of breastfeeding.[53]
[53] T50
193Reliance was placed on Dodds-Streeton JA’s comments in Kelso v Tatiara Meat Company Pty Ltd:[54]
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[54](2017) 17 VR 592 at paragraph [199]
194Counsel for the plaintiff relied largely on the treating surgeon, AP Yang’s 2020 request for funding of neck surgery.
195Dr Akil also thought the suggested surgery was reasonable, having found left-sided C7 radiculopathy.[55]
[55] T51
196It was submitted surgery would have occurred if funding had been approved – “it’s potentially on her horizon, because two surgeons who are specialists in the field, have said it’s a possibility”.[56]
[56] T50
197While AP Yang may not have mentioned disc herniation in his report, it was submitted that word is used as a descriptor of bulging and slipped discs. The findings on the September 2021 MRI at C5-6 and C6-7 were relied upon.[57]
[57] T47
198However, the medical opinion relied on by the defendant totally rejected the suggestion of surgery.[58] Those examiners did not find radiculopathy on examination or in the available radiology.[59]
[58] T39
[59] T36
199Counsel for the defendant submitted that AP Yang’s support for surgery in 2020, before the September 2021 MRI scan, stemmed from an incorrect opinion about the nature of the underlying pathology, which he described as disc herniations, which was not supported on the 2020 MRI scan or by any other medical opinion.[60]
[60] T38
200It was also submitted it was hard to understand with only two days’ relief from the nerve root block that surgery would be suggested.[61]
[61] T37
201While Dr Akil thought AP Yang’s suggestion of surgery was reasonable, having seen both the 2020 and 2021 MRI scans, it was submitted he then significantly qualified his view by saying there should be further tests to confirm the presence of radiculopathy.[62]
[62] T41
202The defendant relied on the report of Mr Drnda, and Mr Weaver, who saw the plaintiff in December 2020. Their report was prepared in response to the request for funding of the surgery.[63]
[63] T42
203They found no evidence of nerve root compression at any level on the June 2020 MRI scan. There were no negative neurological signs on physical examination. Radiculopathy was absent clinically. They focused more on the left shoulder as the source of the plaintiff’s complaints. In their view, surgery was not appropriate for this very young plaintiff.[64]
[64] T38
204At first glance, AP Yang’s suggestion of neck surgery seemed to indicate a serious neck problem,[65] but his opinion has limited support and, even on his own, his reports are somewhat difficult to understand.
[65] T33
205The diagnosis of radiculopathy in 2020, prior to the September 2021 scan, appears to be based on subjective complaints of ongoing pain and tingling sensations experienced by the plaintiff since the accident. There was no radiological basis for this complaint until the 2021 MRI scan – an investigation he had not seen.
206The level of complaint reported by the plaintiff to AP Yang of ongoing exacerbations of left arm radiculopathy since the accident, was at odds with Dr Frangoulis’ description of a one-off transient episode.
207Significantly, in his 2022 report, although not having seen the plaintiff since August 2020, AP Yang then thought the plaintiff “may” still require surgery.
208Having seen the plaintiff in late 2022, Dr Akil had both MRI scans. While he diagnosed aggravation of cervical spondylosis with an associated left-sided C7 radiculopathy, his support for the suggested surgery was qualified, recommending a nerve conductions study with an EMG component to confirm the presence of a C7 radiculopathy.
209Dr Dickinson does not appear to have been provided the September 2021 MRI scan but mentioned in his report that “The images are unchanged from the earlier MRI. No report was available.” He thought there was no longer any need for treatment related to the accident as the effects thereof had ceased. In any event, he found no residual arm pain on examination.
210I am not satisfied on the medical evidence that there is a likelihood the plaintiff requires neck surgery as a result of the accident or at all.
211Otherwise, since the accident, the plaintiff has had limited conservative treatment from Dr Frangoulis, with the main focus on physiotherapy and over-the-counter painkilling medication. There have been no prescription painkillers for some time.
212As the plaintiff described, her treatment post accident was massage therapy from “Marty” and Panadol occasionally.[66]
[66] T23
213Post-accident GP treatment has been limited. There were two early post-accident visits with Dr Frangoulis in July 2019 where no significant findings were noted. There were a further ten visits for unrelated matters until March 2020, when the plaintiff again complained of accident-related pain.
214While Dr Frangoulis referred the plaintiff to AP Yang in March 2020, she reported in June that year that the plaintiff’s condition was stable and that she was able to perform activities of daily living and socialise. However, if pain occurred, that may limit her during these activities.
215Dr Frangoulis has not reported on the plaintiff’s condition post June 2020 until last seen in June 2021. From her notes, the plaintiff attended on a number of occasions in that period. The only accident-related attendances appear to be in March 2021 when the plaintiff requested referral to a pain specialist and a note the following month that she had seen the specialist.
216There is no report from treating physiotherapist, Mr Ayres, whom the plaintiff described as her main treater, save for a questionnaire form dated 5 August 2020. His notes detail about twelve visits from 29 July 2019 to 15 January 2020. It seems, however, he continued to treat the plaintiff until she went to Brisbane in mid 2021.
217Following referral to AP Yang, there was the nerve block injection which gave the plaintiff very limited relief and then the suggestion of neck surgery by AP Yang for which WorkCover denied funding.
218There have been limited GP attendances in Queensland, save for in September 2021, when the plaintiff requested a repeat MRI scan as a result of pain and pinching in her left arm. From that time, there is no record of any visit for accident-related issues or any further specialist referral. There is no report from any pain specialist or osteopath the plaintiff saw on referral from Dr Han in August 2021.
(c) what doctors say about the extent and the intensity of the Plaintiff’s pain
219The two most recent medico-legal examiners have differing views in this regard.
220Dr Akil found the plaintiff’s ability to flex her neck was significantly limited. Her ability to lift, bend, twist and stoop depended on the intensity of her pain. Restrictions on these movements and difficulty with prolonged postures was likely to be permanent.
221Dr Dickinson thought the plaintiff’s symptomatology had largely resolved but consisted of pain around the left side of her neck, out towards her shoulder. She had no residual arm pain.
(d) what the objective evidence shows about the disabling effect of the pain
222Counsel for the plaintiff submitted the plaintiff’s neck pain affects her sleep. She has difficulty washing her hair, carrying out domestic tasks, avoiding hiking and reading, difficulty coping with work duties and caring for her baby.[67]
[67] T50
223She has had ongoing problems doing her work but has not had time off as she is a stoic. She was working beyond the restrictions that AP Yang and Dr Akil thought were appropriate.[68]
[68] T52
224There are permanent restrictions on her activities at the gym, although she continues to “give it a go”.[69]
[69] T54
225The plaintiff’s accident injuries have also had an effect on her mood.[70]
[70] Richards and Anor v Wylie [2000] 1 VR 79
226Counsel for the plaintiff relied on the decision of the Court of Appeal in Stijepic v One Force Group Australia Pty Ltd.[71] In that case, Ashley and Beach JJA noted that the duration of symptoms in a young person could render an impairment serious which would not be serious in an old person.
[71] [2009] VSCA 181 at paragraph [43]
227Counsel for the defendant submitted the plaintiff “gives a fair account of what she is doing, and that fair account shows somebody who has consequences that may arise from a neck and or shoulder condition which may even be considered to be considerable but do not satisfy the test of being very considerable”.[72]
[72] T46
228As was stated in Bezzina v Phi & Anor,[73] when examining the consequences of the claimed serious injury, the Court was bound to look at not only what was lost but also what was retained.[74]
[73] [2012] VSCA 161 at paragraph [23]
[74] T46
229Significantly, the plaintiff has been able to work full time and went straight back to work after the accident. She shows a high motivation about work. She is not a stoic. This was demonstrable of the nature and extent of injury.[75]
[75] T46
230While the plaintiff claims to have difficulty sleeping because of her accident injuries, she has a young child and there was no medical evidence that any problems with sleep were related to the accident.[76]
[76] T44; Dr Han did not consider her insomnia was accident related
Findings
231While the plaintiff has continued to complain of ongoing neck pain or varying intensity, the consequences of any cervical impairment are not “serious” in my view.
232A complaint of pain, even repeated many times, does not establish the veracity of the complaint.[77]
[77] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, per AJA Ross at paragraph [46]
233Even in the absence of credibility findings, the plaintiff does not have pain and suffering consequences which are properly described as “serious”.[78]
[78] Hawkins v DHL Express (Aust) Pty Ltd (2013) VSCA 26 at paragraph [63]
234The plaintiff only requires generic over-the-counter medication, and, as discussed above, I am not satisfied on balance, that she requires cervical surgery as a result of any accident-related injury.
235She has retained much of her pre-accident lifestyle and activities.
236Her work was not interrupted at all. Problems with the computer and headaches predated the accident and, post-accident, she only lost one day off work. She worked full time during the pandemic and thereafter, until taking maternity leave. While her husband deposed in late 2021 that the plaintiff was considering reducing her hours because of pain and was unable to progress in her career, there is no evidence that this has been the case.
237Significantly, in March 2020, Dr Frangoulis noted the plaintiff was then coping well with work.
238The plaintiff attended the gym on a very frequent basis before her wedding in an attempt to lose weight for the occasion. She continued with gym after the accident at F45 in Melbourne and in Queensland, albeit on a reduced basis. She was still able to do battle ropes for a minute, lift light dumbbells weighing 4-5 kilograms, run, cycle, attempt chin ups and engage in lower body work. This situation continued until her pregnancy. She has not thought of returning to the gym since Callie was born.
239She has been cleared for exercise. She does not now have any restrictions on lifting around the house or activities of daily living. She has been “cleared for all that”.[79]
[79] T25
240The plaintiff’s post-accident level of gym work seems somewhat at odds with her husband’s affidavit evidence that he had not seen her reach for anything from the top shelf of the cupboard since the accident. Also, the film and social media extracts do not show the level of restriction described by Ms Sparks in her affidavit.
241On the basis of the plaintiff’s level of gym activity post-accident, it is difficult to see how she could be so restricted in other than very heavy household tasks.
Other conditions
242The plaintiff recently deposed that as a result of the accident, she continues to experience frequent headaches which interfere with concentration. Over the last year, they seem to last from anywhere between an hour to most of the day and feel like the beat of some drums playing over and over in her head.
243During closing addresses, counsel for the plaintiff indicated that these headaches were no longer part of the plaintiff’s claim.[80]
[80] T47
244Any consequences relating to the left shoulder must be disentangled from her neck complaint.[81]
[81] T38
245Given the focus on the neck condition, there was no attempt to delineate what consequences related to the neck and what, if any, consequences related to the left shoulder.[82]
[82] T39
246Taking into account all the evidence, I am not satisfied the consequences of any neck impairment are “serious”.
247I make a similar finding in relation to any claimed left shoulder impairment which did not feature greatly in the hearing of this application, with no attempt to disentangle its consequences from any of those claimed in relation to the neck.
248Accordingly, both applications are dismissed.
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