Tjandra v Transport Accident Commission
[2012] VCC 1534
•3 October 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03848
| SHINTA RAMA TJANDRA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 20, 21, 24 and 25 September 2012 | |
DATE OF JUDGMENT: | 3 October 2012 (Revised) | |
CASE MAY BE CITED AS: | Tjandra v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1534 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Transport accident – cervical spine injury
LEGISLATION CITED – Transport Accident Act 1986, s93(4) and s93(17)
CASES CITED – Humphries v Poljak [1992] 2 VR 129; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Richards v Wylie (2000) 1 VR 79; State of Victoria v Glover [1998] VSCA 93; Dwyer v Calco Timbers (No 2) [2008] VSCA 260; Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P McGarvie SC with Mr A E Macnab | Slater & Gordon Ltd |
| For the Defendant | Mr R Meldrum QC with Ms A Wood | Hall & Wilcox |
HIS HONOUR:
1 In the matter of Tjandra v Transport Accident Commission (“TAC”), Mr McGarvie, Senior Counsel, with Mr Macnab, appeared on behalf of the plaintiff; and Mr Meldrum of Her Majesty's Counsel, with Ms Wood, appeared on behalf of the defendant.
2 Dr Tjandra applies for leave pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) to issue proceedings for damages for injuries arising out of a transport accident on 13 July 2009, in particular, a motor vehicle accident.
3 The Originating Motion was issued on 10 August 2011. The plaintiff, at this time, is aged thirty-nine, having been born in 2003. She is a medical practitioner by profession, specifically a paediatric casualty registrar at Monash Dandenong.
4 Mr McGarvie gave the Court an excellent opening, and also, which proved to be of much assistance in this quite difficult case, provided the Court with a chronology. He indicated that there are two serious injury applications pursuant to the definition in s93(17) of the Act. Firstly, under part (a), being an injury to the cervical spine, in particular, he identified in opening a level 4-5, together with a chronic pain sensitisation reaction upon the nerve pathways emanating out of the cervical spine. The second application opened was by way of an alternative, a part (c) injury.
5 In opening, Mr McGarvie submitted that the consequences of each such injury to body part by way of the part (a) and part (c) injury was such as to satisfy the narrative tests, albeit to differing standards.
6 The defendant in reply submitted that the injuries, if any, were non organic; submitted that credit was a substantial issue; submitted that the relevant part (a) application was, as described by Mr Meldrum, a range case; and submitted that it was not appropriate upon the materials as ascertained by the defendant, to classify this in any way as a part (c) injury case.
7 In final submission, Mr McGarvie, albeit he said not instructed, effectively abandoned the part (c) application. On the evidence, I consider such was an appropriate step.
8 The Court is assisted in this determination by the general principles expounded in Humphries v Poljak [1992] 2 VR 129, 140; Cropp and the TAC v Beglehole [1998] 3 VR 357; and by Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, and in this instance Richards v Wylie (2000) 1 VR 79, in particular, as to the importance of textual division between the relevant sub-parts of the serious injury definition contained in the Act.
9 I have also been specifically referred in this case by plaintiff's counsel to State of Victoria v Glover [1998] VSCA 93, and Dwyer v Calco Timbers (No.2) [2008] VSCA 260.
10 To the extent applicable, the aggravation principles identified by the President of the Court of Appeal in RJ Gilbertsons Pty Ltd v Skorsis [2000] 12 VR 386, in particular, at paragraph 2, are to be adopted.
11 The plaintiff tendered Exhibits A1 through to DD, and called the plaintiff, and at the request of the defendant, Dr Sloan and Dr Ellims were called to be cross-examined. The defendant tendered Exhibits 1A through to 10.
12 In final address, Mr Meldrum made the following points. He questioned the credibility and reliability of the plaintiff's evidence, and suggested the Court should be careful about accepting her evidence. In particular, he pointed to the DVD footage material contained in Exhibit 8.
13 Secondly, Mr Meldrum pointed to what he described as inaccuracies in her evidence, and submitted that she had exaggerated her symptomatology in this Court when compared to the examinations as detailed within the various Court books and within the tendered documents.
14 Thirdly, he submitted that the plaintiff’s symptoms were subjective, not organically-based, and unrelated to the physical findings of her spine.
15 Fourthly, he submitted that the existing symptomatology was psychologically-based and therefore not the focus of a part (a) application, and finally, he asked the Court, how can such application succeed given her current capacity for work as demonstrated by her evidence.
16 In final submission on behalf of the plaintiff, Mr McGarvie submitted that the narrative test was established, given the consequences which had emanated out of the physical organic injury to the cervical spine of the plaintiff. In closing, he included, as part of that injury, an aggravation to the previously damaged 5-6 level of the cervical spine.
17 Mr McGarvie refuted the arguments of Mr Meldrum, and submitted that the plaintiff was a creditworthy witness who had been subjected to a petty, tautological and in the end, ineffectual cross-examination. Mr McGarvie submitted that the consequences of her injury, which were not disputed by any doctor, were such as to satisfy the narrative test. To quote the neurosurgeon, Mr Xenos (see Exhibit T, at Plaintiff’s Court Book (“PCB”) 100):
“To say this is complex is an understatement.”
18 The establishment of the injury caused by this accident cannot, I find, be disputed. As described by Dr Chan, the treating neurosurgeon, in a letter to the defendant of 2 October 2009 (see Exhibit J, at PCB 52B):
“Such injury was the exacerbation of neck pain and right C6 brachialgia secondary to a whiplash like mechanism to a pre-existing degenerative cervical spine. Such had produced a cervical nerve root irritation which has caused cervical spine dysfunction.”
19 The occurrence in the motor vehicle accident of such an injury is supported by the treaters, in particular, the consulting neurologist, Dr Helme (see Exhibit H3, at PCB 43); the consultant physician, Dr Ellims (see Transcript 218), who said, upon clinical assessment, he diagnosed:
“A significant C4 lesion with radiating pain from the neck to the shoulder and then to the arm”
as having been caused by this accident.
20 And further, by the consultant neurologist, Mr John Waterston (see Exhibit K, at PCB 54), and the neurosurgeon, Dr Xenos (see Exhibit T, at PCB 101).
21 In addition, the medico-legal practitioners, being firstly the consultant neurosurgeon, Dr David Brownbill (see Exhibit V1, at PCB 104 and 105 and Exhibit V2, at PCB 115); the orthopaedic surgeon, Mr Schofield (see Exhibit AA, at PCB 167), and also the medico-legal orthopaedic surgeon who reported for the defendant, Mr Fogarty (see Exhibits 5A and 5B, at Defendant’s Court Book (“DCB”) 17 and 19), and even the self-described “discompassionate orthopaedic surgeon”, Mr Michael J Dooley, confirmed the sustaining of a soft-tissue injury to the cervical spine which caused “musculoligamentous damage to the cervical spine”.
22 I find the evidence confirming the occurrence in the motor vehicle accident of an organic injury is overwhelming.
23 The complexity in this particular case as to the application by the plaintiff in this matter, is whether the consequences of such injury, as at the date of hearing, are such as to satisfy the narrative test. Perhaps I might first deal with the credit issues which were raised concerning the plaintiff.
24 As I said to Mr Meldrum during final submissions, I had formed the view that the plaintiff was a believable and persuasive witness (see Transcript 315-316) who, in my view, did not seek to exaggerate, and appeared to be a genuine history recorder.
25 Despite the submissions of Mr Meldrum, now having had the ability to read this voluminous material that has been presented to the Court, I maintain that view.
26 Specifically, Mr Meldrum submitted that, from the observations of the plaintiff when she gave evidence in the Court, I would conclude, or should conclude, that the plaintiff had exaggerated in Court her symptomology as against that represented to the various medical practitioners, to whom I have referred. I find I am unable to so conclude. Indeed, to do so, I consider would require a fairly remarkable capacity in Court for the untrained lay eye.
27 In such context, there is not one report suggesting the plaintiff deliberately exaggerated, albeit there is clearly an issue for consideration of subjective symptomology.
28 Indeed the treating general practitioner was questioned about this aspect by me at Transcript 204. Dr Sloan has treated the plaintiff since October 2009 and as at September 2012 had seen her on thirty-two separate occasions. In reply to my question, the general practitioner said to the Court that the plaintiff accurately records her symptoms, and that she was never aggressive.
29 And to Mr McGarvie's further question, thereafter at Transcript 205, Dr Sloan said that at no stage did she ever question the genuineness of the complaints made by the plaintiff.
30 Mr Meldrum also submitted that observation of the DVD or CD (Exhibit 8), should lead the Court to question the reliability of the plaintiff's claimed symptomology. Mr Meldrum questioned whether the plaintiff had carried upon her right shoulder heavy loads in two bags, and further questioned as to why, on two occasions, she was not wearing sunglasses.
31 I am unable, from my observations of Exhibit 8, to determine the weight of the bags, nor am I able to perceive any particular lean in the plaintiff's body, indicating she was carrying weighty material. Indeed, I accept the plaintiff's evidence that the items in those bags at the time of that CD or DVD were of minimal weight and that she was carrying them on the right shoulder so she could use her good hand to carry a hot drink. Nor do I accept the failure to wear glasses at that time indicates that the photophobia she referred to in evidence is exaggerated. I accept her answer that at 2.37 pm, as shown in that video, she is in fact clearing phone messages and that is why she had the glasses on her head.
32 Again, the suggestion of exaggeration by Mr Meldrum, and indeed deliberate exaggeration, must be balanced against the medical opinion exhibited, none of which questions the genuineness of the symptoms complained of. Indeed, Professor Justin O'Day, ophthalmologist, raises no question as to the reliability or accuracy of the plaintiff suffering from such eye condition.
33 The next issue as to credit raised by Mr Meldrum in cross-examination, and indeed in final address, was the suggested attempt as described by Mr Meldrum in the plaintiff’s original affidavit to hide, or alternatively that she had been less than forthcoming given her profession as to:
(a) the reasons for failing her fellowship exams;
(b) detailing her pre-existing migraine history; and
(c) a failure to mention the disclosure of the 4-5 disc protrusion being discovered prior to this accident to which we are concerned about.
34 As to point (b) thereof, there is no basis at all for such criticism as the defendant, TAC, was already aware of such from the medical reports of Dr Chan (Exhibit J) and Dr Helme (Exhibit H), which they had received in 2009.
35 As to the migraines, she had described such history to Mr Waterston in February 2010 (see Exhibit K, at page 54), and to the treating general practitioner, Dr Sloan, in October 2009 (see Exhibit B1, at page 101), before swearing the affidavit, and indeed to Dr Teh in January 2012 before she filed her further affidavit, and in fact she had been referred to Dr Helme in 2005. The suggestion that the plaintiff in such circumstances, was deliberately hiding these details in her first affidavit, is, I find, ludicrous.
36 The proposition and evidence given by her, and indeed feeling by her that the accident was a cause of her failure of her subsequent fellowship exams no doubt holds. It is, I understand, still her view, despite the fact that she had failed the exam before the accident. It should be pointed out in this instance that the history as to migraines was clarified in the affidavit (Exhibit A2) on the first day of this hearing.
37 One of Mr Meldrum's major submissions is that given the number of hours currently worked, if we go to Transcript 99, somewhere between eighty-six hours to one hundred and twenty hours a fortnight at the Dandenong Casey Hospital, the plaintiff could not qualify for or pass the narrative test. Such, of course, ultimately has to be determined by me in this determination.
38 However, in this instance, the reliance and maintenance of that view throughout, from opening to final address, reminds me I must say of the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd No 2 (supra) at paragraph 3, and indeed I wonder whether for some reason the defendant in this instance has taken a “wrongheaded” attitude to the plaintiff, on the basis she has been particularly stoic and returned to work, albeit in a stressful and intellectual demanding position.
39 I was concerned when the cross-examination began as to the allegations put that she had been untruthful in her evidence or had been so in her sworn affidavits.
40 While credibility was opened by Mr Meldrum (see Transcript 26), allegations of untruthfulness were in fact put to the plaintiff in cross-examination, see Transcript 47, 49, 50, 56, 82 and 83 and at 97, at which stage I questioned the tone of the questioning, that is, such questioning being made of an applicant who was a professional of the highest standing, carrying out an arduous and intellectually demanding occupation.
41 Thereafter, and I thank Mr Meldrum for this, he reverted to questioning which simply enquired as to the accuracy of such statements.
42 Again, standing back and trying to analyse the case, I wonder whether the said preconceived ideas that I have referred to, may again have been behind this type of questioning because of the stoicism of the plaintiff.
43 That, of course, is not to say that a professional applicant is immune from appropriate questioning in cross-examination. However, now that I have had the opportunity to fully review and read all of the medical reports, as I say, the voluminous medical reports in this case, it is obvious that there was no basis whatsoever for any such questioning, and that such questioning insofar as it is suggested deliberate exaggeration or deliberate failure to mention matters was, I find, totally unjustified and over the top.
44 Also, the proposition advanced to the Court by the defendant, that the symptoms displayed by the plaintiff, at Court, were non-organic, appears from a reading of the material to have had no medical support whatsoever.
45 The only support obtained for such a proposition, which obviously has been adopted by the defendant throughout the preliminary procedures to this application, of which I understand are mandated, were unsupported by medical material until the self-styled “dispassionate orthopaedic surgeon” Mr Dooley, reported to the defendant on 6 September 2012, being twelve days before this hearing was to begin and further, with the defendant having had the opportunity to see and examine the file of Dr Sloan, which had within it, the letters from Professor Stark (Exhibits 1A and 1B), which again, were not available to be viewed by the Court until 11 September 2012, again, some eleven days before this hearing began.
46 Such circumstances give me further concern as to the possible “wrong headed” approach taken by the defendant in this matter.
47 Having made such remarks, however, I want to stress, I am not here to determine the attitude under which the defendant conducts its statutory obligations, or its cases. The onus at all times remains upon the plaintiff to satisfy the Court to the required standard that the consequences of her organic injury, as at the date of hearing, are such as to satisfy the narrative test.
48 Mr Meldrum, in submission, relied upon Mr Dooley and the tendered reports of Dr Stark to which I have referred, to submit that whatever the injury, the symptomatology at the date of hearing was now psychologically-based, and not neurogenic or organic.
49 The issue as to non-organic signs was specifically put to Dr Ellims. Dr Ellims had treated the plaintiff upon her emergency admission to Epworth Hospital on 31 July 2009 subsequent to the accident. He acknowledged in evidence that his view as to the C4 protrusion having been caused in the accident was not correct. When he was presented by Mr Meldrum with the earlier MRI of March of 2005 (Exhibit C1), he acknowledged this was incorrect. However, Dr Ellims opined that he felt that the accident aggravated the pre-existing C5-6 fusion and said in evidence (Transcript 218) that after the plaintiff's issues with her overmedication and her vitamin D deficiency had settled down, his clinical assessment was that she had suffered, as a result of the motor vehicle accident, a significant C4 lesion caused by the accident, resulting in pain radiating to the shoulder and down her arms in a typical C5-6 distribution (see Transcript 218). He also lucidly remarked, however, there were no hard neurologic signs for such diagnosis.
50 Dr Ellims was further questioned by Mr Meldrum as to his concern (as expressed in Exhibit D2, at PCB 32), upon the plaintiff's release from hospital to Cedar Court, as to the potential for the development of a Chronic Pain Syndrome. On this basis he had recommended that the plaintiff see Dr Sloan and have pain management assistance.
51 Dr Ellims felt she needed a caring and effective general practitioner to treat her, considering the problems she had encountered with pain medication and the pressure of her professional work.
52 As I say, in this context, Mr Meldrum put to Dr Ellims the development of a Pain Syndrome that was not organically-based (see Transcript 227). Dr Ellims rejected such proposition, and firmly stated that he had seen no such non-organic symptoms and that while in hospital, the plaintiff had affected a good recovery.
53 However, as Dr Ellims admitted, given her gross issues and the problems she had in hospital, to which I have already referred, he felt she needed post-hospital assistance to ensure that such a condition did not develop.
54 As indicated, Dr Sloan was the general practitioner to whom the plaintiff was referred, and has been the plaintiff's general practitioner ever since.
55 On presentation to Dr Sloan on 13 October 2009, the plaintiff was found by Dr Sloan to be very unwell, complaining of photophobia, nausea, headache and severe right arm pain.
56 On examination at that presentation, Dr Sloan found marked stiffness, tenderness and guarding of the shoulder and neck muscles with extensive tenderness in the occipital region of the neck and general weakness of the right arm and shoulder. There was also a limited range of movement in all directions of the cervical spine.
57 Upon further consultation, Dr Sloan felt that the constant burning pain to the right arm was neuropathic pain and arranged for nerve blocks to be performed by Dr Verrills.
58 Dr Sloan opined that the plaintiff suffered from exceptionally complex, and difficult to treat, neurological symptoms, exacerbated due to her medication intolerances.
59 In her most recent report, tendered to the Court, Dr Sloan noted the plaintiff had continued to suffer extremely severe and constant symptoms from her neuropathic pain involving the right neck, shoulder and arm, caused by the accident.
60 Dr Sloan, in such report, was pessimistic as to the future of the plaintiff and thought that the suffering of such symptoms would last for many years and that such suffering would eventually limit the type of professional work able to be performed by the plaintiff, given its demands (see Exhibit A2, at PCB 101D).
61
Again, in cross-examination, Mr Meldrum put to Dr Sloan that such symptomatology was non-organic, and in support of such proposition, put reports forwarded by Dr Sloan from Professor Stark, Exhibits 1A and 1B, where the Professor, in Exhibit 1A, in October 2011, advised
Dr Sloan that he considered that psychological factors were the dominant reason for what he described as the presenting Regional Pain Syndrome. Dr Sloan disagreed, noting that Dr Stark was not a psychiatrist, and that in her opinion and observation clinically, the plaintiff had never demonstrated depression or untoward anxiety (see Transcript 167).
62 Mr Meldrum also put to Dr Sloan that the complexity of the case was aggravated by the plaintiff's personality. Dr Sloan replied:
“The case was complex because of the basis of the physical injury.”
(See Transcript 175).
63 Dr Sloan considered the plaintiff suffered from a chronic central pain sensitisation, which was neurologically-based and organic in origin, which accounts for her symptoms being reported, which do not follow classic dermatomal pathways. Albeit, the doctor considered, in the plaintiff's case, such symptoms were confluent, and that her complaints had never been inappropriate.
64 In re-examination, Dr Sloan said that due to the lack of success of the second nerve block by Dr Verrills, the pain sensitisation was worsening. Dr Sloan’s opinion was that the cause of the plaintiff's symptoms was organic, and that the psychological reaction to that pain was organic, and in keeping with what anyone in the plaintiff's position would endure and evidence.
65 Pressed on this issue by Mr Meldrum, Dr Sloan felt that the pressures of work, and work stress, in the plaintiff's case, could perhaps have increased the pain by some 20 per cent, but thought that in the particular circumstances, all of such pain was explicable (see Transcript 201).
66 In regard to Dr Sloan's comment as to Dr Stark not being a psychiatrist, Mr McGarvie took that up in final submission. Insofar as Mr Dooley's opinion was concerned, and indeed Dr Stark's opinion, Mr McGarvie referred the Court to the report of consultant psychiatrist, Dr Lester Walton (see Exhibit 6, at DCB 21), who assessed the plaintiff on behalf of the defendant on 7 June 2011, and who opined, at paragraph 7 of such report, that there was no psychogenic component to the pain, and that any incapacity in regard to her work activities or leisure activities can be attributed to the pain that she was enduring from the injury and not to any psychiatric problem. Indeed, Dr Lester Walton, psychiatrist, concluded that the plaintiff impressed as having a positive attitude to rehabilitation.
67 There is strong support for the argument put by plaintiff's counsel that all of the symptomatology was indeed organically based. In this regard, I refer to the report before the Court by the medico-legal neurosurgeon, Dr Brownbill (see Exhibits V1, at 105, and V2, at 115), where Dr Brownbill says, as at June 2012:
“… on probability, this lady has suffered a deficit of the C4-5 intervertebral disc in the rear end collision - giving rise to an ongoing neck pain with a contribution to shoulder and arm pain and to aggravation of a migraine diathesis.”
68 Dr Brownbill noted the limitation of heavy lifting and pushing in her occupation, and further, the restrictions due to ongoing headaches which had emanated since this accident.
69 Further support is gained from the orthopaedic surgeon, Mr Schofield, who reported in July 2012 (Exhibit AA, at PCB 167), as to the C4-5 injury sustained in the accident. He opined that she has: “a true organic cause for her symptoms”, and indeed he saw the need for surgery.
70 There is additional support for the organic nature of these symptoms from the medico-legal opinion received by the defendant from Mr Fogarty, orthopaedic surgeon (see Exhibit 13). In that report of August 2011, he noted the continuing pain and diminished range of movement to the neck and spine, which he said was caused by the motor vehicle accident.
71 Finally, the neurosurgeon, Dr Xenos, who was asked to give an opinion, following the opinion of Mr Schofield, by Dr Sloan (see Exhibit 10 at page 111). Dr Xenos noted the constant right neck pain and stiffness and radicular right arm pain varying in severity, with ongoing headaches and migraine tendency. He identified the shoulder/upper arm as C5 and lower arm/hand as C6. He was not keen on an operation and advised continued conservative measures.
72 The defendant, as I have already recounted, rely on the opinions of Mr Dooley and Dr Stark. Having considered all of the evidence, that of the plaintiff, the plaintiff's doctors and the defendant's doctors, I would reject such submission.
73 I find that the symptomatology of the plaintiff is organic, as expressed by Dr Ellims; the general practitioner, Dr Sloan; Dr Lester Walton; the neurosurgeon, Dr Brownbill; the orthopaedic surgeons, Mr Schofield and Mr Fogarty, and the neurosurgeon, Dr Xenos.
74 Albeit no submission was made in this regard, I am satisfied that the injury caused in this motor vehicle accident to the cervical spine, being some form of lesion to the C4 level, also involved an aggravation of the C5-6 level and generalised ligamentous damage to the cervical spine itself.
75 In the sense that the injury involved an aggravation, it, itself, produced – that is, the aggravation – a serious long-term impairment to the cervical spine. I have formed such conclusion upon analysis as decreed in Petkovski v Galletti [1994] 1 VR 436, 443, and in RJ Gilbertsons Pty Ltd v Skorsis (supra), to which I have already referred.
76 In coming to such finding, I have made the necessary comparison of the plaintiff's lifestyle before the motor vehicle accident of 13 July 2009 and since. In that regard, such finding is substantiated by the affidavits of the plaintiff, being Exhibit A1 and A2, and by my finding that the plaintiff’s oral evidence is both valuable and impressive.
77 On the basis of such evidence, as substantiated by the medical evidence to which I have referred, I accept the submission of Mr McGarvie that prior to the motor vehicle accident, despite the earlier fusion to C5-6 and the migraine tendency, after that operation and prior to the accident of which we are concerned, the plaintiff was in relative good health, living an active and fulfilling life as confirmed by the photographs set out in Exhibits E and F and spoken of by Dr R J Phillips in his affidavit, Exhibit G, at paragraphs 6 to 14 thereof.
78 I accept that prior to the accident, the plaintiff's life was full. She enjoyed socialising, working, dancing and performing an arduous job in a tertiary hospital.
79 The situation following the accident, in comparison, I find to be marked. Since such accident, despite her stoicism, I consider her life has been materially affected in regard to her capacity to enjoy life, to carry out her work, to socialise and to carry out all aspects of her life. Such accident has produced severe physical consequences with a need for a full range of medical solutions. She continues to be dogged by the consequence of the injury received in this motor accident, and will be, I find, in the long term.
80 I find, on the basis of the above evidence, that the injuries, and the aggravation of injury, caused by the motor vehicle accident on 13 July 2009 has had a particularly deleterious effect on the plaintiff and has caused her pain and suffering and loss of enjoyment of life, in particular, in regard to her now reduced ability to utilise such injured bodily parts, namely the cervical spine, in carrying out her normal daily bodily activities, her employment, her studies, her social activities and home duties.
81 I should mention her studies. The plaintiff is a member of the College of Physicians (Paediatric), however, is restricted to practice in a hospital until she passes her fellowship exams. She had failed such exams on four occasions prior to the accident. She again failed post-accident in 2009, albeit that that was shortly after the discovery that her father had been diagnosed with cancer, and she was required to go and assist him overseas.
82 The plaintiff gave evidence that in 2010 she had failed to complete the exam due to the symptoms of severe headache brought about on that day, and then she did not at all sit for the exam in 2011 because of her father's death.
83 In the exam in 2012, she again failed, owing, she said, to headache and neck pain brought about by reading the exam and, she said, by her ongoing symptoms. Clearly there are other factors at play apart from this accident in regard to passing this fellowship exam, no doubt the difficulty involved for one.
84 However, I have no doubt, that since the accident, in the same way as her work capacity has been affected, her capacity to study is likewise grossly affected. Given her stoic nature, I hope she can overcome such adversity in the future, in the same way in which she continues to perform in her demanding profession, despite the pain and suffering in so doing.
85 In assessing the impairment caused to the plaintiff objectively, I find the consequences of her pain and suffering and the impairment of her enjoyment of life so caused by the injuries sustained in this motor accident are certainly more than significant or marked and are in fact very considerable.
86 I accept the concern of the treating practitioners as to how long the plaintiff can continue to work such punishing hours carrying out her profession, albeit that she has, as a result of her injuries, and is now required to perform her profession in non-tertiary hospital. Unfortunately, as I assess the situation today, the probabilities are that she is unlikely to pass her fellowship exam. Hence, the future reality of her employment is that she will be restricted to a hospital practice as a paediatrician with its exacting demands. I consider she is now, and will be in the long term, to a greater degree unable to work at a tertiary hospital, and of grave risk of being unable to work at any paediatric hospital at all in the future.
87 I think it necessary in such context, especially where objective analysis is required, to recall we are talking about a plaintiff who functions at the very high end of intellectual achievement and who is required to perform in a most stressful and demanding environment, where her patients are specifically sick children.
88 The breadth of an objective analysis is obviously specifically limited, albeit this Court's more general experience of such range, which must be brought to bear.
89 In assessing the consequences of such impairment objectively, I find that the pain and suffering and impairment of the plaintiff’s enjoyment of life and pecuniary disadvantage brought by the motor vehicle accident and the risks to her earning capacity is not only long-term but is certainly more than significant or marked and very considerable, and I find that the consequences of such bodily impairment are serious.
90 Formally, therefore, I grant leave to the plaintiff to issue proceedings for damages for her injuries occasioned in the motor vehicle accident on 13 July 2009.
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