Turnbull v TAC
[2013] VCC 1926
•11 December 2013
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-03598
| PATRICIA TURNBULL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 25 and 26 November 2013 | |
DATE OF JUDGMENT: | 11 December 2013 | |
CASE MAY BE CITED AS: | Turnbull v TAC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1926 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Transport accident - Serious injury – low back injury – Serious long term impairment.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Elias v Transport Accident Commission [2013] VSCA 123, ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, Humphries & Anor v Poljak [1992] 2 VR 129, Petkovski v Galletti [1994] 1 VR 436, Transport Accident Commission v Kamel [2011] VSCA 110
Judgment: Leave to proceed granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr A E A McNab | Slater and Gordon |
| For the Defendant | Mr R K Meldrum QC with Ms K A Galpin | Solicitor to TAC |
HER HONOUR:
1 Patricia Turnbull was injured in a transport accident on 26 June 2008. On that morning she was walking across a pedestrian crossing accompanied by her husband, Donald when she was struck on her left side by a car (“the transport accident”).
2 As a consequence of the transport accident, she suffered injury to the lower left back, upper buttock and lateral hip and upper thigh area with associated bruising[1].
[1]Mr S Rankine, physiotherapist report dated 13 April 2012, PCB 70
3 The consequences of the injury continue and she applies, under s93(4)(d) of the Transport Accident Act 1986 (Vic), for leave to bring an action at common law to recover damages for the injury she has sustained.
4 The claimed physical injury is an injury to the low back, being aggravation of degenerative disc disease, and/or injury to the sacroiliac joint.
5 As was stated recently by the Court of Appeal in Elias v Transport Accident Commission,[2] in a case concerning a physical impairment (that is a claim under paragraph (a)), the general guiding principles may be summarised as follows:
[2][2013] VSCA 123
· The applicant for leave to bring proceedings must establish on the balance of probabilities that he or she suffered a ‘serious injury’ as a result of a transport accident;[3]
· Although the test for determining whether an applicant has suffered a serious long term impairment or loss of bodily function is subjective in the sense that it is the effect on the particular applicant’s body function that must be considered, nevertheless it is the Judge’s opinion as to the seriousness of the impairment or loss which is decisive;[4]
· In order to be ‘serious’, the consequences of the injury must be serious to the particular applicant in relation to either pecuniary disadvantage or pain and suffering, or both: when judged by a comparison with other cases in the range of possible impairments or losses, they must be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[5]
[3]Petkovski v Galletti [1994] 1 VR 436, 437; Spence v Gomez [2006] VSCA 48 [8]
[4]Transport Accident Commission v Kamel [2011] VSCA 110 [62]; Humphries v Poljak [1992] 2 VR 129, 134
[5]Humphries v Poljak [1992] 2 VR 129, 140; Spence v Gomez [2006] VSCA 48 [8]; Transport Accident Commission v Kamel [2011] VSCA 110 [64]
6 Mrs Turnbull’s claim is limited to pain and suffering damages only.
7 In order to succeed, the Plaintiff must establish that, as a result of the transport accident, she has suffered “serious long-term impairment of a body function” to her lumbar spine.
8 Only one witness gave viva voce evidence – the Plaintiff. In evidence-in-chief, the Plaintiff adopted her affidavit sworn 22 August 2013 that forms part of the exhibited material. She was extensively cross-examined.
9 It is not in dispute that the Plaintiff suffered an injury to her low back as a consequence of the transport accident.
10 Mr Meldrum’s primary submission was that even if I accept that the Plaintiff has been at all times scrupulously honest and frank in her evidence, the objective facts do not substantiate that the consequences suffered from the impairment to her low back meet the statutory test.
11 The background to the application is that Mrs Turnbull is aged 64 and was born on 5 March 1949. She lives with her husband, Donald in Point Lonsdale. She is his carer and does not engage in paid employment. He is a left below-knee amputee as a consequence of a motorcycle accident in 1981. He suffered further severe damage to his left knee and less severe damage to the right knee following another accident in 2006. He has been in receipt of a disability pension since that time. In 1998 he was diagnosed with Diabetes Mellitus Type IIl.[6]
[6]History recorded in Dr M Epstein’s report 5 October 2010, PCB 126-127
12 In 1996 both the Plaintiff and her husband were assaulted by a mentally ill neighbour and both suffered injury. The Plaintiff required an arthroscopy of the left knee and sustained several scalp lacerations. Following the assault Mr David Sullivan, Psychologist, provided extensive counselling to the couple on a weekly for 12 months.
13 Earlier in 1977 the Plaintiff had an acute myocardial infarction and was diagnosed with hypertension for which condition she continues to receive treatment.
14 The Plaintiff was taken by ambulance to the Geelong Hospital following the transport accident where she was examined and discharged into the care of her General Practitioner.
15 Dr Simon Horne, General Practitioner, treated her initially, and then Dr Fong, General Practitioner took over her care. On 7 March 2012 she commenced seeing Dr Catherine Condon, General Practitioner in relation to the ongoing management of her condition.
16 The Plaintiff has had a range of conservative treatments including extensive physiotherapy, medication and injections for pain relief for her low back condition.
17 Mr Meldrum was very critical of the Plaintiff’s evidence in his final address. He submitted that the Court ought to form the judgment that she is an ill-educated and an intelligent woman who fully understood the questions in cross-examination, yet valiantly and frequently avoided answering the questions and wanted to make her own agenda to explain her own view. He submitted that in effect the way she responded to his questions was an acknowledgement of the propositions that he had put to her and that the consequences of the injury were not that bad.
18 Contrary to that submission, I formed the impression that Mrs Turnbull gave considered and thoughtful answers to each of the questions asked of her during her lengthy cross-examination. I observed that she found it difficult to tolerate sitting or standing and was in some discomfort throughout.
19 Mrs Turnbull did not seek to embellish the consequences of the injury and in my view earnestly tried to respond to each of the questions asked, making appropriate concessions when necessary.
20 I accept her as a witness of truth and reject the assertion that she “wanted to make her own agenda”.
21 A great deal of emphasis in cross-examination was placed on the records of Dr Fong and the absence of a record of complaints of serious back pain.
22 Dr Fong’s computerised records form part of the exhibited material. Having regard to all the material relied upon in the application, I am unable to conclude that the doctor’s notes record a complete verbatim account of every complaint made by the Plaintiff to him concerning her low back injury.
23 A good example is found in the entry he made on the 24 July 2009. He records “back pain” and also records that he generated a letter to the Transport Accident Commission (“TAC”) in relation to physiotherapy. On that occasion there is no note made of the Plaintiff’s presenting symptoms or clinical presentation.
24 As was submitted by Mr Harrison in his final address, there is other evidence that shows Mrs Turnbull has been consistent in her complaints of pain over the years since the transport accident including complaints made to her Psychologist, Mr Sullivan, her Physiotherapist, Mr Rankine and her various treating doctors.
25 There is ample evidence in the material that supports the Plaintiff’s ongoing complaints of low back pain following the transport accident. The reports of Mr Sullivan, Psychologist, Mr Rankine and Mr Hutchison, Physiotherapists and her treating doctors, including Dr Simon Horne, Dr Fong and Dr Catherine Condon, Dr Markov, Rheumatologist and Dr Vagg, Pain Management Specialist, all record complaints of low back pain attributable to the transport accident.
26 Mr Sullivan, who provided psychological treatment in the aftermath of a violent physical assault perpetrated upon them by their neighbour, saw the Plaintiff on the day of the transport accident and continued counselling her up until 22 March 2012.
27 He comprehensively sets out the attendances for counselling related to the transport accident. He records the constant complaint of left lower back pain, difficulties sleeping and walking and her concern about increasing weight.
28 His records accord with the Plaintiff’s evidence that, following the transport accident, she has had chronic pain in her low back which impacts on her sleeping and walking and managing the practical activities of day to day living.
29 I am satisfied that the chronic nature of the Plaintiff’s condition is well documented from the time of the transport accident to date.
30 Further I accept the Plaintiff’s explanation for the absence of documented complaints in Dr Fong’s records. Dr Fong was aware of all the treatment being provided to the Plaintiff by others involved in her care.
31 Throughout the period from August 2008 to December 2010 there were some 40 attendances for treatment with the physiotherapist, the cost of which was met by the TAC. Further she had extensive counselling with Mr Sullivan who consistently recorded her complaints of pain and the associated difficulties that she was experiencing. She had some treatment from Dr Markov, Rheumatologist, in July 2009 to investigate the pain and she has attended Dr Vagg, Pain Management Specialist, from 2011 for treatment and management of her pain.
32 Dr Fong’s reports set out comprehensively his expressed opinion that the transport accident has been a major contributing factor to the subsequent low back pain experienced by the Plaintiff. He confirms that since the transport accident she has reported pain in her left lower back and part way down the left leg, if sitting or after sleep. She has left sacroiliac tenderness, left thigh pain and a painful left knee. He records ongoing pain in the back and lower limbs, reducing her exercise tolerance. He notes that she sometimes has problems with sleeping.[7]
[7]Dr Fong report 25 February 2010, PCB 37
33 In February 2013 he referred the Plaintiff for further physiotherapy. He wrote in the referral letter to the physiotherapist that the Plaintiff has had lower back pain, particularly around the left sacroiliac joint following and as a result of the transport accident in 2008.[8]
[8]PCB 62
34 He confirms in his letter to Slater & Gordon dated 10 July 2013 that the Plaintiff frequently described problems with lower back pain following the transport accident. He notes that she had been formerly very active but recently has had more difficulty, or has been unable, to travel on longer trips with her husband. She has mentioned to him difficulties with sleeping. Dr Fong confirms those limitations are consistent with low back symptoms. In consultations, she has described problems with low back pain and the partial benefits she receives with physiotherapy (May 2013) and how less frequent physiotherapy results in an increase in back pain (July 2012).[9]
[9]PCB 64
35 Further I accept that Dr Fong would see the Plaintiff in the company of her husband, Donald, who as has been explained has a number of health issues that would often be the focus of Dr Fong’s attention. I accept that as being a realistic and plausible reason for the brevity of Dr Fong’s notes.
36 I am not prepared to draw an inference adverse to Mrs Turnbull based solely on the absence of a record of constant complaints of serious low back pain in Dr Fong’s records.
37 I further accept the Plaintiff’s evidence that she has suffered constant pain since the transport accident and that she has attempted to self manage the pain on occasion with over the counter pain relief medication, including Panadol and Voltaren, and with physiotherapy treatment. Further, when her efforts to control the pain were not effective and her pain was severe she did seek further treatment and was referred to Dr Vagg for pain management.
38 Prior to the transport accident she was taking the odd Panadol for a headache and prescribed medication for her heart condition and cholesterol.[10] Dr Condon has recently encouraged her to increase the frequency of Panadol Osteo to regular use three times a day including before bed rather than occasional use. [11]
[10]T100, L28-31; T101, L1
[11]PCB 68
39 The various reports relied upon by the Plaintiff set out comprehensively the nature of the low back condition and the chronic nature of the symptoms and the treatment administered to alleviate her symptoms.
40 Mr Rankine first saw Mrs Turnbull for physiotherapy related to her transport accident on 19 August 2008. He states that the immediate injuries following the transport accident were:
· Bruising of left lower back, upper buttock and lateral hip and upper thigh area;
· Palpable swelling, and;
· Haematuria (blood in urine).
41 As the symptoms settled, Mrs Turnbull continued to suffer from left lateral hip pain (especially with stairs), left lower back pain in the sacroiliac joint area with pain on movement, stiffness, and difficulty with sitting and rising from sitting.
42 He states when he first saw Mrs Turnbull the bruising and swelling had subsided and she was left with pain in the left lower back and sacroiliac joint area. This has been a chronic (my emphasis) problem requiring intermittent treatment ever since, subject to TAC approval.
43 The number of visits by the Plaintiff to Mr Rankine were as follows:
August 2008 to November 2008 12
November 2008 to February 2009 10
October 2009 to January 2010 10
June 2010 to December 2010 8
44 He states that in the 10 week period from May 2010 to 14 July 2010, the TAC reviewed Mrs Turnbull’s entitlement to further physiotherapy treatment. An additional 10 treatments were allowed until the end of 2010 with no provision for any treatment beyond then.[12]
[12]PCB 70-77
45 Dr Michael Vagg, Rehabilitation and Pain Medicine Specialist, saw Mrs Turnbull on 25 March 2011. He wrote to Dr Fong on 25 March 2011 stating:
“Thank you for referring Patricia for assessment. Her long history of back pain is well known to you and the essence of my assessment of her today is that we should seek TAC approval for a sequence of diagnostic blocks. I would like to begin with the sacroiliac joints and if pain relief of greater than 50 per cent is not obtained I would then move on to her L4‑5 and L5‑S1 facet joints.
She is keen to manage with a minimum of medication and indicates medication is often not particularly helpful for either of these entities. I will keep you informed about her progress.”
46 In his report to the Plaintiff’s solicitor, Dr Vagg noted a prior history of degenerative lumbar disease that was asymptomatic prior to the transport accident of 2008. Following the accident, the Plaintiff had ongoing pain in the left lower lumbar region with referred pain down the leg. When he examined the Plaintiff on 25 March 2010, he found that she had pain present on provocation of the sacroiliac joints on both sides, with the left being more severe than the right.
47 Dr Vagg performed bilateral sacroiliac joint injections on 6 May 2011, and the Plaintiff’s back pain was noted to have been reduced substantially, with no further intervention planned at that stage.
48 He considered that the sacroiliac joint pain on the left was caused by the transport accident. He understood she was struck on the left hand side as a pedestrian by a car. He opines that a high level impact, particularly with a shearing component, tends to cause sacroiliac joint pain. It is his opinion that once the joint is severely sensitised from such injury, it can go on to cause long-term pain and the risk of this happening to Mrs Turnbull would be moderately high. He postulated that she may well require repeat injections in the future to maintain her level of activity.
49 In fact, the evidence of the Plaintiff was that she had been back to see Dr Vagg and more injections have been performed, and it is likely the Plaintiff will require more injections into the future. This evidence accords with the information recorded by Dr Catherine Condon.
50 On 7 March 2012 Dr Catherine Condon referred the Plaintiff to a physiotherapist, Mr Hutchinson. On 16 May 2012, oral analgesia use was discussed. The doctor suggested increasing the frequency of Panadol Osteo to regular use three times a day, including before bed, rather than occasional use, in order to better manage the Plaintiff’s lower back pain and symptoms including sleep disturbed by nocturnal discomfort. The doctor encouraged physiotherapy attendance to discuss a personal exercise program to reduce low back pain through weight loss and improved fitness.
51 There are attendances on the Plaintiff on 28 August 2012 and on 24 October 2012 where Dr Condon has discussed the recent cortisone injection into the low back. On 19 February 2013, there was a plan to make a booking for a lower back injection again. On 1 May 2013, “cortisone injection into sacroiliac joints 10 days ago at Pain Clinic” is noted, as is concern with frequent micturition since then. On 7 May 2013, the notes record a referral back to Dr Michael Vagg requesting ongoing management of the recurrent lower back pain.[13]
[13]PCB 68-69
52 Mr Hutchison has provided further physiotherapy treatment that has been approved by the TAC. That commenced on 31 October 2011 and ceased on 21 March 2012. There was further funding approved for the period from 7 May 2013 to 30 July 2013.
53 Dr Michael Vagg provided an updated report on 3 August 2012 in which he confirmed ongoing treatment. He saw Mrs Turnbull on 23 March 2012 at which time she reported, following sacroiliac joint injections that were done on 6 May 2011, that she had experienced a generally low level of pain which she scored between one and two until November 2011. Around that time, she woke up with an episode of pain which had a different quality and pattern to the longstanding left sacroiliac joint pain. That took around six weeks to settle.
54 Mrs Turnbull has described improvement with low back injections as provided by Dr Vagg (in September 2012 and May 2013), though some of the improvement was transient. Mrs Turnbull has been supplied with prescriptions for Paracetamol and Clecoxib (Celebrex).
Medical examination summaries
55 Mrs Turnbull has been seen by a number of medico-legal examiners. The consensus of opinion is that as a consequence of the transport accident the Plaintiff sustained aggravation of pre-existing asymptomatic degenerative changes in her low back giving rise to chronic pain.
56 Dr Michael Epstein, Psychiatrist, reviewed Mrs Turnbull on 4 October 2010. At the time he examined her, the history he recorded was that she had persistent low back pain associated with left sciatica extending to her left knee and headaches behind her eyes every few weeks. Her weight had increased about seven to eight kilograms since the accident. He records difficulty sleeping with mid and late insomnia because of pain and because of occasional nightmares. She had nightmares once or twice per week relating to the accident and woke in a panic. She reported that her exercise tolerance is reduced by pain and by her ischemic heart disease. She had difficulty walking for more than 20 minutes. She had stopped going camping and gold prospecting. There were limitations regarding her housework. She slowly does the vacuuming, laundry, hanging clothes on the line, food preparation and cooking. She does some shopping with her husband and drives very occasionally.
57 The history Dr Epstein recorded accords with the evidence given by the Plaintiff in the hearing.
58 His opinion was that Mrs Turnbull has been left with ongoing physical problems following the transport accident and an exacerbation of pre-existing low back pain, together with sciatica and intermittent headaches. The accident has also been associated with the development of a mild chronic Post-Traumatic Stress Disorder.
59 The combination of these conditions has led to her being significantly depressed, but her level of depression has improved. Her prognosis for improvement is only moderate. The Plaintiff’s condition is stable.
60 Dr Michael Epstein re-examined the Plaintiff on 26 June 2013. He confirmed his original diagnosis. He noted:
“With the passage of time and lack of improvement in her physical health and ongoing problems with her husband she has become significantly depressed and now has chronic adjustment disorder with depressed mood.”
61 He notes that she has continued with psychological treatment and he recommended that it continue.
62 Mr John O’Brien, Orthopaedic Surgeon, reviewed Mrs Turnbull on 6 March 2010 and 14 November 2011. He reports that Mrs Turnbull told him that the transport accident precipitated low back pain. She has had extensive conservative treatment, mainly related to a prolonged course of physiotherapy. Mrs Turnbull indicated to him that, despite treatment, she continued to experience constant pain in the lumbosacral region, extending mainly to the left side and aggravated by physical activity.
63 He noted that the radiology demonstrated a Grade 1 degenerative spondylolisthesis at the L4-5 level with there being some reported degenerative change in the right sacroiliac joint.
64 He concluded, from her symptoms and the radiological findings, that Mrs Turnbull’s symptoms arose from an aggravation of the pre-existing degenerative spondylolisthesis, and as the pain had resisted conservative treatment, he felt the prognosis is potentially poor.[14]
[14]PCB 111-120
65 When he re-examined the Plaintiff on 14 November 2011, he stated that she continued to experience significant constant low back pain, radiating into both buttocks, the left more so than the right.
66 He recorded the referral to Dr Vagg and the fact that she underwent injections into both sacroiliac joints in May 2011. The Plaintiff reported this did result in some relief, but not resolution of the back pain.
67 He recorded that approximately six to eight weeks prior to his examination, Mrs Turnbull had woken one morning with severe low back pain, with marked difficulty when getting out of bed, and the severity of pain was described as 10 out of 10 on a visual analogue scale. She went to see her physiotherapist and has had four sessions of physiotherapy, but that significantly increased the severity of the pain. She described constant low back pain, extending into the medial aspect of both buttocks, the left more so than the right. She described to Mr O’Brien the severity of the pain as being 3 out of 10. She said the pain was aggravated by sitting for any prolonged period, also standing and leaning forward. She has difficulty bending, and this, she stated, causes problems when putting on her pantyhose and shoes. She said the pain was severe and coughing and sneezing aggravated the pain, but that has now subsided. The pain caused disturbance of her sleep.
68 She told him that treatment consisted of approximately four Panadol Osteo per day for pain. She indicated that she may have another physiotherapy session, but that it was not ongoing. She was continuing to see Dr Fong and was to be reviewed by Dr Vagg concerning pain management. She said that she had difficulty with many domestic tasks and has to pace herself when undertaking duties such as vacuuming, sweeping and mopping. She remains capable of the normal activities of daily living, although she does struggle putting on shoes and socks.
69 Mr O’Brien re-examined the Plaintiff on 31 July 2013. He confirmed the history of chronic low back pain. The Plaintiff informed him that there had been very little difference in the nature of what has been described as constant back pain, predominantly associated with pain in the left buttock. Mrs Turnbull said the severity of the pain fluctuated somewhat, controlled by medication prescribed by Dr Vagg and the Pain Management Clinic. She had some further injections into the lower back, the last being in May 2013. She thought that may have been into the sacroiliac joint, however, the Plaintiff stated that injections certainly did not help. Shortly after the injections she reported quite marked exacerbation of back pain, the severity of which reached 8 out of 10 on the visual analogue scale and lasted for about two weeks before the pain returned to its usual distribution and severity. She confirmed that physiotherapy provided some temporary benefit.
70 Mr O’Brien considered her clinical condition to be stable. His expressed opinion is that the Plaintiff’s chronic pain condition will continue to require pain management of a conservative nature, the important aspect remaining the use of appropriate analgesic medication. He did not consider that further injections would have a positive effect on her chronic pain. The Plaintiff’s prognosis appears to be poor. The situation with respect to the limitations on her domestic tasks will continue.
71 Mr David Brownbill, Neurosurgeon, examined Mrs Turnbull on 3 May 2012. When seen, the Plaintiff’s specific symptom was of low back pain situated low to the left side and occasionally extending to the right. She told Mr Brownbill that she was not receiving any physiotherapy but intended to resume it and that she was taking Aspirin, two to four tablets of Panadol Osteo a day, as well as other medication for other illnesses.
72 His examination showed restriction of thoracolumbar spinal movements. There was no objective neurological abnormality of the lower limbs or any sign of radiculopathy. Radiological investigations have demonstrated longstanding multilevel lumbar spine degenerative changes.
73 He considered, having regard to the presenting history, that Mrs Turnbull sustained aggravation of pre-existing asymptomatic degenerative changes in her lower back, giving rise to pain as a consequence of the transport accident.
74 He states that :
“Clinical experience shows that on occasions when spinal degenerative changes are rendered symptomatic, resultant symptoms may continue in a fluctuating manner indefinitely even when the aggravating factor ceases.”[15]
[15]PCB 146
75 Unfortunately for the Plaintiff, this has been her experience following the transport accident.
76 Following re-examination on 14 May 2013, he considered the Plaintiff’s conditions had continued unchanged.[16]
[16]PCB 149
77 Mr Brownbill confirmed that the Plaintiff’s condition has stabilised and that she will continue to have restrictions on her everyday activities and will probably require analgesics and anti-inflammatory medication in the future, particularly during periods of pain exacerbation.[17]
Defendant’s medico legal assessments
[17]PCB 150
78 Mr Michael Dooley, Orthopaedic Surgeon, examined the Plaintiff on behalf of the Defendant on 9 May 2013. He recorded the history related to the transport accident and noted Mrs Turnbull’s complaint of intermittent low back pain (my emphasis).
79 The Plaintiff told him she was taking Celebrex as well as Panadol Osteo. It was anticipated that she would have further physiotherapy treatment to assist with the stiffness of her back.
80 He accepted that following the accident she sustained a soft tissue injury to the lumbar spine that involved some muscular ligamentous damage and some aggravation of naturally occurring underlying degenerative disc disease of the low lumbar spine. She had been treated for intermittent low back pain.
81 He noted that she reported some improvement in the pain with injections. He opined that no surgical intervention was indicated. He did not think that the Plaintiff required any ongoing physiotherapy, hydrotherapy nor any acupuncture. He recommended for her to remain generally active, to undertake regular walking and to modify her activities.
82 He accepted that her condition would cause difficulty with heavy household chores and heavy gardening-type activities. Chores that involve her standing in a slightly flexed position, for example vacuum cleaning and ironing, would be difficult for her. He expected ongoing intermittent low back pain and occasional lower limb pain.
83 Given that Mr Dooley has seen the Plaintiff on one occasion only I do not accept his expressed opinion as to the intermittent nature of the Plaintiff’s pain. I accept that the objective evidence does support a finding that the Plaintiff has suffered chronic pain rather than intermittent pain following the transport accident.
84 Dr Timothy Entwisle, Consultant Psychiatrist, examined Mrs Turnbull on 11 July 2013. He did not consider that she suffered any psychiatric condition relevant to the claimed physical condition arising from the transport accident.
Conclusions
85 I am satisfied that as a consequence of the transport accident the Plaintiff suffered injury, specifically aggravation of pre-existing asymptomatic degenerative changes in her lower back, giving rise to chronic low back pain.
86 I am satisfied that the Plaintiff’s injury has stabilised and that the likelihood is for the low back pain to continue requiring ongoing conservative management.
87 I accept that the Plaintiff suffers impairment of the body function of the lumbar spine as a consequence of her injury.
88 Overall, I consider that Mrs Turnbull is the sort of person who can be characterised as stoical. That is consistent with the psychologist Mr Sullivan’s expressed view. He has treated her over many years and is in a very good position to form an opinion as to her character. She has tried valiantly to manage her chronic pain.
89 I find that the Plaintiff gave credible evidence about the consequences of her injury. I accept what the Plaintiff says in her affidavit about the consequences of the impairment.
90 Previously she told Mr Hutchison, Physiotherapist, that her sleep was limited to periods of two hours or so due to the fluctuating pain levels. She confirmed that in re-examination and said that she would wake up and would be doing the washing at about 3am. The pain wakes her up. She just can’t get comfortable and that she is aware of it all the time. Her sleep is interrupted and she wakes two to three times per night.[18]
[18]T99, L19-31
91 I accept that the Plaintiff’s capacity for uninterrupted, restful sleep has been compromised by reason of her injury and that her hours of sleep have been diminished. This has been a feature of her life over the past five and a half years. Good sleep is a vital function to healthy living and such significant interruption to it, as has been suffered by the Plaintiff, is a serious matter to be weighed in favour of granting leave.
92 Regarding pain, I accept that the Plaintiff endures pain on an ongoing basis in an intensity that fluctuates from time to time. She self manages the pain with medication and more active medical treatment such as injections when it is too severe. She says the injections given to alleviate her pain are uncomfortable and at times painful.
93 In assessing the consequences of the injury, ordinarily the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[19]
[19]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199]
94 Pain can be initiated by simple activities such as walking. She must pace her activities; otherwise she experiences severe back pain. The pain is worse with prolonged sitting, vacuuming, ironing and washing up.
95 I accept that because of her injury the Plaintiff experiences constant and chronic pain and that Mrs Turnbull has modified her physical movements in order to prevent severe pain. Her ability to walk is limited and has been curtailed. She can no longer walk the three kilometres from Point Lonsdale to Queenscliff. Previously she could regularly do that up to two to three times per week. On occasion she could walk home too.
96 This interference with her walking ability is of considerable concern as her weight has increased from 78 kilograms to 86 kilograms. Mrs Turnbull is very conscious of her weight because of her heart condition, and not being able to walk is of concern to her. Previously she would walk to keep fit, and also found it very helpful to de-stress.[20] Now walking is one of the known initiators of back pain.
[20]T99, L8-14
97 Performing household tasks also can trigger pain. She has modified the way in which she performs tasks. She says her house is “grotty,” and she can only do “surface cleans” now. Her experience is that different activities can trigger pain. She tries to pace herself. She must perform her vacuuming in stages. She has to sit on a milk crate to clean her cupboards. She cannot get down on her hands and knees to scrub the shower recess.
98 She can only now do limited gardening such as potting plants which she does using a milk crate. She loved her garden and it was previously a source of great enjoyment. She says she has had to let her garden go.
99 Mrs Turnbull remains capable of performing personal care and uses a shower chair to wash her feet and to dry herself. She drives occasionally. Before any long trips she is required to take pain relief medication. She has to have breaks, and has to get out of the car and move around. She uses a wedge cushion in the car. At home she uses a cushion that she puts behind her on the armchair.
100 The Plaintiff can no longer go gold panning with her husband as she cannot lift and cannot kneel anymore. This was something that she previously enjoyed.
101 In assessing the consequences of the low back injury I have excluded any psychological injury arising as a consequence of or secondary to her physical injury.[21]
[21]Transport Accident Act 1986 (Vic) s46B
102 I consider the pain and suffering consequences of the impairment of the lumbar spine resulting from the transport accident can be described as “certainly more than significant”, and “at least … very considerable”.[22]
[22]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
103 In making my assessment I have taken into account all of the evidence and have had regard to all of the relevant legal principles. I have weighed all consequences to the Plaintiff of her impairment or loss of a body function with respect to pain and suffering, and have compared those consequences with other cases in the range of possible impairments or losses of a body function. I have arrived at the conclusion that the Plaintiff has established, on the balance of probabilities, that she suffered a serious injury.
104 Leave to proceed is therefore granted.
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