Voinsky v TAC
[2015] VCC 616
•28 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Suitable for Publication |
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-11-04561
IDA VOINSKY
| Plaintiff | |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27 & 28 November, 9 & 15 December 2014 | |
DATE OF JUDGMENT: | 28 May 2015 | |
CASE MAY BE CITED AS: | Voinsky v TAC | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 616 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for under paragraphs (a) and (c) for leave to recover damages – whether serious long-term impairment of the spine due to transport accident – whether aggravation of pre-existing condition to lower back – whether impairment to spine driven by non-organic factors - whether any mental injury due to transport accident long-term and severe – credit issues - applications to take instructions during cross-examination and to re-open plaintiff’s case refused
Legislation Cited: Transport Accident Act 1986
Cases Cited:TAC v Zepic [2013] VSCA 232, Petkovskiv Galletti [1994] 1 VR 436, AG Staff Pty Ltd v Filipowicz & Ors [2012] VSCA 60, BezzinavPhi [2012] VSCA 161, Peak Engineering Pty Ltd and Victorian WorkCover Authority v McKenzie [2014] VSCA 67, Humphriesv Poljak [1992] 2 VR 129, Mobiliov Balliotis [1998] 3 VR 833, Richardsv Wylie [2000] VSCA 50, Meadows v Lichmore Pty Ltd [2013] VSCA 201, Fokas v Staff Australia Pty Ltd [2013] VSCA 230, Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232, Matthews v SPI Electricity Pty Ltd [2013] VSC 523
Judgment: Plaintiff’s application for leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram with Ms M. Lang | Slater & Gordon |
| For the Defendant | Mr. A. Moulds QC with Ms B. Myers | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1 By Originating Motion, filed 23 September 2011, the plaintiff, Ida Voinsky, sought leave to commence common law proceedings pursuant to section 93 of the Transport Accident Act 1986 (the Act) for injuries suffered by her as result of a transport accident on or about 2 October 2005. The vehicle driven by the plaintiff’s husband in which the plaintiff was a passenger was struck at high speed by another vehicle as the plaintiff’s vehicle executed a right-hand turn (the transport accident).
2 The plaintiff was born in 1948 in Moldova. She completed her secondary education at age 17. She was then employed for some years in factory work and childcare. The plaintiff married and had one child. She divorced, remarried and had a second child some years before the family migrated to Australia in 1989.
3 The plaintiff again found work in a clothing factory. From 1998 she commenced working in partnership with her husband, a master painter.
The injury alleged
4 Following the transport accident, the plaintiff was conveyed to the Sunshine Hospital by ambulance. The material tendered from the hospital indicates that the plaintiff presented with multiple injuries involving her left arm (described as a friction burn), left-sided chest pain and fracture of the 4th rib on the left. She was treated and kept under observation in the Emergency Department for several hours before being discharged home with painkilling medication, Panadeine Forte.[1]
[1] Joint Court Book (JCB) 39(A)
5 The copy chest x-ray reports tendered, suggest some confusion in the reports. The first report dated 2 October nominated the procedure as involving the “Ribs Right and Chest” but referred to “Chest & Left Ribs – Series 1” in the body of the report and reported no rib fracture.[2] For the purposes of this application, however, it was accepted that the plaintiff probably suffered fractures to the 4th, 7th and 8th ribs on the left side as reported to the treating general practitioner, Dr Belsky, after a further chest x-ray was obtained on 13 October 2005.[3]
[2] JCB 39(B)
[3] JCB 39(C)
6 In paragraph 14 of her first affidavit, sworn 26 February 2013, the plaintiff described injuries to her neck, back, left shoulder, chest (including fractured ribs and seatbelt bruising), left upper limb, left hand (burns), left hip and psychiatric injury.
7 In a written report dated 30 November 2007 and addressed to the plaintiff’s solicitors, Dr Belsky advised her patient had fully recovered save for her reports of some driving-related anxiety and left shoulder and chest pain. The content of the report is summarised in the following points:[4]
[4] JCB 43-44
· the plaintiff suffered several injuries, rib fractures, soft tissue injury of the left shoulder and chest. She complained of left shoulder pain and stiffness, left and right lower back pain, left ankle and foot pain and right breast pain, which the doctor believed was secondary to haematoma of the breast;
· following the accident the plaintiff experienced anxiety, specifically fear of driving and was referred to a psychologist;
· the plaintiff was also referred for a course of rehabilitatory psychotherapy (I understood this to reference the program undertaken at Cedar Court), which she reported was unhelpful and had chosen not to take antidepressants to avoid adverse side-effects;
· in Dr Belsky’s opinion the plaintiff had recovered completely from her physical injury, although she still reported some driving associated anxiety and residual pain in her left shoulder and chest.
8 I will discuss this and other medical evidence in more detail shortly.
The application
9 Subsections 93(17)(a) and (c) of the Act define “serious injury” as “serious long-term impairment or loss of a body function” or as “severe long-term mental or severe long-term behavioural disturbance or disorder” respectively.
10 In this application for leave the physical injury alleged under paragraph (a) involved impairment of the function of the spine as a whole. More particularly, the injury was said to have involved discal injury at the L4/5 and L5/S1 levels of the lumbar spine and aggravation injury of pre-existing degenerative changes in the cervical spine particularly affecting the C5/6 and C6/7 levels.[5] As recently as 5 November 2014, MRI imaging of the lumbar and cervical spines reported degenerative changes in the following terms:[6]
[5] Transcript (TN) 7-8
[6] JCB 41
As to the lumbar spine –
“At L4/5, there is a minor broad based disc bulge in the midline and in the left paramidline region where there is contact and effacement of the anterior margin of the thecal sac, the descending left S1 nerve root and the exiting left L4 nerve root.
At L5/S1, there is a small disc protrusion in the midline and bilateral paramidline regions contacting and effacing the anterior margin of the thecal sac as well as the descending S1 nerve roots bilaterally. L5 nerve roots exit freely.
…
Conclusion: Minor L4/5 and L5/S1 degenerative disc disease.”
As to the cervical spine –
“C4/5: Uncovertebral and facetal osteophytes narrow the right neural exit foramen where there is contact and compression of the exiting right C5 nerve roots.
C5/6: There is a broad based disc bulge in the midline. This is subligamentous. It is effacing the anterior margin of the thecal sac. Facetal uncovertebral osteophytes narrow bilateral neural exit foraminae, right more than left.
C6/7: Facetal and uncovertebral osteophytes seen. There is no neural exit foraminal stenosis. There is a broad based disc bulge at the midline contacting and are effacing the anterior margin of the thecal sac.
…
Conclusion: Multilevel degenerative change most pronounced at C4/5 and C5/6.”
11 The plaintiff relied on opinions reported by various treating and medico-legal specialists, who diagnosed transport accident-related injury to her cervical and lumbar spines as follows:
· orthopaedic surgeon, Mr Miller, who reported to the plaintiff’s solicitors on 30 June 2014. He diagnosed musculo-ligamentous strain to and aggravation of degenerative disease in the cervical and lumbar spines;[7]
[7] JCB 239
· orthopaedic surgeon, Mr King, who reported to the plaintiff’s solicitors on 27 November 2009. He diagnosed some damage to the cervical and thoraco-lumbar discs and associated ligamentous structures at multiple levels and at the level of the cervical spine. The latter was, Mr King said, superimposed upon mild pre-existing but apparently completely asymptomatic degenerative changes in the cervical and probably the lumbar spinal region as well;[8]
[8] JCB 180
· treating physiotherapist since 11 January 2011, Mr Zelener. He diagnosed cervical whiplash injury, which he believed had developed into a widespread regional neck and upper back pain syndrome as well as a likely protrusion of the L4/5 disc onto the thecal sac and neural exit foraminae causing lower back pain;[9]
[9] JCB 170
· neurosurgeon, Mr Brownbill, who reported to the plaintiff’s solicitors on 24 June 2014. He diagnosed soft tissue injuries to the structures about the neck and lower back with likely aggravation of degenerative changes without neurological damage;[10]
[10] JCB 249
· specialist in occupational medicine, Dr Baker, who reported to the Transport Accident Commission (the TAC) on 30 June 2006. He diagnosed soft tissue injuries of a musculoligamentous nature to the cervical spine with referred symptoms into the shoulders and referred symptoms into the head, resulting in cervicogenic headaches. He also diagnosed soft tissue injury to the lumbar spine, which Dr Baker believed was causing left-sided lower back pain;[11]
· senior consultant surgeon, Mr Scott, who reported to the TAC’s solicitors on 3 November 2014. He diagnosed soft tissue injuries to the cervical and lumbar spines with aggravation of early degenerative changes without evidence of upper limb or lower limb radiculopathy;[12]
· orthopaedic surgeon, Mr Dickens, who reported to the TAC’s solicitors on 29 October 2013. He diagnosed soft tissue injuries to the cervical and lumbosacral spines.[13]
[11] JCB 259
[12] JCB 286
[13] JCB 304
12 Broadly speaking, in this case, the plaintiff was required to establish the nature of the injury to her spine; I was required to treat the spine as a single body function[14] and analyse the extent of the impairment of the plaintiff’s spine before and after the transport accident; the plaintiff was required to identify the consequences of injury to her spine properly referrable to the transport accident; and she was required to satisfy the Court under paragraph (a) of the definition of serious injury that the pain and suffering and pecuniary disadvantage consequence of injury-related impairment or loss of function of her spine was both long-term and serious to her.[15] The test is whether the consequences, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[16]
[14]TAC v Zepic [2013] VSCA 232, [11]
[15] See generally Petkovskiv Galletti [1994] 1 VR 436, AG Staff Pty Ltd v Filipowicz & Ors [2012] VSCA 60 [27]
and [29], BezzinavPhi [2012] VSCA 161 [23] and Peak Engineering Pty Ltd and Victorian WorkCover
Authority v McKenzie [2014] VSCA 67 [2] and [23]-[24]
[16]Humphriesv Poljak [1992] 2 VR 129, 140
13 The mental injury alleged under paragraph (c) was initially described by counsel as a chronic adjustment disorder with depression and features of traumatisation, which may or may not qualify for the full diagnosis of Post- Traumatic Stress Disorder (PTSD).[17] Under this provision, the plaintiff was required to establish that the consequences of injury-related mental or behavioural disturbance or disorder were both long-term and severe, the latter connoting something “of stronger force” than the word “serious”.[18]
[17] TN 6
[18]Mobiliov Balliotis [1998] 3 VR 833, 834-5 and 846
14 The plaintiff relied on the opinions reported by various treating and medico-legal specialists, who diagnosed mental injury as follows:
· consultant psychiatrist, Dr Walton, who reported to the plaintiff’s solicitors on 12 January 2010. He diagnosed PTSD;[19]
· consultant psychiatrist, Dr Serry who reported to the plaintiff’s solicitors on 21 July 2014. He diagnosed a somatic symptom disorder with predominant pain and of moderate severity and a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation consistent with subsyndromal PTSD;[20]
· psychiatrist, Dr King, who reported to the TAC’s solicitors on 26 September 2014. He diagnosed an adjustment disorder. Dr King was not satisfied the plaintiff met the diagnostic criteria for PTSD or for Major Depressive Disorder.[21]
[19] JCB 186
[20] JCB 209
[21] JCB 332
15 Without discriminating between the separate claims made under paragraph (a) and (c) of the definition of serious injury, the pain and suffering and loss of enjoyment of life consequence opened by the plaintiff’s counsel included but was not limited to:
· persisting, fluctuating neck and back pain;
· referred pain with ‘pins and needles’ from the low back into the left leg and left foot;
· interference with sleep;
· at times severe pain and the need to limit activity or lie down;
· the need for strong painkilling medication;
· decreased social life due to pain and the effect of injury;
· difficulty with tasks such as driving, house work, cooking, gardening and exercise;
· psychological difficulties including symptoms of PTSD and depression.
· interference with family and personal relationships.
16 I proceeded on the basis that, if the dominant cause of the plaintiff’s condition was the result of her spinal injury and paragraph (a) applied, evaluation of the plaintiff’s current pain and suffering consequence of ongoing impairment of her spine also required consideration of her psychological response or recognisable mental reaction to this. If, on the other hand, as was alleged by the TAC, the dominant cause of her condition consisted of mental or psychological factors and, paragraph (c) applied, I proceeded on the basis that any accompanying physical incapacity was relevant to determining whether any mental or behavioural disturbance was serious and long-term.[22]
[22] See Richardsv Wylie [2000] VSCA 50 at 90
17 The pecuniary loss consequence opened by the plaintiff’s counsel included an inability to continue employment as a book keeper and, more importantly, work in a “hands-on” fashion in the painting business, I & A Voinsky Painting Services, operated between 1998 and 2008 in partnership with her husband (the partnership business).
The dispute
18 As to the claim made under paragraph (a) of the definition, the TAC accepted that, the transport accident had caused soft tissue injury and/or aggravation of early degenerative changes in the cervical spine but contended the plaintiff suffered an aggravation of a pre-existing low back condition. The latter the TAC submitted probably involved a disc bulge at the L4/5 level previously identified in radiology obtained in 2002.
19 The TAC contended the nature of injury initially suffered at the level of the cervical spine was probably as described in the evidence of medico-legal specialists, Mr Dickens, Mr Scott, Mr Miller, Mr King and Mr Brownbill, summarised above, namely soft tissue injury and aggravation of degenerative changes.[23]
[23] JCB 304, 286, 239, 180 and 249 respectively
20 The nature of the injury initially suffered at the level of lower back, as described by the plaintiff, was contested. The TAC relied on the evidence of a pre-existing lower back condition and the repeated denial of earlier problems and/or the failure to notify this history to doctors. The TAC specifically relied on the conflict between the records of treating general practitioner, Dr Belsky at the Alexander Street Clinic and the claims made in the plaintiff’s first affidavit about her health and medical history pre-accident.
21 The medical evidence confirms CT investigation of the plaintiff’s lumbar spine on 22 January 2002 and treatment of lower back pain at various times specifically between 2002 and 2003.[24] One specialist, orthopaedic surgeon, Mr Marshall,[25] appears to have reviewed this CT scan. In March 2006 he reported the images had not shown any sign of abnormality. Neither party has since been able to locate the images or the radiologist’s report.
[24] JCB 44A-44P and 17-18 respectively
[25] JCB 252
22 The TAC relied on the fact that other specialists, Mr Baker in 2006 and Mr King in 2009, to name just two, had understood from questioning the plaintiff that her lower back had not caused her any or any significant problems prior to the transport accident. [26]
[26] JCB 180
23 The TAC submitted the plaintiff probably currently suffers from a chronic pain syndrome. This condition, it was submitted, explained the duration and intensity of the symptoms of which the plaintiff complained and required the claim to be decided under paragraph (c) of the definition of serious injury because the dominant cause of the consequences of injury to the spine were probably mental or psychological.[27] The TAC placed particular reliance on the opinions of Mr Miller, Mr Brownbill, Dr Horsley, Mr Scott and Mr Dickens, each of whom concluded that non-organic factors were influencing the plaintiff’s presentation.
[27] JCB 240 and 243-244, 249, 287 and 307 respectively
24 In the alternative, if there was permanent injury-related physical impairment of the plaintiff’s spine, the TAC contended there had been a failure to disentangle the consequences of current unrelated conditions and, further alleged, the consequences identified were not very considerable in the sense required by the Act.
25 As to the claim made under paragraph (c) of the definition the TAC accepted that the plaintiff suffered from an adjustment disorder and, in this regard placed particular reliance on the evidence of its medico-legal specialist, psychiatrist, Dr King.[28] The TAC contended there had been a failure to disentangle unrelated stressors impacting on the plaintiff’s mental state from those related to the transport accident and, further alleged, the consequences of any accident-related mental disorder did not pass the “severe” threshold under the Act.
The evidence
[28] JCB 319, 326-7 and 332
26 The plaintiff swore a further affidavit on 25 September 2014. Both affidavits were sworn without the assistance of an interpreter. At the commencement of the hearing, her counsel indicated he had been able to converse with the plaintiff, although an interpreter might be required to assist from time to time. The plaintiff was assisted by an interpreter but also gave evidence in English.
27 In further evidence-in-chief the plaintiff agreed she had had the chance to read through her affidavits, that they were true and correct and, with prompting from her counsel, she elaborated on the work to which she returned after the transport accident, as described by her in paragraph 20 of the first affidavit.
28 The plaintiff was cross-examined at length.
29 The plaintiff’s treating general practitioner between 1993 and 2009, Dr Belsky, was also cross-examined at length.
30 Supporting affidavits sworn on 8 October 2014 by the plaintiff’s husband, Alexander Voinsky and daughter, Victoria Voinsky, were tendered. They were not required for cross-examination.
31 Multiple reports from treating and medico-legal doctors and extracts from clinical records from the Joint Court Book along with various historical documents were tendered either by the plaintiff or the TAC.[29]
[29] Exhibits P1 and D1
32 Twice I was called upon by the plaintiff’s counsel to make rulings. Once during the course of cross-examination of the plaintiff to rule on the fairness of the trial process and again after the defendant’s closing submission, to rule on the plaintiff’s application to reopen the case and admit further material into evidence. I will explain the basis of the rulings made in due course.
Credit
33 The plaintiff’s credit was attacked, as was the reliability of accounts she gave about her medical history and, it follows, the reliability of information upon which medical opinions were formed.
34 The plaintiff was a difficult witness to assess, even with the assistance provided by an interpreter. At times, her answers were inaudible, vague, non-responsive or contradictory. At other times, I formed the view that the plaintiff simply sought to avoid directly answering questions she perceived as harmful to her case. My discussion of the plaintiff’s responses to questions about her pre-accident use of sleeping medication, about her husband’s gambling or about conflict with her eldest daughter help illustrate some of this difficulty, in due course.
35 In assessing the plaintiff’s evidence, I necessarily took into account the likely effect of the passage of time on her memory, the plaintiff’s background and educational history and some lack of fluency in spoken English where, at times, the plaintiff expressed herself in broken English. I also made some allowance for the possibility that the plaintiff was simply a poor historian in part owing to the mental health issues identified in the medical materials.
36 As to her comprehension of English, I formed the view that the plaintiff showed a good grasp of spoken English and, allowing for her pre-injury role as a bookkeeper and partner in the partnership business and her ability to read from and answer questions relating to documents during the course of giving evidence, I was satisfied the plaintiff probably also read and comprehended written English. As to her ability to read beyond basic English, I note that, after at first indicating her English was “not so good”, when invited by her counsel to do this during re-examination, the plaintiff read aloud (albeit slowly) the typed list of injuries from the transport accident contained in the TAC Claim Form (“Fractured ribs left side, hand pain left side. Contusion with abrasion (indistinct) left side. Laceration to the shoulder, left side”[30]).
[30] TN 203-204
37 In summary, even with the allowances made, I formed the view that, absent other corroborative evidence, I should treat the plaintiff’s evidence as unreliable.
38 Of course, some corroboration was available through the affidavit evidence of members of the plaintiff’s family, who, as mentioned were not cross-examined. The TAC nevertheless sought to challenge their evidence by relying on the evident conflict between the plaintiff’s oral evidence through which she appeared to indicate she had no garden at home and their evidence that suggested to the contrary.[31] In my view not a great deal turned on this issue, particularly in view of the evidence arising in connection with the Medical Certificates. These show that garden support continued to be required following the sale of the family home in Carnegie in late 2006 and after the plaintiff moved to her current address. The inference I drew from this evidence was that the current property probably still has a garden which the plaintiff’s husband and daughter swore the plaintiff could no longer tend without complaint of back pain.
[31] TN 191 and 326
39 I will revisit this issue as part of my discussion of the alleged consequences of injury and the ruling made rejecting the plaintiff’s application to re-open and admit further evidence.
40 It was common ground that the TAC obtained 20 hours of surveillance which was not put in evidence. I infer from this that the surveillance material would not have assisted the TAC, particularly where, as in this case, the plaintiff’s account of her disability was challenged.
Pre-existing medical conditions – the first day of hearing
41 It is convenient to start with the evidence relating to the plaintiff’s earlier medical history.
42 In paragraphs 9 and 10 of her first affidavit, the plaintiff described a “relatively unremarkable” pre-transport accident medical history. She deposed to periods of insomnia treated with Temazepam and some gastrointestinal problems, including a gastric ulcer treated with Zantac. Other than these conditions, the plaintiff stated she had been generally fit and healthy and had been busy both in her work and at home caring for her family. Before the transport accident, the plaintiff said she walked regularly to keep fit, she exercised at home, she travelled around Victoria, within Australia and to New Zealand and she enjoyed reading and a busy social life.
43 The evidence of the plaintiff’s husband and daughter generally supported this picture of the plaintiff pre-accident.[32] Their evidence emphasised the contrast between the plaintiff’s pre-accident and post-accident presentation and function.
[32] JCB 20-21, para 4-6 and JCB 23-24, para 4-7
44 After production of the treating doctor’s clinical records, in a further affidavit, sworn some 19 months later on 25 September 2014, the plaintiff revised the sworn evidence contained in paragraph 10 of her first affidavit. She stated as follows:
15.… Since I swore my first Affidavit I have been advised that clinical records of treatment I received from my previous General Practitioner, Dr Belsky, show that I was treated for low back pain on several occasions before the collision occurred. I recall that I sometimes had a sore back when I was doing factory work during the period from about 1990 to about 1997. I had to stand on my feet all day in that employment and, as a result, my back got sore from time to time. I also had some treatment for that back pain, but I do not think I required any strong analgesic medication to deal with it. In addition, I do not think that the back pain I experienced during that period of time interfered with my capacity to work long-term or with my enjoyment of life outside of my work. It was more of a nuisance than anything else and was not a big problem for me.
16. I have also been advised that the clinical records show I had some treatment for low back pain in the period from about 2001 to 2003. I do not recall having suffered any significant back pain during that period of time. If I did suffer back pain during that time, I imagine that it would not have been severe or significant because I do not recall being troubled by back pain then. I also do not recall suffering any significant back pain during the years leading up to the collision when I was working with my husband in his painting business. I believe that if I did suffer back pain occasionally during that period of time, it must not have been very significant pain because I do not recall it and it was easily dealt with.
17. In sum, I believe that any low back pain I experienced before the collision of October 2005 must have been insignificant compared to the back pain and associated problems I have suffered as a result of the collision.
45 In opening the plaintiff’s case, counsel described a pre-injury medical history involving a variety of health issues the dates of which were unclear.[33]
The evidence of earlier treatment and medication
[33] TN 13
46 It was common ground that, between 1993 and 2009, the plaintiff was treated by Dr Belsky. Dr Belsky’s evidence was interposed during cross-examination of the plaintiff.
47 The doctor told the Court she previously practised in Russia in obstetrics and gynaecology and has practised as a general practitioner in Melbourne for some 21 years.
48 Under cross-examination, Dr Belsky was taken to a typed summary of clinical notes as at 4 March 2010 for the Alexander Street Clinic (the Alexander Street clinical notes)[34] and to extracts from handwritten progress notes. She attributed the latter notes to a physiotherapist working with the Clinic.[35]
[34] JCB 44A-44P
[35] JCB 44S
49 Dr Belsky identified the Alexander Street clinical notes as hers but explained that the summary of notes preceding the entry for 25 April 2002 had been inserted by this clinic’s IT consultant who regularly destroyed documents/records aged seven years or older. The summary referenced earlier conditions and medications prescribed but not with dates. This and the practice of destroying older records apparently explained the absence of discrete entries before chronological entries commenced from 25 April 2002.
50 The summary made before 25 April 2002, nonetheless, recorded earlier attendances in the treatment of, for example, lower back pain, insomnia and gastrointestinal complaints and medication used in the treatment of these conditions, Temaze and Zantac, and in the treatment of other conditions such as high blood pressure, Coversyl and Norvasc and angina, Nitrolingual spray.
51 Immediately preceding the entry on 25 April 2002, the summary indicated treatment of an exacerbation of lower back pain, referral for a CT scan of the lumbar spine and electrotherapy treatment, as well as treatment of insomnia exacerbated by lower back pain.[36] Dr Belsky could not, however, say from reading the record when these attendances occurred relative to the entry on 25 April 2002.
[36] JCB 44D
52 Nonetheless, Dr Belsky was confident that she had ordered the CT scan, the results of which she said would have been discussed with her patient. While she had no specific memory of the consultation on 25 April 2002, the entry made on 25 April 2002 shows that on the same date Dr Belsky administered electrotherapy treatment to the plaintiff’s lower back, on that date. The doctor said she used electrotherapy treatment to help relax muscles and encourage resorption of the bulging disc mentioned in the handwritten notes Dr Belsky attributed to a physiotherapist. These notes record that in February 2002 the plaintiff was treated for stiffness in her spine and what the physiotherapist recorded as CT evidence of an L4/5 disc bulge.
53 During re-examination Dr Belsky acknowledged she could not recall seeing a radiologist’s report for the CT scan and further acknowledged she was not in a position to say from her own knowledge that the physiotherapist had seen such a report, although she also told the Court that their usual practice was to rely on the radiologist’s report, which she believed had occurred in this case.
54 The evidence summarised suggests that the entries in the summary recording the investigation and treatment of an exacerbation of lower back pain and exacerbation of insomnia and the two references to electrotherapy immediately preceding the entry on 25 April 2002 likely relate to treatment of lower back pain at or around the same time as the CT scan was obtained on 22 January 2002.
55 The physiotherapy notes indicate further attendances for treatment during February and March 2002. The entry made in Dr Belsky’s clinical notes on 13 May 2002 relevantly indicated further electrotherapy treatment administered by Dr Belsky.
56 However, as mentioned, we also know from the report written by orthopaedic surgeon, Mr Marshall, that when he examined the plaintiff at the request of the TAC on 16 March 2006, he viewed a CT scan of the lumbar sacral spine obtained on 22 January 2002 and reported no sign of any abnormality in the scans. Notably, Mr Marshall did not record in this report any complaint of lower back pain or indicate that he had also examined the plaintiff’s lumbar spine.[37]
[37] JCB 252
57 Weighing all of these matters in the balance I formed the view that the radiologist’s reported finding probably informed both the record made by the physiotherapist in February 2002 and the treatment administered after 22 January 2002.[38]
[38] TN 163
58 Under cross-examination on the first day of hearing, the plaintiff recalled having some treatment for lower back pain in the 1990s yet, despite her affidavit evidence, was unable to recall whether she had suffered lower back pain when working in a factory in this period. However, as I understood her evidence, the plaintiff recalled that in the 1990s she had undergone physiotherapy and taken Panadol in the treatment of lower back pain and, notwithstanding difficulty in recalling the length of time off work, the plaintiff recalled that Dr Belsky had certified her unfit for work for one or two weeks.
59 The plaintiff thought she may have had lower back pain in 2002. When asked through the interpreter, the plaintiff initially recalled having physiotherapy for low back and leg pain but could not recall having a CT scan in 2002. She replied in the negative when asked whether she could have had the CT scan but could not remember this.
60 Following objection by her counsel, this issue was revisited. On this occasion, the plaintiff agreed she had a CT scan on her lower back in 2002. Moreover, she agreed that she recalled the referral for physiotherapy and having the scan as well as discussion of the results with Dr Belsky. As to their discussion, the plaintiff said she understood: “there were little problems, small problems” which the doctor reassured her would resolve with physiotherapy.[39]
[39] TN 54-55
61 By agreement, on the third day of hearing, further cross-examination was interposed during re-examination to allow the TAC to question the plaintiff about documents added to the Joint Court Book after cross-examination had been completed. On this occasion, among other things, the plaintiff confirmed that the CT scan obtained in 2002 had been the only radiology obtained prior to her attendance on 29 October 2009 at the Monash Medical Centre Emergency Department for treatment of a flare-up in lower back pain.[40]
[40] TN 215
62 There was documentary evidence, however, that, on 6 November 2009, CT scan of the plaintiff’s lumbar spine (likely ordered by general practitioners, either Dr Rich or Dr Lebedev both of whom worked at the St Kilda South Medical Clinic), had reported protrusion of the L4/5 disc onto the thecal sac and neural exit foraminae associated with generalised degenerative changes mainly involving the facet joints.[41]
[41] JCB 40
63 When re-examination resumed the plaintiff gave evidence indicating that, prior to the transport accident she had suffered flare-ups in lower back pain that were not nearly as severe as those experienced afterwards.[42] She further recalled having electrotherapy treatment on a couple of occasions, which the plaintiff said had left her feeling very bad, whereas physiotherapy had helped but not for long.[43]
[42] TN 216
[43] TN 217
64 No further attendance for treatment of any condition affecting the spine was recorded in the Alexander Street clinical notes between the attendance for electrotherapy treatment on 13 May 2002 and the attendance for treatment of accident-related injury on 3 October 2005. The injury for which the plaintiff was initially treated included neck and/or upper back pain. The entries recording treatment of lower back symptoms, either in the Alexander Street clinical notes or the TAC Medical Certificates, commenced from March 2006.[44] I will revisit this evidence in my discussion of the medical evidence in due course.
[44] JCB 44(J) and 25I respectively
65 I understood from the evidence summarised so far that, in the 1990’s the plaintiff was treated for lower back pain with physiotherapy, painkilling medication and time off from her factory work and, in or about early 2002, the plaintiff suffered exacerbation of lumbar spine pain of sufficient severity to warrant CT investigation. This scan likely reported a L4/5 disc bulge in the treatment of which the plaintiff underwent courses of physiotherapy and electrotherapy. In her evidence the plaintiff indicated dissatisfaction with the latter treatment but not the physiotherapy treatment, which she said had been of assistance.
66 Mr Marshall’s report and evidence of his interpretation of the earlier CT images has cast some doubt on whether the earliest scan predating the transport accident revealed an underlying pathology. However, for present purposes it is clear that, some 2 ½ years prior to the transport accident, the plaintiff was treated for a flare-up in lower back pain, which, based on the results of the CT investigation, the treating doctor and physiotherapist attributed to a disc bulge at the L4/5 level. I concluded from the available medical evidence that this flare-up likely settled within five months or thereabouts, there being no medical record or evidence to indicate further attendance for treatment of lower back symptoms in the years preceding the transport accident.
67 As mentioned, the summary further suggests that in early 2002 the plaintiff was treated for insomnia exacerbated by back pain and, on 13 occasions between 7 June 2002 and 25 August 2003, Temaze (on 12 occasions) or another sleeping medication, Mogadon (on one occasion), were prescribed in the treatment of insomnia. On some occasions the reason for the attendance was also recorded. For instance, on 25 September 2002 the doctor recorded: “Family problems Worries about her Hb health. Discussed. Reassured” and on 28 November 2002 she recorded: “INSOMNIA. IRRITABILITY. Life style discussed”.[45]
[45] JCB 44E
68 Notably, the doctor concluded that the dosage of the medication had been doubled on 15 May 2003 because one 10 milligram tablet nightly had not been sufficient to ensure sleep.
69 Under earlier cross-examination, the plaintiff had been asked about prescription of the sleeping medication, Temazepam, from about 2002. Temaze contains Temazepam.
70 In her initial response the plaintiff appeared to understand that Temazepam was a sleeping medication yet, in her subsequent responses indicated she could not remember whether or for what condition the medication had been prescribed. Leaving to one side for the moment various objections raised and dealt with seperately, on one view of the evidence the plaintiff may have been confused by counsel’s reference to Temazepam rather than Temaze and, if she was, the plaintiff had been correct in denying she took these tablets.
71 The impression I formed, however, was that when giving this evidence, the plaintiff was very reluctant to acknowledge taking sleeping medication from 2002 or having problems sleeping during this period. The exchange with counsel best illustrates this point:[46]
[46] TN 51-52
… Could it be that (Dr Belsky) was prescribing you Temazepam very regularly from 2002 onwards? Could it be that that’s the case? – – – Maybe I didn’t take these pills.
Is that your answer, madam, that maybe you didn’t take the pills? – – – I not remember if she prescribe me these pills.
Do you remember whether from 2002 or about that time onwards you took sleeping pills at night? – – – No.
Is that no you can’t remember no it didn’t happen? – – – No, I did – – –
Could you interpret that please, madam? Are you saying no, it didn’t happen or no, I can’t remember? – – – (Through Interpreter) No, I didn’t take them and I don’t remember her prescribing them to me.
Do you remember having any trouble sleeping from 2002 onwards? – – – (Direct) Maybe it was sometimes, may be.
So maybe sometimes you had some problems sleeping? – – – Yes, but I never take these tablets.
You never take the pills? Do you remember complaining regularly from 2002 onwards to Dr Belsky of insomnia? Can you do that, madam please? – – – Maybe, yes.
72 The responses given on the second day of cross-examination, however, helped reinforce my impression that the plaintiff had likely prevaricated in her earlier responses to this line of questioning.
73 On this occasion, counsel revisited the issue of the sleeping medication taken and the frequency with which it had been prescribed in the period between June 2002 and August 2003.[47] Counsel started by correcting the earlier mis-description of the medication as this was referenced in the Alexander Street clinical notes (but not the plaintiff’s first affidavit). It was put to the plaintiff that she had been regularly prescribed Temaze from June 2002 through to October 2003. It is immaterial to my discussion of this sequence of evidence that the last recorded prescription before the transport accident was in fact 25 August 2003 not October 2003. As was apparent from the responses given, whilst the plaintiff remained unwilling to concede taking the medication (“Maybe, yes”[48]), she now admitted obtaining the prescriptions, yet denied using this medication.
[47] TN 119-122
[48] TN 120
74 The plaintiff agreed that she obtained the prescriptions from Dr Belsky and, on occasion she had attended a chemist and filled these prescriptions. However, the plaintiff said she obtained this medication for her husband’s, now deceased, mother, who had been living with them. The upshot of the plaintiff’s evidence was that she never took this “strong” medication, rather, whilst she could not recall what she told Dr Belsky at the time, the plaintiff said she obtained the prescriptions from the doctor to give to her sick mother-in-law. No attempt was made to explain why the plaintiff’s sick mother-in-law did not obtain prescription medication from her own treating doctor.
75 I formed the view, the plaintiff sought to avoid the implications of answering this question truthfully, when, in response to counsel’s proposition that she had told Dr Belsky she needed Temaze tablets to sleep, the plaintiff indicated she could not now remember what she told the doctor.
76 Relevantly, Dr Belsky’s evidence was that the plaintiff had been suffering from insomnia. The doctor was unequivocal when she said she conferred with her patient (“… Especially Ida Voinsky”[49]) before prescribing the Temaze medication in the period recorded. The entries recorded by the doctor on 25 September 2002 and 28 November 2002 bolster her evidence in this regard.
[49] TN 166
77 The Alexander Street clinical notes otherwise indicate that, neither the earlier prescribed Mogadon nor Temaze were prescribed after August 2003. Rather the record shows that these medications were discontinued on 24 November 2005 and 9 December 2005 respectively. When challenged with the proposition that she must have discussed the Temaze medication with Dr Belsky when, on 9 December 2005 the doctor discontinued this drug, the plaintiff simply replied she could not take such strong medication due to problems with her stomach ulcer.[50]
[50] TN 124
78 Notably, the TAC relied on recent medical reports which show that the plaintiff currently reports taking Temazapam in a dosage similar to that prescribed pre-accident.[51]
[51] TN 350
79 In all, I found the plaintiff’s evidence regarding any earlier lower back or insomnia condition and the medication prescribed contradictory and unsatisfactory. These findings on credit do not, however, fully dispose of the question of the nature and extent of any impairment of the plaintiff’s lower back at the date of the transport accident or whether and the extent to which any ongoing mental disturbance is due to accident-related injury to the spine and/or to the psyche.
80 In summary, whilst I accept that there is a history of a pre-existing condition of significance, likely involving radiological evidence of an L4/5 disc bulge affecting the plaintiff’s lower back and a history of treatment for pre-existing insomnia exacerbated by a flare-up in the lower back condition in or about early 2002, the evidence as a whole satisfied me that the symptoms of the lower back condition had probably settled well before the transport accident, with no further prescription of medication in the treatment of insomnia after August 2003.
Deficiencies in the TAC Claim Form and in the histories given to doctors
81 On the first day of hearing, the plaintiff was questioned about the histories she gave to doctors and about the content of the TAC Claim Form (the Claim Form) dated 25 October 2005.
82 It is convenient to start with the Claim Form submitted more than three weeks after the transport accident.[52] The plaintiff was taken to this. At the time, I was satisfied she read and understood those parts of the document to which counsel referred her.
[52] JCB 26-39
83 The plaintiff acknowledged her signature on the copy document. She indicated the witness had been a police officer. Notably, the plaintiff agreed that she had understood the content of the Claim Form filled in and declared by her.[53]
[53] TN 61
84 By agreement during re-examination, the TAC indicated to the Court its system for completing the Claim Form. This and the responses that followed, satisfied me that the Claim Form was likely completed by a representative from the TAC following telephone contact with the plaintiff. The document was then sent to the plaintiff for any necessary alterations and signing. The plaintiff said her husband had been responsible for the handwritten addition of the word: ‘PARTNER’ inserted next to the typed entry for question 40 where the plaintiff’s occupation was described as: ‘Book keeper’.[54] Whether and the extent to which the plaintiff made any of the other handwritten entries was not, however, apparent from the evidence overall.
[54] TN 202
85 Questions 33 and 34 respectively of the Claim Form to which the plaintiff had responded in the negative, relevantly asked the plaintiff whether before the transport accident she had ever required treatment by a chiropractor or physiotherapist or suffered from a lower back condition or pain.
86 It was put to the plaintiff that she had suffered lower back pain before the transport accident and that the answer to whether she had ever required treatment by a chiropractor or physiotherapist was wrong. I found the answers that followed avoidant and/or non-responsive: [55]
[55] TN 62-63
Well, I was suffering, but I didn’t have such back pain which I had after the accident.
And
The answer you gave was no, that’s wrong, isn’t it? – – – (Direct) Yes, maybe.
Have you got any explanation about why you said no to that question? – – – (Through Interpreter) Well because I repeat myself, I’ve never, ever had such a pain which I have after the car accident before and the problem which I had I always thought it’s such a small problem.
But you knew you had the previous problem, didn’t you? Didn’t you? – – – It wasn’t that serious like it was after the accident.
87 It was, however, plain from her answer to another question that the plaintiff believed it appropriate not to inform the TAC of any previous lower back condition or pain or treatment by a physiotherapist (“(Direct) Yes”).
88 Allowing for various objections raised, I was satisfied that, with respect to questions about the histories given to doctors, the plaintiff’s responses were to the following effect:[56]
[56] TN 55
· she agreed the doctors who saw her for the purpose of this case had asked whether before the transport accident she had any low back pain;
· she indicated she told some of those doctors she had no low back pain by saying: “Not all of them. Some of them, but I did mention that I had small problems with my lower back”;
· she was unable to recall whether she told any of the doctors she had a CT scan and had been sent for physiotherapy treatment.
89 Following discussion in the absence of the witness, cross examination proceeded. The plaintiff was taken to the earliest report of her medico-legal specialist, Mr King. When examined in 2009 the plaintiff was accompanied by her husband. Mr King described the plaintiff as: “a rather slow, earnest, but nonetheless detailed and satisfactory historian”, who had been assisted by her “articulate” husband.[57]
[57] JCB 175
90 Mr Marshall’s report dated 16 March 2006 was among the materials Mr King said he had available to him. Evidently this report provided some of the context in which Mr King elicited a history from the plaintiff and formulated his opinions. He relevantly recorded the following matters:
Under the heading, HISTORY: “Since arrival she has worked as a bookkeeper in her husband’s firm – he is a painter and runs his own business. She tells me her health was always good up to the time of her motor vehicle accident in 2005 and she denied any problems of any sort with neck or back pain in the past (there is some reference to Mr Robert Marshall’s report of 18-03-06 to some problems previously with back ache but she strongly denies this and her statement is supported by her husband)”;[58] and
Under the heading, OPINION: “… she was involved in a major two vehicle collision, as a front seat passenger, on 02-10-05 with the passenger door being pushed in on top of her. Such a mechanism of injury represents potentially a major degree of trauma to her trunk and spine overall and presumably in her case resulted in at least some damage to the cervical and to thoraco-lumbar discs and associated ligamentous structures at multiple levels. In view of her age and the minor spondylitic changes shown on x-rays of the cervical spine this trauma would have been superimposed upon mild pre-existing but apparently completely symptomless degenerative changes in the cervical and probably in the lumbar spinal region as well. She states very specifically that she never had any significant problems with neck or back pain in the past and her husband supports this statement”. [59]
[58] JCB 176
[59] JCB 179-180
91 When under further cross-examination it was suggested to the plaintiff (through the interpreter), that in fact she had significant problems with back pain during the 1990s and in 2002, the plaintiff replied directly and, as it turned out, non-responsively: “got problem but not big problem like now”.[60]
[60] TN 58
92 When it was suggested that the plaintiff knew during the consultation in 2009 that she had a CT scan on her back in 2002, the plaintiff prevaricated and replied: “Maybe”. Subsequent answers to further questions about what Mr King was told were again unresponsive:[61]
[61] TN 59
… He (Mr King) says that you told him that your health was always good up to the time of the motor vehicle accident in 2005. Would that be a correct summary of what you would have told him? – – – (Through Interpreter) Well, when I went through the rehabilitation process I felt much better, I felt good so I could tell him so, yes.
He also says that you denied to him any problems of any sort with neck or back pain in the past. Now, do you agree that that’s what you would have told him? – – – Well I didn’t have any problems with my neck until the car accident.
What about your back? – – – Regarding the back I had the physiotherapy treatment and after that I felt much better, I felt good and I was working.
93 The plaintiff was unable to recall whether or not she took the CT scan obtained in 2002 when she saw Mr Marshall in 2006 and she was unable to recall attending another of the TAC’s specialist, Dr Baker in 2006.
94 The plaintiff was accompanied by an interpreter when examined by Dr Baker on 6 June 2006. He had available to him Mr Marshall’s earlier report. Dr Baker relevantly noted that the plaintiff stated she was healthy and had never had any neck or back problems.[62]
[62] JCB 257
95 The balance of cross examination of the plaintiff on the first day of hearing was directed to the plaintiff’s evidence of employment before and since the transport accident.
Employment before the transport accident – the first day of hearing
96 This issue was addressed in the plaintiff’s first affidavit, in her husband’s affidavit and, to a lesser extent, in her daughter’s affidavit. The plaintiff deposed as follows:
· in paragraph 9 – in about 1998 she began working as a Bookkeeper in partnership with her husband, although from time to time she also assisted him: “doing some light painting work in his business”. She was still involved in this employment at the time of the transport accident;
· in paragraph 16 – she had been unable to return to work in the partnership for a period of time, although she: “managed to get back to work doing a little bookkeeping”. She had not been able to return to: “the more physically demanding duties involved” in working with her husband;
· in paragraphs 17 and 18 – she continued to be paid by the partnership following the collision and after signing the TAC Claim Form she was paid a partial loss of earnings benefit;
· in paragraph 20 – despite her best efforts she had been unable to return to work: “in any significant way”. As a result, the partnership had suffered a downturn in income and, in November 2006, the plaintiff and her husband had been compelled to sell their family home in Carnegie and move to rental accommodation in Bentleigh East;
· in paragraphs 23 and 41 – she was granted a Disability Support Pension in late 2009. She believes that, as a result of the transport accident, she is totally incapacitated for suitable employment.
97 Shortly before the hearing, Alex Voinsky relevantly deposed that, pre-accident, his wife had been able to work in their business carrying out various duties such as painting, masking, sanding and bookkeeping. He recalled his wife enjoyed working with him and her being physically independent without any significant restrictions.[63]
[63] JCB 20
98 Victoria Voinsky’s evidence, on the other hand, was less specific. She relevantly deposed that pre-accident her mother had been independent and was able to look after their household whilst, at the same time maintaining employment.
99 As mentioned, in her further evidence-in-chief (all of which was conducted in English), the plaintiff was taken to paragraph 20.[64] This sequence of question-and-answer was not straightforward because at times the plaintiff’s answers were inaudible or appeared unresponsive and she was repeatedly interrupted by her counsel. These matters notwithstanding, the following evidence emerged from the exchange.
[64] TN 45-46
100 The plaintiff confirmed as accurate her statement that, despite her best efforts, she had been unable to return to work in any significant way. In answer to questions directed to the work the plaintiff performed in the partnership, whether she did any of the painting and what proportion of her time was spent painting, the plaintiff indicated the following matters:
· she did painting service (what the plaintiff meant by this was not explored);
· she did everything including preparation and painting;
· apart from the painting work she did the books (“Very little” and “Yes, very little”);
· the time spent on painting as compared to writing invoices or doing the books: “was five, six days a week – full-time painting service and – – –“;
· the time spent on the books was: “.. sometimes, sometimes” and “Very little. Maybe three hours a week, three or four hours a week”.
101 Under cross-examination, on the first day of hearing, with the assistance of an interpreter, the plaintiff essentially confirmed and expanded on her evidence-in-chief during the following exchange:[65]
[65] TN 60
Is it your evidence on your oath, (Mrs) Voinsky, that from the time you went into partnership with your husband, you were working five or six days per week on a full-time basis painting? – – – (Direct) Yes.
And you only did the books three or four hours a week? – – – (Through Interpreter) Less than that.
So you certainly would never describe yourself as a bookkeeper, would you? – – – No, no.
You were a painter on your evidence now, weren’t you? – – – Yes.
And you were a painter full-time? – – – Yes.
That’s what you’re telling Her Honour, isn’t it? So if anybody asked you in 2005 what your occupation was, you’d say, well, I’m a painter? – – – Yes. Yes.
102 The impression conveyed by this evidence was that the plaintiff worked full-time as a painter in the partnership business alongside her master painter husband.
103 The plaintiff was also taken to question 40 in the TAC Claim Form. This asked about her occupation at the time of the transport accident. The typed response given was “Book Keeper”, next to which was written the word: “PARTNER”. When asked why she said bookkeeper and/or partner rather than painter the plaintiff responded:
Because at that time my husband – at that particular time my husband had more work and I was doing a little bit of bookkeeping. I was doing – I was working with documents a little bit.
104 With further questioning, the plaintiff said she had been doing less painting than usual because her husband had more work and she: “had to do a little bit more of bookkeeping”.[66] The plaintiff was not able to recall for how long this had been the case, yet thought it was a few months or (maybe) a few weeks.
[66] TN 68
105 The plaintiff was taken to her first affidavit. Through the interpreter she acknowledged that this document contained a copy of her signature, yet when faced with the proposition that she read English: “perfectly adequately”, the plaintiff replied: “not really good”.[67]
[67] TN 69
106 With some interruption for discussion of what had transpired during evidence-in-chief, counsel pursued this issue in the following exchange:[68]
[68] TN 69-70
Are you saying to Her Honour that there were aspects of this affidavit which you did not understand when you swore it? – – – Well, it seemed to me that – well, in general, it seemed to me that I did understand what I was saying.
When you say in general, what do you mean by that? – – – That I read what is written here.
And it is correct to say you understood it. Is that right? – – – Yes, of course.
And in fact, this morning, you were asked – well, I assume you were asked, I must admit I didn’t – have you had the chance to re-read that affidavit before today’s case? – – – This one?
Yes? – – – No, not before this case.
…
– – – I think it is correct.
Yes, well, how do you know that – start that again. Do you know that because you’ve read it recently? – – – Yes.
How long ago did you last read it? – – – Maybe two weeks ago.
And were you satisfied about its correctness at that time? – – – I think so.
You didn’t ask for any alterations to be made? Madam, did you ask for any alterations to be made? – – – No.
And you were obviously able to understand it weren’t you? Mrs Voinsky, when you read this affidavit two weeks or so ago – – –? – – – (Direct) Yes.
– – – you were are able to understand it, weren’t you? – – – Yes.
107 Having revisited the transcript, I was satisfied that in further evidence-in-chief (as summarised earlier), the plaintiff had indicated that prior to the transport accident she worked full time in the painting service, 5 to 6 days per week and devoted comparatively much less time per week to bookkeeping work (less than 3 to 4 hours per week). However, allowing for the cross examination (as summarised earlier), the plaintiff had also agreed that this had been the case since she went into the partnership with her husband in 1998. This evidence was, nevertheless, qualified by later answers in which the plaintiff appeared to indicate that in the months or weeks before the transport accident, she was doing more bookkeeping work than usual because her husband had more work.
108 When asked under further cross-examination whether in the weeks leading up to the transport accident she had been working five or six days per week painting full-time, the plaintiff agreed she was working and doing a little bit of bookkeeping, yet indicated she could not recall whether the painting work was five or six days per week.[69]
[69] TN 78
109 The plaintiff was taken to paragraph 9 of the first affidavit and specifically to the claim that she had assisted her husband doing some light painting work in his business from time to time and had still been involved in that employment when the transport accident occurred.
110 Whilst the plaintiff appeared to accept that the evidence in paragraph 9 of the affidavit was inconsistent with her oral evidence that she worked full time, 5 to 6 days per week in painting, the plaintiff insisted, the latter was the correct position and it was her bookkeeping work that was light.[70]
The partnership business – the first day of hearing
[70] TN 79-80
111 The plaintiff was next cross-examined about the work performed in the partnership business. Her evidence in response is summarised in the following dot points:
· the plaintiff’s husband quoted for the jobs;
· the plaintiff appeared unable to say whether her husband was sometimes paid an hourly fee and, if he was, the hourly rate he might have charged. Her evidence was to the effect that she had not been involved in the making of the agreements and she did not ask her husband about the rate he charged;
· the plaintiff did the book work and put together the documents but because there were a lot of documents and it was a long time ago she could not recall what documents she had put together. The plaintiff did, however, recall that she put together all of the documents concerning her husband’s expenses and how much he spent on the business, including his motor vehicle expenses and the cost of paints and tools;
· the plaintiff used a calculator for her bookkeeping work but not a computer;
· the plaintiff’s husband contracted out work when busy and the subcontractors worked on site under his supervision.
112 The plaintiff was next taken to paragraph 20 of the affidavit in which she alleged she had not been able to return to work in any significant way since the transport accident. The plaintiff further alleged that there had been a downturn in the partnership business as a consequence and, in November 2006, she and her husband had been compelled to sell the family home in Carnegie.
113 The plaintiff told the Court the partnership no longer existed. She confirmed that when she was involved, Partnership Returns, prepared by their accountant and signed by the plaintiff and her husband, had been submitted to the Australian Tax Office.
114 The plaintiff was shown a document which is described in the list of documents tendered on her behalf as: “Detailed Summary of Personal Taxation Records” (the Summary). The heading on the document itself, however, shows that the document relates to the plaintiff’s personal income tax returns.[71]
[71] JCB 400
115 In short compass, for each of the financial years ending 30 June 2002 to 30 June 2008, the Summary sets out the plaintiff’s taxable income and the net income of the partnership business after deduction of various expenses and distribution of this income equally between the partners.
116 I was satisfied that through her evidence the plaintiff indicated an understanding of the content of the Summary as presented to her.
117 The Summary shows that in each of the two financial years preceding the transport accident the gross sales in the partnership business increased from $115,109 at 30 June 2003 to $179,959 and $201,292 at 30 June 2004 and 30 June 2005 respectively.
118 Without detailing all of the expenses shown, I note that the amount paid to contractors grew in these years from $41,312 to $63,023 and then to $64,345. However, in the next three financial years, which included the year in which the transport accident occurred, the amount paid to contractors dropped significantly, to $21,680 in the year ending 30 June 2006 and $23,620 and $34,864 in the years ending 30 June 2007 and 30 June 2008 respectively.
119 The costs of sales in the two financial years preceding the transport accident increased from $25,527 at 30 June 2003 to $39,727 and $43,946 at 30 June 2004 and 30 June 2005 respectively. In the next three financial years, which included the year in which the transport accident occurred, the cost of sales varied between $85,598 at 30 June 2006 and $52,637 and $31,473 at 30 June 2007 and 30 June 2008 respectively.
120 Amongst the expenses deducted each year in the partnership business were interest expenses. The Summary shows that in the financial years between 30 June 2003 and 30 June 2006, interest expenses grew. In the first two financial years they grew from $6,106 and $5,322 respectively. However, in the financial years ending 30 June 2005 and 30 June 2006 the interest expenses grew to $17,328 and $34,699 respectively.
121 Interest expenses continued to be deducted (after the plaintiff deposed she and her husband had been compelled to sell their house in November 2006), in the financial years ending 30 June 2007 and 30 June 2008 in the sum of $29,543 and $16,074 respectively.
122 The plaintiff was unable to explain why in the year in which the transport accident occurred, when sales had increased, the amount spent on contractors dropped dramatically. As suggested to the plaintiff, it was both logical and reasonable to expect that with an increase in sales, the subcontracting costs would increase to meet any loss or reduction in the provision of painting services, attributable to the plaintiff’s inability to perform painting work on a full-time basis in the business. The same might be said about the financial year ending 30 June 2007, when the subcontracting expenses remained comparatively low. However, by way of contrast, in the financial year ending 30 June 2008 (the last year in which the partnership operated) this trend changed. There was a significant reduction in the sales revenue and an increase in the subcontracting expense.
123 The plaintiff’s evidence that her husband had been working 12 to 14 hours per day and trying to do everything himself did not explain the earlier trend she also suggested only her husband could explain.[72]
[72] TN 87
124 The plaintiff was unable to recall what, if any, business loans had been taken out which might explain a significant rise in interest expenses in the financial years ending 30 June 2005 and 30 June 2006, although at one stage she mentioned the purchase of a motor vehicle in 2001. Any business loan was another matter the plaintiff thought her husband might explain. At the time, I found this answer surprising, if for no other reason than the plaintiff had been the bookkeeper when these interest expenses were claimed by the business.
The application to take instructions during cross-examination and vacate hearing to allow plaintiff to re-swear her affidavits with the assistance of an interpreter
125 At the commencement of the second day of hearing, in the absence of his client, counsel for the plaintiff expressed concern about the fairness of the trial. He sought an opportunity to obtain instructions from the plaintiff to satisfy himself that she adequately comprehended both written and spoken English. If, as counsel appeared to believe the plaintiff’s understanding of English was poor, counsel foreshadowed an application to adjourn to allow the plaintiff to re-swear her affidavits with the assistance of an interpreter and to start the hearing again.
126 The application was strongly resisted. The defendant relied on the plaintiff’s responses in evidence-in-chief and her evidence under cross-examination (already summarised), all of which indicated that, with some limitations, the plaintiff conversed in English and, as she had shown through this evidence, the plaintiff appeared to read and understand the English language. This is not to deny that assistance from the interpreter was required to help the plaintiff comprehend and respond to more complex questioning.
127 Notably, even with assistance from the interpreter, the pattern of vague and, at times, non-responsive answers persisted.
128 It goes without saying that, where, as in this case, English is not the plaintiff’s first language, it was important to ensure that she comprehended both written and spoken English for the purposes of her sworn and oral evidence.
129 The plaintiff has been represented throughout by experienced practitioners. There was no affidavit or other evidence that indicated specific difficulties in communicating with the plaintiff in English or in the plaintiff having understood the matters to which she had attested on oath. On the contrary, on the first day of hearing, the first and only suggestion that the plaintiff considered her ability to read English was not good emerged during cross-examination. I did not, however, understand this evidence to mean that the plaintiff had been unable to read or comprehend her affidavit or affidavits without the assistance of an interpreter. On the contrary, the plaintiff indicated that she thought she did understand what she said in the affidavit to which her attention had been drawn.
130 In short, at the commencement of the second day of hearing, I was not satisfied that circumstances existed which indicated a risk that the trial process was unfair either due to lack of comprehension of English at the time the plaintiff swore her affidavits or at any time before counsel raised his concerns. My view of the plaintiff’s ability to understand English did not alter after hearing the balance of her oral evidence and reading all of the material tendered.
131 Cross-examination continued on the second day, interrupted by Dr Belsky’s oral evidence. Cross-examination and re-examination of the plaintiff were concluded by lunch-time on the third day.
The partnership business – the second day of hearing
132 The plaintiff was again taken to the Summary. On this occasion, the plaintiff appeared to recall a great deal more about partnership business expenditure than the day before. Her evidence, nonetheless, remained vague and, at times, contradictory.
133 The plaintiff revealed that, between 1995 and 2000 (she could not recall the exact date), she and her husband purchased a property at Daylesford for which they had borrowed money for renovations. The property was sold in about 2009. The plaintiff initially indicated renovations took place between 2004 and 2006.[73] However, the plaintiff appeared to contradict this evidence by later indicating that the work done at the Daylesford and Carnegie properties occurred before 2004. With the Carnegie property, she said renovations were probably carried out two years after its purchase in 1993.
[73] TN 109
134 The plaintiff again mentioned the purchase of a van, which she thought had been purchased in 2002, 2003 or 2004 for more than $20,000.
135 Essentially, the plaintiff’s evidence was that she was unable to recall the cause or causes of the increased interest expenses and sales costs shown in the Summary. Nor could she say whether the mortgage over the Carnegie property had increased or decreased in the years before it was sold in 2006 or whether the properties had been refinanced before sale in 2006 and 2009 respectively. The plaintiff’s evidence was that her husband was better placed to explain these matters because he had spoken to the accountant at much greater length than she had.
136 The plaintiff was next questioned about other financial pressures. This involved questioning the plaintiff about her husband’s gambling behaviour and whether, for instance, he had gambled away money, paid to the plaintiff by the TAC in the years 2011 and 2012 under an impairment benefits claim.[74] The total paid for permanent impairment of the whole person comprised payments of $12,750 and $17,080 respectively.
[74] JCB 25A
137 Whilst the plaintiff conceded her husband gambled during this period, she denied he had lost the TAC money gambling. The plaintiff was, however, taken to the St Kilda South Medical Clinic clinical notes commencing from 1 September 2010. These were incorporated in a report written by a current treating general practitioner, Dr Lebedev. This doctor reported he was consulted by the plaintiff from 5 November 2009 in the treatment of depression and a lower back condition.[75]
[75] JCB 68-128
138 Among other things, the clinical notes record multiple attendances on a registered mental health nurse for counselling for depression. The notes tendered commence from 8 September 2010. These notes relevantly record reports of ongoing relationship problems between the plaintiff and her husband and of conflict in her relationship with her eldest daughter.
139 The plaintiff’s attention was specifically drawn to notes made by the mental health nurse in December 2011 and January 2012. These record ongoing problems and distress associated with what was described as Mr Voinsky’s gambling addiction/problem and reports from the plaintiff that her husband had gambled and lost money received from the TAC, that he had received correspondence from the bank from where he kept withdrawing money and a further report that the plaintiff’s brother was involved and supportive of the plaintiff should she choose to leave her husband.[76]
[76] JCB 94-95
140 Through the responses given, the plaintiff appeared to either deny or minimise the problems as recorded. She blamed pain for her depressed and tearful presentation. The plaintiff agreed that on 21 November 2011 the TAC had paid her an impairment benefit of $17,080 yet suggested that this money had been taken by her husband for the business. I took the latter comment to reference the painting business in which the plaintiff’s husband has been self-employed probably since the partnership ceased on 30 June 2008.
141 The plaintiff was not able to recall when her husband’s gambling had started, yet denied that he was gambling in 2005 and 2006. She rejected the proposition that his gambling may have been responsible for loans that increased the interest expenses borne by the partnership business during 2005 and 2006.
142 This issue was revisited when cross-examination resumed in the afternoon following the interposition of Dr Belsky’s evidence. At this stage of the evidence, the plaintiff reiterated her earlier evidence that her husband sometimes gambled but denied this had been a problem.
143 The plaintiff then, without prompting, volunteered that she had forgotten to mention a third property, a house purchased in Balaclava “maybe” two years before the transport accident, in the purchase of which they had borrowed money (“And I forgot to tell you that we didn’t have two properties, we had three properties”[77]). The plaintiff was certain that this was the loan reflected in the interest expenses in the Summary (“Yes, yes”[78]) but denied she had spoken to her husband about this (“No, I just remind me, I just remind me”). She, nonetheless, acknowledged that in the two years prior to the transport accident, financing the three properties had been a significant source of strain for the plaintiff and her husband, although the plaintiff added they no longer owed money to the bank.
[77] TN 177
[78] TN 178
144 Relevantly, during re-examination the plaintiff again denied knowledge of a gambling habit. The plaintiff said she had no current concerns about any gambling problem and denied that any marital stresses were affecting her emotional state. Having regard to the medical records summarised above not to mention her husband’s evidence that they argue almost every day, the plaintiff’s further claim that in nearly 40 years of marriage, she had never had stress with her husband was untenable.
145 As to any conflict in her relationship with her eldest daughter from 2010, the plaintiff repeatedly resisted answering questions about this.[79]
[79] TN 176-177
146 In all, I formed the view that the plaintiff was reluctant to concede and minimised the extent to which factors unrelated to the transport accident, such as her husband’s gambling habits or relationship difficulties either with her husband or eldest daughter contributed to her emotional disturbance in the years since the transport accident.
147 The plaintiff’s responses during re-examination about matters relating to the Summary reinforced the impression that her involvement in the compilation of the business records had been much greater than indicated in her responses under cross-examination. For instance, the plaintiff indicated that both she and her husband had calculated the interest expense figure of $34,699 for the financial year ending 30 June 2006 and then submitted the figures to which the Summary referred to their long-standing accountant.[80]
[80] TN 210-212
148 Based on the evidence summarised so far and the plaintiff’s affidavit evidence I concluded that the plaintiff’s affidavit evidence probably better described the her activities in the partnership business prior to the transport accident. I could not be satisfied from the plaintiff’s evidence alone that the hours worked each week were as alleged or that time spent performing sedentary-type duties was, as alleged, proportionally much less than the time spent in the performance of physical tasks assisting her husband.
149 The plaintiff sought to attribute the sale of all three properties to her husband’s inability to manage after she ceased work.[81] As mentioned, in his affidavit, Alex Voinsky, referenced his wife’s inability to continue to work in the partnership business due to her physical restrictions, the termination of the partnership and he mentioned difficulty in maintaining the business without her support.
[81] TN 225
150 There was, however, no evidence of the sales and revenue of the painting business in which the plaintiff’s husband said he continued to be self-employed or evidence corroborative of the claim that loss of the plaintiff’s labour as a book keeper and/or the loss of the plaintiff’s assistance from time to time with light painting work caused or contributed to the sale of the family home and/or any of the other properties mentioned during the course of the hearing.
151 These findings do not however, dispose of the question of whether and the extent to which accident-related organic impairment of the plaintiff’s spine and/or mental disturbance incapacitated her for suitable employment in the long-term.
Treatment between 3 October 2005 and 29 October 2009 and fitness for work to 3 July 2007
152 Paragraphs 19 and 21 to 23 of the first affidavit describe the plaintiff’s condition and the treatment received between 3 October 2005 and 29 October 2009 in the following terms:
19. Several weeks after the collision I began some physiotherapy. The Secondnamed [sic] TAC also provided me with some home-help and assistance around the house. In addition, in November 2005 I began acupuncture treatment with Mr Eric Huang of Caulfield North. Several months later I also began some counselling with Dr Goloub, a Psychologist in St Kilda. Around that time I also began a hydrotherapy program at the Melbourne Aquatic Centre.
21. I continued with various treatments for the injuries I suffered in the collision in the latter part of 2006 and for the following year or two. However, in September 2009 I chose to change General Practitioners and I began to see Dr Lebedev of St Kilda. I stopped seeing Dr Belsky for personal reasons.
22. Throughout the period 2006 to about 2009, and despite my best efforts, the pain that I was suffering as a result of the injuries I had sustained in the collision continued unabated. Indeed, during that period of time I found that I would continually aggravate the pain that I was suffering, particularly the pain in my neck and my lower back, if I attempted to do anything very physically active at all. In fact, on one occasion in October 2009, the pain in my lower back was exacerbated when I got out of my car. The aggravation on that occasion was such that I sought treatment at the Monash Medical Centre Emergency Department.
296 I was invited to prefer Dr King’s evidence as a whole. I was not persuaded this was an appropriate course to take. Both psychiatrists had access to and analysed the clinical notes produced by the St Kilda South Medical Clinic on subpoena, particularly those kept by the mental health nurse, although I could not be satisfied that Dr Serry also accessed the Alexander Street clinical notes. On the other hand, I could not be satisfied that Dr King had the benefit of reading relevant specialist evidence which could have alerted him to the concerns by other specialists about the impact of non-organic factors on the plaintiff’s presentation.
297 The point I wish to make at this juncture is that I concluded I was best assisted by Dr Serry’s evidence in understanding the plaintiff’s current mental state secondary to injury suffered in the transport accident, primarily because his further diagnosis of somatic symptom disorder with predominant pain helped explain aspects of the plaintiff’s presentation other specialists believed were being influenced by non-organic factors.
298 Accordingly, allowing for my analysis of the recent psychiatric evidence, I was satisfied that the plaintiff was likely suffering from an unresolved adjustment disorder as a result of injury sustained in the transport accident and from a somatic symptom disorder with predominant pain. If, however, she previously met the diagnostic criteria for PTSD, the symptoms of this condition had probably long since resolved.
299 I deal next with the most current assessment of the plaintiff’s organic injuries.
The physical assessments
300 I note that Mr Miller examined the plaintiff on 23 June 2014.[134] She was accompanied by her husband. Mr Miller was asked to provide an orthopaedic impairment assessment.
[134] JCB 233-242
301 Interestingly enough, Mr Miller obtained a history in which the plaintiff indicated she had been working full-time in a factory at the time of the transport accident and bookkeeping and performing administrative work in her husband’s painting business was a second job.
302 Mr Miller also took a history of the incident some years earlier when the plaintiff reported she felt dizzy and fell injuring her right knee.
303 On this occasion, the plaintiff’s complaints involved neck pain and discomfort, which radiated into her shoulders particularly the left shoulder and further down the arms, significant sleep disturbance, associated headaches, feelings of dizziness and difficulty with memory and concentration, aching and discomfort in the left shoulder aggravated by physical activity, low back pain and discomfort radiating into the buttocks and further down the legs, predominantly the right leg but back pain remained the dominant feature, difficulty with prolonged standing, sitting and walking, significant sleep disturbance (the lower back symptoms were overall more severe than the neck symptoms) aching discomfort and catching in her right knee with difficulties kneeling and squatting, cardiac disease for which she was still being treated, a chronic cough and problems with anxiety and depression. There was, so it seems, no mention of symptoms affecting the left foot.
304 The plaintiff apparently reported ongoing regular physiotherapy, medication consisting of Panadol and other vitamin and herbal mixtures, the use of a soft lumbar brace and intermittent use of a walking stick.
305 Mr Miller understood from the plaintiff that she had not suffered prior neck or back problems, although the plaintiff did mention her gastric ulcer and treatment of a right-sided breast lump.
306 Mr Miller reviewed the radiology obtained from 6 November 2009 onwards. This included investigations of the lumbar spine, the left hip, the left and right knees and a bone scan. The latter relevantly showed a slightly increased uptake in the region of both knees and the left foot. MRI imaging obtained of the right knee on 27 March 2014 suggested a tear of the medial meniscus and possible tear to the anterior portion of the lateral meniscus.
307 Relevantly clinical examination revealed diffuse tenderness affecting the spine and the shoulders, reduced range of movement in the spine and shoulders, straight leg raising to 50 degrees (but no evidence of neurological deficits) and the knee was stable to examination. Apparently the plaintiff coughed repeatedly during the examination.
308 Mr Miller concluded there were significant ongoing symptoms affecting the cervical spine. He diagnosed muscular-ligamentous strain and aggravation of degenerative disease without evidence of radiculopathy or neurological deficit. He also diagnosed muscular-ligamentous strain and aggravation of degenerative disease in the lumbar spine and, whilst he appears to have accepted the plaintiff’s report of significant radiation of pain into the lower limbs, Mr Miller found no specific neurological deficit.
309 Mr Miller concluded that likely pre-existing disease in both the cervical and lumbar spine had been aggravated by the accident and this accounted for her present clinical status. In other words, the plaintiff had not recovered from the aggravation injury. The prognosis was poor.
310 As for the right knee problem, Mr Miller noted the ongoing symptoms in the plaintiff’s right knee and, as it turned out, correctly questioned the causal relationship between the right knee symptoms and the transport accident.
311 As for the left shoulder problems, Mr Miller concluded that the plaintiff may have rotator cuff pathology, although he (and he was the only specialist to suggest this), appeared to believe that the symptoms reported were referred from the cervical spine.
312 Relevantly, Mr Miller concluded the plaintiff had problems with anxiety and depression. In his opinion she had likely developed a chronic pain syndrome which required assessment by a psychiatrist. He, nonetheless, opined that the symptoms relating to the plaintiff’s neck and back would preclude a return to significant physical work in the future, although he also expressed the view that a return to work would be significantly complicated by the other medical conditions reported by the plaintiff. If Mr Miller was correct in this view, I expect that other aspects of the plaintiff’s daily activities would be similarly complicated by these other medical conditions.
313 In any event, Mr Miller was not confident that a return to work would be achievable, in his view, in large part due to the accident-related effects of injury. As to lifestyle matters, Mr Miller noted the plaintiff’s complaint that she had difficulties with shoulder movements and neck movements when driving and that she intermittently required a walking aid when walking out of doors. In his opinion the plaintiff will have reduced mobility as a result of her multiple orthopaedic complaints. In other words, unrelated physical conditions were likely also contributing to a reduction in the plaintiff’s mobility.
314 The plaintiff relied on the fact that Mr Miller’s evaluation of permanent impairment, that is 5% each for the cervical and lumbar spine was consistent with the earlier assessments of permanent impairment.
315 In later correspondence dated 19 November 2014, addressed to the plaintiff’s solicitors, having reviewed the MRI investigations of the lumbar and cervical spines on 5 November 2014, Mr Miller advised that he concurred with the findings reported. He was also taken to the report of Mr Scott dated 3 November 2014, which Mr Miller considered compatible with his earlier report. He agreed with Mr Scott’s view that the plaintiff had probably developed a chronic pain syndrome and with Mr Scott’s finding of ongoing symptoms in the neck and low back area. Mr Miller, however, appeared to refute his earlier suggestion that the left shoulder symptoms may be referred from the neck, by also agreeing with Mr Scott’s suggestion that the shoulder symptoms may be related to rotator cuff pathology.
316 The plaintiff was examined once by Dr Brownbill in the presence of her husband on 24 June 2014. Dr Brownbill was asked to perform an impairment assessment from a neurological point of view.
317 On this occasion, the symptoms described by the plaintiff involved the following:
· depression, which she apparently described as the main problem;
· fluctuating neck and lower back pain present most of the time;
· repeated coughing which the plaintiff saw as a consequence of having broken her ribs;
· pain in the lower chest at the right front;
· dizziness all the time with fluctuations, which the plaintiff said had caused her to fall sometimes;
· right knee pain. Notably, Dr Brownbill understood from the plaintiff that she had not sustained any further accidents or injuries yet she clearly continued to attribute this condition to the transport accident;
· left foot pain.
318 Clinical examination apparently revealed the following:
· repeated coughing throughout the assessment;
· reduced cervical spine movements with the plaintiff describing pain and in her demeanour showing marked apprehension;
· the plaintiff wore a lumbar brace, which she was reluctant to remove. Whilst the specialist found active thoraco lumbar spinal flexion was limited to a quarter of full, he did not test other movements;
· a stated inability to walk on the plaintiff’s heels or toes because she reported this would cause foot pain;
· the absence of any neurological issues affecting either the upper or lower limbs.
319 Dr Brownbill reviewed the earlier neurological reports submitted by Dr Lee, Professor Iansek, the reports of Dr Walton and Mr King and the hospital and the ambulance notes from 2005, as well as the report of the CT scan of the lumbar spine obtained on 6 November 2009.
320 For present purposes I have assumed some familiarity with the results of other radiological material to which Mr King’s report referred on 27 September 2009.
321 In short, based on the report of the onset and continuation of neck and back pain since the transport accident and the radiological evidence of long-standing degenerative changes in the spine, Dr Brownbill diagnosed soft tissue injuries to the structures about the neck and lower back with likely aggravation of degenerative changes but without neurological damage.
322 Dr Brownbill, nevertheless, concluded that emotional factors were contributing to the continuation of unchanged pain over several years.
323 Again, as is apparent from reading his report, Mr Brownbill probably did not know that the symptoms affecting the plaintiff’s spine had likely settled before 29 October 2009, there being a long period over which no complaint was made to or treatment sought from a doctor. In my view, the suggestion by counsel that the hiatus in treatment could be explained by a loss of confidence in the doctor because she pressed the plaintiff to return to work, made little sense because during the same period, the plaintiff attended Dr Belsky for other treatments.
324 Apart from avoiding heavy lifting in the future, tellingly Dr Brownbill did not envisage restrictions on the plaintiff’s future activities. Accordingly, whilst the plaintiff relied on Dr Brownbill’s permanent assessment of a 5% impairment of both the neck and lower back, his report, as such, emphasised the likely role of non-organic factors affecting the plaintiff’s presentation.
325 Dr Horsley examined the plaintiff on 9 October 2014.[135] The plaintiff was accompanied by her husband.
[135] JCB 211-219
326 Dr Horsley understood that the plaintiff had good verbal English skills and read and understood 70 to 80% of the newspaper but had difficulty writing in English. Dr Horsley was alert to the contradiction between the plaintiff’s affidavit evidence and her advice that after she commenced working with her husband she painted most days for eight hours.
327 When examined by Dr Horsley the plaintiff reported she was seeing an acupuncturist approximately 10 times per year, consulting her general practitioner fortnightly, undergoing physiotherapy fortnightly and consulting the mental health nurse fortnightly.
328 On a visual analogue scale the plaintiff reported pain in her neck and left shoulder varying between 9 to 10/10 and chronic back pain between 9 to 10/10. She was wearing a back brace and complained of discomfort and pain radiating from the lumbar spine down the anterior lateral aspect of the left side into the knee area and lower back stiffness in the morning. The plaintiff also wore a support over her left ankle and a right knee brace.
329 The plaintiff reported sitting, walking and standing tolerances of 15 minutes. She said she only drove locally, she coughed repetitively (and did so during the examination) and she reported suffering from constipation.
330 Dr Horsley concluded that additional to the rib fractures, the plaintiff had suffered accident-related soft tissue injury to the neck, left shoulder, back, left hip area and the left foot. Clinical examination apparently also indicated avoidance behaviour. Dr Horsley diagnosed a chronic pain syndrome. She recommended psychiatric assessment and ongoing consultation with the mental health nurse and the general practitioner. Dr Horsley saw no value in ongoing passive physical therapies, beyond teaching the plaintiff exercises for use at home.
331 Dr Horsley saw no future in retraining or redeployment of the 66-year-old plaintiff, who has been on a disability pension since 2009.
332 I have already mentioned in passing the evidence of the TAC’s orthopaedic surgeon Mr Scott. He examined the plaintiff on 20 November 2014.[136] At the time, the plaintiff was accompanied by her husband.
[136] JCB 281-288
333 Relevantly, the materials available to Mr Scott included Dr Belsky’s report and the Alexander Street clinical notes and Dr Lebedev’s reports and clinical notes from the St Kilda South Medical Clinic.
334 The list of complaints made by the plaintiff (chronic neck ache and neck stiffness in the cervical spine, left shoulder pain and stiffness, chronic left chest wall pain and discomfort, tenderness over the lower hemisphere of the right breast, chronic lower back pain aggravated by standing sitting and repetitive bending or lifting and occasionally associated with radiation into the right thigh and ongoing depression and anxiety) made no mention of the plaintiff’s left foot.
335 Mr Scott diagnosed soft tissue injuries to the cervical spine with aggravation of early degenerative changes, without evidence of any upper limb radiculopathy; soft tissue injury to the lumbar sacral spine with probable aggravation of pre-existing degenerative change, without evidence of any lower limb radiculopathy; bruising to the right breast; left chest wall chronic pain following rib fractures without evidence of damage to the lungs and a probable left shoulder rotator cuff lesion yet to be investigated. He considered the plaintiff’s prognosis poor and, as already mentioned, concluded she was suffering from a chronic pain syndrome with possible associated anxiety and depression that required assessment by a consultant psychiatrist.
336 I infer that Mr Scott probably had regard to the evidence of a likely pre-existing condition affecting the plaintiff’s lower back recorded in the Alexander Street clinical notes, when he also diagnosed aggravation of pre-existing degenerative change.
337 Mr Scott’s concern that the plaintiff’s presentation was affected by a chronic pain syndrome clearly aligns with the evidence of other specialists, Mr Dickens, Mr Miller, Dr Brownbill and Dr Horsley. As mentioned, the evidence of the neurosurgical and orthopaedic specialists also aligns with Dr Serry’s psychiatric diagnosis of a somatic symptom disorder with predominant pain.
338 Relevantly, Mr Scott concluded the plaintiff’s incapacity for employment in part related to ongoing organic symptoms, which I took to include the left shoulder symptoms and the complaints relating to breast and chest pain. In other words, both organic and non-organic factors were responsible for the plaintiff’s incapacity for work, although the strong indication from the report submitted was that non-organic factors were probably the dominant cause of the ongoing impairment of the plaintiff’s spine.
339 Mr Scott’s letter dated 20 November 2014 simply confirmed that, having reviewed the report of the up-to-date radiological investigation of the plaintiff’s cervical and lumbosacral spines, his opinions were unchanged.[137]
[137] JCB 288A-B
Should the plaintiff’s application be decided under paragraph (a) or (c)
340 In summary, I have reached the following conclusions.
341 The plaintiff suffered physical and mental injury as a result of the transport accident. In particular, she suffered injury to her spine, both to her neck and lumbar spine. The TAC accepted that the transport accident had caused soft tissue injury and/or aggravation of early degenerative changes in the cervical spine. The injury to her cervical spine has been consistently so described by specialists.
342 Based on the Alexander Street clinical notes, Dr Belsky’s evidence and the evidence of a likely pre-existing discal problem at the L4/5 level, I formed the view that any injury to the lower back as a result of the transport accident probably also involved soft tissue injury and/or aggravation of the pre-existing condition.
343 I concluded that injury to the spine had likely settled and so far as the lumbar spine was concerned, resolved by late 2007. This is not to deny that the symptoms affecting another body function, the left shoulder appear to have persisted without radiological confirmation of an underlying pathology some of the doctors suspect may involve injury to the rotator cuff.
344 The episode of severe low back pain on or around 29 October 2009 was probably unrelated to the transport accident.
345 This is not to deny, however, that at least one specialist, Mr Scott, who had the benefit of the Alexander Street clinical notes and other reports, considered soft tissue and aggravation injuries to the spine unresolved. Accordingly, if I am wrong in my understanding that physical injury to particularly the lower back was temporary in its consequences and the episode in October 2009 in fact represented an exacerbation of ongoing symptoms, the thrust of the more recent specialist evidence was to the effect that impairment of the spine was now largely driven by non-organic factors.
346 The permanent impairment assessments obtained subsequent to the episode of severe low back pain in late 2009 deal with a collection of injuries, orthopaedic, digestive and psychiatric. In so far as these relate to the spine, and on the basis that the effects of injury to the lower back was likely temporary, this assessment was unreliable. As earlier noted, the admissions arising from the fact that the TAC paid some of the benefit on the basis of the assessment of permanent impairment of the spine was probably explained by the TAC’s ignorance of the evidence revealing a significant and unexplained hiatus in treatment. Again, if I’m wrong in my assessment of the significance of the admissions made regarding permanent impairment particularly to the lower back, the impairment assessment was essentially unchanged. We are, nonetheless, left with medical evidence which suggests that the plaintiff’s presentation regarding her spine is likely substantially mediated by a pain syndrome and non-organic factors.
347 In pressing her case under paragraph (a) of the definition of serious injury, to my mind, the issue of disentanglement was never properly addressed. This was either because the pathology in the spine could not adequately explain the pain consequences alleged for the spine (in other words, the plaintiff needed to separate the physical contribution to the pain and suffering consequences from the psychological[138]) or because of the presence of other unrelated conditions which were likely currently causative of pain and suffering consequences. As to the latter, this was not a case where it could be said that the consequences of, for instance, the right knee injury were clearly separate and distinct from the consequences of the injury to the lower back.[139]
[138] Meadows v Lichmore Pty Ltd [2013] VSCA 201, [20]-[22], Fokas v Staff Australia Pty Ltd [2013] VSCA 230 [60]
[139]Peak Op Cit
348 However, the issue of disentanglement under paragraph (a) assumed less importance than it might otherwise have, because, despite the underlying pathology currently revealed by radiology, based on an overview of the evidence I concluded that the impairment of the plaintiff’s spine was largely the product of mental disturbance with its origins in the transport accident.[140]
[140]Richardsv Wylie Op Cit
349 Accordingly, I proceeded on the basis that paragraph (c) of the definition applied to the application for leave made in respect to the spine as a whole and that any related physical incapacity remained relevant to my determination of whether the mental disturbance was serious and long-term.
The application to re-open the plaintiff’s case
350 It is convenient to explain my ruling on this application before I proceed to consider the consequences alleged. The TAC completed its closing address at the end of the fourth day of hearing. The plaintiff’s closing submission was not reached and the proceeding resumed six days later to accommodate her counsel.
351 On resumption of the hearing, the plaintiff’s counsel applied to reopen his client’s case to produce fresh evidence, firstly, relating to the plaintiff’s oral evidence that at her unit there was concrete but no garden[141] and, secondly, to call evidence of the contribution, if any, of unrelated medical conditions in the context of the assessment of the consequences attributable to injury to the plaintiff’s spine.
[141] TN 191
352 As to the existence of a garden, I was told that counsel’s instructing solicitor had been requested by him to take photographs of the unit. The solicitor had sworn an affidavit to which photographs taken by him were exhibited. The admission of these photographs was intended to explain the conflict between the plaintiff’s oral evidence under cross-examination and the evidence of her husband and daughter both of whom swore that since the transport accident the plaintiff had avoided gardening. In its closing submission the TAC specifically relied on the self-evident conflict in the evidence.
353 As to disentangling the consequences of any unrelated conditions, counsel sought to tender a report dated 12 December 2014 received from one of the plaintiff’s current treating general practitioners, Dr Rich. The TAC’s counsel handed to me a copy of a letter dated 9 December 2014 from the plaintiff’s solicitor to the general practitioner. The letter sought his urgent comments on the medication taken and the current status/prognosis of a number of unrelated conditions to which the plaintiff referred either in her evidence or during medical examinations. The doctor’s letter in response was said to clarify a number of issues that arose during the TAC’s closing submission by showing the Court what the general practitioner thought the conditions were and how these conditions were being treated.[142]
[142] TN 362
354 The basis of the plaintiff’s application was that the fresh evidence she sought to introduce represented the best evidence and should be before the Court.
355 The TAC opposed the application. The TAC made forensic decisions based on the evidence. In effect, the first opportunity the TAC had to consider the application and review the additional material was shortly before the hearing resumed.
356 I was taken by the TAC’s counsel to the decision of the Court of Appeal in Spotlight Pty Ltd v NCON Australia Ltd.[143] This case discussed the rationale for requiring exceptional circumstances to exist before a case, having been closed and judgment received, is allowed to be reopened.[144] Generally speaking, the concern in such a case is that there be finality in litigation and to avoid uncertainty about the boundaries of the reopened issues. In Spotlight the Court affirmed that the classes of case in which a court may grant leave to reopen are not closed but the overriding principle is that the court consider whether, taken as a whole, the justice of the case favours the grant of leave to reopen.[145]
[143] [2012] VSCA 232
[144] ibid [17]
[145] Ibid. [25]-[26]. See also the decision of J Forrest J in Matthews v SPI Electricity Pty Ltd [2013] VSC 523, [24]
357 In the present case, the plaintiff had not made her final submissions and judgment had not been reserved when the application to reopen was made.
358 I rejected the plaintiff’s application for the following reasons.
359 Firstly, no explanation was given for the delay in making the application.
360 The plaintiff was cross-examined about the existence of a garden at her unit on the third day of the hearing. Re-examination concluded the same day. If further evidence was to be called to address the perceived conflict in the evidence, no satisfactory explanation was forthcoming for delaying this until after the TAC had concluded its submission on 9 December 2014.
361 The plaintiff carries the burden of establishing the nature and extent of the consequences attributable to any permanent injury-related impairment of her spine. No satisfactory explanation was forthcoming for the delay in calling evidence about the pain and suffering consequence, if any, of concurrent unrelated conditions. As is apparent from the evidence already summarised, the plaintiff presented to her treating doctors and specialists with multiple medical conditions. I have already mentioned, the right knee injury suffered in a fall some years after the transport accident. This was a condition the plaintiff attributed to the transport accident. It was a different injury, which may or may not produce concurrent pain and suffering consequences for the plaintiff.
362 The plaintiff alleged mobility problems caused by injury-related impairment of her spine. Common sense suggests that some disentanglement may have been necessary under paragraph (a) if an unrelated condition produced pain and suffering consequences by causing pain and/or by contributing to the plaintiff’s mobility problems.
363 Moreover, having regard to the content of the letter sent to the general practitioner, I was not satisfied that his response would address the disentanglement issue in any meaningful way.
364 Secondly, I formed the view that reopening of the plaintiff’s case and admission of the further evidence would likely lead to the calling of additional evidence and the possibility that further expert evidence would be required.
365 In all, I was not satisfied that proper grounds had been made out to show that it was in the interests of justice in this case to allow the plaintiff to reopen her case to admit the further evidence.
Pain and suffering and loss of enjoyment of life consequences
366 The assessment of the pain and suffering and pecuniary loss consequences arising from accident-related mental injury was all the more difficult due to the unreliability of the plaintiff’s evidence. However, the plaintiff presented to treating and medico-legal doctors as well as members of her family with persistent psychological sequelae to the transport accident. Complaints of chronic pain arising from injury suffered in the transport accident was and continues to be an important feature in her presentation.
367 The plaintiff has repeatedly rejected advice to take psychotropic medication. On the few occasions she has been persuaded to use this, the plaintiff has stopped using medication, reportedly due to side-effects such as dizziness and nausea. An overview of the evidence suggested to me that Dr Walton’s conclusion that the plaintiff suffered a phobic anxiety surrounding the taking of medication (not entirely irrational due to her gastric issues) probably more accurately explained the absence of medication in the ongoing treatment of the plaintiff’s mental state, than any digestive side-effects.
368 For some years now the plaintiff has undergone regular counselling by a mental health nurse, who evidently also monitored the risk of suicide. The tendered notes indicated ongoing psychological issues predominantly referable to complaints of pain from injury suffered in the transport accident. This is not to deny, however, the presence of other unrelated factors such as those identified by Dr King that from time to time likely contributed to the plaintiff’s mental distress.
369 Nevertheless, in this case, I was affirmatively satisfied that the accident-related injury to the plaintiff’s mental state was serious because, at the date of hearing, it was fairly described as both severe in its consequences for the plaintiff and as long term. The latter because the impact of, and treatment (such as the plaintiff will accept) and management of her mental state will likely last for the foreseeable future.
370 I assessed the consequences and the severity of these by reference to principally the corroborating evidence of the plaintiff’s husband and daughter through which they revealed a stark contrast between the plaintiff’s behaviour and functioning before and after the transport accident and, in particular, their unchallenged evidence confirming the plaintiff’s complaints of pain and withdrawal from social interaction and the like.
371 The plaintiff did not consistently provide reliable histories or reports of her symptoms to doctors. Nevertheless, I concluded that the doctors had accepted the plaintiff as genuine in her complaints of constant pain and restriction where they were otherwise satisfied that her physical/orthopaedic condition did not adequately explain the level of this. Accordingly, their evidence provided some assistance in determining the nature and severity of the consequences of injury to the plaintiff’s mental state.
372 The recent decision in Mazevskav Transport Accident Commission,[146] among other things, instructs that, when evaluating the consequences of injury suffered as a result of a transport accident, the Court must also consider whether the plaintiff had established pecuniary disadvantage consequences of compensable injury, which amounted to serious injury.
[146] [2014] VSCA 176 [21]
373 In her evidence, the plaintiff described pain and suffering and pecuniary disadvantage consequences in the following terms:
· constant and debilitating pain in her neck and lower back, the intensity of which varied from day to day;
· sleep interrupted by pain. This had led to sleeping separately from her husband;
· nervousness as a passenger and driver, nightmares and being very upset by news of other transport accidents which reminded her of the collision and triggered flashbacks;
· depression since the transport accident and a sense of helplessness particularly when pain was bad and frequent tearfulness;
· anxiety about her future and deterioration in the condition of her spine;
· a current medication regime consisting of Panadol Osteo, Temazepam, Valerian (an aid to sleep), fish oil and glucosamine. These medications/vitamins were taken in addition to medication to treat the plaintiff’s digestive and cardiovascular problems;
· regular attendances on her treating general practitioners, the mental health nurse and the physiotherapist;
· use of heat packs and anti-inflammatory creams to control pain;
· increased pain if she overdoes domestic and gardening activities;
· limitations on the activities she is able to perform in domestic, recreational and social settings;
· a loss of independence in that she relies on her husband for assistance in the home and for cooking and shopping;
· a loss of social life and now no longer wanting to visit friends or family because of pain;
· limitations on her ability to interact with and care for particularly the younger of her two grandchildren;
· a worsening of her physical condition in the 18 months before she swore her further affidavit in September 2014;
· an inability to return to work in any significant way, with the loss of her role in the partnership and the painting business.
374 Mr Voinsky’s evidence, corroborated many of the matters summarised above either directly or indirectly. He described a generally happy and physically independent individual pre-accident, who undertook household tasks without problems and who worked in the partnership business (in physical and sedentary activities). He deposed the plaintiff enjoyed working with him and loved her gardening. Indeed, Mr Voinsky said he had relied on his wife to do the gardening.
375 Mr Voinsky described a happy marriage and physical relationship pre-accident with a sociable individual who enjoyed walking locally, visiting family, attending social functions and taking road trips with their daughter in Victoria and interstate.
376 According to Mr Voinsky his wife’s lifestyle changed significantly after the transport accident. She complained of frequent dizziness, headaches and pain in the neck and back. Her complaints of pain varied according to the extent and nature of the physical activities undertaken. Mr Voinsky observed his wife to be stiff in her movements and in a lot of discomfort most days of the week.
377 Mr Voinsky confirmed his wife now sleeps separately and sometimes on the couch in the living room so as not to disturb him, yet she still wakes most nights with complaints of headaches and back pain. In all, Mr Voinsky’s affidavit evidence emphasised the plaintiff’s loss of enjoyment of life in circumstances where she had become very upset because she was often in pain and not able to perform household chores or enjoy gardening.
378 Contrary to the evidence given by the plaintiff at hearing, the picture Mr Voinsky painted was of a marriage under considerable pressure and of a woman isolated by her complaints of mostly physical pain and her emotional state. He said they argued almost daily, their sexual relationship was almost non-existent, the plaintiff avoided interacting with family because (he surmised) pain in her spine caused moodiness and irritability, she expressed a preference for staying home to watch TV, she avoided leaving home to walk or visit family and she complained that sitting in the car for prolonged periods increased spinal pain.
379 Finally, Mr Voinsky said his wife’s inability to continue to work in the painting business had upset her, because her intention had been to continue working with him.
380 I was satisfied that the plaintiff’s failure to return to work in any significant way in the partnership (in a sedentary and/or hands-on fashion) was largely a result of her deteriorated mental state and probably had led to dissolution of the partnership but not the painting business in which Mr Voinsky said he continued to work alone. However, as earlier discussed, other than to accept that the plaintiff was likely mentally incapacitated for suitable employment, on the evidence presented to the Court, I was not able to properly evaluate the nature and extent of any pecuniary disadvantage suffered by the plaintiff.
381 It is unnecessary to repeat in detail Victoria Voinsky’s evidence because she largely corroborated her father’s evidence about the plaintiff’s mental state and functioning before and after the transport accident. She explained that her relationship with her mother had deteriorated because her mother was now short tempered and difficult to engage in conversation. So far as her daughter was concerned her mother presented as depressed most days of the week.
382 Despite the issues surrounding the reliability of the plaintiff’s evidence, the impression I gained from her assessment by the specialists and the evidence of the plaintiff’s husband and daughter was that the plaintiff now lived a life likely dominated by pain, the latter mostly generated by psychological factors and that there was a strong element of ongoing psychological distress.
383 Against this background I have accepted the force of Dr Serry’s opinion that the plaintiff probably requires specialist psychiatric treatment but that this is unlikely to reduce her psychiatric impairment levels. I think it clear from the evidence as a whole that the plaintiff’s psychiatric prognosis is guarded and she is likely psychiatrically impaired for suitable employment over the longer term.
384 The test in this case was whether on the available evidence the plaintiff had established that the consequences of injury to her psyche (measured in part by any accompanying physical incapacity), when judged by comparison with other cases in the range of possible mental disturbances, may be fairly described as both long-term and severe. This involved making a value judgment. In all, I was satisfied that the consequences of transport accident-related mental disturbance were fairly described as both long-term and severe.
Orders
385 Accordingly, pursuant to section 93 of the Act leave is granted to the plaintiff under subsection 93(4)(d) to bring proceedings for recovery of damages in respect to injury suffered in the transport accident on 2 October 2005.
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