Wright v Transport Accident Commission
[2024] VCC 1701
•31 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03094
| ERIN TAYLOR WRIGHT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2024 | |
DATE OF JUDGMENT: | 31 October 2024 | |
CASE MAY BE CITED AS: | Wright v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1701 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY APPLICATION
Catchwords: Continuation of a pre-existing back injury – Separation of pre-existing consequences – Isolation of impairment consequences – Reliability and inconsistency of evidence – Transport accident
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436
Judgment: Application Dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Hevey SC Mr A Hill | Pentana Stanton Lawyers |
| For the Defendant | Mr S Smith SC Ms J Clark | Hall & Willcox |
HIS HONOUR:
1Ms Wright has a history of back problems. Some date back to at least 2004. On 27 February 2015, she was involved in a motor vehicle accident. She claims this caused a “serious injury” to her back within the meaning of that term in s93 of the Transport Accident Act 1986. The central issue in this case was the application of Petkovski v Galletti (‘Petkovski’).[1]In that case the court said:
“… the accident did not cause the pre-existing condition; At this stage of the process the applicant must establish what injury was caused by the accident; Where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury."
[1] [1994] 1 VR 436
2This statement of principle identifies the central issue in dispute between the parties in this case. The defendant submitted that the plaintiff had very significant lower back problems and mental health issues prior to the motor vehicle accident. The defendant’s position was that first, any injury from the motor vehicle accident had resolved leaving the plaintiff with simply an ongoing continuation of her pre-existing back injury and its impairment consequences. Second, that if any consequences arose from an aggravation of her pre-existing back condition those consequences could not be separated from the pre-existing consequences. Third, if any impairment consequences could be isolated from those which pre-existed the 2015 incident they do not rise to the level which could be considered to constitute a serious injury.
3For the reasons which follow, I find that the plaintiff cannot satisfy the onus placed upon her to satisfy the principles in Petkovksi.[2] This is for the following three reasons. First, her affidavit evidence is so inconsistent that it cannot be accepted on fundamental matters. Second, her evidence in cross-examination lent further unreliability to her evidence overall. Third, when looked at as a whole the medical and other evidence called in aid by the plaintiff was fundamentally undermined by a failure to properly appreciate the true situation with the plaintiff’s lower back and mental health preceding the motor vehicle accident on 27 February 2015. To use the words employed by the court in Petkovski:[3] no accurate analysis can be made of the extent of impairment before and after the relevant injury in 2015.
[2] Ibid
[3] [1994] 1 VR 436
Relevant chronology
4The plaintiff was born in January 1982. From a young age she gave evidence that she had chiropractic treatment on her spine.[4] When pressed in cross-examinations to why this was the case, she simply gave evidence that it was her mother's decision despite the fact that she had no problems with her spine early on.[5] In about 1997, she had two surgeries on her knees. In particular, the right knee was problematic for her.
[4] Affidavit of Erin Taylor Wright sworn on 29 January 2019, at paragraph [5]
[5]Transcript (“T”) 45, Line (“L”) 20-22
5In about 2004, she experienced back pain for which she went to see her treating doctor. It appeared to be a self-limiting episode. Thereafter she married and had several children including stepchildren under her care. In about 2011, she developed some back pain and saw her treating doctor. I will return to this detail of her back pain in greater detail. For the moment it is sufficient to note that there was minimal treatment during 2011. More substantial episodes of back pain then occurred. In about 2013, she presented again to her treating doctor with back pain radiating to both legs. She was prescribed Panadeine Forte and Diazepam, and it was noted by the doctor that her back pain had been ongoing, which was worse every now and then.[6] She had a short course of physiotherapy.[7] It was noted that her pain was worse with sitting, walking and standing.[8] The physiotherapy appeared to assist her and she seemed to recover by October 2013.
[6] Plaintiff Court Book (“PCB”) 184
[7] PCB 232
[8] PCB 232
6Around this time she commenced working as a telemarketer four hours per day four days per week for a total of about 16 hours.[9] This work she described as being able to sit or stand at will while tethered to a headset and computer. She gave evidence that at this time money was tight at home and she did what she could to bring in some extra income.[10] By the end of 2013, her treating doctors‘ notes record that she was feeling much better though still required Panadeine Forte and Diazepam.[11]
[9] PCB 10, at paragraph [14]
[10]T20, L14-15
[11] PCB 183
7In mid-February 2014, she returned to her treating doctor with sciatic pain in the right leg and was not comfortable sitting.[12] She was prescribed Panadeine Forte and commenced on Lyrica for the first time.
[12] PCB 183
8That problem persisted throughout February and also involved a tingling sensation into both hands and feet. A referral to Monash Hospital neurosurgery was made. In that referral letter it was suggested that her neck and back problems had been present since about the age of six. As will be apparent from the chronology above, the treating doctor notes between 2004 and 2011 do not disclose as such. However, the defendant raised this ongoing neck and back problem as an issue which had not been disclosed in the course of the plaintiff’s affidavit material. Not much turns on this, for reasons set out below.
9On 21 February 2014, the plaintiff saw her treating doctor again and was noted to require a disability parking permit. An application for one seems to have been made.[13]
[13] PCB 182
10The plaintiff then had an emergency presentation to the Casey Hospital[14] with back pain and paraesthesia in the limbs. She was diagnosed with sciatic pain, prescribed OxyContin, Panadeine Forte, and referred to the neurosurgical outpatients.
[14]Defendant’s Court Book (“DCB”) 178
11On 3 March 2014, the plaintiff returned to her treating doctor and was prescribed Endone, Lyrica and Voltaren Rapid.[15]
[15]PCB 182
12On 21 March 2014, the plaintiff returned to her treating doctor with scripts from the hospital for OxyContin, 20 milligrams. She also had a prescription for Panadeine Forte.[16] She continued on with low back pain requiring Oxycodone, 20 milligrams at night and OxyContin, 10 milligrams by day, Endone and Panadeine Forte.[17]
[16] Ibid
[17] PCB 181
13On 5 April 2014, she had an MRI scan performed,[18] which noted an L5-S1 protrusion with some S1 nerve root contact.
[18]PCB 35
14On 11 April 2014, her treating doctor noted that she was in a lot of back pain and at 9 out of 10 on the visual analogue scale and was slow with walking.[19] A referral to Mr Timms, a neurosurgeon was made.
[19]PCB 183
15As her condition continued on throughout April 2014, she was referred by her treating doctor for a CT guided epidural injection at the L5-S1 level.[20] The epidural was noted to work well and reduce the pain by half.[21]
[20]PCB 9 at paragraph [11]; PCB 36
[21] PCB 179
16On 27 August 2014, she consulted a new doctor at her clinic, Dr Mundae. He renewed the application for a disability permit due to difficulty walking and moving around. The application noted that a mobility aid was used.[22]
[22] DCB 14
17On 28 August 2014, her doctor noted that she was having no relief from the epidural and continued on with Lyrica, Panadeine Forte and OxyContin and Oxycodone. The plaintiff gave evidence that in September 2014, she attempted to return to work but lasted only a few days.[23] Shortly thereafter in October 2014, it was noted that her back pain was worsening and she needed an increasing dose of Lyrica.[24] She was noted to be limping mainly due to her low back pain,[25] and by December of that year she was noted to have ongoing low back pain. The last entry prior to the motor vehicle accident was on 13 February 2015. At that time, the doctor noted that the back pain was chronic, that she remained on Oxycodone of 20 milligrams, and also OxyContin of 10 milligrams.[26]
[23] PCB 10, at paragraph [15]
[24] PCB 178
[25] PCB 177
[26] PCB 176
18The motor vehicle accident occurred on 27 February 2015. She was the driver of the vehicle and her husband was the passenger. They were stationary at the lights when they were struck from behind. They drove immediately to the treating doctor’s surgery. The treating doctor’s notes record that the plaintiff was in pain. Celebrex was given.[27] A week later, her back pain was noted to be much worse and she was walking with great difficulty and was recorded as “now taking full doses”.[28] Tramadol was given via injection into the deltoid.
[27] Ibid
[28] Ibid
19She continued on with back pain and had increasing doses of pain medication. She was sent for MRI in July 2015. She was referred to see an orthopaedic surgeon, Mr Cunningham. He requested funding for an epidural injection. He considered that the motor vehicle accident had been a significant contributing factor to her ongoing pain problems. The request for an epidural was denied and essentially the plaintiff has had no further treatment to her back. She has not had a course of physiotherapy or been a candidate for surgery. She has continued under the care of her treating doctor and her medication has been varied overtime.
What is the injury?
20The plaintiff’s case is that she sustained an aggravation of underlying degenerative changes in the low back as a result of the motor vehicle accident.[29] The medical evidence called in aid of that submission was primarily from Associate Professor Bittar. His opinion did not rely on any change in the radiological findings. This can be seen from his review of the radiological reporting at page 3 of his report.[30] Rather, his opinion was based on the change in her reported symptoms, recreational pursuits, ability to perform household tasks and medication regime.[31]
[29] PCB 70; Medical report of Associate Professor Bittar, 7 September 2022
[30] Ibid
[31] PCB 69-70
The claimed impairment consequences: Can they be adequately delineated as required in Petkovski?[32]
[32] [1994] 1 VR 436
Pain
21Coming to deal with each in turn and beginning with the issue of pain.
22In her first affidavit the plaintiff deposed in the following terms:[33]
“For a number of years prior to the transport accident I experienced intermittent back pain sometimes with referred pain into my legs and feet. These pains usually resolved by themselves, though on occasions I had medical treatment and was prescribed pain mediation [sic].”
[33]PCB 9, paragraph [7]
23She gave evidence that she meant to convey that her pain came and went.[34] She said that the pain was there for the majority of the 2014 year and was on and off.[35] She confirmed in her affidavit that with such pain she could still go to the beach, to the movies, be with her friends, go to bingo and take her children to the park.[36] It can be seen from the chronology above that, by the end of 2013, she had been to the physiotherapist and was in much better condition than earlier on in the year. However, she returned to her doctor in February 2014 with sciatic pain in the right side and was not comfortable sitting. She was given Panadeine Forte from that time. Back pain was being recorded consistently in her notes through February and she was prescribed Endone, Lyrica and given Voltaren Rapid by the beginning of March. This does not appear to have alleviated her pain symptoms and she then had a visit to the hospital and was prescribed OxyContin and Oxycodone, Panadeine Forte and continued on with Endone and Lyrica.
[34] T 9, L16
[35] T8, L25-27
[36] T9, L2-7
24In April 2014, she was noted by her doctor to be slow with walking and had pain at up to 9 out of 10 (on the visual pain scale with 10 being the worst). That is consistent with the prescription of such strong pain medication such as Oxycodone and OxyContin. It is also consistent with her treating doctor applying for disability parking permit for her in February 2014. Her medication regime continued with these heavy medications through April and then into May when she had the epidural injection.
25Pausing there, it can be seen then that from February through to 19 May 2014 the picture painted of pain was anything but on and off. It required ongoing prescriptions of, not simply, medications such as Panadeine Forte but the much stronger OxyContin, Oxycodone and Lyrica. Even these medications were somewhat inadequate as her treating doctor referred her for an epidural. This all tends to support a finding that her pain was consistent and significantly troubling because the pain medication was not working so that more intense treatment was required. At least in this regard it appears that the plaintiff’s evidence of intermittent pain is somewhat inconsistent with what is disclosed by the medical notes and also by the prescription of the pain medication.
26It is apparent that the epidural injection on 19 May 2014 had an ameliorative effect. On the plaintiff’s evidence, it seems accepted this led to some two to three months where the pain abated. Picking up with the treating doctor’s notes, however, on 27 August 2014 there is a notation the plaintiff was having difficulty walking/moving around, that she used a mobility aid and that she could not walk distances. These matters were noted in the disability permit application made by her treating doctor.[37] The plaintiff, in cross-examination, admitted that the writing on the application was hers. It thus seems consistent that after the epidural had worn off her pain returned in a way which preceded the epidural injection such that she commenced again with the Panadeine Forte, the Oxycontin, the Oxycodone and the Lyrica.
[37]DCB 13
27While it is the case that she attempted to return to work for a few days in August or September 2014,[38] the treating doctor notes record that her back pain was getting “really bad” and Lyrica was increased. Similarly, by mid-November her treating doctor notes that she was limping mainly due to lower back pain.[39] Pausing there to consider the plaintiff’s evidence in her first affidavit of intermittent pain, it seems to be inconsistent with the picture presented by the clinical notes and the prescriptions of medications during the latter part of 2014.
[38]PCB 10, at paragraph [15]
[39] PCB 177
28This inconsistency continues when regard is had to paragraph four of her second affidavit in which she stated, “I had previously been prescribed medication like Panadeine Forte and Mobic, and even the occasional Lyrica or Oxycontin [sic].”[40] As can be seen by the recitation of the treating doctor attendances and prescriptions for 2014, the prescription of Lyrica, Oxycodone and OxyContin was more than occasional. Rather, my impression is that save for the period during which the epidural was effective, the medications were being prescribed consistently.[41]
[40] PCB 15, at paragraph [4]
[41]D153-157 and Annexure A which sets out the medication dosages
29In her fourth affidavit the plaintiff described that prior to the motor vehicle accident her pain would vary from about 2-4 and 10 on the visual analogue scale with 10 being the worst.[42] Some attention was paid to this topic in cross-examination. First, that it conflicted with the notation of her treating doctor, who recorded her as having pain of 9 out of 10 on 11 April 2014.[43] The plaintiff explained that her perception of pain had changed after the motor vehicle accident such that what she considered a 9 in 2014 was now not much more than a 4. I accept that perception of pain and its rating on the visual pain scale can vary over time. Not much turns on this. Second, it was put to her that if her pain was so mild it would not warrant the prescription of such heavy pain medication as Oxycodone and OxyContin. The plaintiff’s response was much the same. She further stated that after the motor vehicle accident her dosages of such medication increased. The plaintiff’s evidence on this point is inconsistent with the ongoing, consistent prescription of strong pain medications and certain dosages. This can be seen in Annexure A which is a charting of the prescriptions and dosages of:
(a) Pregabalin and Lyrica
(b) Oxycontin and Oxycodone
I will deal with this analysis below. It is sufficient to say at this stage that the plaintiff’s evidence as to the consistency and level of her pain in 2014 was inconsistent and unreliable. Annexure A shows consistent and at times increasing doses of strong pain medication throughout 2014.
[42] PCB 26, at paragraph [4]
[43] PCB 183
Ability to do activities
30As I have said above, the plaintiff deposed that during 2014 she was able to perform activities with her children at parks, go to the beach, go to the movies and perform housework. The contradictory evidence the defendant pointed to from the medical notes was limited in nature:
31they commented upon her walking with a limp in November 2014;
·the application for a disability permit which noted the difficulties with mobility in the earlier application for a disability permit in February 2014;
·and again more specifically in August 2014,[44] with the notation that the plaintiff had difficulty with walking;[45]
·she was also noted to have difficulties from as far back as February 2014, with being uncomfortable sitting and found standing to be better.
[44]DCB 13
[45]Ibid
32I consider these entries to be reasonably isolated to certain moments in time. However, while they do not demonstrate a wholesale inconsistency and unreliability of the plaintiff’s evidence on this topic, they further the impression that there is some real uncertainty as to the true state of her impairment consequences during 2014.
33It is also relevant to note that the plaintiff ceased work as a result of the increase in her back pain in about February 2014. She attempted a return in or around September 2014 but lasted only a few days. She accepted this was light work. The fact that she could not do the work either before or after the epidural suggests that the impact on her ability to function was significant and long lasting. Together they do establish that the plaintiff had difficulties with mobility, occupational leisure activities from time to time. By themselves, however, they do not make good the defendant’s submission that she was consistently unable to perform the activities she deposed to: the park with children; movies; the beach et cetera.
34However, the disabled parking permit application from August 2014 is a permit which is applied for in the plaintiff’s own hand and which is said to span a period of one year forward from that time. The application was made on the basis that the plaintiff believed she would have the difficulties which she described; difficulty with walking and moving around, particularly over distance, as persisting for at least a year. In that circumstance, I find that contemporaneous evidence under the plaintiff’s own hand and made with the support of the plaintiff’s treating doctor, to be powerful evidence as to the plaintiff’s state of mobility and function from late August 2014. It certainly suggests strongly that the plaintiff had difficulty with walking over distance and moving around from August 2014, until the date of the motor vehicle accident at least.
35The plaintiff’s evidence in cross-examination was that the permit was sought simply to allow her to park in a wider space as she had difficulty getting in and out of the car and not because she could not walk the distance from a carpark to the shopping centre for example.[46] However, this evidence cannot sit with her own application form on 27 August 2014, that she had difficulty walking and particularly over distance. This is one area of inconsistency which works against the acceptance of the plaintiff’s evidence on this point and more broadly.
[46]T37, L19-25
36Perhaps the most significant evidence given on this point occurred when she was cross-examined about the first disability permit application in February 2014.[47]The plaintiff gave evidence that after the epidural injection on 19 May 2014 she did not need the permit and so put it into the glove box of her car. She gave evidence that even when her pain returned she did not need the permit. Essentially, this was evidence that she was able to function reasonably normally with the pain that she had before the epidural and which returned after the positive effects of the epidural had worn off. It was also an attempt to explain the difference between her condition before the motor vehicle accident and that which occurred after it.
[47] PCB 182
37However, it was then pointed out to the plaintiff that there had been a second application for a disability permit made on 27 August 2014. That permit was under her hand and set out difficulties walking, moving around and particularly walking over distance. She accepted that she would not have made such an application unless her conditions were as she had described. She went further and accepted that she anticipated by signing the application that such conditions would continue for the forthcoming year that the permit was sought.
38She was then asked specifically whether the form meant that she struggled to walk as at 27 August 2014, and that that was the condition which would persist. She accepted that proposition.[48] This was clearly inconsistent with her affidavit evidence of being able to go to the park, go to bingo, go to the movies and go to the beach. By itself all these activities could be tolerated by someone with reduced mobility. However, the clear tenor off the affidavit material was that these activities could be performed with little interference from the back injury. The disability permit form in combination with the medication regime told an entirely different story.
[48] T43, L28-30; T44, L1-8
39Furthermore, in the giving of her evidence on the topic of the second disability permit her answers were inconsistent and clearly did not make sense. For example, stating that the second permit was sought to allow her to get in and out of the car more easily rather than to deal with her inability to walk over distance. This was because the second permit specifically stated that mobility over distance was a key reason the permit was sought.
40It was also completely inconsistent with her evidence that she had placed the first permit into the glove box and did not need to use it after the epidural injection. In contrast, and quite clearly, she had had a remission of her symptoms such that she thought she required the disability permit again. When pressed, she also gave inconsistent evidence as to how the second permit application came to be made. She sought to explain the permit on 27 August 2014 as being something urged upon her by her very sympathetic treating doctor, Dr Jadaw.[49]
[49] T43, L2-4
41It was clear she was attempting at this stage to explain the inconsistency as to why there was another permit applied for when she had just said that she did not need the first permit and had placed it in her glove box. It was immediately pointed out to her that the application for the second permit was made by Dr Mundae and not Dr Jadaw, who had left the clinic some months prior. While this may have been a minor misremembering of a doctor’s name from some nine years ago, it is a further area of inconsistency and undermines the reliability of her evidence.
42In total these matters reinforce my assessment that her condition was not intermittent but was consistent and disabling during 2014. I am unclear if she was actually able to perform the activities she deposed to being able to. This throws into very significant doubt whether or not she has correctly deposed to the consistency or severity of her low back impairment consequences pre-existing the motor vehicle accident.
Sleep
43In cross-examination, the plaintiff accepted that in the three years prior to the motor vehicle accident she would generally have sleep of about six hours a night, sometimes eight, of “very good sleep”.[50]
[50] T18-19
44She accepted in cross-examination however, that her back pain negatively impacted her sleep.[51] She was taken to Dr Jadaw’s notes of April 2014, in which it was recorded that she was struggling with sleep due to back pain and migraines.[52] She accepted that in fact during 2014 there were five or six occasions on which her sleep was interrupted by her back pain or migraines. In her second affidavit, she deposed that her sleep after the accident was “badly affected” and “changes from night to night”. [53] Her affidavit material said nothing about any sleep problems prior to the motor vehicle accident, either due to back pain or migraines.
[51]T13-T14
[52]PCB 180
[53]PCB 16, paragraph [11]
45There is a real difficulty in assessing what the true state of her sleep problems were prior to the motor vehicle accident because of the inconsistencies referred to above in the two preceding paragraphs. That makes it impossible to determine what sleep problems have resulted from the motor vehicle accident. This is because of the deficiencies in the affidavit, the concessions in cross-examination and the inconsistency in her answers when pressed on what caused the sleep disruption. By this I mean the fact that she admitted to a long history of migraines which disrupted her sleep, yet saying that from 2012 to 2015 she had sleep which was refreshing sleep consistently.
Mental health
46Turning to consider the plaintiff’s evidence as to her mental health. She gave evidence that prior to the motor vehicle accident her mental health was good. She was then confronted with Dr Jadaw’s clinical notes from 2013.[54] She accepted that she was on antidepressant medication consistently and at least until mid-2013 for panic attacks, stress and anxiety.[55] She tried to explain this by saying that she did not consider panic attacks, stress and anxiety as being mental health issues.[56] These answers were wholly unconvincing. I do not accept them. It is undoubted that these conditions are mental health issues.
[54]DCB 140
[55]T23
[56]T29, L27-T30, L28
47This supports a finding that the plaintiff’s evidence on her mental health status prior to the motor vehicle accident was inconsistent and unreliable.
The plaintiff’s pain in her feet
48The plaintiff also claimed that after the motor vehicle accident the pain had spread into her feet.[57] She deposed that before the motor vehicle accident she had no problems in her feet.[58]
[57]PCB 27 at paragraph [10]
[58]Ibid
49The plaintiff was then taken to the referral to Monash Hospital neurosurgery in 2014 written by her treating doctor, who recorded that she had pain into her feet because of her back pain and it was one of the reasons for the referral to the neurosurgeons. When confronted with these recordings, the plaintiff explained that the pain post-motor vehicle accident was to a different part of her foot.[59] This is another example of inconsistency in the plaintiff’s evidence. The explanation which she gave in cross-examination seems unbelievable. This was because the affidavit made no mention of which part of the foot was specifically impacted by the back pain.
[59]T61, L23-24
50This is a further reason for my overall finding that the plaintiff’s evidence was inconsistent and unreliable as to the pre-existing injury and its impairment consequences. Consequently, I find it is impossible to establish whether this claimed impairment consequence is caused by the motor vehicle accident.
The plaintiff’s medication regime
51The plaintiff submitted that after the motor vehicle accident she has required increased doses of medication. Annexure A sets out in graph form the medication both pre and post-motor vehicle accident. It very broadly demonstrates increases in the plaintiff’s medication regime as submitted. By itself this is of limited utility because the focus required by the principles in Petkovski[60] is on the impairment consequences resulting from the injury. The details of the prescription dosages and timing of them however do not support the plaintiff’s case.
[60] [1994] 1 VR 436
52As will be apparent from the preceding findings, the plaintiff’s evidence as to her true health state prior to the motor vehicle accident cannot be ascertained accurately. Similarly, it is not possible to say on the balance of probabilities what impairment consequences flowed from the motor vehicle accident.
53As to medication, it can be seen that there was a strong painkilling medication regime both before and after the motor vehicle accident and that the medication was at increased levels for many years after the accident. However, I cannot accept the plaintiff’s evidence about her impairment consequences post the motor vehicle accident simply because it aligns with this broad increase in the medication regime. This is because she has been consistently inconsistent in ascribing impairment consequences to her pre-existing condition and the medication regime required for it. I do not accept her evidence.
54This can be seen first in respect of the Pregabalin/Lyrica table. It shows consistent prescriptions in 2014 with a significant increase in dosage prior to the date of the incident. This shows the inconsistency in the plaintiff’s evidence as to consistency and severity of the pre-existing spinal problems. It strongly suggests strong constant pain. Then it can be clearly seen that the consistency and dosage in the 2-3 months post-accident remains the same. It could be expected the injury would be worse immediately on the occurrence of the accident resulting in a spike in medications. It did not. That increase in dose occurs only in June 2015, some 2 months later. The same can be seen on the Oxycontin/Oxycodone graph by milligram. This charting I find tends to favour an interpretation of a longstanding serious back injury. If there is any impact from the motor vehicle accident, it is difficult to ascertain and isolate on the medication alone.
55For the preceding reasons, I will decline the plaintiff’s application. I will give the parties three days in which to file consent orders reflecting the decision, failing which the matter can be called on for directions if necessary.
Annexure A
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