Xie v TAC

[2021] VCC 1913

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-00619

FIONA XIE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 November 2021
DATE OF JUDGMENT:	8 December 2021
CASE MAY BE CITED AS:	Xie v TAC
MEDIUM NEUTRAL CITATION:	[2021] VCC 1913

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – Motor vehicle accident – Impairment to

neck and spine – Whether Plaintiff’s evidence is inconsistent and unreliable – Focus on Plaintiff’s involvement in various companies and affluent lifestyle

Legislation Cited:      Transport Accident Act 1988 (Vic)         

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Ms P Prossor	Zaparas Lawyers
For the Defendant	Mr P Jens QC with Mr S Pinkstone	Solicitor for the Transport Accident Commission

HIS HONOUR:

1Ms Fiona Xie was involved in a motor vehicle accident on 28 March 2012. She alleges that the injuries sustained in that motor vehicle accident have resulted in serious injury in accordance with the definition contained in s 93(4) of the Transport Accident Act 1988 (Vic). It was not in dispute that the accident occurred or that injury to the spine was occasioned by the accident. The Defendant’s position, however, was that the impairment consequences flowing from the injury had long since resolved. The Defendant submitted that the impairment consequences, as deposed to by Ms Xie and her daughter, could not be relied upon as the evidence was inconsistent and unreliable.

2The battleground in the case then was whether or not the impairment consequences deposed to by Ms Xie could be accepted. If they were, it appears to me undoubted that those impairment consequences would satisfy the necessary definition. I did not understand the Defendant to seriously contend that the impairment consequences as deposed to were more than trivial, but could not be considered more than significant or marked.

Relevant chronology

3Ms Xie was born in May 1971 in China. She came to Australia in 1996. She has one daughter, Tracey Huang, from her first marriage. Ms Huang is currently living with her and studying Law at Monash University.

4Ms Xie worked with her first husband and then her second husband in various import/export businesses.

5After Ms Huang was born, Ms Xie had some complaints of low back pain, but these were normally self-limiting episodes and managed with non-prescription medication.

6Relevantly, on 25 March 2012, Ms Xie was engaged in a social game of badminton, a pursuit which she engaged in regularly with friends, when she strained her back while playing a backhand. She saw her local treating doctor and complained of restricted movements. She was referred for physiotherapy. She saw a physiotherapist the next day.[1]

[1]Plaintiff’s Court Book (“PCB”) 70

7Then, on 28 March 2012, she was involved in the subject transport accident. She was travelling in the right lane on Lonsdale Street when a vehicle in the left lane turned into the side of her car. Her vehicle was towed away and was a complete insurance write off. Ms Xie did not, at that stage, believe she was badly injured. She did not go to her treating doctor, nor did she go to the hospital.

8The first note of medical attendance in relation to the accident occurred when she saw her treating doctor on 18 April 2012.[2] Scanning at that stage revealed no definite evidence of trauma.[3] Ms Xie’s treating doctor referred her for physiotherapy treatment. It is to be noted that she had made a claim with the Transport Accident Commission (“TAC”) by this stage and the claim had been accepted. Physiotherapy treatment was an accepted modality of treatment by the TAC. Ms Xie attended at Top To Toe Physiotherapy for over 33 attendances in 2012.[4] She went on to have more physiotherapy in 2013, some 29 times.[5] Her treating doctor noted that the physiotherapy was helping her to achieve function and to reduce her pain. Her treating doctor was prescribing her Mobic at this stage. Her affidavit indicates very clearly that she received significant benefit from this treatment.[6] In fact, in April 2013, in keeping with the benefits received from functional treatment, her treating doctor referred her to Dr Abbas Din, an osteopath. She had some 34 attendances with him in 2013 and 49 attendances in 2014. She continued to receive benefit from these osteopathic treatments, so much so that Dr Din suggested to her in 2013 that she should be as active as possible. She deposed that despite Dr Din’s advice, and her attempts to play badminton to improve her movement, she found that playing was aggravating her pain.

[2]PCB 219

[3]PCB 113

[4]Exhibit P3 – Medical treatment summary prepared by the Plaintiff

[5]Exhibit P3 – Medical treatment summary prepared by the Plaintiff

[6]PCB 25, at paragraph [17]

9Relevantly, in about March 2015, the TAC ceased funding for physiotherapy and osteopathic treatment. Ms Xie had no treatment from an osteopath or physiotherapist for some two years until mid 2017. At that stage, her treating doctor, Dr Elean To, considered that she would benefit significantly from a return to such physiotherapy or osteopathic treatment.[7] Dr To referred Ms Xie to Mr Quan, an orthopaedic surgeon. His report was clear that while at that stage there was no role for surgery in 2017, he considered that she needed to continue osteopathic or physiotherapy treatment.[8] He noted at this stage that she had been trialling Chinese medicine treatments. As a result, and armed with this material, the treating doctor sought funding from the TAC for further treatment. This was approved and Ms Xie returned to physiotherapy in October 2017. She had some 15 attendances of physiotherapy through 2017, 57 attendances in 2018, and a further 5 attendances in 2019.

[7]PCB 58, letter of Dr To dated 19 June 2017 to the TAC

[8]PCB 85

10During this period of time, Ms Xie managed to increase her hours of work from about 20 hours per week at the time of the injury, to a position where she began to work full time. She was employed at a number of businesses run by her ex-husband and herself. However, in about 2019, she returned to work with RED 3 Pty Ltd, a plastics manufacturing business of which she was the director. This business is currently doing well and she works there for about 38 hours per week.

11By mid 2018, Ms Xie’s condition continued to be a problem, so Dr To referred her to an interventional pain specialist, Dr Richard Sullivan.[9] At that stage, he believed she was suffering from nerve root irritation at the lumbar L4/5 level and he recommended a transforaminal injection at that site. She was not keen on that proposed course of action so did not take it up. She continued on with physiotherapy treatment and also traction treatment through the National Institute of Integrative Medicine, and had some 31 attendances there throughout 2019.

[9]PCB 86

12Ms Xie saw Dr Sullivan during 2019 and he continued to recommend the transforaminal injection to ease her lumbar spinal pain. She remained wary of such an invasive procedure. He referred her on to Dr Hazem Akil, a neurosurgeon.[10] After reviewing MRI scanning of her lumbar spine, he recommended a lumbar fusion and decompression at the L4/5 level. In keeping with her previous reservations about invasive procedures, she declined this opportunity. She did, however, ultimately undergo the L4/5 transforaminal epidural injection. She deposes in her affidavit material that this provided her with some benefit, but she deposed that she continued with pain and limitation of movement. She returned to see Dr Akil in January 2021 and he continued to recommend the fusion procedure to her. To date, she has not decided to proceed with this advice.

[10]PCB 101

13As at the date of trial, Ms Xie’s affidavit material deposes to ongoing pain and limitation of movement. While she can work, she describes difficulties with it, particularly where she has to sit and stand for prolonged periods. Her daughter’s affidavit is supportive of the limitations of which she complains. I will return to the impairment consequences at a later time.

14Ms Xie’s case is that she has sustained aggravation of lumbar and cervical spondylosis which causes ongoing pain in the spine and in both the lower and upper limbs.

The Defendant’s arguments

15The Defendant made two primary arguments against a determination that Ms Xie has a serious injury. First, that she had retained a large amount of functionality and this tells against any significant impairment consequences. In particular, the Defendant pointed to the fact that she currently worked 38 hours per week, was successful in business, led an affluent lifestyle driving a Porsche and living in Balwyn in a house worth over $2 million, she had retained the ability to travel to China several times a year but for COVID, and that she had an ongoing ability to participate in an intimate sexual life. The second argument, which was perhaps more substantial, was that Ms Xie was an unreliable witness and the impairment consequences she deposed to ought not be accepted. The Defendant relied on a number of matters said to demonstrate her unreliability. I will come to those shortly.

16It has often been said in cases such as this that Ms Xie’s credibility is the touchstone on which their success lies. This case is one such example. I found Ms Xie overall to be a very credible witness. On the whole, and looking at the totality of the evidence, she gave evidence in a direct and responsive way. Her affidavit evidence was well supported by contemporaneous recordings of the medical material. I will come to each area that the Defendant suggests discloses inconsistency and founds their argument about unreliability, but I record my finding here that I accept Ms Xie’s evidence overall as to her impairment consequences in both her affidavit evidence and her viva voce evidence.

17Turning then to consider each of the matters which the Defendant argued disclosed Ms Xie was an unreliable witness. The first matter raised was that Ms Xie’s evidence about her business dealings was confused, unhelpful, and at times misleading. Ms Xie submitted through her counsel, Mr Macnab SC who appeared with Ms Prossor, that Ms Xie was an unsophisticated witness. I would not accept Plaintiff’s counsel’s characterisation of Ms Xie in these terms. She is a woman who has run numerous businesses since arriving in Australia in 1996. She has been both a director and a shareholder. She was the sole director of some of these businesses. She gave evidence that she assisted her daughter in a rental collection business herself. Overall, she struck me as an experienced businesswoman. I would not consider her to be unsophisticated. It is also clear that the evidence she gave about the business dealings she was involved in after the incident was confused. She did not, for example, adequately explain how her daughter came to run the rental collection company. However, it is to be remembered at this time that Ms Xie and her second husband were engaged in an acrimonious relationship breakdown. This had been prompted by a litigious dispute involving one of their companies. Ms Xie explained this was a difficult period. Overall, I consider that not much turns on this point. While I did not get a clear picture of how the rental collection business came to be operated by her daughter, the taxation summary provided quite clearly indicates the income that she was deriving from the relevant businesses that she was involved in. There was no great precision in cross examination as to way this was said to be inconsistent with the impairment consequences that Ms Xie deposed to. I do not consider the confusion in this area of evidence went to any matter really in dispute.

18It was also suggested that Ms Xie’s evidence that the motor vehicle accident had had an effect on her marriage, leading to its breakup in about 2015, was inconsistent. It was said to be contrasted by the evidence, recorded in Dr Nigel Strauss’s report of 17 October 2018, where he recorded that she told him that her marriage deterioration had nothing to do with the effects of the motor vehicle accident. [11] When regard is properly had to the transcript it can be seen that Ms Xie was noting simply that the motor vehicle accident had an effect on her.[12] She made clear that the pain in her back caused her difficulty sleeping at night and then this caused her to become irritable and quarrel with her husband. When looked at in its totality, Ms Xie was really indicating that the breakdown in her marriage was multifactorial and that the back had some role to play in it, but there were other factors at work. When regard is had to the situation in 2015 with the difficulty with the business and the court case, Ms Xie’s evidence is most likely true. I do not view her comment, as recorded by Dr Strauss, to be in such stark terms as the Defendant would have it. An appreciation of the totality of the evidence, rather than a simple focus on Dr Strauss’s recorded comment, leads me to accept her evidence during cross examination that the back injury was one factor, but by no means the only factor, leading to the breakdown in her marriage.

[11]Defendant’s Court Book (“DCB”) 6

[12]        Transcript (“T”) 23, Line (“L”) 12-16

19It was next suggested that Ms Xie’s evidence on affidavit as to her difficulties travelling were not borne out by the evidence given in cross examination.

20In cross examination, she gave evidence that she has gone back to China once a year after the accident, but before the accident she used to travel two to three times a year.[13] She gave evidence that since 2012, she has been to China only once without her daughter. This was said to be contrasted with her daughter’s affidavit. However, when regard is had to Ms Huang’s affidavit,[14] there does not really appear to be any inconsistency and I do not consider the evidence on this point to, in fact, have been inconsistent.

[13]T67, L5-7

[14]PCB 43, at paragraph [14]

21Ms Xie was also challenged on the grounds that she had only required prescription pain medication on three occasions since 2012. Ms Xie gave evidence that prescription medication was unhealthy and gave her diarrhoea such that she stopped taking that medication. The Defendant suggested that such evidence was not contained in her affidavit material and was essentially made up on the day of trial. I would reject that assertion given her treating doctor’s letter to the TAC where she notes that the use of Mobic is unhealthy.[15] This is largely consistent with Ms Xie’s evidence. It provides a sound basis as to why Ms Xie did not continue with Mobic. I reject the Defendant’s submission that the lack of ongoing prescription medication use is indicative of a condition which had minor pain consequences.

[15]PCB 56

22It was next suggested that Ms Xie had not properly disclosed that her condition improved in 2013, as recorded by Dr Din, the osteopath. Particularly, he had recorded that she should attempt to return to badminton. The answer to this submission lies in Ms Xie’s affidavit sworn 29 August 2019. At paragraph [17], she initially stated that Dr Din’s treatment had helped to keep her functioning. She recorded that when she was not having treatment, her neck and back symptoms worsened. In fact, she deposed clearly at paragraph [25] that Dr Din had recommended she try to be as active as possible and hence she had tried to play badminton. She explained clearly the effect of that continuing effort.[16] I find there is no inconsistency or unreliability as the Defendant submitted.

[16]PCB 28, at paragraph [25]

23It was next suggested she had given inconsistent histories about her work capacity. In October 2018, Dr Strauss has recorded her working 10 hours of clerical work with occasional time off.[17] A month later she told Dr Sullivan she had been retrenched because she was unreliable.[18] I find there is no inconsistency given the two comments are recorded at different times.

[17]        DCB 6

[18]        PCB 86

24Next, it was said that Ms Xie gave unreliable and inconsistent evidence about the driving of a black Porsche. I accept the Defendant’s submission that Ms Xie’s evidence about how she comes to drive a company car was somewhat confused. However, at most, all this is an attack on whether or not the company Ms Xie is a director of has provided a company car to her. This does not touch on any aspect of her impairment consequences or raise any inconsistency with the evidence contained elsewhere in the tendered material. I put it to one side. Similarly, criticism was made of her for living in an expensive property in Balwyn. Once again, this does not touch on any matter of inconsistency said to arise in the affidavit material. Rather, it seemed more to pose a rhetorical question; how could someone so injured be living in such an expensive house? This question has no relevance to the issues before the Court in this application. I put it to one side. In a similar vein, it was said that cleaning receipts tended to show that Ms Xie had domestic cleaning services, which was entirely consistent with someone living an affluent lifestyle. Something was sought to be made of the non-sequential numbering on the top of the receipts. Not much could be said about this because the company that provided the receipts gave no evidence. The Defendant essentially seeks that the Court make an inference that the receipts were doctored. There is no factual basis for such an inference to be drawn and I do not draw it. I reject the Defendant’s contentions in this regard.

25More substantially, the Defendant submitted that between mid 2015 and mid 2017, Ms Xie had no osteopathic or physiotherapy treatment. It was submitted that this indicated her condition was not serious and that she could function very well without treatment. I reject that contention. This is because treatment was only ceased because the TAC had stopped funding. This is made apparent when Dr To’s letters are examined. She had sought additional funding for osteopathic and physiotherapy treatment after mid 2015, but this was rejected. Dr To continued to worry about Ms Xie’s condition such that she sought to obtain funding, first by referring Ms Xie to Mr Quan. He not only noted that she was having Chinese medicine during this period, but that she would benefit from continuing physiotherapy and osteopathic treatment. On this basis TAC authorised payments for such treatment and Ms Xie recommenced such treatments. I find, therefore that the only reason there was no osteopathic and physiotherapy treatment in this period was because of funding. I find that Ms Xie benefited from such treatment and it assisted her with pain and function. Overall  I reject the Defendant’s contentions that Ms Xie’s evidence was inconsistent and unreliable such that I could not accept it as to the impairment consequences deposed to. I record my finding that I considered her to be a direct witness who attempted to help the Court. I accept her evidence.

26Turning  to an assessment of the impairment consequences. As I have just indicated, I accept the impairment consequences are those as set out by Ms Xie and supported by her daughter in their affidavit material. More specifically, however, I accept that she has ongoing pain of a significant level as a result of the motor vehicle accident. I accept that she had some pre-existing back pain stemming from the time of the birth of her daughter. However, it appears from Dr To’s notes that these were not significant episodes. Further, the episode at badminton in the days before the motor vehicle accident also appear to be self-limiting.[19] This is supported by her treating neurosurgeon, Dr Akil,[20]

[19]PCB 139

[20]PCB 107, at paragraphs [2]-[4]

27The aggravation of her lumbar and cervical spondylosis has led to ongoing pain. The pain she describes in her lumbar spine as being constant in her neck and radiating into both her arms. The neck pain she describes as being there all the time at about a level of 4 to 5 out of 10.[21] She also has constant low back pain radiating into both legs, her left leg pain worse than the right. She estimates her back pain to be about 7 to 8 out of 10.[22]

[21]        PCB 30, at paragraph [33]

[22]PCB 31, at paragraph [37]

28While she takes Panadol, she has previously trialled Mobic and Voltaren. She has had one steroid injection to the low back, with some alleviation of pain but it was not long lasting. In addition, she has had Chinese medicine treatment, but more particularly, she has had long term physiotherapy treatment and osteopathic treatment as well as, more recently, traction treatment. This treatment is extensive and I will not set it out, but it is set out in great detail at Exhibit P3. I accept that this course of treatment is intensive, longstanding and required for Ms Xie to maintain control of her pain and to function. I consider that at her young age when she sustained the accident to date is an extraordinarily long period of time and she faces a future where she will have to continue with such treatments in order to manage her situation. I consider this to be a significant consequence.

29I accept that the pain and limitation of function that she deposes to affect her in her everyday life. Her daughter deposes, consistently with her, that she has to do most household tasks and assists with shopping. In addition, there is a cleaner to do the heavier cleaning tasks. For a woman of her age to be reliant on her daughter to such an extent is objective evidence of the serious nature of her impairment consequences. In addition, her condition affects her ability to travel freely. While she deposes that she has been able to travel to China, this is something that has been curtailed by reason of her injury and she also needs some assistance with lifting heavier bags and the like. The injury has also affected her social pastime of badminton, which was a pursuit she enjoyed. These latter two matters are of a lesser note than the previous matters mentioned when considering the serious consequences of her injury.

30Lastly, I record that I would reject the evidence of Mr Gary Speck, orthopaedic specialist, that Ms Xie has had only transitory impairment consequences and that she now is simply displaying abnormal illness behaviour. Mr Speck saw Ms Xie on only one occasion. That was some months prior to trial. His opinion compares unfavourably to that of all the treating doctors. They have seen her for a much longer period of time and on a treating basis rather than a medico-legal basis. They have advantages over Mr Speck in both regards. This is also true of Dr Akil, though he has been involved with her care for a shorter period of time. None of them opined that Ms Xie is anything but a genuine person accurately relaying her symptoms. I record that her treating neurosurgeon actually had recommended fusion surgery on her lumbar spine to deal with her situation. I consider this to be objective evidence that her condition is organically based rather than being a result of abnormal illness behaviour.

31I also would adopt the comments of Professor Richard Bittar and Dr Akil in relation to Mr Speck’s opinion, after they had been provided with Mr Speck’s reports and have pointed out its deficiencies.

32For all the above reasons, I reject the Defendant’s contentions and I find the impairment consequences do rise to the level to be considered more than significant or marked. For this reason, I determine that Ms Xie has sustained a serious injury within the meaning of the Transport Accident Act 1988 (Vic).