Youlten v Transport Accident Commission
[2023] VCC 515
•14 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-01030
| PAULA YOULTEN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 April 2023 | |
DATE OF JUDGMENT: | 14 April 2023 | |
CASE MAY BE CITED AS: | Youlten v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 515 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – psychiatric injury – depression – whether the consequences for the plaintiff are “severe” – physical injury to the cervical spine – whether the consequences for the plaintiff are “serious” – credit of the plaintiff
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: The application for serious injury certification in respect of psychiatric injury was abandoned prior to the commencement of the proceeding hearing. The application for serious injury certification in respect of physical injury to the plaintiff’s cervical spine as a result of the transport accident on 17 September 2018 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr B Cooper | Carbone Lawyers |
| For the Defendant | Mr P B Jens KC with Ms S Manova | HWL Ebsworth Lawyers |
HIS HONOUR:
1This is an application brought by Originating Motion dated 23 March 2021. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of a transport accident which occurred on 17 September 2018 (“the said date”).
2The Originating Motion initially sought a serious injury certification for a severe long-term mental or severe long-term behavioural disturbance or disorder pursuant to s93(17)(c). Prior to the commencement of the hearing in this matter, counsel for the plaintiff announced to the Court that the plaintiff would not be pursuing a serious injury application in respect of the psychiatric injury arising from the transport accident on the said date.
3Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied that the injury suffered by the plaintiff is a “serious injury”. In this application, the definition of “serious injury” relied upon by the plaintiff under s93(17) is:
“(a)serious long-term impairment or loss of body function.
… .”
4The plaintiff seeks serious injury certification by the Court for the loss of the body function of her cervical spine.
5The enquiry under s93(17)(a) of the Act focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function and then, by reference to the consequences of that impairment, determine whether it is serious and long term.
6The serious injury defined by ss(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute, or be the producer of, an impairment of the body function.[1]
[1]Richards & Anor v Wylie (2001) 1 VR 79
7In forming the judgment as to whether the consequences and the injury are “serious”, the question to be asked is:
“… can the injury, when judged by comparison with other cases in the range of possible impairments …, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[2]
[2]Humphries and Anor v Poljak [1992] 2 VR 129 at 140-1
8The plaintiff swore and relied upon three affidavits, dated 2 February 2021, 13 September 2022 and 30 March 2023. The plaintiff gave evidence and was extensively and intensively cross-examined by Mr Jens, KC, for the defendant.
9The plaintiff also relied upon the affidavit of her daughter, Michelle Youlten, sworn 30 September 2022. Ms Michelle Youlten was not required for cross-examination by the defendant.
10In addition to the affidavits referred to above and the evidence given by the plaintiff, both parties relied upon medical reports and progress notes and other materials which were tendered during the course of the proceeding. The defendant also showed a number of surveillance videos to the plaintiff during the hearing. I have read all of the relevant tendered medical material and taken note of the other materials presented in this hearing.
11The following evidence was tendered in the proceeding:
· The plaintiff tendered Exhibit “A” – the Plaintiff’s Amended Court Book (“PCB”) pages 4 to 45 and pages 54 to 63
· The defendant tendered the following documentation:
§Exhibit 1 – surveillance video footage shown to the plaintiff in the course of the proceeding. This amounted to approximately 42 minutes of film.
§Exhibit 2 – the Defendant’s Amended Court Book (“DCB”), pages 156 to 193 and pages 213-215.
Exhibit 3 – the DCB, pages 116 to 144.
12The issues in this application by the plaintiff were set out by Mr Jens, KC, counsel for the defendant. The issues are as follows:
(a) the level of aggravation of injury to the plaintiff’s cervical spine;
(b) the amount of medical treatment the plaintiff has had since the transport accident in respect of her cervical spine;
(c) the credit of the plaintiff; and
(d) whether the physical impairment to the plaintiff’s cervical spine was sufficient to reach the statutory serious injury test.
The Plaintiff’s background
13The plaintiff was born in 1945 and is now seventy-seven years of age. The plaintiff was born in Malta and came to Australia when she was a six-year-old with her family.[3]
[3]PCB 4
14The plaintiff lives alone, after her former husband passed away in 2015. The plaintiff has two married children.
15The plaintiff had an education to Grade 6 level when she left school to assist the family. The plaintiff has worked in various occupations as a factory hand in a biscuit company, a bakery factory for approximately ten years and cleaning duties at Carlton & United Breweries. Her most recent full-time paid employment was with a company known as Top Cut.[4]
[4]T5
16The plaintiff commenced work as a crossing supervisor in 2013 on a casual basis. This employment takes approximately one hour in the morning and one hour in the afternoon every day. The plaintiff continues in this role as a crossing supervisor. In her own evidence she described it as “I just love it”. The plaintiff has consistently worked in that role since 2013. In total, the plaintiff works 15 hours a week as the permanent crossing supervisor at the Keilor East Primary School.
The transport accident
17The plaintiff described the transport accident in the following terms:
“11.On or about 17 September 2018, I was driving in the right lane on Milleara Road in Keilor East towards Avondale Heights. There was a bus stationary on the corner of Milleara Road and Clarks Road, however there was no official bus stop. A vehicle exiting from Clarks Road made a right hand turn onto Milleara Road and t-boned into the passenger side of my vehicle.
12. The impact of the collision thrust my vehicle onto the other side of the road. I believe the other vehicle failed to stop at the stop sign on the corner of Clarks Road and Milleara Road.
13.I suffered immediate pain in my neck and left shoulder. The whiplash I suffered in my neck was unbearable and I was extremely distressed.”[5]
[5]PCB 5-6
18The plaintiff was assisted by Emergency Services to get out of her vehicle as her driver’s door had been jammed as a result of the accident. The paramedics at the scene indicated that they would transport the plaintiff to hospital, but she refused to go.
19The plaintiff was taken home by the mother of the driver of the other vehicle involved in the transport accident. The two women were known to one another.
20On 17 September 2018, the plaintiff attended upon Dr Tadros, her general practitioner, with complaints arising from the transport accident. The plaintiff complained of discomfort in the left upper chest and of tenderness above her left breast. Dr Tadros noted in his progress notes that the plaintiff’s neck had a full range of movement, and no abnormality was detected.[6] It was unclear on the evidence who transported the plaintiff to see Dr Tadros.
[6]DCB 143-144
The medical treatment of the Plaintiff as a result of the transport accident
21The initial treatment was provided by Dr Tadros on the said date. In respect of the plaintiff’s neck, there was a full range of movement and no abnormality detected. The same assessment was made in respect of the plaintiff’s central nervous system and her shoulder. The plaintiff was given advice by Dr Tadros.[7]
[7]DCB 144
22The plaintiff’s treatment has been managed by Dr Touraj Oveisi, general practitioner, of the Deer Park Medical Centre. Dr Oveisi was the plaintiff’s general practitioner for the plaintiff’s own health services. Dr Tadros had been the medical practitioner for her deceased husband. On occasion, the plaintiff had attended upon Dr Tadros.
23In respect of the treatment for the neck injuries as a result of the transport accident on the said date, the plaintiff attended on Dr Oveisi on the following dates:
· 27 September 2018
· 22 February 2019
· 23 March 2019
· 12 April 2019
· 18 August 2021
· 7 September 2021.
24On 27 September 2018, the plaintiff attended upon Dr Oveisi for the first time as a result of the transport accident. At that stage, the accident had occurred some ten days prior to this consultation. The plaintiff complained of pain in her shoulders and spine. The plaintiff was observed to have bruising on the chest and a lump in her breast. A mammogram was ordered, and an ultrasound was ordered in respect of the lump in the plaintiff’s left breast.[8]
[8]DCB 115
25On 22 February 2019, the plaintiff again attended on Dr Oveisi as a result of the neck and back pain arising from the transport accident. The plaintiff complained of moderate neck restriction, and a diagnosis of whiplash and degenerative spondylitis was made. The plaintiff was ordered to have plain x-rays of her cervical spine, her lumbosacral spine and her thoracic spine. The plaintiff re-attended upon Dr Roja Gorji of the Deer Park Medical Centre to discuss the results of the radiological examinations. Arthritis of the cervical spine was diagnosed.[9]
[9]DCB 118
26The plaintiff then attended upon Dr Oveisi on 12 April 2019 and a further discussion with Dr Oveisi took place in respect of the results. Dr Oveisi diagnosed neck spondylosis, and noted that the plaintiff stated that the pain was getting better after she had started to take Vitamin B.[10]
[10]DCB 118-119
27The plaintiff did have an MRI scan of her cervical spine on 27 May 2019. The conclusion of that examination is as follows:
“Conclusion:
· No cord compression, or significant canal stenosis at any level.
· Focally severe left upper C4-C6 foraminal stenosis secondary to uncovertebral and facet ridging has the potential for intermittent left C5 nerve impingement. No other significant foraminal narrowing or neural impingement.
· Severe proliferative left C4-C6 facet hypertrophy almost certainly contributes towards non-radicular neck pain,
· Additional, multi-level facet hypertrophy of moderate severity is markedly underestimated on MRI compared with plain radiography; symptomatic arthropathy at other bilateral levels is almost certainly present.
· Small bilateral lower cervical perineural foraminal cysts are benign and of unlikely significance. No acute or suspicious bony abnormality.
· Incidental, incompletely imaged, but marked diffuse T2 hyperintensity throughout the pons. This raises the possibility of advanced chronic smell vessel ischaemic change. At some stage, MRI brain correlation is therefore recommended.”[11]
[11]PCB 21
[emphasis in original.]
28The x-ray results of the plaintiff’s radiological examination on 1 March 2019 were as follows:
“4. X-ray of the Cervical Spine:
Multilevel degenerative change, which is age appropriate with uncovertebral joint hypertrophy, but no loss of vertebral body height.
There is multilevel facet joint arthrosis.
Disc height is most marked at the C5-C6 and C6-C7 levels.
Bony foraminal narrowing of the left C5-C6 neural exit foramen, which is mild and probably not significant.
The paravertebral soft tissues are normal.No cervical ribs identified.
…
Conclusion:
1.Degenerative change in the cervical spine in particular with multilevel involvement and with no significant bony foraminal narrowing seen.
2. Further degenerative changes are present in the thoracic spine, which are mild in extent.
3.No compression fracture or deformity seen.”[12]
[12]PCB 17-18
29The plaintiff’s next recorded attendance upon Dr Oveisi was for 18 August 2021. The plaintiff did not actually attend the practice on that occasion but sought a referral for an MRI scan of her cervical spine from Dr Oveisi.
30The plaintiff also attended upon Dr Oveisi on 7 September 2021 which was conducted by Telehealth consultation. The subject of that consultation was cervical spondylosis and the obtaining of results. The results communicated to the plaintiff were based on an MRI scan of the cervical spine which was performed on 3 September 2021. The conclusion in respect of that examination was:
“Moderate-to-severe lower cervical intervertebral disc degeneration, but no high grade narrowing of the spinal canal.
Moderate narrowing involves the left C4-C5 neural exit foramen with possible impingement of the exiting C5 nerve root.”[13]
[13]PCB 23
31There is no later entry than the entry of 7 September 2021 in the progress notes of Dr Oveisi, the plaintiff’s general practitioner, which relates to her neck condition. The plaintiff, in her evidence, stated that she had seen, and continues to see, Dr Oveisi over many medical issues, including her neck.
32The plaintiff had been referred to a physiotherapist, Ms Michelle Chrzanowski. In a report dated 14 March 2023, Ms Chrzanowski states that the plaintiff was treated on two occasions – on 25 January 2023 and 7 March 2023 – but has declined to book any further physiotherapy treatment. The plaintiff stated in her evidence that she had had approximately five physiotherapy treatments but declined to continue with the treatments as they were of no assistance to her.[14]
[14]PCB 60
33The plaintiff states that she takes medication in respect of the neck injury, including Panadol Osteo – four to six tablets per day – and Palexia IR 50 milligram. The plaintiff also uses a cream daily known as Pain Away.[15]
[15]PCB 62
34The plaintiff’s evidence was that the Palexia medication was only recently prescribed to her. There was no other evidence in this proceeding which designates when the Palexia prescription was first made for the plaintiff.
35The plaintiff has received no other medical treatment, either surgical or by way of medication, in respect of her cervical spine injury.
36When one considers the total of the attendances by the plaintiff on her general practitioners, both Dr Tadros and Dr Oveisi, the amount of treatment or number of visits in respect of the cervical spine injury, are very small. I conclude that the plaintiff has had very limited medical treatment directed at her symptoms and complaints relating to her cervical spine injury as a result of the transport accident.
The medical opinions
The Plaintiff’s doctors
Dr Touraj Oveisi, general practitioner
37Dr Oveisi prepared three reports, dated 4 June 2019, 10 June 2021 and 23 August 2022.
38In his final report dated 8 March 2023, Dr Oveisi stated as follows:
“Thank you for recent letter enquiring about an update of Ms Pauline Youlten's health condition. I would like to confirm that there has been no change to her diagnosis and management since my last letter.”[16]
[16]PCB 59
39In his first report dated 4 June 2019, Dr Oveisi gave an opinion as follows:
“… In my opinion, she is suffering from neck pain secondary to soft tissue injury (whiplash injury) after her accident combined with degenerative spondylosis of her neck.”[17]
[17]PCB 24
40Dr Oveisi stated that the plaintiff did not have neck pain prior to the transport accident. He stated that the plaintiff was experiencing constant pain in her neck and back that is interfering with her sleep. He stated that the plaintiff had already had osteoarthritis in her neck and back with remarkable facet joint involvement.[18]
[18]PCB 24-25
41In respect of Dr Oveisi’s statement that the plaintiff had not had previous neck difficulties, the plaintiff tendered an x-ray of her cervical spine dated 4 May 2009. The findings of that x-ray were as follows:
“Findings: Alignment is normal.
At C5-C6 and C6-C7, there is loss of intervertebral disc space height, end plate sclerosis and minor anterior and posterior osteophyte formation, consistent with disc degenerative disease at these levels.
There is no focal bone lesion.
All cervical neural exit foraminae bilaterally are adequate.
Very mild bilateral facet joint osteoarthritic degenerative change is noted throughout the cervical spine.”[19]
[19]PCB 16
42It is clear that the plaintiff had previous neck pain and neck complaints. That x-ray finding was at the same medical centre as Dr Oveisi.
43Dr Oveisi, in his report dated 10 June 2021, set out his diagnosis as the plaintiff suffering from soft-tissue injury (whiplash injury) and facet joint degeneration (age related) especially at the left C4-C5 level.[20]
[20]PCB 26
44In his second report dated 23 August 2022, Dr Oveisi stated:
“In my opinion, she is suffering from neck pain secondary to whiplash injury after her car accident combined with pain related to degenerative changes and spondylosis of neck.”[21]
[21]PCB 28
45Dr Oveisi stated that the plaintiff was suffering from neck pain with radiation to the left shoulder and left upper limb. In addition, there is left-hand shaking.[22]
[22]PCB 28
46Dr Oveisi opined that the plaintiff’s injury has accelerated the development of degenerative changes, and his expectation that those changes are expected to get worse over time.[23]
[23]PCB 30
47In the reports from Dr Oveisi, there is no confirmation of the prescription of Palexia in respect of the plaintiff’s injury to her neck.
Dr Hazem Akil, neurosurgeon
48Dr Akil prepared four reports in respect of this application, dated 2 January 2020, 28 August 2020, 16 May 2022 and 26 September 2022.
49In his report dated 16 May 2022, Dr Akil noted that the plaintiff did not have any particular treatment, either to her back nor to her neck, prior to the transport accident. I note that is not correct.[24]
[24]PCB 40
50In that same report, Dr Akil gave the following opinion:
“In my opinion with regard to her neck condition she has aggravation of cervical spondylosis resulting in a left C5 radiculopathy. This is compatible with the findings on the neurological examination as well as the findings on the radiological investigations.”[25]
[25]PCB 40
51He noted that the neck complaints were a direct result of a road traffic accident.
52Dr Akil, in his final report dated 26 September 2022, in reviewing the opinion of Mr Pai, orthopaedic surgeon, stated as follows:
“I agree with him regarding the presence of a pre-existing cervical spondylosis. My only point is that that the accident aggravated the cervical spondylosis and resulted in a symptomatic manifestation of her condition.”[26]
[26]PCB 45
53Dr Akil’s opinion is that the neck symptoms and cervical spondylosis have been made symptomatic as a result of the transport accident.
Dr Symon McCallum, pain specialist
54Dr McCallum prepared one report, dated 20 October 2021, for the purposes of this application. Dr McCallum took a history from the plaintiff that she had no neck pain or low-back pain prior to the transport accident.[27]
[27]PCB 54
55Under the heading “Impression”, Dr McCallum states as follows:
“Ms Youlten has had an aggravation of cervical and lumbar spondylosis. It was asymptomatic until the motor vehicle accident.
In addition to this, she has cervical whiplash and a cervicogenic headache.”[28]
[28]PCB 57
56Dr McCallum went on to state that the plaintiff had a decreased mood and was tearful as a result of the pain which affects her life.[29]
[29]PCB 57
Radiological examinations
57I have previously referred to the radiological examinations of the plaintiff, in particular, the MRI scans performed on 27 May 2019 and 3 September 2021. The radiological reports are subject to interpretation by Dr Anthony Kam, radiologist, who was briefed on behalf of the defendant in this matter.
The Defendant’s doctors
Mr Vasudeva Pai, orthopaedic surgeon
58Mr Pai prepared a report dated 1 September 2022 on behalf of the defendant in this matter.
59Mr Pai noted that he could find no swelling in the plaintiff’s neck. He did not think the plaintiff was showing any illness behaviour and that there was no neck deformity. He noted some crepitus on movement of the neck.[30]
[30]DCB 158
60Mr Pai stated:
“… There is no doubt she has had an aggravation of underlying cervical spondylosis which is pre-dated. There appears to be history of previous neck pain as well, as per the history provided to me in 1992 and the lumbar spine in 1986 which she cannot remember.”[31]
[31]DCB 160
61In Mr Pai’s opinion, surgery is not required for the plaintiff.
62Mr Pai noted that the plaintiff was able to do her activities of daily living and most of the chores around her home except for the heavy vacuuming and the lawnmowing. He noted that the plaintiff worked as a crossing supervisor. He then stated:
“Presently she has residual symptoms and considering that it has been four years since the injury event, in my opinion, the degenerative and constitutional factors of the underlying pathology of cervical spondylosis have now substantially taken over as being the cause of her present symptoms.”[32]
[32]DCB 161
63To the question “Do you consider that any current or future treatment is unrelated to injuries attributable to the transport accident?”, Mr Pai stated:
“In my opinion there are two possibilities of her decreasing abilities.
1. Her advancing age.
2. Related to the aggravation.
In my opinion, as I stated, there are two possibilities, and I would say the apportionment is around 50-50.”[33]
[33]DCB 162
64Ms Pilipasidis, SC, on behalf of the plaintiff, relied upon this statement from Mr Pai to support the proposition that the plaintiff’s symptoms in her neck are partly related to the transport accident directly. A full reading of the report by Mr Pai takes into account the injuries that the plaintiff complained of in respect of her left shoulder, her left arm, her low back and her cervical spine. I do not accept that Mr Pai was opining that the injury to the plaintiff’s neck as a result of the transport accident is the current cause of her consequences as set out by the plaintiff in her evidence.
Dr Diane Neill, consultant psychiatrist and Mr Leon Turnbull, consultant psychiatrist
65Mr Jens, KC, on behalf of the defendant, tendered the report of Dr Diane Neill dated 31 August 2022 and the report of Dr Leon Turnbull dated 19 January 2020. In the course of his submissions to the Court, he never addressed or referred to these reports at any time. I am at a loss as to why these reports were part of the tendered documentation on behalf of the defendant. I have read them but do not include them in part of my judgment.
Dr Anthony Kam, consultant radiologist
66The defendant relied upon a report of Dr Anthony Kam dated 10 August 2022. Dr Kam was provided with all of the radiology reports but not the actual radiological images at the time of his assessment.
67Dr Kam notes:
“The cervical spine radiological findings detailed in the 1 March 2019, 27 May 2019 and 3 September 2021 reports are consistent with a continuation and gradual progression of pre-exiting cervical spondylosis which has been present prior to the MVA. The reports indicate there is continued radiological progression of the degenerative change over time.”[34]
[34]DCB 182
68Dr Kam went on to state:
“There is no evidence in the reports to suggest any radiological aggravation of the pre-existing degenerative condition in the cervical spine.”[35]
[35]DCB 182
69In Dr Kam’s opinion, the causative origin of the degenerative cervical spondylosis at C5-6 and C6-7 is likely constitutional and age related.[36]
[36]DCB 181
70On the basis of the medical evidence in this case, I find that the plaintiff’s pre-existing cervical spondylosis was aggravated as a result of the transport accident. I accept the evidence of Dr Kam and the opinion of Mr Pai, that the progression of the degenerative cervical spondylosis is now the principal cause of the plaintiff’s symptoms. Further, on the evidence of the plaintiff in respect of her comorbidities in respect of her headaches, both prior to the transport accident and subsequent, her low-back condition with the referred pain down her right leg and her burning pain in her left leg as a result of vascular disease, all contribute to the described inabilities of the plaintiff to manage her pain, sleep and daily activities, and in particular, lawnmowing and vacuuming.
The credit of the Plaintiff
71Mr Jens, KC, on behalf of the defendant, did not make a submission that the plaintiff was being untruthful. I accepted that to be the position. The defence position was that the plaintiff was not a reliable historian and on occasion would be confused giving her evidence.
72The plaintiff was shown approximately 40 minutes of film of her activities as a crossing supervisor and on one occasion, shopping. The film of the plaintiff clearly showed her going about her role as a crossing supervisor by way of carrying the ‘Stop/Go’ sign and the children’s crossing signs without any difficulty. She was able to place the children’s crossing signs into the fixed posts on the side of the road without difficulty. The plaintiff conceded that she was able to do that job and “just loved it”. I understood from her evidence that her love of the job was really her personal interaction with the various children on each occasion when they came and left the school. No doubt that interaction for the plaintiff is very important when she lives alone, and it gives some structure and personal contact in her day-to-day life. She performs the task of crossing supervisor on five days a week during the school year.
73I accept the plaintiff was giving evidence in an honest and forthright manner and do not make any findings contrary to her credibility; however, I do find that she was unreliable on occasions. An example of such unreliability was initially, she gave evidence that she had low-back problems which were referred down her left leg. After she was cross-examined at some length about that condition, she then changed her evidence to being the referred pain from her back going down her right leg to her ankle. On the left side of her leg, it was as a result of varicose veins. She described the pain in her left leg as “burning”.
74The Court of Appeal, in the case of Church v Echuca Regional Health,[37] has given guidance to courts in the use of video film of parties in the assessment of the credibility of a plaintiff. In this case, the plaintiff readily accepted that she could do all the things she was required to do in the job as a crossing supervisor. She maintained that she did so with pain.
[37](2008) 20 VR 566
The consequences of the cervical injury to the Plaintiff as a result of the transport accident
75The plaintiff relies upon her three affidavits, dated 2 February 2021, 13 September 2022 and 30 March 2023 in support of her claim in respect to consequences of the cervical spine injury. She also relies upon the evidence of her daughter, Michelle Youlten, who provided an affidavit dated 30 September 2022.
Activities of daily living
76The plaintiff stated that she is unable to perform the tasks of vacuuming and mowing the lawns as a result of the injury to her neck. She also stated that she cooks a lot less than prior to the transport accident due to the fact that she cannot lift heavy pots and pans. The evidence in this case is that the plaintiff herself stated that prior to the transport accident, she was receiving assistance in respect of mowing the lawn from a neighbour. She has continued with the neighbour mowing the lawn since the transport accident. She also stated in her evidence that the real problem with the vacuuming was her low back. The inability to do the vacuuming was not related to her neck injury. The gardening and other activities the plaintiff stated that she could not do, again, were as a result of her low back. I note in the affidavit of the plaintiff’s daughter that her grandchildren do the gardening work on behalf of the plaintiff.
77The plaintiff has retained the ability to shower and wash her hair and do all the other matters in respect of her personal upkeep. The plaintiff continues to shop for herself. On occasion no doubt, she does obtain some assistance from her daughter, Michelle.
78I am not satisfied that the activities of daily living have been altered or moderated to the extent that are at least very considerable or more than significant or marked as required by the Act. The moderation of these activities is as much to do with the plaintiff’s low-back condition and other comorbidities.
Pain
79The plaintiff, in her affidavits, sets out the persistent and ongoing neck pain which she states radiates down her left arm.[38] I accept the plaintiff is suffering pain in her cervical region. The plaintiff also suffers pain in her lower back, her right leg and her left leg. Based on the medical evidence in this case, I am not satisfied that the plaintiff has isolated the cause of her pain to her neck to be the transport accident to the extent required under the Act. The medical evidence in this case is that the plaintiff had a pre-existing and ongoing degenerative change in her neck which is a cause of the pain in her neck.
[38]PCB 6, 10 and 62
Medication
80The plaintiff has set out her final list of medications for pain as follows:
(a) Panadol Osteo, four to six tablets a day;
(b) Palexia IR 50 milligram; and
(c) Pain Away cream.
81I accept that the plaintiff also uses a Tubigrip sleeve-type bandage on her left arm.
82The plaintiff has a long history of taking Panadol Osteo prior to the transport accident. The introduction of Palexia to her medication regime is recent and the only evidence of it is from the plaintiff herself, which is contained in her most recent affidavit. Notably, the general practitioner does not make any mention of it in a subsequent and final report which was in March of this year. I accept that the plaintiff does take Palexia, but I am not prepared to accept that it is prescribed solely for the purposes of the pain management of her neck condition. The plaintiff, in her evidence, as I have stated earlier, has given a description of leg pain on both sides of her body, and low-back pain.
Sleep
83The plaintiff has stated in her affidavit material that her sleep is interrupted as a result of her neck condition.[39]
[39]PCB 7, 11 and 63
84In her evidence, the plaintiff stated that she gets up as a result of the pain in her low back. It was only after further clarification of her evidence that she mentioned that her neck was also a cause of her inability to sleep. In this case, the plaintiff has failed to separate out the causes of the interruption to her sleep and I am not satisfied that the neck pain is a very considerable contributor to her sleep problems.
Work
85The plaintiff, in her evidence, stated that she was working as a crossing supervisor prior to the transport accident. She has continued to work in that capacity regardless of what injuries she received to her cervical spine in the transport accident. There has been no change to her ability to perform the tasks of a crossing supervisor.
Conclusion
86On the basis of the medical evidence in this case and the evidence that I accept from the plaintiff, the plaintiff has failed to satisfy the statutory test that the consequences arising from the physical injury to her cervical spine are “at least very considerable” and “more than ‘significant’ or ‘marked’”.
87I order as follows:
88The plaintiff’s application pursuant to s93(17)(a) of the Act to bring proceedings for physical injury to the plaintiff’s cervical spine arising from a transport accident on 17 September 2018 is dismissed.
89I will hear the parties on costs.
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