Zecevic v Transport Accident Commission
[2016] VCC 405
•3 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05385
| MILIJANA ZECEVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2016 | |
DATE OF JUDGMENT: | 3 March 2016 | |
CASE MAY BE CITED AS: | Zecevic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 405 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Impairment of the neck – “serious injury” – plaintiff’s credit – compensable injury arising out of transport accident –– consequences to the plaintiff – primary physical pain – secondary consequence of some psychiatric illness
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings at common law to recover damages for the injuries suffered in the transport accident on 16 September 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Ms E Tueno | Zaparas Lawyers |
| For the Defendant | Mr A Moulds QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 16 September 2011 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to the definition “serious injury” to be found in s93(17)(a) of the Act. There –
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is impairment of the neck.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 2 September 2014 and 22 January 2016, and an affidavit sworn by her husband, Zivorad Zecevic, sworn 22 January 2016.
7 The plaintiff was cross-examined. I have not summarised the evidence of the plaintiff; however, I will refer to her and her husband’s evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
8 Counsel for the defendant informed the Court that the consequences of the plaintiff’s cervical spine injury do not meet the “very considerable” test set out in s93 of the Act.
The credit of the Plaintiff
9 There was no significant challenge to the credit of the plaintiff. The plaintiff was articulate and answered questions directly. She made concessions. For example she agreed she walked briskly and that she turned her head when walking. She said there were housekeeping duties she could perform, namely, dusting, cleaning the toilet and light shopping, carrying bags in either hand. She required the assistance of her husband when performing the heavier shopping and in household tasks which aggravated her neck, for example vacuuming.
10 Film was shown of the plaintiff at the supermarket on 18 and 28 November 2016. The film was of relatively poor quality. It showed the plaintiff walking in the supermarket looking up and down. It was not the plaintiff’s evidence that she had no capacity to shop. Accordingly, I do not accept that the film assisted the defendant’s position.
11 The plaintiff conveyed to the Court the importance of her work and the financial need to provide for her family. The plaintiff impressed me as an honest and hardworking woman who was keen to return to work following the transport accident. In fact, she returned to work one or two weeks after the accident. This was consistent with Dr Kornan’s comments. He said her personality was that of someone with a strong work ethic.[1] He described her as “very conscientious, [with a] workaholic temperament and she has continued to work to the best of her abilities”.[2]
[1]Plaintiff’s Court Book (“PCB”) 101
[2]PCB 106
12 I accept that the plaintiff was a witness of truth.
Analysis of the evidence
13 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of the transport accident. All medical witnesses accepted that her symptoms were consistent with the diagnosis and stated cause.
14 In determining the plaintiff’s impairment, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the most recent medical opinions, namely, Dr Micut, treating general practitioner; Mr Flanc, vascular and general surgeon; Mr Brownbill, neurosurgeon; Mr Gassin, pain management physician; Mr Dooley, orthopaedic surgeon, and Dr Strauss and Dr Kornan, psychiatrists.
15 The plaintiff’s injuries were variously diagnosed as:
· neck pain due to musculoligamentous strain
· headaches that are multifactorial, cervicogenic and tension[3]
[3]Dr Micut – PCB 36 and Mr Flanc – PCB 84
· whiplash-type injury[4]
· soft tissue injury to structure about the cervical spine.[5]
[4]Dr Gassin – PCB 39
[5]Mr Brownbill – PCB 90 and Mr Dooley – Defendant’s Court Book (“DCB”) 3
16 Both Mr Brownbill and Mr Flanc agreed the occipital headaches were probably related to referral pain from the cervical spine. All medical witnesses accepted that the plaintiff would continue to suffer neck pain and headache into the future. Dr Micut said, in view of the fact that neck pain and headaches had persisted for the last four years with no significant improvement, he thought they would persist long-term.[6] Mr Flanc expressed a similar view.[7] Mr Brownbill anticipated that pain will continue in a fluctuating manner indefinitely and imposed restrictions on heavy lifting, forced cervical spine mobility or holding her neck in a fixed position.[8] Mr Dooley said the plaintiff will continue to note some intermittent neck pain but he did not expect it to deteriorate.
[6]PCB 36
[7]PCB 85
[8]PCB 96
17 Accordingly, I accept the plaintiff’s current condition was as a result of the transport accident and that it is long term. She suffered an injury to her cervical spine which involved a musculoligamentous injury as well as an aggravation of pre-existing asymptomatic degeneration of C5-6 and C6-7 discs.
18 As a result, she has been left with ongoing neck pain and cervicogenic headaches. No doctor suggested improvement.
19 It is necessary for me to consider the evidence as to the consequences to the plaintiff of the transport accident.
Daily neck pain and frequent headaches
20 The plaintiff’s evidence is that she continues to suffer neck pain most of the time, which increases as the day progresses[9] and is worse in the afternoons and at night. She suffers headaches two to three times per week. She consulted her general practitioner once every two to three weeks for prescriptions. She takes medication including: Endep, 35 milligrams once per day; and Panadol three to four times per week. When the pain worsens, she takes Mobic and Tramadol. She uses heat packs and warm towels behind her neck when she goes to bed, which eases the pain and assists in her going to sleep. She undertakes exercises that she has received instruction in. Overall her symptoms are better in warmer weather than in cold weather.
[9]Dr Robert Gassin – DCB 65
21 The plaintiff reported neck pain and headaches to doctors whom she saw.
22 Dr Micut said the neck pain and headaches fluctuate in severity, but have not improved overall. To help control symptoms since June 2013 she has been on Endep, initially 10 milligrams, gradually increased to 35 milligrams daily.[10] At times she takes Panadol, Tramadol and, since August 2015, Mobic, during times when she suffers flare ups. He described her degree of disability to be mild to moderate, but she has days when it is more severe.
[10]Dr Sam Micut – PCB 36
23 Mr Brownbill obtained a history that she suffers headaches three to four days per week. He said the pain will continue in a fluctuating manner indefinitely.
24 Mr Flanc noted that her symptoms had been present for four years, and said “…it is likely that will continue to be vulnerable to recurrent neck pain into the foreseeable future.”[11]
[11]PCB 85
25 Mr Dooley said he would expect the plaintiff to note intermittent pain. He did not expect it to be major and did not expect it to deteriorate.[12]
[12]DCB 3
26 I accept there was no evidence of neck pain or headaches prior to the transport accident. The plaintiff now suffers neck pain most of the time and headaches two to three times per week. The plaintiff takes medication daily and multiple times per week. The plaintiff performs exercises regularly provided by a physiotherapist and attends physiotherapy.
27 In Kelso v Tatiara Meat Co Pty Ltd,[13] Dodds Streeton JA said:
“The endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[13][2007] VSCA 267 at paragraph [199]
28 I accept that this is a consequence at the middle of the range, which I can take into account.
29 The plaintiff was referred to Dr Gassin, musculoskeletal and pain physician. He recommended a pain management course. The plaintiff gave evidence that she could not afford to take time off work to attend a pain management course. The plaintiff gave evidence that she assumed that she would have to be off work for a long time.[14] Counsel for the defendant put to the plaintiff that the Transport Accident Commission would pay the expenses associated with attending the pain management program, including lost wages. However, counsel for the plaintiff noted it was not clear whether the plaintiff has an entitlement to lost wages while attending the pain management course. In any event, I accept there was no evidence that the plaintiff had knowledge of an entitlement to lost wages from the Transport Accident Commission while attending a pain management program.
[14]T51, L3
Sleep
30 The plaintiff’s evidence is that she has difficulty getting to sleep, although the Endep has helped.[15] Usually the neck pain and headaches have worsened by the time she goes to bed and the pain keeps her awake. She sleeps half sitting up as she finds this places less strain on her neck. The pain in her neck is worse in cold weather and in winter she usually goes to bed with a warm towel behind her neck. The plaintiff reported difficulties with sleep to some of the medical witnesses. I accept that this is a consequence which I can take into account.
[15]Dr Strauss – PCB 49 and 58; Dr Kornan – PCB 100
Sporting activities
31 The plaintiff’s evidence is that prior to the transport accident, she played beach volleyball on a weekly basis in the ‘Dream Team’ at the Dandenong Basketball Stadium. She thought she returned to volleyball after her first daughter was born. The plaintiff also enjoyed jogging several times a week. Due to neck pain, she can no longer play volleyball and jog, which were activities she enjoyed. The plaintiff reported this to Dr Micut, Dr Strauss and Dr Kornan. I accept that her sporting activities have been affected as a result of the transport accident. This is a consequence that I can take into account.
Personal relationship with her husband
32 The plaintiff’s evidence is that since the transport accident, she suffered a loss of libido as a result of the ongoing neck pain. She describes the impact of her neck pain on her physical relationship with her husband. The plaintiff’s evidence was supported by the evidence of her husband. The plaintiff reported this consequence to Dr Kornan and Dr Strauss. I accept that this is a consequence which I can take into account.
Further children
33 The plaintiff’s evidence is that she had always wanted to have three children. She reported this to some of the medical witnesses and her difficulty coping with two children because of the neck pain.[16] She came from a large family and had always wanted the same for her children. The plaintiff’s evidence is that she struggled to care for her youngest daughter when she was born, after the transport accident, because of the constant bending and stretching involved, particularly with breastfeeding. She had difficulty bathing the children and required her husband’s assistance as she was unable to lift the children in and out of the bath due to the neck pain. I accept that this is a consequence of the transport accident which I can take into account.
[16]Dr Strauss – PCB 49 and 58
Capacity to work
34 The plaintiff’s evidence is that as a result of the transport accident, her capacity to work has been reduced. The plaintiff’s evidence is that she is now working part time as a result of the injury, rather than the equivalent of full-time hours.
35 I accept that commencing in 2008, until the transport accident in September 2011, the plaintiff was engaged to work shifts at Mind Australia (“Mind”), and at Wesley Mission on weekends. I note the plaintiff married and travelled overseas in 2010, which impacted her work hours in that year. I also note the plaintiff was on maternity leave from Mind commencing in January 2011 until August 2011. The plaintiff worked some shifts at Wesley Mission while on maternity leave from Mind.[17] After the birth of her first child, the plaintiff resumed her work in August 2011. Accordingly, I accept the plaintiff’s shift-work prior to the transport accident amounted to either full-time, or almost full-time hours, per fortnight and included work at Mind and Wesley Mission. I take into account the payroll records[18], together with the plaintiff’s evidence as to her work patterns.
[17]T31, L13
[18]DCB 49
36 The transport accident occurred on 16 September 2011. After the transport accident, the plaintiff returned to work at Mind, again at full-time hours, or almost full-time. Her manager was supportive and made allowances for her, particularly in respect to the avoidance of driving.[19] She experienced headaches at work. The plaintiff attempted to return to work at Wesley Mission, and she worked a shift or two after the transport accident. The evidence is that she was unable to continue to work at Wesley Mission because of her condition after the transport accident, and as the job involved too much driving which aggravated her neck injury. I accept the plaintiff expressed her passion for the job at Wesley Mission (particularly the work with young people and refugees) and the loss she feels at ceasing her work there.
[19]T55, L11
37 In July 2012, the plaintiff went on maternity leave from Mind, for her second child. In April 2013, she returned from leave. At the time, there were six jobs at Mind that were open. The plaintiff applied for and accepted a role as a community mental health practitioner.[20] This job entailed 29 hours per week, in Narre Warren.
[20]DCB 40
38 In cross-examination, the plaintiff said the job as a community mental health practitioner involved driving people to appointments and outings;[21] usually driving to outings was shared with a co-worker.[22] The plaintiff gave evidence that she sought work with less driving, due to her condition after the transport accident, and reduced hours. The plaintiff recognised that less work hours would change her time available with her children. However, I accept the reason the plaintiff reduced her hours at work is due to her condition following the transport accident, not her parenting commitments. This is what she reported to Dr Strauss.[23] I accept the plaintiff sought reduced hours of work due to the pain and headaches following the transport accident, and to reduce the driving requirements of her job. This is consistent with the affidavit evidence of her husband, as he deposes that since the transport accident, he often does the driving instead of the plaintiff.]
[21]T41, L5
[22]T55, L19
[23]PCB 58
39 In May 2015, the plaintiff changed jobs at Mind. She accepted a role as care co-ordinator in Dandenong. This is her current job. The role entails 22.8 hours of work, three days per week, and the salary is pro rata. It is mostly sedentary office-based work. She is not required to drive very often.[24]
[24]T52, L1
40 The plaintiff gave evidence about why she changed jobs from community mental health practitioner to care co-ordinator. Her evidence was that 29 hours per week was too much for her due to her neck condition, and she had to reduce her hours.[25] During her time as a mental health practitioner, she was regularly having to rest her neck during the day, neck pain was caused by writing, and she also noted complaints about driving on the job.[26] Ultimately, there was a change proposed to the roster for the mental health practitioner job, which was not suitable. The new roster was complicated, it involved more hours, together with afternoon shifts. She seeks to avoid afternoon shifts, as her condition progresses through the day, and she is worse in the afternoons. I accept the plaintiff’s evidence that the new roster did not suit her due to her neck condition.[27] As a result of her medical condition, she now works reduced hours of 22.8 hours per week as a care co-ordinator.
[25]T48, L13
[26]T53, L3 – 10
[27]T43, L24
41 The plaintiff gave evidence that her employer offered her the care co-ordinator role on a full-time basis, a number times. She has refused on the basis that she is unable to work full-time.[28] I accept that this is due to her neck condition.
[28]T47, L28
42 If the plaintiff had the capacity for full-time work or significantly increased hours, I accept her evidence that childcare arrangements were not too difficult for her, nor prohibitively expensive. The evidence is that the plaintiff already had professional childcare arrangements, which she was ready and willing to use, as well as grandparents who could provide childcare.
43 Since starting her new role as care co-ordinator, the plaintiff gave evidence that she has also worked a total of six to eight extra shifts, mainly at the end of 2015 when she was feeling better generally. The plaintiff’s evidence was that the extra shifts involved light work. She took no further such shifts at the end of 2015, as her condition worsened, with more pain and headaches. She has not worked extra shifts in 2016.
44 I accept the plaintiff also expressed concern about her job security if she complained about pain at work.[29] I accept she is genuinely motivated to work.
[29]T56, L14 and T53, L28
45 The plaintiff limits the amount of driving she does at work. Dr Micut reported that her work needs to be relatively close to home, as driving in excess of 15 to 20 minutes tends to aggravate her neck pain. He was aware that she gave up a job because of the driving involved.
46 Mr Dooley said the plaintiff had a physical capacity to continue in her current employment. He was aware the plaintiff worked three days per week. He said the number of days worked related to her injury, and also to having two young children. I do not accept that the plaintiff worked three days per week as a result of children. I accept that Mr Dooley considered that, in part, the plaintiff’s work injury affected her ability to work more than three days per week.
47 Mr Flanc was of the opinion that the plaintiff he was partially incapacitated for employment which would continue into the foreseeable future. He said she would have difficulty with work which involves driving. He was aware that her current job involves office duties and limited driving.
48 Mr Brownbill was silent as to work.
49 I accept the plaintiff demonstrated a significant dedication to her work. Her evidence is that due to her physical condition, she is not able to work the equivalent of full-time hours, or to accept significant increases in her hours of work. Further, when she works, she works with pain. I accept that this is a consequence which I can take into account.
Housework
50 It was accepted by the medical witnesses that the plaintiff’s quality of life had diminished and that the pain interferes with her housework; namely, vacuuming, mopping, hanging the clothes out, and Serbian cooking.
51 The plaintiff was consistent in reporting these consequences to the medical practitioners. Mr Flanc said her domestic activities have been “significantly influenced by her vulnerability to neck pain”.[30] Mr Brownbill imposed restrictions and said she should avoid “heavy lifting, forced cervical spine mobility or holding her neck in a fixed position”.[31] Mr Dooley said at times she would note difficulty with household chores, and impact leisure pursuits.
[30]PCB 85
[31]PCB 96
52 The plaintiff’s evidence is that she relies upon her husband’s assistance at home with heavy lifting, cleaning and assistance with cooking and looking after the children. The plaintiff’s evidence was that household tasks that require bending and stretching cause her discomfort. The plaintiff’s evidence was that in the past she was house-proud and enjoyed maintaining a clean and tidy house.
53 The plaintiff’s evidence was supported by the evidence of her husband. The husband gave evidence that he now helps with cooking, cleaning, vacuuming, heavy lifting and caring for the children. The husband’s evidence was that prior to the transport accident, they would take it in turns, with one making the dinner and the other looking after the children, getting them ready for bed. Now, the husband says he must do both. I accept this is a consequence which I can take into account.
Application of Richards v Wylie[32] – mental component
[32](2000) 1 VR 79
54 The plaintiff’s evidence is that since the transport accident, she has become more anxious, depressed and tearful, and does not enjoy life as before.
55 Dr Strauss said:
“This woman manifests significant symptoms of anxiety and worry and she is also mildly depressed. She is frustrated and I note that she gets tired because her sleep is broken due to pain.
I believe that this woman does get significantly tense and anxious and this is having an effect upon her perception of pain, such that there is a psychological component to her experience of pain on an unconscious level. …
I believe that this woman suffers from a mild adjustment disorder with anxiety and depression which has come about secondary to the development of her physical pain. In turn her anxiety and depression are helping to perpetuate her pain.”[33]
[33]Dr Strauss – PCB 61
56 Dr Micut said the stress was secondary to her neck pain.
57 I accept the evidence of Dr Strauss and Dr Micut, and I take this consequence into consideration in accordance with Richards v Wylie.[34] The primary problem for this plaintiff is physical pain. As a secondary consequence, there has been some psychological component to her experience of neck pain.
[34]Supra
Pecuniary loss
58 The evidence is that the plaintiff enjoyed working. This is what she told the Court and a number of the medical witnesses. Dr Kornan commented on her work ethic.
59 The evidence was she was born in Croatia, left there at age fourteen with her family and went to Serbia. In approximately 2004, she completed a degree in Social Work at the Belgrade University. In 2004, she worked as a volunteer social worker and in October 2005, she arrived in Australia. She completed a basic English course in 2005 and then commenced and completed a course in Juvenile Justice at Chisholm Institute.
60 The plaintiff commenced work at Mind in 2008. While working at Mind, she obtained casual work at Wesley Mission, working four days per month at weekends. The pay records from Mind demonstrated that the plaintiff was working 76 hours per fortnight and on some weeks she was doing less. However, at the same time she was working with Wesley Mission at weekends.
61 The plaintiff’s evidence was that but for her neck pain, she would now be working full time, not part time. The plaintiff’s evidence was that she changed jobs in May 2015. She was still working with Mind but was now involved in care co-ordination of people recovering from severe and persistent mental health issues. She attempted to return to work at Wesley Mission; she ceased as it involved too much driving, which exacerbated the pain in her neck. She is now employed at Mind on a part-time basis, working 22.8 hours per week at one location. She reduced her hours because full-time work was too much for her to manage because of her neck pain and headaches. Her evidence was that, had she not had the neck pain and headaches, she would be working full time and would have her children in childcare when necessary.
62 The plaintiff’s evidence was that she worked 29 hours per week. She felt that was too much because of her neck and she reduced her hours to 22.8 per week. I accept the plaintiff’s evidence that she is now working part time because of the neck injury. The plaintiff is currently working pursuant to a contract of employment. The classification level for the role is CMHP 3/1 with a salary of $59,633 per annum pro rata. The plaintiff is contracted to work 22.8 hours per week.
63 I accept that if the plaintiff was able to work full time she would be earning $59,633 gross per annum. She is currently earning $37,973 per annum, as per her payslip. In round figures, the reduction in earnings is $21,600 per annum; however, the plaintiff’s loss is less than that, because she has worked some weekend shifts. The evidence is that she has worked between six to eight weekend shifts over a period of about nine months,[35] and is paid approximately $250 per shift. Assuming she works ten shifts per year, the earnings from those weekend shifts would be approximately $2,500. Taking this into account, I accept the loss the plaintiff suffers is approximately $19,000 per annum.
[35]T129, L24
64 Counsel for the plaintiff submitted that a pecuniary loss of $19,000 alone satisfies the very considerable threshold test. I do not accept that submission. I consider a greater than 30 per cent loss of income is required to establish the “very considerable threshold”. However, I accept that this is a consequence which I can take into account. Together with the other pain and suffering consequences, the plaintiff’s case meets the very considerable threshold.
65 I accept the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff, the medical evidence and, in part, the evidence of her husband. I accept that the plaintiff was a physically active young woman. To all intents and purposes, she lives with her situation and gets on with it. I accept that she has continued working, but has had to modify her work activity by working part time and ceasing work at Wesley Mission, a job she round rewarding, to accommodate her pain.
66 I am satisfied the plaintiff was involved in a transport accident which to her resulted in her experiencing symptoms of a physical nature. The consequences of her neck injury have impacted upon her life as she knew it before the accident. She has suffered for four years and the medical evidence is that it will continue. I accept the plaintiff’s neck injury is long term.
67 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to her of her impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in the light of the evidence.
68 I accept that the neck injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[36]
[36] Humphries & Anor v Poljak [1992] 2 VR 129
69 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for the injuries suffered in the transport accident in September 2011.
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