in the county court of victoria revised at … the plaintiff received workcover payments for about...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

SERIOUS INJURY LIST Case No. CI-14-02492

VENDA OGNENOVSKA Plaintiff v TRANSPORT ACCIDENT COMMISSION Defendant

--- JUDGE: HER HONOUR JUDGE K L BOURKE

WHERE HELD: Melbourne

DATE OF HEARING: 27 January 2016

DATE OF JUDGMENT: 29 February 2016 (Revised)

CASE MAY BE CITED AS: Ognenovska v Transport Accident Commission

MEDIUM NEUTRAL CITATION: [2016] VCC 150

REASONS FOR JUDGMENT

--- Subject: TRANSPORT ACCIDENT Catchwords: Damages – transport accident – serious injury – injury to the cervical

spine Legislation Cited: Transport Accident Act 1986, s93(4)(d) Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000)

1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering v McKenzie [2014] VSCA 67; Bezzina v Phi & Anor [2012] VSCA 161; Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108

Judgment: Leave granted. ---

APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr R W McGarvie QC with Mr L Paine

Grando & Breheny

For the Defendant Mr W R Middleton QC with

Ms D Manova Solicitor to the Transport Accident Commission

VCC:AS/LW/AS 1 JUDGMENT

Ognenovska v Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which 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 injuries suffered by

her arising out of a transport accident (“the accident”) which occurred on 2

February 2011 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3 The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long-term impairment or loss of a body function”.

4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is

the cervical spine.

5 The enquiry under subparagraph (a) of the definition 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, to

determine whether it is serious and long term.

6 In forming a judgment as to whether the consequences of an 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 more that “significant” or

“marked”.1

7 The serious injury defined by subparagraph (a) can have its seriousness

measured in part by a mental response to a physical impairment. What it will

1 Humphries & Anor v Poljak [1992] 2 VR 129 at [140] – [141]



not recognise is that the mental disorder can, of itself, constitute or be the

producer of the impairment of a body function.2

8 The plaintiff swore two affidavits and was cross-examined. Both parties relied

on medical reports and other material that was tendered in evidence.

The Plaintiff’s evidence

9 The plaintiff is presently aged sixty-five, having been born in June 1950 in

Macedonia. She arrived in Australia in February 1969. She is married with

two adult children.

10 After arriving in Australia, the plaintiff undertook packing duties in various

factories and on the assembly line at Holden. Whilst working for Pelaco as a

presser in 1983, the plaintiff developed right Carpal Tunnel Syndrome,

following which she had to cease work. She underwent a right carpal tunnel

release that resulted in only limited improvement of her symptoms.

11 Gradually, the pain and numbness in the plaintiff’s right hand improved.

Around the year 1986, she received a $25,000 lump sum payment for this

injury.

12 The plaintiff returned to work in about 1989 and worked for B & B Hosiery for

about four years as a packer.

13 The plaintiff then worked for Carborundum as a machinist and packer for

approximately three years. During that time, she developed pain in her left

arm and wrist, as well as the neck region, and back.

14 In evidence in chief and in cross examination, the plaintiff stated the reference

to the neck region was incorrect.3 She had pain from her wrist up to her

shoulder and the side of her neck.4 The neck region meant the pain spread

2 Richards v Wylie (2000) 1 VR 79 3 Transcript (“T”) 11 4 Transcript 26



from her wrist to her arm.5

15 The plaintiff however went on to say that since the accident, she had neck

pains. The pains have not stopped. She has continuous headaches and neck

pain since the accident.6

16 Before the accident, her arm was always hurting. It felt numb and she had

difficulty sleeping.7

17 The plaintiff was treated by Dr Gorgioski. She had to stop work because of left

arm pain.

18 The plaintiff underwent a left carpal tunnel release (“the left carpal tunnel

surgery”) in November 1997, after which she had physiotherapy for about two

years. There was some relief after this surgery. The plaintiff was not in as

much difficulty as she has been since the transport accident.8 Since then, her

neck and headaches have been persistent, not her carpal tunnel condition.9

19 The plaintiff received WorkCover payments for about two years for her back

injury10 and a lump sum of about $50,000 for her back and left arm injuries.11

20 Following the left carpal tunnel surgery, the plaintiff continued to have

numbness and weakness in the left hand, as well as intermittent back and

right leg pain.

21 The plaintiff had a CT scan of her lumbar spine on 3 February 2010. She also

had problems with nasal stuffiness, although she was otherwise in reasonably

good health prior to the accident.

22 In cross examination, the plaintiff initially could not remember any claim

5 T44 6 T12 7 T11 8 T13 9 T14 10 T24 11 T23 and T42



brought by her against Galbally & O’Bryan for its failure to bring serious injury

proceedings in relation to her lumbar spine and left arm complaints, however

she later recalled she received some settlement monies.12

23 Since injuring her back and left wrist the plaintiff has been in receipt of an

invalid pension.13 She wanted the pension because of her “difficulties and

suffering” – for the back, leg and the arm.14

24 Much of the cross examination focused on the plaintiff’s pre-accident back

and arm conditions.

25 The plaintiff gave confusing answers about her medication intake pre-

accident, for example:

taking Panadol for pains, regardless of what they were then she said

the medication was for her back.15

not taking medication every day, now she takes it continuously every

day.16

had tried all sorts of tablets and none had helped.17

only taking intermittent medication when in severe pain. It could have

been once or as many as three times a week.18

26 The plaintiff needed to take sleeping tablets for her back prior to the accident.

She could not remember if she was taking them immediately before the

accident.19

27 The plaintiff could not remember a lot about the matters set out in her 1999

12 T22 ($50,000 – letter from Grando & Breheny to the Transport Accident Commission dated 15 May

2015) 13 T24 14 T37 15 T40 16 T16 17 T31 18 T44 19 T13



affidavit in support of her s98 claim.

28 At the time she swore that affidavit, the plaintiff’s shopping was limited to

small items because of her back and her wrist. It has been a very long time

since she has been able to do any shopping. She cannot lift.20

29 The plaintiff’s daughter was then living at home and she helped out a lot after

1997, as the plaintiff could not do vacuuming or cleaning. The plaintiff felt bad

as her daughter had to look after her and she should have been taking care of

her as her mother.

30 Since the accident, the plaintiff has tried to do her own chores, but found it

very difficult and has been unable to do many of them. Her daughter moved

out a year ago but still regularly calls in at least twice a week to help.21

31 The plaintiff could not remember problems with socialising as described in her

1999 affidavit. She could recall not being able to visit friends because she

could not visit and then ask to lie down.22

32 The following table is a summary of the plaintiff’s attendances with Dr

Gorgioski and her response in cross examination when the various entries

were put to her.

Date Summary of Doctor’s Entry Plaintiff’s Response

3 February 2009 Carpal tunnel syndrome deteriorating.

Agreed.

11 February 2009 Left hand persisting. Ultrasound left shoulder, tendinopathy, partial tear.

Denies left shoulder ultrasound.

14 May 2009 Reviewing medication. Headaches. Carpal tunnel syndrome worsening.

Can’t remember.

3 August 2009 Headaches. Can’t remember.

28 August 2009 Severe headaches. Referred to physio.

Can’t remember.

16 November 2009 Headaches and dizziness. Can’t remember.

20 T18 21 T19 22 T20



Date Summary of Doctor’s Entry Plaintiff’s Response

21 December 2009 No difference – headaches and dizziness.

Can’t remember.

28 January 2010 Referral to Mr Flood about carpal tunnel.

Can’t remember.

30 January 2010 Severe lower back pain. Can’t sit and walk. Tramadol injection, Panadeine Forte, Nurofen and Panadol.

No. I can’t remember. Just knew I took medication when I had pain.

February 2010 Severe pain in left shoulder. Don’t remember.

4 September 2010 Left wrist pain. Persisting restricted movement. Operation scheduled.

Don’t remember.

25 October 2010 Anxiety. Headaches for two days. Dizziness.

Don’t remember.

23 November 2010 Lower back pain persisting. Carpal tunnel stable.

Can’t remember.

14 December 2010 Left wrist. Review carpal tunnel syndrome and medication.

Recalls taking Panadol and Nexium.

33 The plaintiff agreed she was taking Panadol in December 2010. She was

taking it for her pains, whatever they were, and then said she was taking it for

her back.23

34 The plaintiff saw Mr Flood in 2010 because she was experiencing numbness

in her arm and she wanted to ask what he could further offer. He advised her

that surgery could not help anymore.24

35 The plaintiff could not remember seeing her general practitioner in January

2015 about her left wrist.25

36 The plaintiff did not think she mentioned neck pain when she saw Mr Battlay

in June 2010. She must have indicated her pains were in the arm up to the

shoulder.26

The accident

37 On the said date, the plaintiff’s vehicle was struck on the left while in a

23 T42 – WorkCover printout Claim No 97 7531 (Defendant’s Court Book (“DCB”)) 24 T15 25 T15 26 T42



roundabout, forcing it into the median strip. The plaintiff was shaken up by the

collision and then drove home.

38 The next day, the plaintiff’s neck felt very stiff and she also had a headache.

She thought the symptoms would resolve but they did not.

39 The plaintiff attended Dr Gorgioski on 8 February 2011. He prescribed

medication and arranged for a cervical CT scan.

40 The plaintiff was then referred for physiotherapy in Lalor, where she first

attended on 9 March 2011 twice per week for approximately twelve months,

and then once per week until late 2012 when the defendant ceased funding

for the treatment.

41 The plaintiff could not remember whether she had challenged the defendant’s

decision to terminate funding.27

42 The plaintiff has continued to have five physiotherapy visits a year funded by

Medicare. These provide temporary relief for her neck discomfort. If funding

had not been ceased, she would have had more regular physiotherapy

because she is still in pain.28

43 Dr Gorgioski arranged an MRI scan of the plaintiff’s cervical spine, which took

place in September 2011. He then referred her to Mr Timms, a neurosurgeon,

whom she first saw on 11 November 2011.

44 Mr Timms advised the plaintiff to continue physiotherapy. Acupuncture was

suggested by the physiotherapist. The plaintiff had one session in late 2011

but she was scared of the treatment and felt nauseous and did not continue.

45 The plaintiff returned to Mr Timms on 15 February 2012. Her neck pain

seemed to be spreading into her right shoulder and arm and he suggested

neck surgery. The defendant denied his request for funding.

27 T28 28 T42



46 If surgery had been funded, the plaintiff would have had it because, “even

today, she still has a lot of trouble.”29 She denied that she had not gone on the

public waiting list because she did not want to have surgery. She was not

lying in this regard because she was having pain and difficulty sleeping. She

wanted to have surgery privately and get it over and done with. She could not

remember how long Mr Timms told her she would be on the waiting list.30

Symptoms

47 As of March 2014 when she swore her first affidavit, the plaintiff had constant

neck pain which was a tight and aching feeling, made worse if she turned her

head too quickly or too far. She also had increased neck pain if she held her

head in the same posture, particularly if bending forward for longer than a few

minutes. If she was on her feet for more than a few hours at a time, she felt

more fatigued and wanted to rest her head on something.

48 The plaintiff’s neck pain was worse on the left but turning to the right usually

produced the most discomfort. She also had a pulling feeling in the top of both

shoulders when she moved her head. Raising her arms above chest height

could also increase neck pain. She tended to now move slowly and stiffly and

she was conscious to avoid any activity that would jar her neck.

49 In cross examination, the plaintiff confirmed this pain persisted. There was

nothing she could do about it and she could not get rid of it.31

50 The plaintiff has had a good recovery from bowel cancer. She underwent

surgery in July 2013, and requires check-ups every three to six months.

51 The plaintiff could drive but preferred to be a passenger and often only drove

locally. She used her mirrors more and avoided reverse parking. She could

drive for about 30 minutes before her neck seemed to become increasingly

stiff and she experienced headaches. She gently did tilting and rotation

29 T28 30 T29 31 T31



movements and rubbed her neck whenever she was sitting, which could

reduce the stiffness. Sometimes when sitting, the pain seemed to spread

down her shoulder blades, at which time she found it best to get up and move

around.

52 The plaintiff’s neck pain also spread into the back of her head, worse on the

left. That caused headaches, particularly above and behind her left ear.

These occurred daily and usually lasted between 30 minutes and one hour.

53 The plaintiff found it hard to get comfortable to sleep and used heat packs on

her neck in winter on her shoulder blades, as well as a pillow under her neck.

That seemed to make it more comfortable. Nearly every night, she tossed and

turned a lot because it was hard to get to sleep with neck pain. When that

happened, she often got up and sat in the lounge room and watched

television for about half an hour. She found it too uncomfortable to stay in bed

and was better off sitting in a recliner, purchased before the accident, which

she could adjust for neck support.32

54 The plaintiff’s sleeping has been worse since the accident. It is causing her

more stress and she is “more frightened”. She always had difficulty sleeping,

but when she had pain and difficulty sleeping, there was not much she could

do.33

55 The plaintiff has not taken sleeping tablets since the accident, and could not

remember taking them before.34

56 In the morning, the plaintiff’s neck was always stiff. She reheated the heat

pack and wrapped it around her neck if the weather was cold. She also had a

hot shower, which seemed to loosen her muscles. She dressed slowly and

tried to keep her head up.

32 T33 33 T32 – never taken sleeping tablets cf T13 34 T33



57 As of March 2014, the plaintiff’s daughter and rand daughter still lived at

home. The plaintiff still did much of the cooking but could only stand at the

bench for about 10 to 15 minutes before needed a break and move around.

58 The plaintiff used to make homemade pastry that her husband liked but she

could no longer do so as it involved prolonged working of thin pastry. She

now just prepared basic foods and tended to buy more take-away food.

59 The plaintiff could put washing in the top loader machine. Her husband or

daughter then hung most of the washing on the line and she only hung light

clothes on a low line or clotheshorse. The plaintiff’s daughter or husband did

the vacuuming as that caused the plaintiff too much neck discomfort with

bending and stretching.

60 After the accident, the plaintiff’s daughter moved in because the plaintiff could

not cope.35

61 The plaintiff’s daughter and granddaughter moved out in about late 2014. Her

daughter still comes and visits most days however and helps with the

housework. Her son also lives close by.

62 The plaintiff’s granddaughter moved in two or three years ago to help out. Her

school was close by. The plaintiff tells her what to do with cooking. Her

granddaughter does most of the cooking.36

63 The plaintiff’s husband puts the washing in the machine. However, the plaintiff

does not have to depend on him for everything.37

64 The plaintiff is upset that she cannot cook, socialise or drive to visit friends.38

65 The plaintiff deposed in her first affidavit she had never been much of a

gardener.

35 T35 36 T34 37 T35 38 T43



66 The plaintiff had socialised less since her injury. She previously went to

barbecues, picnics and hosted friends and family at home. She also attended

functions organised by her local community. When her neck pain was worse,

she could no longer attend those activities and generally looked for excuses

not to attend unless there was a social obligation.

67 Standing and sitting around was likely to cause more neck pain and if the

plaintiff did attend social occasions, she usually left after two or three hours

because of increased neck discomfort. She now could only go four times a

year to these events.

68 Socialising had also been restricted since the accident because of the

plaintiff’s headaches. She denied headaches before. When it was suggested

that there were records of headaches prior to the accident, the plaintiff said

they were not the same as those complained of now. Since the accident, she

got a lot of headaches associated with neck pain.39

69 The plaintiff also used to accompany her husband fishing at times but no

longer did so and he just went with his friends.

70 The plaintiff could not remember when she went fishing with her husband. It

was maybe three years before the accident. It was not something she did

regularly.40 He usually went fishing with his friends and she had probably

been a few times before the accident. She did not remember exactly when

and she did not know the places they went to. She agreed her husband had a

debilitating back injury.41

71 The plaintiff went camping and fishing after her back injury. She was not

“paralysed to be stuck at home.”42

72 The plaintiff felt frustrated at the restrictions on her activities because of her

39 T36 40 T36 41 T37 42 T37



neck discomfort. She became teary at times and was generally more anxious

about the future.

73 In her recent affidavit sworn in August 2015, the plaintiff confirmed she

continues to see Dr Gorgioski every few weeks for neck pain and also blood

pressure treatment.

74 Dr Gorgioski referred the plaintiff to Mr Timms in 2015. When she saw Mr

Timms in March, he arranged a further MRI scan of the plaintiff’s brain and

neck, which took place in June 2015.

75 The plaintiff was sent back to Mr Timms by Dr Gorgioski and her lawyers in

May 2015. Dr Gorgioski had advised the plaintiff that just taking tablets and

physiotherapy was not going to cure her and she was not going to improve

anymore. She did not know whether she had arm symptoms when she saw

Mr Timms on that occasion.43

76 When the plaintiff saw Mr Timms again on 19 June 2015, he told her that he

did not think he could help her discomfort with an operation. He advised her to

keep to keep taking medication and have physiotherapy.

77 The plaintiff now takes two Panadol or one Nurofen or one Panadol Extra

every morning for neck pain, about every four hours during the day. About

every second night, she also takes two Panadol because she cannot sleep

with neck pain and headaches. She usually takes Panadol Extra before she

goes to bed as that seems to help her get to sleep.

78 The plaintiff also takes blood pressure medication and Nexium for her

stomach. She has had a stomach ulcer for a long time which prevents her

from taking strong painkillers.

79 The plaintiff takes Panadol some days and when she is in severe pain, she

43 T30



takes Panadeine Forte for which her doctor gives her prescriptions.44

80 Panadol helps with the plaintiff’s back pain. It helps a little with her neck but

after less than four hours, the severe pains continue.45

81 In re-examination, the plaintiff described having side effects from painkillers

after the accident and the medication was changed. Since then, she has

taken Panadol, Panadeine, Nurofen and sometimes used Voltaren cream.

She takes one Nurofen or Panadol every morning for her neck pain and about

every four hours during the day thereafter.46

82 The plaintiff deposed that since swearing her earlier affidavit, her neck pain

has remained much the same, although she believes her neck now feels

stiffer. She also believes she gets more headaches, mainly on the left side of

the back of her neck. She tends to have a headache associated with neck

pain nearly every morning that can last for an hour or so, improving after

medication. She then usually has a further headache with worsening neck

pain after the pain-relieving medication wears off in a few hours and then she

takes further medication.

83 The plaintiff believes, since swearing her previous affidavit, her neck pain has

got her down more and that she has become more anxious.

84 In re-examination, the plaintiff said that her neck pain, in particular, and other

pains are worse now than before the accident.47

85 The plaintiff’s sleeping remains poor and she usually wakes several times

during the night with neck pain and headache.

Medical evidence

86 The plaintiff’s general practitioner, Dr Gorgioski, saw the plaintiff on a number

of occasions in February 2011 after the accident.

44 T31 45 T32 46 T45 47 T43



87 On initial presentation, the plaintiff complained of severe headaches, neck

pain and lower back pain and was feeling anxious about her pain.

88 Dr Gorgioski organised various investigations. The plaintiff’s treatment was

conservative with analgesics and physiotherapy.

89 As of March 2013, the plaintiff still complained of severe neck pain aggravated

by physical activities. She told Dr Gorgioski she could not do heavy domestic

duties, nor could she do chores requiring her to lift her arms above her

shoulder. Her sleep was poor and she was very anxious.

90 On examination, the plaintiff had restricted neck movement with marked

stiffness and she had numbness in her upper limbs.

91 In that March 2013 report, Dr Gorgioski noted the plaintiff had a past history of

chronic lower back pain and bilateral Carpal Tunnel Syndrome.

92 At that stage, taking into account her previous medical history, clinical findings

and MRI results, Dr Gorgioski thought the plaintiff suffered from a whiplash

injury of the cervical spine, especially with trauma at C5-6 and C6-7, as a

result of the accident. He considered her condition to be stable and

permanent and that she could continue with conservative treatment

indefinitely. He noted that a neurosurgeon had advised the plaintiff would

benefit from surgery.

93 In his most recent report of July 2015, Dr Gorgioski noted he saw the plaintiff

regularly. She still complained of headaches, insomnia and neck pain. She

told him that the headaches and insomnia were caused by her neck pain.

She advised she tried to stay mobile and took painkillers. She drove for short

trips and did light housework.

94 Dr Gorgioski noted that on examination, the plaintiff had always been very co-

operative and did not exaggerate her symptoms. She had restricted

movements of her neck in all directions and marked stiffness. The neck



movements triggered headaches more on the left side of her head.

95 Dr Gorgioski noted the recent examination by Mr Timms, who advised that

surgical treatment was not indicated.

96 Dr Gorgioski thought the plaintiff suffered whiplash of her neck and also a disc

injury to her neck with some bulges in the lower part of the cervical spine and

some foraminal stenosis. She also suffered from post-traumatic headaches

and insomnia.

97 Dr Gorgioski noted that since the accident, the plaintiff had had some

restrictions of a social and domestic studies. Her recreational activities had

been curtailed. She used to enjoy camping and fishing trips with her husband.

She also used to help taking care of her elderly parents. Now she drove for

only very short distances.

98 Dr Gorgioski thought the plaintiff’s injuries were permanent and stable and

that she should continue with the conservative treatment for an indefinite

period.

99 The plaintiff’s attendances following the accident commenced on 8 February

2011.

100 During that year, there were numerous attendances for neck pain, headache

and a referral to Mr Timms on 18 November 2011.

101 Investigations were arranged and a prescription of Digesic continued. The

following is a summary of relevant attendances since that time.

24 January 2012 - Severe neck pain and headaches – Panadeine.

2 February 2012 - Neck pain deteriorating. Refer to Mr Timms.

9 February 2012 - Review meds.

23 February 2012 - Review meds. Seen Mr Timms, who says

needs operation.



20 March 2012 - Neck pain persisting.

19 April 2012 - Neck. Painful movement. Review meds.

Panadeine.

19 April 2012 - Prescription for Panadol Extra and Valium.

26 April 2012 - Review neck pain, stiffness +++.

19 May 2012 - Neck pain persisting. Tramal.

14 June 2012 - Neck pain persisting. Tramal. 100 milligrams

(previously 50 milligrams).

26 June 2012 - Neck pain persisting. Tramal.

12 July 2012 - Neck pain persisting. Headaches.

30 July 2012 - Neck pain persisting. Prescribed Panadeine.

13 August 2012 - Severe neck pain. Seen Mr Timms. Tramal.

28 August 2012 - Pain the same.

25 September 2012 - Digesic.

October 2012 - Neck pain persisting. Insomnia because of

pain.

1 November 2012 - Severe headaches. Neck pain persisting.

16 November 2012 - Review meds. Neck pain persisting.

Prescription for Digesic.

8 January 2013 - Neck pain persisting. Refer for operation.

18 January 2013 - Restricted neck movement. WorkCover low

back pain. Discontinue brufen.

1 February 2013 - Neck pain. Persisting stiffness. Discontinue

physio.

20 March 2013 - Neck pain persisting with stiffness.

8 April 2013 - Review and headaches. Digesics, Nexium,

Valium.

20 May 2013 - Neck pain persisting.



11 June 2013 - Neck pain persisting. Tramal.

June 2013 - Colonoscopy.

July 2013 - Very upset regarding bowel cancer.

6 August 2013 - Neck pain persisting. Restricted movement.

OxyContin, 10 milligrams twice a day.

30 August 2013 - Review meds. Nexium and Panadol

9 September 2013 - Neck pain. Review meds. OK. Panadol.

WorkCover prescription for Valium.

13 March 2014 - Severe neck pain persists.

8 April 2014 - Nexium and Panadol.

3 June 2014 - No difference. Still persisting neck pain.

13 June 2014 - Voltaren and Nexium.

27 June 2014 - Referred to psychologist. Post-operative

depression.

17 November 2014 - Neck pain persists. Stiffness +++.

29 January 2015 - Neck pain persisting. Refer to Mr Timms

regarding operation.

9 February 2015 - Wants operation.

20 February 2015 - WorkCover review. Lower back pain.

Persisting restricted movements.

2 March 2015 - Month of headaches and neck pain.

9 May 2015 - Still headaches.

25 May 2015 - Seen Mr Timms. Neck pain persisting.

102 Mr Timms first saw the plaintiff on 11 November 2011 on referral from Dr

Gorgioski for symptoms of neck and arm pain since the accident.

103 On initial examination, the plaintiff demonstrated decreased range of

movement in the cervical spine, mainly due to midline posterior pain. There



was reduced power bilaterally of Grade 4/5. Bilaterally, the plaintiff had

decreased sensation in the C5-6 and C6 distribution.

104 Mr Timms noted the mild weakness in the plaintiff’s arms and the sensory

disturbance with recent imaging suggesting neural compression. He felt that

was the disc and osteophyte formations at C5-6 and C6-7 that were most

likely causing her symptoms and recommended she consider more intensive

physiotherapy and if that was not successful, she may require surgery.

105 There was a review on 15 February 2012 before which the plaintiff had had

physiotherapy and acupuncture but her symptoms were worsening. Mr

Timms then felt it reasonable to offer her surgery and wrote to the defendant

to seek approval for an anterior cervical discectomy and fusion, with partial

vertebrectomy at C5 and C6-7.

106 The plaintiff was re-examined in August 2012, at which stage the defendant

had denied liability for surgery.

107 The plaintiff then reported she was pursuing legal process to resolve her

complaint. Mr Timms offered to place her on a public waiting system to

pursue surgery. At that consultation, the plaintiff opted to pursue the

defendant through her solicitors.

108 Mr Timms noted that prior to the accident, the plaintiff did not have any

cervical pain or upper limb symptoms. From the mechanism described, he

thought it was likely she suffered a whiplash type injury to her cervical spine.

109 Mr Timms thought the plaintiff had limited cervical spine movement, as well as

symptoms in her upper limbs which had caused weakness, pain and tingling.

He was not specifically aware of her exact social and recreational activities

but suspected her domestic life and day-to-day activities had been impaired

by her current physical limitations.

110 Mr Timms noted, despite a number of treatments, the plaintiff’s symptoms had



slowly worsened and he had recommended surgery.

111 The plaintiff was most recently reviewed by Mr Timms on 21 May 2015. She

was then complaining of cervical spine pain with decreased range of

movement secondary to pain and that was causing stiffness, spasms in her

neck and triggering headaches, worse on the left. She told him those

symptoms had persisted since the initial consultation.

112 Following this examination, Mr Timms thought the plaintiff warranted an up-to-

date MRI scan.

113 On review on 19 June 2015, the plaintiff had similar complaints. She felt her

pain medication was useful.

114 Mr Timms reviewed the June 2015 MRI. He noted a number of disc injuries

throughout the spine, the worst at C5-6 and C6-7 with only mild stenosis.

115 In Mr Timms’ view, there was now no indication for neurological operative

intervention. He recommended continuing physiotherapy and massage and

thought that a pain management course may be of some benefit. The plaintiff

was discharged from his service as there was no indication for operative

treatment.

116 In summary, Mr Timms noted the plaintiff had no symptoms down her arms

but described a tension headache originating from the base of the neck,

extending up, and worse on the left than the right. Mr Timms thought the

plaintiff was incapacitated due to her symptoms but could not be more specific

in what regard.

117 Mr Timms concluded the plaintiff had suffered a whiplash-type injury that had

caused neck pain, decreased range of movement and headache. She had no

focal or neurological deficit but disc injuries in her cervical spine at C5-6 and

C6-7. He thought her condition had stabilised.



Investigations

118 Dr Gorgioski organised a CT scan of the cervical spine in February 2011.

119 It was reported that at C5-6, there were minor lipping changes impressing on

the thecal sac. There was some disc narrowing evident but no disc

herniation. There was bilateral bony narrowing of the neural exit foramina

more marked on the left side. There were some uncovertebral degenerative

joint changes.

120 At C6-7, there were minor lipping changes impressing on the thecal sac.

There was no disc herniation. There was some disc space narrowing. There

were some uncovertebral degenerative joint changes and there was some

bony compromise of the neural exit foramina bilaterally.

121 There was an MRI scan of the cervical spine organised by Dr Gorgioski in

September 2011.

122 It was reported there was multi-level spondylosis and disc disease. That was

most prominent at C5-6 and C6 where associated nerve root

contact/impingement was present.

123 There was an MRI scan of the cervical spine arranged by Mr Timms in June

2015.

124 It was reported there was no central canal stenosis. There was multi-level

mild disc disease. At C6-7, there was a mild to moderate broad disc bulge

which just reached the cord but did not cause central canal stenosis.

125 There was severe left C5 and C7 neural foraminal stenosis demonstrated

elsewhere. There was no traumatic lesion.

The Defendant’s medical evidence

126 On 3 November 1997, Mr Flood, plastic surgeon, requested WorkCover pay

for left carpal tunnel surgery which was carried out on 19 November 1997.

127 Following surgery, the plaintiff developed “sudden severe and out of



proportion to surgery type pain,” which may well have been reflex sympathetic

dystrophy. She was referred to a pain management specialist.

128 When examined on 3 March 2010, Mr Flood noted that post-surgery, the

plaintiff failed to thrive. She complained of numbness persistent in the hand,

especially at night. Repeat EMGs had suggested mild Carpal Tunnel

Syndrome. An ultrasound had showed thickening of the median nerve

compared to the normal right median nerve. Mr Flood requested permission

to re-release the median nerve on the left side.

129 Mr Flood advised the plaintiff’s solicitors in October 2010 that she may benefit

from further surgery.

130 The plaintiff was seen by Mr Peter Kudelka, orthopaedic surgeon, in July

1998. He then thought her capacity for work was considerably limited due to

her back and left arm condition. He thought she had no capacity for factory

work as of 2008.

131 The plaintiff was examined by Mr Peter Mangos, general surgeon, in October

1998.

132 The plaintiff told him that she had chronic back pain, suffered sleep

disturbance and was anxious about her future. He doubted she could perform

any serious regular work.

133 The plaintiff was examined by Mr McDermott in March 1999.

134 The plaintiff’s complaints then were of constant left upper extremity pain.

There was sudden onset of lumbar spinal pain which radiated to the right leg.

135 Mobility was restricted and pain increased after walking more than 15

minutes. The plaintiff drove a car only short distances. She had less social

contact with her friends. She was helped at home by her husband and

daughter. She managed some cooking but no cleaning or gardening. Leisure



activities had not been affected.

136 Mr Carmine Vinci, physiotherapist, wrote to CGU in September 2007. The

first treatment was in August 1998 and continued until May 1999. Mr Vinci

then diagnosed chronic lumbar musculoskeletal dysfunction and chronic left

Carpal Tunnel Syndrome.

137 The plaintiff recommenced treatment in October 2006. Mr Vinci then noted

deterioration was evidenced by reduced tolerance to static postures,

increased pain level and significant disrupted sleep. Since resuming

treatment, those parameters had been steadily improving. The plaintiff was

not yet stable and therefore required ongoing treatment three times a month.

138 Mr Neil Sherburn, physiotherapist, conducted an independent physiotherapy

assessment, having examined the plaintiff on 25 January 2008.

139 The plaintiff then reported she had pain across the lower back but more on the

right, with referral down the right leg. She also had numbness down the right

leg and she mentioned pain could radiate from the lower back to an area

between the shoulder blades. The pain was constant, varying in intensity, and

did not change significantly over the last year.

140 The plaintiff said she could do activities of daily living, albeit slowly at times.

She reported her sleeping was disturbed by lower back pain and she was

often stiff and sore in that area when she got out of bed in the morning, taking

a while to get going. She had been in so much pain in the past, she required

injections from a doctor.

141 The plaintiff reported she had a reduced sitting and standing tolerance due to

lower back pain. She gave the impression she led a very quiet and inactive

life due to pain levels.

142 At that stage, the plaintiff reported that she was attending a doctor regularly

for review of her condition and provision of certificates and medication. She



was having physiotherapy twice a week with some transient pain reduction

thereafter. She was taking Panadol on an ‘as needs’ basis.

143 On examination, there was very limited movement of the cervical spine and

the movement was variable on repeated testing, indicating a functional

overlay.

144 In Mr Sherburn’s opinion, the plaintiff presented with a chronic pain scenario

of lumbar spine as a result of her 1997 work injury. He thought ongoing

physiotherapy was not appropriate or reasonable. In his view, the plaintiff

should be given an appropriate exercise program. He thought there should be

limited physiotherapy in the future to implement a comprehensive exercise

and stretching program.

145 The plaintiff saw Mr Peter Battlay, orthopaedic surgeon, on 25 June 2010.

146 The plaintiff told him of pain in her left hand since injury, as well as tingling

and numbness at night. She said the pain spread to her shoulder and neck

and she had been on medication continuously.

147 Mr Battlay noted the plaintiff had basically put up with pain ever since and had

been seen by Mr Flood, who advised a further decompression.

148 The plaintiff then described pain in the volar aspect of the wrist and spreading

up the arm, as well as a continuous numb feeling in the left hand, worse at

night. She only took Panadol for pain, although when severe she had

Panadeine Forte. She generally coped with housework, although her

husband had to help her with vacuuming, mopping and anything else heavy.

149 Mr Battlay noted there may have been episode of Reflex Sympathetic

Dystrophy to perpetuate the plaintiff’s symptoms but he could not find any

evidence of it then.

150 Mr Battlay thought an operation would not help from a physical point of view



and it may well make the plaintiff’s symptoms worse.

151 Mr Battlay changed his view as to compensability because of recent literature

as to the carpal tunnel and its relationship to work. He then thought the

plaintiff’s initial condition would not have been compensable and the case for

operative intervention was not strong.

Vocational evidence

152 In April 1998, Work Solutions carried out a vocational assessment, following

which it concluded the plaintiff did not possess a capacity for employment.

Her physical injuries involved her left wrist and lower back, affecting her ability

to undertake any work, and outside of the workplace, she did not have any

transferrable skills as she had been largely involved in process and packaging

work.

Medico-legal examiners

153 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined

the plaintiff in February 2011.

154 The plaintiff told him of the accident circumstances and treatment thereafter.

She denied any past history of neck pain, even after he specifically indicated

that this was documented in her local doctor’s notes.48

155 The plaintiff complained of neck pain and headaches, pain in the upper

thoracic spine and both shoulder girdles. She did not specifically complain of

arm pain or numbness in the left arm.

156 Dr Thomas noted the plaintiff had been in receipt of a Disability Support

Pension since 1997 due to back problems and left Carpal Tunnel Syndrome.

157 On examination, the plaintiff was tender to palpation in the cervical and upper

thoracic spine. Neck movements were limited, with flexion reasonably well

preserved. She reported decreased sensation to the left fingers. Power in

both upper limbs was only mildly limited.

48 There is no reference in Dr Gorgioski’s notes to neck pain pre-accident



158 There was marked limitation of movement of the lumbar spine.

159 Dr Thomas noted the MRI scan of the cervical spine of September 2011.

160 Dr Thomas concluded the plaintiff had whiplash and associated disorder and

there may be some symptoms emanating from the cervical spine discs. He

accepted the symptoms had been aggravated by the accident and given that

she denied any previous neck problems and the difficulty deciphering the

handwritten notes from her general practitioner, he thought that was

reasonable.

161 Dr Thomas noted the plaintiff had pre-existing unrelated conditions but they

did not seem to be involving her cervical spine. He thought she had poor

overall coping strategies and that had impacted on her recovery.

162 Dr Thomas thought recurrent physiotherapy was inappropriate and

counterproductive and needed to be discontinued. Accepting ongoing pain

and neck stiffness, referral to a pain management program would be

reasonable.

163 Given the plaintiff’s neck pain was the dominant problem and there was no

evidence of radiculopathy and she did not complain of brachialgia, Dr Thomas

thought there was no indication to consider cervical fusion and that surgery

was most unlikely to help the plaintiff’s cervical spine complaint.

164 Mr Robert Dickens, orthopaedic surgeon, examined the plaintiff in June 2015.

165 The plaintiff then complained of neck pain along the length of her neck, going

up the back of her head and out towards the left shoulder and down into her

thoracic spine. She described a pulling feeling in the neck and the pain did

not go into her arms. With neck pain, there was an associated significant

problem with headaches.

166 The plaintiff rated her neck pain on a visual analogue scale as 8 to 9 out of 10



and she was never free of pain. The pain was constant and woke her at night.

It was improved by medication and hot packs, but physiotherapy only gave

temporary relief.

167 The plaintiff confirmed medication then consisted of Panadol Extra every four

hours – two tablets – and also Nurofen – two tablets a day, mostly at night.

168 The plaintiff indicated she had past injuries which included WorkCover claims

for a back injury and bilateral Carpal Tunnel Syndrome. She indicated she

was still having symptoms referrable to the lower back and was being treated

by her general practitioner for this with injections.

169 Mr Dickens thought the plaintiff’s presentation was straightforward, without

any suggestion of embellishment. In his view, the overall contour of the

cervical spine appeared to be relatively normal, although the plaintiff tended to

hold her neck slightly forward. She was tender throughout the cervical spine

and tenderness appeared to be maximal high up in the occipital region.

170 To formal testing, neck range movements were significantly restricted. Mr

Dickens thought that seemed in excess of what would be expected, noting the

plaintiff had virtually no flexion and minimal rotation.

171 Upper limb reflexes were normal.

172 Mr Dickens noted the range of investigations undertaken.

173 Mr Dickens diagnosed a soft-tissue injury to the cervical spine, causing

aggravation of underlying degenerative disc pathology. He thought there was

no evidence of radiculopathy.

174 Mr Dicken thought other pre-existing other problems had not been aggravated

by the accident, the exception being the degenerative pathology in the

cervical spine shown on investigations immediately following the accident.

175 Mr Dickens thought there had been no other injuries or disease arising since



the accident influencing the course of the current injury.

176 The plaintiff confirmed that her biggest problem was her neck, not her lower

back.

177 Mr Dickens did not get the impression that there were any major psychosocial

issues impacting on the accident-related neck injury. He thought the plaintiff

sounded quite straightforward in her presentation, although a little flat in

affect, which may suggest an element of depression or anxiety, a diagnosis

which should be left to psychiatric colleagues.

178 Whilst the plaintiff indicated a major problem was her neck, Mr Dickens had

no doubt there were other physical problems, including a preceding back

problem, which were impacting on her domestic activity.

Claim documentation

179 The plaintiff lodged a Claim for Compensation on 22 January 1997 for injury to

the left wrist.

180 The plaintiff lodged a Claim for Compensation in relation to her back on 12

November 1997.

181 The plaintiff lodged a Claim for Permanent Disability for her back, right leg, left

hand and left arm in January 1999. She received a lump sum payment of

$50,709.

182 A WorkCover payment printout set out an attendance with Dr Gorgioski on 3

January 2015 in relation to the left carpel tunnel claim.

The Plaintiff’s 1999 affidavit

183 The plaintiff filed an affidavit in support of her s98 claim for her left carpal

tunnel and back in January 1999.

184 In that affidavit, the plaintiff deposed to her left carpal tunnel problems from

1997 and that prior to surgery in relation thereto, she suffered an injury to her

back on 7 October 1997.



185 As of January 1999, the plaintiff was taking Panadol daily and Panadeine

Forte occasionally. She had difficulty sleeping due to the pain since the

development of her injuries but she did not take medication.

186 The plaintiff was restricted in her ability to lift or sit for long periods.

187 The plaintiff’s left arm was weaker than her right and she had pins and

needles.

188 The plaintiff suffered from anxiety and depression due to her injuries, inability

to work, and financial pressure.

189 The plaintiff only did light shopping and her twenty-five-year-old daughter did

the cleaning. The plaintiff had assistance from her sixty-five-year-old mother.

190 The plaintiff could not do gardening. She used to take care of the house and

work hard and now could not do either. She did not socialise very often and

became very upset and frustrated at her family.

Overview

191 It is not disputed the plaintiff suffered an injury to her cervical spine in the

accident.

192 The plaintiff’s cervical injury has been diagnosed as a soft-tissue/whiplash

injury causing aggravation of underlying degenerative disc pathology.

Credit

193 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:49

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

194 Counsel for the defendant submitted that the plaintiff was an unreliable

witness and the lack of supporting lay evidence was very significant.50

49 (2010) 31 VR 1 at paragraph [12] 50 Bezzina v Phi & Anor [2012] VSCA 161 at paragraph [23] (per Harper JA and Beach AJA)



195 Further, in her viva voce evidence, the plaintiff disavowed her affidavit or

rejected material that went against her interests, such as her description of

pain in the “neck region” prior to the accident when she had complained of

neck pain to Mr Kudelka and Mr Battlay before the accident.51

196 The plaintiff deposed in her second affidavit that her neck condition had been

the same since she swore her first affidavit, but then said in her viva voce

evidence that her condition had worsened.52

197 In her viva voce evidence, the plaintiff admitted to having sleeping tablets

before the accident, but later in her evidence denied this was the case.

198 Counsel for the plaintiff submitted the plaintiff’s evidence should be accepted

despite the absence of a supporting lay affidavit. It was submitted the plaintiff

was a frank witness who tried to give a good account of herself.53

199 I did not think the plaintiff was a particularly reliable witness. She tended to

attribute all the blame for her current problems to her neck injury when her

current restrictions are clearly related also to her back and left wrist,

conditions for which she has been in receipt of a Disability Support Pension

since 1997.

200 Further, the plaintiff attempted to minimise the seriousness of her pre-accident

complaints. One such example was the plaintiff said that in 2010, Mr Flood

had advised her left carpal tunnel surgery would not help, yet it is apparent

that he requested funding and he advised the plaintiff’s solicitors of the need

for this surgery.

201 Whilst the plaintiff’s credibility is compromised, there is objective evidence to

support her claim that she suffers from a serious injury to her cervical spine.54

51 T51, see also Mr Sherburn - 2008 52 T52 53 T75 54 Sejranovic v Berkeley Challenge Pty Ltd (2009) VSCA 108 paragraph [171]



Unrelated conditions

202 In Peak Engineering & Anor v McKenzie,55 Maxwell P described the difficulty

faced when a separate injury is also producing pain and suffering

consequences for the claimant, as well as the relevant injury.

203 In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”56

204 The President found that the judge was:

(a) bound to identify, and exclude, the continuing consequences for the

plaintiff of the knee injury; and

(b) when the consequences properly referable to the relevant injury were

identified, identified them as “serious”.57

205 I am therefore bound to identify, and exclude, the continuing consequences

for the plaintiff of her various unrelated conditions and consider whether the

consequences referable to her neck injury are “serious”.58

206 Whilst the plaintiff lists a number of activities she claims are compromised by

her neck injury, the plaintiff’s ability to engage in these activities is also

significantly affected by her chronic back pain and left wrist conditions.

207 Counsel for the defendant submitted there is a lack of medical evidence as to

the plaintiff’s pre and post-accident condition as to what ongoing problems are

related to the transport accident. There is nothing from the general

practitioner in this regard.59 He clearly failed to do any analysis, simply

referring in one sentence to chronic low back and chronic carpal tunnel, not

55 [2014] VSCA 67 56 Peak Engineering & Anor v McKenzie (supra) at paragraph [1] 57 Supra at para 2 58 Supra 59 T50



exploring the issue in any way.60

208 It was submitted that none of the other medical practitioners who have opined

in this case address the plaintiff’s neck condition in the detail that is required

by the Court of Appeal in Bezzina v Phi & Anor.61

209 In that case, Harper AJ stated that the trial judge was required to examine the

impact of the injury on the applicant as a whole. When examining the

consequences of the claim for serious injury, the trial judge was bound to look

at how they affected the applicant as he was, and would likely have been,

absent the injuries he sustained in the transport accident.

210 This included looking at and considering the effect (and likely effect in the

future) of the applicant’s pre-existing injuries. To the extent that the evidence

was said to be so sparse as to impede the judge in that task, the responsibility

lies with the applicant or his legal advisers.62

211 The plaintiff’s affidavit did not include any comparison of her medication intake

pre and post accident. Her general practitioner was also silent in this

regard.63

212 It was submitted it was wrong for the plaintiff to say that she was in

reasonable health prior to the transport accident. Medical records made that

suggestion “farcical”.64 She clearly had ongoing left limb problems, with Mr

Flood suggesting further surgery in late 2010.

213 It was submitted it was impossible to say which injury was productive of

impairment of body functions to the point where the plaintiff suffers

consequences that are serious.65

60 T57 61 Supra 62 T23 63 T53 64 T55 65 T56



214 I accept this submission generally and have difficulty identifying any particular

activity where the plaintiff’s neck injury has produced consequences that meet

the narrative test.

215 In my view, many of the plaintiff’s other activities were significantly

compromised before the accident – housework, shopping, cooking, socialising

and driving.

216 Further, pre accident, the plaintiff was having significant headaches and she

had difficulty sleeping because of her arm and back pain.

217 The plaintiff’s lifestyle difficulties were clearly set out in her 1999 affidavit and

more importantly, mentioned by her to medical examiners in the years leading

up to the accident.

218 Accordingly, at the time of the accident, the plaintiff’s activities were

significantly restricted by her back and left arm conditions.

219 However, it is clear that since the accident, a further major factor has been

added to the plaintiff’s pre-accident presentation, namely severe, persisting

neck pain. Until recently, this was accompanied by arm pain such that her

treating orthopaedic surgeon, Mr Timms, thought the plaintiff’s condition

warranted cervical surgery.

Pain

220 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:66

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a) what the plaintiff says about the pain (both in court and to doctors);

… .”

221 I accept that since the accident, there has been a very consistent pattern of

ongoing complaints of neck pain and stiffness by the plaintiff to Dr Gorgioski.

66 (Supra) at paragraph [11]



Whilst the plaintiff continued to complain of back and left arm pain before the

accident, during that time, there was no complaint of neck pain or any

treatment in relation thereto by Dr Gorgioski.

222 Counsel for the plaintiff relied heavily on Dr Gorgioski’s clinical notes showing

ongoing complaints of neck pain and treatment after the accident of a

significant nature.67

223 It was submitted on Dr Gorgioski’s notes, the predominant problem since the

motor vehicle accident had been the neck.68

224 Counsel for the defendant relied on the comments of Ross AJA in Tatiara

Meat Company Pty Ltd v Kelso,69 where his Honour noted that a complaint of

pain even repeated many times does not establish the veracity of the

complaint.

225 However, in the present case, it is not just a situation of complaint of pain, the

assessment of pain and suffering consequences also involves what the

plaintiff has done about the pain.

226 Clearly, post incident there are numerous attendances on Dr Gorgioski when

the plaintiff complains of severe persisting neck pain. Pre accident, she was

not attending her general practitioner as frequently, as is now the case with

her neck.70

227 Whilst the exact nature of the plaintiff’s medication regime post-accident is

unclear, I am satisfied that on numerous occasions she has been prescribed

Tramal for her neck, as well as Panadeine, Voltaren and Digesic. There

appears to be one neck-related prescription of OxyContin in August 2013

when the note of that date detailed neck pain persisting and restricted

movement.

67 T63 68 T73 69 [2010] VSCA 12 at paragraph [46] 70 T60



228 Whatever be the correct picture in terms of prescribed medication for the

neck, I accept that since the accident, the plaintiff has been taking painkilling

medication on a regular basis for her neck pain.71 Pre accident, Dr

Gorgioski’s notes do not indicate ongoing prescription of medication or the

use of painkillers on a regular basis for the plaintiff’s back and left arm

condition.

229 Whilst surgery was suggested at an early stage by Mr Timms, the plaintiff did

not go ahead with it as a private patient. She recently sought a referral back

to Mr Timms seeking surgery because of her ongoing neck pain and

restriction. However, as she no longer complained of arm pain, he did not

consider surgery was warranted.

230 Taking into account all the evidence, I am satisfied that the consequences

referrable to the plaintiff’s compensable neck injury – persisting pain,

restriction of movement and the need for medication – excluding the

consequences of her back and left arm injury, meet the narrative test of

“serious”.

231 Accordingly, I grant the plaintiff leave to bring proceedings for damages for

pain and suffering.

- - -

71 T64

in the county court of victoria revised at … the plaintiff received workcover payments for about...

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