Randhawa v Transport Accident Commission [2020] VCC 780

4 The plaintiff relied upon four affidavits: three sworn by the plaintiff on 12 April 2018, 17 December 2019 and 25 April 2020, and an affidavit affirmed by the plaintiff's partner, Su Huat Teoh, affirmed on 16 December 2019. I have not summarised the affidavits of the plaintiff or her partner; however, I will refer to their relevant evidence in my reasoning.

5 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

6 In determining this application, the Court must be satisfied, on the balance of probabilities, that the injury suffered by the plaintiff was as a result of the transport accident and that the injury is a "serious injury" within the definition of "serious injury" contained in s93(17) of the Act. I must make the assessment of serious injury at the time the application is heard. The term "serious injury" requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[1]

7 The defendant submitted that the following issues were in dispute:

8 Whether the plaintiff has suffered a serious and long-term impairment or loss of bodily function caused by the transport accident.

9 The plaintiff's claimed mental conditions are not in response to any impairment or loss of bodily function.

10 The claimed pecuniary disadvantage consequences do not arise

11 Even if the court accepts the claimed consequences of the transport accident, the consequences of the plaintiff's injury do not satisfy the requisite test. That is, the consequences of her injury, when judged by comparison with other cases in the range of possible impairments, cannot fairly be described as "at least very considerable" and certainly "more than 'significant' or 'marked'".

12 The plaintiff's credit was not in issue. She presented as an intelligent woman who answered questions directly. She made concessions and was straightforward in her evidence. When challenged on what she had reported to the medical witnesses, she provided elaboration. At times her evidence was confusing, however she provided clarification.

13 The plaintiff agreed that she does not have difficulty in caring for her children now. There was no suggestion that the plaintiff had exaggerated her symptoms.

14 Overall, she gave her evidence in a direct manner and her demeanour was straightforward.

15 It was not in dispute that the plaintiff was involved in a transport accident on 20 February 2013 when riding her bicycle at the intersection of St Georges Road and Oakover Road, Preston. She was taken to the Royal Melbourne Hospital, where she was admitted and underwent radiological investigations. She was transferred to Brunswick Private Hospital for rehabilitation.

16 On 2 March 2013, she was discharged from Brunswick Private Hospital and received outpatient treatment from an occupational therapist and physiotherapist.

17 On 12 March 2013, she consulted her general practitioner, Dr Chen, at Northland Medical and Dental Centre, who prescribed oxycontin. On 25 March 2013, she commenced a multidisciplinary rehabilitation program at Brunswick Private Hospital, attending two sessions per week.

18 On 3 April 2013, she attended her general practitioner for the purpose of a continuation of a medical certificate. The records reported: "Back still healing but not fully healed. Examination back getting better."

19 On 1 October 2013, the plaintiff returned for a certificate. The reason for contact was "back pain" and the plaintiff was noted to be having physiotherapy "twice a week".

20 On 19 November 2013, Dr Serry, psychiatrist, noted that the plaintiff was not having any current active treatment and not taking any medication.

21 In December 2013, Mr Haw, orthopaedic surgeon, examined the plaintiff on behalf of her then solicitor. The plaintiff reported "she still gets occasional pain in her low back and also troubling pain from the left shoulder". He said it was possible that the accident did cause injury to the left AC joint, but noted it was asymptomatic until seven weeks after the accident. He accepted that as a consequence of the accident, the plaintiff suffered a significant injury to the low back on the left side. He said her prognosis was good and it was unlikely that her injuries would interfere with her earning capacity.

22 On 23 June 2014, the Brunswick Private Hospital discharge report to the plaintiff's general practitioner, Dr Chen, recorded:

"Sonia reports significant improvement in her symptoms. Her results above show improved gait speed and endurance. Sonia has now been discharged from our program to continue on with her rehabilitation and maintenance at a local gym."

23 Between 1 October 2013 and 28 November 2018, there is no reference in the clinical records of the plaintiff's general practitioner of any complaints of back pain or the transport accident.

24 The plaintiff's evidence was that on various occasions she mentioned her back pain, but this is not recorded by the general practitioner in the notes. During this five-year period, the plaintiff attended her general practitioner for other medical conditions.

25 Between 16 January 2015 and 7 April 2017, the plaintiff did not attend her general practitioner.

26 On 27 May 2015, the plaintiff's general practitioner, Dr Omar Seedat, reported to her former solicitor she was last seen by him on 1 October 2013. She was not seen for her condition after October 2013. Her injuries did not affect her ability to perform her normal occupation.

27 On 7 April 2017, the plaintiff attended her general practitioner, Dr Effie Frangoulis, in relation to chronic sinusitis and arthritic pains in her right shoulder, right elbow, right wrist, and pain in her left knee. The notes record no history of rheumatoid arthritis or other arthritis. Initially, the plaintiff's evidence was that she told Dr Frangoulis of her back pain, then she gave inconsistent and conflicting evidence. The plaintiff was referred for an ultrasound scan of her right shoulder and left knee. On 17 April 2017, the medical records confirm that the plaintiff was referred to a rheumatologist at the Austin Hospital and for physiotherapy at Back in Motion in relation to her chronic pains in the right shoulder and left knee. I accept that at this time, the plaintiff did not report low back pain to Dr Frangoulis.

28 On 27 April 2017, the plaintiff attended physiotherapy at Back in Motion Health Group, whose records were before the Court, reporting pain in her left knee, right shoulder and right elbow. There was no recorded complaint of back pain, nor was there any record of a transport accident. The plaintiff's evidence was that during the consultation, the physiotherapist said she could not assist her with her back until she had an opinion from a rheumatologist. The plaintiff said that she is still waiting to be seen by a rheumatologist.[2] The plaintiff has not consulted with a rheumatologist despite being provided with a referral to a rheumatologist I note that this is inconsistent with what she said in her first affidavit, namely that she had not undergone physiotherapy or other treatments in relation to the transport accident, since 2013.

29 On 11 August 2017, the plaintiff consulted her general practitioner, seeking a referral for an x-ray and ultrasound of her right elbow as recommended by her physiotherapist. There was no reference to complaints of back pain.

30 There is a record of the plaintiff consulting with the practice manager on 28 November 2018 in relation to whether she wants further physiotherapy. The record notes that the plaintiff was to "call the clinic if she wants to go with other allied health professional".[3]

31 On 30 September 2019, the plaintiff attended on her general practitioner reporting chronic back pain since the transport accident, exacerbated over the last three months. She wanted a CT scan but did not want to see a physiotherapist at this stage.

32 On 28 October 2019, the plaintiff attended her general practitioner and was provided with the results of the CT scan. The plaintiff was referred to an orthopaedic surgeon, Mr Audi Widjaja.

33 I accept that the general practitioners' notes do not mention the plaintiff reporting low back pain as a result of the transport accident until 30 September 2019. The plaintiff's evidence was that she mentioned it in connection with her arthritic pain. This is not supported by the general practitioner notes, nor is it supported by the physiotherapists' records. On 28 October 2019, the general practitioner referred the plaintiff to Dr Widjaja, orthopaedic surgeon.

34 On 31 December 2019, Mr Widjaja reported that he had examined the plaintiff and diagnosed degenerative disc disease of the lumbar spine. He said that surgical intervention was not necessary, and he recommended her treatment, being regular physiotherapy, analgesics, avoiding heavy lifting and keep mobilised as tolerated.

35 On 18 April 2020, Dr Frangoulis, general practitioner, reported that her last consultation with the plaintiff was on 28 October 2019. The plaintiff was referred to Mr Widjaja, who referred her for an MRI scan of the lumbar spine. It was Dr Frangoulis' view that her future management would be simple analgesia, as required, back care (no heavy lifting), and physiotherapy. She said the plaintiff may possibly continue to have chronic low back pain with exacerbations if not managed appropriately. She was of the view that the plaintiff would be able to work with appropriate modifications such as a good desk and chair; not sitting in front of the computer for long periods; utilising a stand-up desk and no heavy lifting.

36 Neither Mr Widjaja nor Dr Frangoulis said the plaintiff's current condition was related to the transport accident.

37 I accept that the plaintiff had very limited treatment for her low back during the period March 2013 and 28 October 2019. This is also consistent with what she was reporting to medico-legal doctors she was consulting throughout this period.

38 The current medical evidence was expressed by Mr Gary Grossbard, orthopaedic surgeon, Mr Ales Aliashkevich, neurosurgeon and Dr John Owen, orthopaedic surgeon.

39 Mr Grossbard examined the plaintiff on 26 November 2018. He was not provided with any radiological studies.[4] The plaintiff reported to Mr Grossbard that her thoracic spine symptoms were only ever mild, and resolved fully after about six months and her major concern was the low back and sacral pain.[5]

40 Mr Grossbard reported tenderness at the lumbosacral level of the plaintiff's spine with increased pain on the right side. It was his opinion that the plaintiff probably had a pre-existing spondylosis at the L5 level of lower lumbar spine which may well have been made symptomatic following the transport accident.

41 Mr Grossbard reported that the plaintiff has ongoing symptoms which limit her activity when lifting and bending. He was of the view that surgical intervention is not appropriate, and ongoing treatment with exercise should be encouraged. He said the plaintiff's prognosis was good, except that she is likely to go on complaining of back pain which may at some stage have periods of exacerbation. Mr Grossbard was of the view that any exacerbation episode should be treated on its own merit.

42 Mr Aliashkevich examined the plaintiff on 21 August 2019. The plaintiff reported she has difficulty and increased pain with activities that require prolonged, sustained, awkward or repetitive bending, twisting or lifting.[6] She reported that the pain is better when taking ibuprofen, walking or using heat packs. She takes between one and three tablets a day, most often one per day.

43 Mr Aliashkevich diagnosed the plaintiff with chronic right lower back pain, aggravated bilateral L5 pars defects with minimal anterolisthesis L5-S1 and mild diffuse disc bulges without neural encroachment of the L3-4, L4-5 and L5-S1 levels. He said the plaintiff's prognosis was guarded. His views were unchanged as a result of the additional radiological investigations undertaken by Mr Widjaja.

44 Dr John Owen, orthopaedic surgeon, examined the plaintiff at the request of the defendant. He was aware the plaintiff suffered a fracture of the alar of her sacrum and fracture of the transverse processes of L2 and L3 in the transport accident, which is consistent with the mechanism of injury in the transport accident. He said the plaintiff reported ongoing pain which interferes with her domestic employment and leisure activities. He said it was strange that her pain has persisted for such a long time from what one would consider to be a stable injury. The injuries should not cause any long-term disability.

45 In a recent report, Dr Owen compared the imaging at the time of her accident which noted abnormalities in the lumbar spine at the L5-S1 level, with a repeat CT scan performed in October 2019 which showed no changes from the scan immediately post injury. He said this was a non-traumatic problem and was a development anomaly. He said the transverse processes at L2 and L3 are not serious injuries and would be expected to have a good outcome. He accepted that the fracture of the sacrum was undisplaced, it was the type of injury that would be treated conservatively and would have a good prognosis.

46 After considering all the reports, Dr Owen came to the view that the plaintiff suffered a considerable blow to her lower back and buttock area as a result of the transport accident causing minor fractures. He said the explanation for her ongoing pain and disability has not been identified. He noted that major mechanical disruption or significant ongoing degenerative changes have not been found. He said her pain and disability is relatively marked. He did not think that there was a degenerative issue at the L5-S1 level. He said the mooted further investigations suggested by Mr Aliashkevich would only be sensible if the plaintiff was having major problems interfering with her life significantly and her employability.

47 I shall now consider the consequences which I must consider at the current time.

48 I must consider the intensity of the pain which the plaintiff experiences currently. In doing so, I must consider what the plaintiff says about the pain, what she does about the pain and what the doctors say as to the extent and intensity of the pain. I should also consider what the objective evidence shows about the disabling effect of the pain. The weight attached to the plaintiff's account of pain will depend on an assessment of her credibility.

49 The evidence is that the plaintiff was prescribed OxyContin in March 2013, which ceased in May 2014. In her affidavit of 2018, she deposed to taking one ibuprofen per day, but in her current affidavit, reported taking between one and three per day.

50 In November 2018, the plaintiff reported to Mr Grossbard that on a good day, her pain ranges from 1 to 2 out of 10, whilst on colder days or after activity such as bending and lifting, the pain increases to 7 out of 10 and changes from a dull pain to a stabbing pain.[7] The plaintiff reported that she uses heat packs and lies down to help with her pain.

51 In August 2019, the plaintiff reported to Dr Aliashkevich that her pain level on most days is between 2 to 3 out of 10 and when exacerbated, flaring to 7 out of 10. She reported taking ibuprofen as needed, most days. She takes between one and three tablets a day, most often one per day. The plaintiff reported her pain is better with ibuprofen, walking or using heat packs.

52 In November 2019, the plaintiff reported to Dr Owen taking Brufen on an "as needs" basis.

53 In December 2019, Mr Widjaja, treating orthopaedic surgeon, said, in relation to management, the plaintiff should take analgesia as needed and attend physiotherapy. In April 2020, the plaintiff's general practitioner, Dr Frangoulis, reported that the plaintiff's future management would be simple analgesia, when required, back care, with "no heavy lifting" and physiotherapy.

54 The plaintiff has limited ongoing treatment for her low back pain.

55 I accept the level of pain and treatment the plaintiff currently reports are at the low end of the scale.

56 The plaintiff's evidence is that her sleep has improved, however, she often uses a heat pack before she goes to bed to assist with sleep. In November 2018, the plaintiff reported to Mr Grossbard that she only occasionally wakes at night with back pain. In 2019 the plaintiff told Dr Serry that she "sleeps reasonably well and maintains an appetite." In her affidavit of 2019, she described her sleep as variable.

57 I accept the plaintiff's sleep has been affected but in view of the fact the plaintiff is not taking medication to assist with sleep, and her evidence is that her sleep has improved, I accept it is at the low end of the scale.

58 The plaintiff's evidence is that she experiences difficulty and increased pain with activities that require prolonged, sustained, awkward, or repetitive bending, twisting or lifting. The plaintiff's evidence is that she avoids activities which require repeated or prolonged lifting, bending, twisting or turning. The plaintiff's evidence was that she is limited in what she can carry and lift at the supermarket. She manages by taking smaller and more frequent trips to the supermarket. Her general practitioner accepted that she would be restricted in lifting. Accordingly, I accept this is a consequence which I assess in the low to middle of the range.

59 The plaintiff's evidence was that she had trouble with activities such as changing the bedsheets and taking out the laundry and cleaning. Her partner assists with these activities. The plaintiff did not attempt to disentangle any contribution from her shoulder and elbow complaints.

60 Accordingly, I accept this is at the low end of the range. The plaintiff reported to some of the medical witnesses that she had returned to gardening and cooking.

61 The plaintiff's evidence in her first affidavit was that her relationship with her children was impaired as a result of the injuries she suffered in the transport accident. In cross-examination, she said she now easily copes with her own children.[8] Since the transport accident, she has fostered children and she voluntarily home schools her children. In cross-examination, she accepted that she is only accredited to foster children over the age of four. The plaintiff said that she would like to foster children who are infants and under the age of four, however, due to her lifting restrictions, she is only accredited to foster children aged four and above. I accept that this is a consequence at the low end of the range.

62 The plaintiff gave evidence to generally having difficulty exercising as a result of the pain. She said she had difficulty riding her bike, in that she was generally frightened to ride her bike.[9] In her second affidavit, she said she was not able to resume her cycling activities to the same level as she did prior to the transport accident.[10]

63 In December 2013, the plaintiff reported to Mr Haw that she had resumed cycling to university. In November 2013, she reported to Dr Serry that she had returned to cycling but rode differently. In November 2018, she told Mr Grossbard that she found cycling had become "stressful for her".

64 In cross-examination, the plaintiff said that she had dreams about her son dying. The dreams occur when she rides her bike or when she retells the story of what happened during the accident. So, she decided not to ride her bike anymore. She said she last rode her bike in 2018 or 2019.[11]

65 Based on the plaintiff's evidence, I conclude that the physical consequences of her injury have not restricted her bike riding. Accordingly, the loss of bike riding is not a consequence that I can take into account.

66 The plaintiff's evidence is that prior to having children, she and her partner went camping and hiking approximately two to three times per year. She enjoyed this activity and was looking forward to participating in this activity with her children when they were old enough. The plaintiff's evidence was that due to the pain and restriction from each of her transport accident injuries taken separately, she has not been able to go camping and hiking with her family as planned. The plaintiff reported to Dr Serry that she had not returned to camping. To compensate, she walks regularly and has taken up archery.[12]

67 The evidence was that the plaintiff has engaged in hiking activities with her family in Australia and overseas. The plaintiff's evidence is that the family participates in this activity two or three times a year. The plaintiff's evidence is that she could go hiking with the family but could not go hiking and camping because of her back pain.

68 The plaintiff's partner said that he now takes the children camping alone which he finds hard to accept because he would prefer to enjoy the activity as a family.

69 I accept that the plaintiff has retained the capacity to go hiking but cannot go camping. I accept the inability to go camping is a consequence I can take into account, which I accept as being in the low to middle of the range.

70 The evidence is that the plaintiff has travelled interstate and overseas for academic pursuits and leisure where she has been able to undertake hikes and snorkelling. I accept that this is a retained capacity.

71 The plaintiff's evidence in her first affidavit was that she had suffered a "very considerable impairment upon [her] former social ... activities".[13] The plaintiff did not detail in her affidavits how her social activities were impaired.

72 In cross-examination, she said she did not think that the transport accident impacted upon her social life, and then said:

"I would've been going out more if I had - if I hadn't had the accident. But I don't know how far that's true and how far it's not, so."[14]

73 I accept the current evidence is that her social activities have not been affected.

74 The plaintiff gave evidence of experiencing pain in her sacrum during and after sexual activity. The plaintiff reported this to a number of the medical witnesses. This was supported by the evidence of her partner. Accordingly, I accept this as a consequence that I can take into account which I assess in the middle of the range.

75 The plaintiff obtained a Bachelor of Arts degree and subsequent Master of Arts degree at Oxford University. She commenced her studies to obtain a Doctor of Philosophy at the University of Melbourne in her specialty, Malaysian Media History. The plaintiff's evidence was that it was her intention to pursue an academic career beginning with tutoring work and work as a research assistant whilst undertaking doctoral studies. The plaintiff hoped to expand to a role of tutor, then lecturer. Once having completed her doctoral studies, she would have looked to obtain a postdoctoral fellowship and a position, either tenured or contract, for a lectureship which, depending on seniority, remunerates in the range of $150,000 to $200,000 per annum.

76 The plaintiff had signed a 100 hours contract to undertake research assistant and tutoring work, but her evidence was that she was unable to fulfil the contract because of her injuries. The plaintiff's evidence was that there was a position in her field at the Australian National University which she would have been able to apply for and take up had she not suffered injuries in the transport accident.

77 The plaintiff took leave from university for approximately four months following the transport accident and since that time her studies remained on track.[15]

78 The plaintiff's evidence was that she returned to paid employment in approximately late 2015 and then, in August 2017, she commenced tutoring at the University of Melbourne.[16]

79 The plaintiff's claim is that she could not undertake tutoring and research work earlier and this has deprived her of an opportunity in an academic career.

80 The medical evidence is that in December 2013, Mr Haw reported that: "It is unlikely that these injuries will interfere with her earning capacity."[17] In May 2015, Dr Seedat, general practitioner, reported that "the injuries have not affected her ability to perform her normal occupation".[18]

81 The evidence is that the plaintiff last received physical treatment for her transport accident injuries during 2013. She rarely complained of pain until September 2019. In 2017, she sought treatment for chronic joint pain without referring to her low back condition. She was referred to Mr Widjaja, an orthopaedic surgeon, in relation to her low back in October 2019. Mr Widjaja recommended ongoing physiotherapy and medication. As at April 2020, the plaintiff had not returned to her general practitioner since October 2019 and there is no evidence that she has sought any further physiotherapy treatment or prescription medication for her low back pain. Mr Widjaja diagnosed degenerative disc disease of the lumbar spine. He did not refer to a motor vehicle accident.

82 The plaintiff reported to Mr Grossbard that she did not return to her usual level of activity with respect to work, she was able to return to part-time study but was unable to undertake a contract she had embarked on as a research assistant. Mr Grossbard did not comment on the impact of the plaintiff's lumbar spine pain on her work.

83 This evidence is consistent with the evidence of Dr Owen, who had an understanding of the plaintiff's ongoing lower back pain which he described as minor and consistent with her own evidence and lack of treatment. I prefer the evidence of Dr Owen to that of Dr Aliashkevich. Dr Owen is an orthopaedic surgeon and his evidence was consistent with all other medical witnesses.

84 Overall, there is no medical evidence of the plaintiff being affected by lower back pain following the first few months of the transport accident and being restricted in her professional activities. The evidence is that the plaintiff was not seeking further treatment, investigations or referrals.

85 The plaintiff has not explained why she could not commence tutoring at an earlier date. There is no medical evidence to support her not working. Ordinarily such a claim would be supported by medical evidence, including a report from an occupational physician. The plaintiff has published widely since the transport accident.

86 The plaintiff gave inconsistent evidence. She told Dr Serry that she missed six months of her studies but said that this was contributed to by the demands of two small children.[19] She told Dr Owen that she had completed her PhD and was now looking for suitable work.[20] She said it had been complicated because of the limited nature of employment opportunities for her.

87 The plaintiff completed her PhD in July 2019. The plaintiff's area of specialty is the role of women journalists and the women's pages in the Malay language media between 1987 and 1998.[21] There is no supporting evidence from the University of Melbourne or her supervisor in relation to the matters she deposes to in her most recent affidavit in relation to possible progression and her inability to climb the lower rungs of the academic ladder.

88 The evidence is that the plaintiff has pursued academic activities. She has been a media freedom advocate for the Centre of Independent Journalism in Malaysia. She is a board member of ISIS-International (Manilla), a feminist media network. She is a member of Genderit.Orgs pool of writers. She is currently establishing a business in capacity building, particularly for local government.[22]

89 Counsel for the plaintiff relied upon the decision of Demmler v Transport Accident Commission.[23] In that case, the Court of Appeal found that the applicant's pain and suffering consequences satisfied the very considerable test and dealt with the issue of pecuniary loss consequences very briefly. There were two aspects of the claim, being the plaintiff's singing career and her ongoing employment with Crown Casino. The evidence was that the applicant had released four singles on digital platforms by the age of twenty. The Court considered that the plaintiff's ongoing difficulty with her Crown Casino employment, which was supported by evidence from her direct supervisor, was a significant matter.[24] The Court said:[25]

"Moreover, however speculative one might consider the applicant's proposed singing career, there was sufficient evidence to require some account to be taken of this when considering overall consequences."

90 However, in this case, the plaintiff has not explained how injuries from the transport accident precluded her from taking up tutoring work. There is no medical evidence that supports the plaintiff being unable to perform tutoring work due to her injuries. There is no supporting evidence from the University of Melbourne, in particular, her supervisor. Further, there is no actual expert evidence from either an occupational physician, an academic or an academic employment expert concerning the importance of undertaking tutoring work during the early phase of a PhD in order to secure an academic position, particularly in the plaintiff's area of expertise. Further, given the plaintiff's lack of complaints of pain and low level of treatment, makes this submission speculative.

91 Furthermore, the plaintiff has not established that she was physically incapable or what restrictions caused an inability of performing tutoring work because of her injuries following the transport accident.

92 In conclusion, in assessing whether the consequences of an injury are "serious", Ashley JA said:

"... the significance of what has been lost ... may be informed, to an extent, by what is retained."[26]

93 The plaintiff sleeps well and retains full mobility. She retains her cognitive ability and was able to complete her PhD, missing approximately four months following the transport accident. She can shop and perform most household activities with limited restrictions. She can garden and cook. Following the transport accident, she home-schooled her children and has fostered children. She has retained the ability to travel interstate and overseas without reported difficulties. The trips have involved work and leisure activities, including hiking and snorkelling. She has published articles widely in her area of expertise.

94 I accept the plaintiff has suffered some consequences of the physical injury to her lower back as a result of the transport accident. Namely, limited pain, low levels of analgesia, very limited treatment, an inability to participate in camping activities with her family, and a lessening of intimate relationship with her partner. In considering those consequences, I am not satisfied that they are considerable when judged by a comparison with other cases in the range of possible impairments. They certainly cannot be described as being "more than significant or marked" and as being "at least very considerable".

95 Accordingly, I take the view that the plaintiff has not satisfied the Court that she has suffered a loss of opportunity to obtain an academic position that was more than speculative.[27]

Application of Richards v Wylie[28] - mental component

96 In accordance with Richards v Wylie, a "serious injury" can have its "seriousness" measured, in part, by a mental response to a physical impairment.

97 In cross-examination, the plaintiff said that from time to time she has nightmares and in those nightmares, her son dies. She said she assumes this is because her son was blue from lack of oxygen when he was born, and this features predominantly in her nightmares. The plaintiff said that she only ever dreams that her son dies. The plaintiff said that she has been having the nightmares since the accident. She said she usually has the nightmares when she has been cycling or is retelling the story of what happened during the accident.

98 The plaintiff said that the nightmares she has involve the motor vehicle accident as she also has had nightmares where her son has been hit by a vehicle and has died. The plaintiff agreed that she did not depose to such a nightmare in her affidavits.

99 Dr Serry, psychiatrist, reported that the plaintiff is somewhat anxious and apprehensive, experiences mild depression and some ongoing symptomatology regarding bicycle riding. She functions well within her current limitations.

100 I take the view that none of the plaintiff's claimed mental conditions are in response to any impairment or loss of bodily function. They are primary symptoms from the accident itself.

101 Accordingly, I accept that this is not within the principle of Richards v Wylie.[29]

102 Based on my above assessment, I accept that, as a result of the transport accident, there have been some consequences to this plaintiff of an impairment to her spine. Taking all the evidence in account, I am not satisfied that the plaintiff has established that the consequences of her spine meet the test. I accept the plaintiff has suffered an impairment to her spine. I accept that the injury has had consequences to her; however, I am not satisfied that when judged by comparison with other cases in the range of possible impairments, the injury can be fairly described as being "more than significant or marked", and as being "at least very considerable".

103 Accordingly, I dismiss the plaintiff's application in respect to a serious injury for the spine.

[1] Humphries & Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 170 and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26; (2000) 30 MVR 441, in particular, Chernov JA at paragraph [29]

[2] Transcript ("T") 27, Line ("L")16-21

[23] [2018] VSCA 284

1. [26] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]

[27] Davidson v Transport Accident Commission [2015] VSCA 12 at paragraph [30]

[28] (2001) 1 VR 79