Amy v Transport Accident Commission
[2013] VCC 518
•10 May 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03423
| REBECCA JOHANNA AMY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 18, 22 and 23 April 2013 | |
DATE OF JUDGMENT: | 10 May 2013 | |
CASE MAY BE CITED AS: | Amy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 518 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – dysfunction of autonomic nervous system – physical injury and psychological disorder
Legislation Cited: Transport Accident Act 1986
Cases Cited: Alcoa v McKenna [2003] VSCA 182; Spence v Transport Accident Commission [2006] VSCA 48; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249
Judgment: Leave granted to the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds SC with Mr R Kumar | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 The plaintiff was involved in a transport accident on 30 August 2002 and suffered a number of orthopaedic injuries, including fractures to her left pelvis and acetabulum, and also injuries to her left hip and knee. Over time, she developed migraines and problems with autonomic dysfunction, in particular with her digestive tract, bladder and temperature control.
2 Although she completed her studies in speech pathology, and subsequently practised in that field, the plaintiff claims she has suffered debilitating symptoms of the autonomic dysfunction which have affected a range of her social, domestic, recreational and work activities.
3 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in the transport accident on 30 August 2002.
4 The application is brought under ss(a) and (c) of the definition of “serious injury” contained in s93(17) of the Act; however, Mr Mighell, for the plaintiff, accepted the focus of attention in the application was under sub-paragraph (a).
5 The plaintiff and her treating physician, Dr David Prentice, were called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, medical and radiological reports, clinical notes and claim form documents were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, nor Dr Prentice, but rather those parts of their evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for met to revisit the various relevant sections.
Relevant background
6 The plaintiff is now thirty-two years of age and is married. She was educated to Year 12 and commenced study to become a speech pathologist at university in Albury. In 2002, she was in the final year of her studies and in placement in Melbourne when she was involved in the transport accident. She was also working part time in a supermarket and as a model. She was fit and active and was involved in regular running, cycling and swimming events. Before the transport accident, she had been diagnosed as having a magnesium deficiency by a naturopath. Magnesium supplements were provided, which she used over a number of years.
7 She had an active social life. Generally, she was well, and, in particular, was not affected by any symptoms from which she has suffered over recent years as a result of the transport accident.
The transport accident and its consequences
8 The plaintiff was the front seat passenger in a vehicle driven by a friend travelling in Melbourne on 30 August 2002. That vehicle struck another vehicle, causing it to be pushed onto a traffic island. The plaintiff said she suffered pain in her back, hips, upper leg, left shoulder, kidney, left ankle and left and right knees. She was treated at the Monash Medical Centre and x‑rays showed a fracture to the acetabulum of the left hip. Subsequently, there was confirmation the plaintiff had also suffered an acetabular labrium cartilage tear and an injury to her left knee. She sought treatment from her general practitioner, Dr Hunt, of Echuca.[1] He prescribed pain-relieving medication.
[1]Plaintiff’s Court Book (“PCB”) 17
9 The plaintiff was eventually referred to Mr John O’Donnell, orthopaedic surgeon. He performed surgery to her left hip on 12 September 2003, and to her left knee on 10 October 2003. In his report,[2] he said he would expect that both injuries would improve over time.
[2]PCB 26
10 According to the plaintiff’s affidavit, the symptoms in these areas did improve. The focus of the attention of her doctors at the time was the left hip and left knee. She received physiotherapy after the surgery. Her speech pathology studies were interrupted as a result of the accident and the injuries sustained. However, she completed her course in 2004, and in August of that year, obtained work as a speech pathologist in Lismore. She remained there for about two years. She then moved to Alice Springs, and obtained work again as a speech pathologist with the Commonwealth Rehabilitation Service (“CRS”). She remained working in Alice Springs until October 2007, when she returned to Echuca. It would appear the plaintiff had little, if any, treatment while in Lismore and Alice Springs, although in cross-examination, said she consulted a doctor and a physiotherapist when she had the first of her serious migraines.
11 When she returned to Echuca, she again consulted her general practitioner, Dr Hunt. According to her affidavit,[3] at this time she suffered pain, including to the left side of her body, to various joints, to the left elbow and shoulder, and to her left leg, which she said would drag with fatigue. She also suffered back pain and pain in her neck. She said she became sensitive to cold, had reduced appetite and difficulty remembering things.
[3]PCB 7
12 In cross-examination, she accepted she had a good rapport with Dr Hunt.[4] According to his clinical notes,[5] there was no reference to any complaints of migraine, bladder or urgency, gastrointestinal or temperature problems when she consulted him. She said that she did tell Dr Hunt of these problems, but that she had found that in her dealings with medical practitioners, despite her complaints, did not deem them sufficiently important to record.[6] She said that she had become angry with the practitioners, many of whom disregarded the symptoms of which she was complaining.[7] Those symptoms included dizziness, fatigue in her left leg and an inability to complete work on her portfolio. She said her head became “fuzzy”. She came to know this fuzziness subsequently as the early symptoms of migraines. She also felt that she became sweaty and sick.[8]
[4]Transcript (“T”) 53, L26
[5]Exhibit B
[6]T65-66
[7]T83
[8]T83-86
13 She was treated with a range of therapies, including physiotherapy, massage, acupuncture and osteopathy, and was eventually referred by Dr Hunt to the Caulfield Pain Management Centre. According to reports of Dr Jason Teh, rehabilitation consultant, when he first saw the plaintiff on 5 March 2008, she complained of pain in her left knee, together with pain in her neck, left shoulder and left ankle. She told Dr Teh that she had not been happy with her medical management since the transport accident. She further said that she had pain affecting the whole of the left side of her body, including the ankle, hip, groin, ribs, elbow and neck, in addition to her back and both knees. The severity of the pain varied, but was worse in cold weather. She kept herself busy and distracted with her work. Upon examination, Dr Teh noted trigger points over her low back and cervical area and said that the plaintiff had developed a Pain Syndrome affecting the left side of her body, as a result of the transport accident. He said she was coping with the pain poorly and he trialled a range of medication, including Amitriptyline. She remained in treatment at the Caulfield Pain Management Clinic until March 2009. She last saw Dr Teh in July 2009 and he then trialled another medication, Pregabalin. He said the plaintiff continued to be fatigued, in particular given her travelling regime from Echuca to Melbourne to attend the program. She was given a range of pain management strategies and found Feldenkrais of assistance. On the final consultation, the plaintiff also complained of increasing low-back pain, sensory changes in both feet, although denied bladder or bowel incontinence.
14 In 2010, she was referred to the John Liddell Centre for Pain Management in Bendigo. She was treated at that Centre until March 2011. It was noted that she was complaining of vague sensory, autonomic and bladder symptoms. There were also episodes of migraines which, according to the plaintiff, had started after the accident. The plaintiff also complained of pain in her lower back and neck.[9] According to the report, by March 2011, her symptoms had much improved, which she had attributed to classes of Pilates. She was discharged from the clinic.
[9]PCB 50
15 The plaintiff remained under the treatment of Dr Hunt, and complained of ongoing symptoms, including migraines, constant neck pain and stiffness, thoracic pain and discomfort in her left hip and left groin. There was some pain in her left knee. She became easily fatigued and suffered excessive sweating and irritability. She suffered a seizure in January 2011 following a trial of a migraine medication, although an MRI scan of her brain and cervical cord was normal. She also said she suffered bowel and bladder urgency.
16 In July 2011, she was referred to Dr David Prentice, neurologist. According to the history provided to him, she complained of severe migraines, problems with temperature regulation, bladder control, neck pain, lower back pain and fluctuating weakness. At the time she was using substantial quantities of aspirin for her migraines. Dr Prentice described her as “not unwell”. He arranged autonomic function testing at St Vincent’s Hospital, which was carried out on 31 January 2012. According to that testing, there were two abnormal and one borderline test results which Dr Prentice said was consistent with a significant degree of dysautonomia. However, the sweat response test showed a normal sudomotor function.[10] Dr Prentice commenced the plaintiff on Periactin medication for her migraines. She also complained of a lot of gastrointestinal symptoms for which he prescribed Zantac. Dr Prentice has reviewed the plaintiff on a number of occasions, including in January 2013. There was some improvement with her migraines and he noted she was wearing special filtering optical glasses. Dr Prentice described “autonomic dysfunction” as:
“Refers to abnormalities in the autonomic nervous system, which control various bodily functions of which we are not normally aware, including blood pressure control, heart rate control, sweating, temperature regulation and bladder control. In Rebecca’s case it has mainly affected her temperature regulation, gastrointestinal function and possibly bladder control. It may also be a contributing factor to her migrainous tendency.”[11]
[10]Defendant’s Court Book (“DCB”) 22
[11]PCB 55
17 Dr Prentice thought the plaintiff’s prognosis was guarded given the length of time that had elapsed since the transport accident, which he said was causative of her problems. He noted that she had returned to the workforce, although found it difficult, and it was a struggle for her to maintain her current level of activity.
18 According to the plaintiff’s affidavit,[12] she finds it difficult to stand or sit for long periods. She is no longer able to run, cycle, swim or participate in other sporting activities. She is concerned about having children and her capacity to manage them. She has a cleaner in for two hours a week to assist with the heavier domestic jobs.
[12]PCB 8-11
19 In 2010, she was working initially four days, and then three days per week for the CRS in Echuca. She also worked two days a week, seeing private patients. Her income over the years from 2008 to 2010 was been $60,000 and $65,000 gross per year.
20 She says the symptoms from which she has suffered have affected her capacity to work. For a range of reasons, she ceased work at CRS and in 2012, was appointed to a contract position at the Campaspe College of Adult Education and is now working two days per week teaching literacy and numeracy to its clients. She teaches ten contact hours per week and is paid for a further five hours of preparation. She works three days per week in her private practice, although is limited in the clients she is able to see. She works five to ten hours per week. She says that the work exhausts her, and by evening she goes home to bed.
21 At the present time, she is treated by an osteopath, and uses a movement exercise program called Feldenkrais and medication. She also does Pilates exercises.
22 She says that her migraines have improved with the filtering glasses. She takes up to nine Aspros per day. She still suffers the migraines regularly, together with nausea, and suffers gastrointestinal problems which cause her to belch. She also has fatigue and sweating.
23 She feels the cold, and wears thermal underwear, except in the very warm weather. She also uses heat pads. She has lost her appetite and her personal life with her husband is affected. She is not able to socialise in the same manner as before. She is limited in the distance she can drive. She performs most of her own domestic duties, except for the heavier duties for which she has paid assistance. Her sleeping is affected and she says she sometimes wakes with her legs burning.
Medical opinions
24 In the course of submissions, I observed to Mr Moulds that I accepted the plaintiff as a credible witness, giving a reasonable account of her significant difficulties. In my view, the symptoms from which the plaintiff is currently suffering, and the effect of those symptoms upon her recreational, domestic and working life, were such as to meet the “very considerable” test required by the Act. Mr Moulds did not argue to the contrary with any vigour. The key issue in the application is the causative relationship between the various symptoms from which the plaintiff is suffering and the transport accident. I shall thus only refer to the medical opinions which are of relevance to that issue.
25 According to the various reports of the general practitioner, Dr Hunt, he noted that after the plaintiff was released from Monash Medical Centre in 2002, she was suffering significant pain and was slow to recover.[13] In his report of October 2007,[14] he said that the plaintiff’s work “highlighted her own ongoing disabilities with chronic pain, mostly left-sided, knee bursitis, fatiguability and anger. She has sought a variety of alternative practitioners without relief.” In his report of 21 November 2011,[15] he noted that amongst her various injuries, the plaintiff suffered Chronic Pain Syndrome, with fatigue, pain and mood fluctuations and poor stamina. He also noted chronic and recurrent migraines with nausea. He said the plaintiff was profoundly affected by the accident.
[13]PCB 18
[14]PCB 18
[15]PCB 21
26 According to the various reports of Dr Jason Teh of the Caulfield Pain Management Centre, when he first saw the plaintiff in 2008, he noted the plaintiff’s concern that “there might be another process involved in regards to the aetiology of her symptoms. In her initial assessment, she complained of pain involving multiple joints including the left ankle, both knees, left hip and groin, low back, ribs and neck.”[16] He formed the impression the plaintiff had general sensitised pain. He noted she had been experiencing migraines recently. He further noted the plaintiff had managed her own rehabilitation program and he concluded she was suffering a Pain Syndrome on the left side of her body. He said her functional status was restricted with a reduced capacity to sit and stand for more than ten minutes, reduced walking tolerance, an inability to run, fatigue upon activity and difficulty sleeping.
[16]PCB 33
27 Dr David Murphy, rehabilitation physician, saw the plaintiff in 2011 and again in February 2013. He was of the opinion that she was suffering, aside from orthopaedic injuries, a Chronic Dysfunctional Pain Syndrome together with post-traumatic migraines with dysautonomia. He said all of those conditions related to the transport accident.
28 The plaintiff was examined by Dr Leslie Sedal, neurologist, in August 2012. He noted the diagnosis by Dr Prentice of autonomic dysfunction. He said her principal problem was the severe migraines with autonomic dysfunction. He said there were a number of patients who develop migraines following a motor vehicle accident. He noted the plaintiff had neck pain from the time of the accident and accepted that the accident had triggered the migraines.
29 On behalf of the defendant, the plaintiff was examined by Dr Kevin Fraser, rheumatologist, in January 2013. He said, when he examined the plaintiff there were no features of Reflex Sympathetic Dystrophy to suggest a dysfunction of the autonomic nervous system. He said he did not consider that there was any ongoing basis for her various “bizarre symptomatology”, at least from a rheumatological point of view. He noted that she had recovered from the various orthopaedic injuries. He said he would defer to an expert neurologist in relation to the plaintiff’s migraines.
30 Dr David Prentice, the plaintiff’s treating neurologist, provided several reports, and gave evidence by video link. I found him an impressive witness and clearly expert in the field of autonomic disorders. In the course of his evidence, he confirmed that the plaintiff was suffering from a range of symptoms, in particular difficulties with temperature regulation, abnormalities with bladder control and gastrointestinal symptoms. He described the dysfunction in detail.[17] Initially, he said that on the balance of probabilities, it was more likely the plaintiff’s gastrointestinal problems and migraines were related to the transport accident, in the setting of the severe chronic pain the plaintiff had suffered from the time of the transport accident.[18]
[17]T27-28
[18]T29-30
31 Dr Prentice was cross-examined extensively by Mr Moulds for the defendant. He agreed that dysautonomia does not have to be related to trauma and generally, was idiopathic. He said that although the results on testing of the sympathetic and parasympathetic functions did not provide results far outside the normal response range, nonetheless the results did indicate impairment of autonomic function. He said that he would expect the results of temperature regulation to show outside the normal range, but they did not. He accepted that a severe magnesium deficiency could be responsible for the plaintiff’s migraines, and when it was put to him that according to the various clinical notes, the plaintiff’s first complaint of a migraine was something in the order of six years after the transport accident, he accepted that that delay was too long in order to accept the migraines were causatively related.[19] It was further put to him that the record of the clinical notes as to the first complaint of bladder problems was again not until six years after the transport accident, he accepted that that would make it a lot less likely that that complaint was causatively related.
[19]T43
32 In re-examination, details of the plaintiff’s complaints of chronic pain since the transport accident in 2002 were put to Dr Prentice. In particular, the plaintiff’s complaints of considerable pain and associated disability, including fatigue, were outlined. He was told that the plaintiff had attempted a range of conservative health treatments including Bowen therapy, massage and osteopathy and that chronic pain she was suffering worsened before she came under Dr Prentice’s care in 2011. Dr Prentice responded:
“I think if she – if she had a prolonged period where she was in severe pain and this was not being adequately addressed then it’s quite feasible that this will start to affect her autonomic nervous system in a delayed way. I think that’s – I think that’s plausible anyway. I gather from – like I said certainly my records indicate that I formed the opinion that she had these symptoms fairly shortly after suffering the accident and being in this pain state. Your colleague indicated that, you know, there may have been a significant delay and I can’t really comment on that, other than to say that if she was seeking help from a lot of alternative health practitioners then it’s quite likely that there won’t be anything in her medical records until a significant period afterwards when she actually did start to seek opinions from her GP and from, I believe, chronic pain specialists and rheumatologists. So I think in a setting where people have been in severe pain for a long time it has quite widespread effects, both physically and also psychologically. When someone’s in pain they have increased adrenalin levels, they get increased insulin levels, they get increased cortisol levels… It fundamentally affects them quite profoundly, so I can only state that my observations were that to me it made reasonable sense that this is a woman who had been performing fairly well prior to this historically, had had quite a severe accident, been in a lot of pain for a long time and developed a lot of other problems which could be secondary to that, and I accepted that that was, in the absence of any other cause, particularly for an autonomic dysfunction, that was a reasonable thing to conclude.”[20]
[20]T46-47
Conclusions
33 As stated, the critical issue in this application is the causative relationship between the plaintiff’s various symptoms of her autonomic dysfunction, and the transport accident.
34 At my request, Mr Moulds made submissions as to the evidentiary burden upon the defendant when causation is an issue. I referred him to the passage in Alcoa v McKenna[21] where the Court of Appeal made a reference to the evidentiary burden in an application under s135A(2) of the Act. In particular, the Court of Appeal referred to the burden on a respondent in proving the applicant’s prospects of establishing causation as “absolutely hopeless” or “bound to fail”. However, in Spence v Transport Accident Commission[22] and De Agostino v Leatch & Transport Accident Commission,[23] the Court clearly concluded that in an application where causation was a central question, the onus lay with the applicant (or plaintiff) to prove that the injuries sustained arose “as a result of a transport accident” in accordance with s93. I thus conclude that in this application, the onus lies with the plaintiff to prove that the injury she alleges, and its various symptoms and consequent disabilities, have arisen “as a result” of the relevant transport accident.
[21][2003] VSCA 182 at paragraph [19]
[22][2006] VSCA 48
[23][2011] VSCA 249
35 Mr Moulds submitted that I could not be satisfied to the required level that the plaintiff’s symptoms, in particular those of:
·migraines,
·bladder dysfunction or urgency
·lack of temperature control
·extensive pain
could be related to the transport accident.
36 In particular, he pointed to the clinical notes of Dr Hunt, whom the plaintiff saw when she returned to Echuca in 2007, clearly indicated that it was not until at least 2008 when these symptoms were recorded. He submitted that the general practitioner, with whom the plaintiff had a strong rapport, would have noted such symptoms, in particular those of serious migraines. He pointed further to the report of Dr Teh of the Caulfield Pain Management Centre, when he examined the plaintiff in 2009, noted her complaints of migraines but that they had only come on recently. He said that it was in fact not until 2010 when the full range of the plaintiff’s current complaints were recorded in the clinical notes. He submitted that I should not accept the opinion of Dr Prentice given that he had presumed the plaintiff’s symptoms had come on some short time after the transport accident. He said that in cross-examination, Dr Prentice had cast very significant doubts about whether the migraines and the plaintiff’s digestive problems could be related to the transport accident where those complaints had not been recorded until six years later. He submitted that I should prefer the opinion of Dr Fraser. He said all of this should be considered in the light of the fact that autonomic dysfunction is generally idiopathic and only in a minority of cases related to trauma.
37 He said the plaintiff’s migraines could be related to the magnesium deficiency which the plaintiff accepted she suffered prior to the transport accident, which Dr Prentice agreed could have occurred.
38 He referred to the evidence of the plaintiff that she had seen a physiotherapist “Paul” to whom she had made complaints of migraines and dizziness at an early time. She had further said she saw a doctor in Lismore on the first occasion that she had suffered a serious migraine. Mr Moulds submitted that as neither of these witnesses had provided any report, I ought to infer that had they been called, their evidence would not assist the plaintiff.
39 Mr Mighell, for the plaintiff, pointed to the following matters which he said were crucial in determining the causative link between the plaintiff’s symptoms and the transport accident:
·The plaintiff’s own evidence that she had suffered very significant chronic pain right from the time of the transport accident. She was on crutches for the first twelve months and in the early stages, the focus of the medical attention was in respect of the orthopaedic injuries to her hip and knee. He said Dr Hunt noted that from an early time she suffered significant chronic pain with fatiguability and anger.
·In the plaintiff’s own evidence, she said she did make complaints to various doctors about migraines, digestive problems and temperature changes at earlier times, but the complaints were largely ignored. She said she was frustrated and angry that the practitioners were not focussing on her symptoms, but simply treating the orthopaedic problems. He submitted I should accept the plaintiff’s evidence that she received treatment in Lismore and Alice Springs.
·Mr Mighell said the opinion of Dr Teh of the symptoms he found and the history he obtained when he first saw the plaintiff in March 2008 was important. That doctor noted[24] that the plaintiff was not happy with her medical management in 2002 and was largely responsible for her own rehabilitation program.
·In particular, Mr Mighell referred to the evidence of Dr Prentice in re-examination[25], when the history of the plaintiff’s chronic pain was put to him, he accepted that in that setting, and the absence of any other cause, the transport accident was likely to be responsible for the plaintiff’s autonomic dysfunction.
·He submitted the opinion of Dr Fraser, the rheumatologist, was of little benefit as autonomic dysfunction was not within the speciality of rheumatology.
[24]PCB 35
[25]T45-47
40 In considering this matter, I have concluded that on balance, the plaintiff has proved that the disorder of autonomic dysfunction from which she currently undoubtedly suffers and which is significantly disabling for her, is related to the transport accident. I have reached this conclusion largely upon the submissions of Mr Mighell.
41 The starting point, in my view, is the credibility and reliability of the plaintiff. I found her a credible and believable witness and accept her evidence that many of the symptoms from which she suffers, in particular the chronic pain, have been evident since the transport accident. While it is true that there is little record in the clinical notes, in particular of Dr Hunt, of symptoms of autonomous dysfunction until 2008 or 2009, nonetheless the disorder is an unusual, even rare one, and not something regularly encountered in particular by general practitioners. I accept the plaintiff’s evidence that while she may not have suffered migraines immediately following the transport accident, she did suffer dizziness and “fuzziness” which she now knows as a precursor to the migraines.
42 It is clear that the plaintiff was a highly functioning, intelligent person prior to the transport accident. She was active in a range of sporting and recreational activities. All those ceased upon the transport accident and her life has changed dramatically as a result of it.
43 As stated, I was impressed by the evidence of Dr Prentice. I accept the submission that in re-examination, he did establish the causative link between the transport accident and the plaintiff’s various autonomic symptoms. In particular, he relied upon the chronic pain which I accept the plaintiff has suffered since the transport accident, in particular to the left side of her body.
44 Even if I were to accept that the plaintiff’s migraines were unrelated to the transport accident, then I am of the view that the consequences to her of the various other symptoms, including digestive problems, fatigue, neck and back pain and stiffness, excess sweating and difficulties with sleep, are sufficient to reach the “very considerable” level the legislation requires. I accept her evidence that the various symptoms have had a significant impact upon her work capacity and although she has remained largely in full-time work, she has particularly of more recent times had to cut back her workload, and confines the areas of her practice to accommodate her symptoms. I accept her as a stoic person determined to keep working despite very significant disablement from the autonomic dysfunction.
45 In all these circumstances, the plaintiff’s application succeeds.
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