Atkinson v Transport Accident Commission
[2020] VCC 1352
•7 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03252
| LEODA LOUISA ATKINSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 20 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 7 September 2020 | |
CASE MAY BE CITED AS: | Atkinson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1352 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to cervical and lumbar spines – whether ongoing pain and restriction related to physical injury, or psychological injury in the nature of a pain syndrome – pre-existing symptomatic degenerative changes requiring treatment – other unrelated medical conditions – nature and extent of lost earning capacity – whether aggravation of pre-existing cervical and lumbar conditions results in consequences which meet the “very considerable”; alternatively the “severe” test
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Hangay with Ms A R C Spitzer | Maurice Blackburn |
| For the Defendant | Mr P B Jens QC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Leoda Atkinson, was involved in a three-vehicle accident on 6 March 2013 when the vehicle she was driving was struck from behind. At the time she was not working, although she had completed an apprenticeship as a chef in 2012.
2 In the years before the accident, she had been to see her general practitioner for neck and back pain and restriction and had been prescribed medication, including Endone, and sent for radiological investigation.
3 After the accident, in 2015, she travelled to Townsville to live, but shortly after returned to Victoria. She claims she has not been able to return to any form of employment.
4 Ms Atkinson has had a difficult life. She is an indigenous woman and part of the Stolen Generation. She has been the subject of domestic violence and has abused alcohol. Her children have caused significant problems over the years. She has suffered a range of medical conditions, including depression, high blood pressure and cholesterol, foot pain, arthritis in her wrists and hands, and problems with her elbow and her shoulders.
5 Ms Atkinson claims ongoing pain in the neck and back areas. Some practitioners take the view the accident caused an exacerbation of the underlying degenerative problems. Others have taken the view she has developed a psychologically-based Pain Syndrome or Somatic Pain Disorder.
6 Ms Atkinson claims a range of recreational, social and domestic activities have been affected. She was an accomplished artist and says she can no longer paint. That is a particular loss to her. Her involvement with her family has been affected, as have a range of domestic duties.
The application
7 This is a “serious injury” application. In terms of the physical injury, the body function said to be affected is the spine, including the cervical and lumbar spines. Alternatively, the application is brought under sub-paragraph (c) of the definition of “serious injury” contained in the Transport Accident Act 1986 (“the Act”). The issues to be determined in the application are:
· What was the nature and extent of the plaintiff’s pre-existing spinal condition?
· Was the injury suffered in the transport accident a physical injury, in the nature of an aggravation of underlying degenerative condition in the spine; alternatively, a psychological injury in the nature of a Pain Syndrome or Somatic Pain Disorder?
· In accordance with the principles of Petkovski v Galletti,[1] to the extent the transport accident caused an aggravation of the underlying spinal condition, do the consequences of that aggravation, when looked at alone, meet the “very considerable” test if a physical injury, or the “severe” test if a psychological disorder?
[1][1994] 1 VR 436
What was the nature and extent of the Plaintiff’s pre-existing spinal condition?
8 In her affidavit sworn 30 March 2020, Ms Atkinson said she had experienced back and neck pain before the accident, but of much less severity. She was able to perform all her duties as a chef. Since the accident, she said the pain was far worse.
9 However, that brief description does not in any way accurately detail the problems in her neck and lower back from 2006 until shortly before the accident. She had extensive treatment from her general practitioner, at least one radiological investigation, and the regular prescription of powerful pain-relieving medication. Conveniently, extracts from the clinical records of Ms Atkinson’s treating general practitioner, Dr Mark Waldron, are set out in the report of Dr Hilary Hunt, consultant neurologist, dated 22 July 2020.[2]
[2]Plaintiff’s Court Book (“PCB”) 167-170
10 In September 2006, Ms Atkinson complained to Dr Waldron of soreness in her lower back and hip, which he noted she “had it for a long time”.[3] From that time through until early 2012, those clinical notes record irregular attendances for both back and neck problems.
[3]PCB 168
11 In March 2007, there is reference to L5 nerve root compression, and in April 2007, to an L5 disc prolapse. There were regular prescriptions for Endone and some for Panadeine Forte. Valium was also prescribed as a muscle relaxant. In September 2009, the pain in the lower back was said to be quite severe, and a medical certificate was provided. The notes make reference to other physical issues from which Ms Atkinson suffered before the accident, including bilateral epicondylitis, wrist and hand problems, migraines, and depression.
12 In March 2007, a CT scan of the lumbar spine was undertaken which showed some minor spondylolisthesis at L5-S1, and degeneration at L4-5.
13 In July 2010, Ms Atkinson complained to Dr Waldron that her “back slipped out again”.[4] He again prescribed Endone, with Celebrex, Diazepam and Panadeine Forte.
[4]PCB 169
14 In October 2010, Ms Atkinson complained of a sore neck, and Dr Waldron undertook acupuncture.
15 Over the years from 2007 until February 2012, there were very regular prescriptions of Endone.
16 Despite this history, Ms Atkinson revealed little if any of it in her affidavits and to various of the consultant practitioners she has seen for the purpose of this case.
17 In his report of 7 April 2015, Dr Waldron said:
“… She had been treated for a short period of time in 2006/7 for low back pain that I thought was predominantly facet joint related and neck pain in the mid and lower cervical spine in 2010/11 which was associated with headache.”[5]
[5]PCB 88
18 That is a remarkably incomplete description of Ms Atkinson’s problems over an extended period.
19 To Mr Peter Wilde, orthopaedic surgeon, in February 2016, Ms Atkinson reported that before the accident, she enjoyed good health and a full lifestyle without chronic back or neck pain. She said she had experienced an episode of neck pain at the age of nineteen as a result of whiplash, which lasted about twelve months, and from which she made a total recovery.
20 In his second report of March 2020, Mr Wilde was provided with the clinical notes of Dr Waldron, detailing the full history. He said that he asked her about her history of neck pain and, according to his report, she said she had never had neck pain but had experienced a few episodes of back pain which were not continuous nor severe. This new history caused Mr Wilde to change his opinion as to the effect of the accident upon Ms Atkinson’s spine. He concluded that effect was minimal only and did not significantly change her ongoing problems which had been evident for many years.
21 Even to Dr Hilary Hunt, whom she saw in July 2020, Ms Atkinson reported that she had not previously suffered from low back pain or neck pain.[6]
[6]PCB 172
22 Ms Atkinson was examined by Mr Gary Speck, orthopaedic surgeon, in May 2019 and April 2020. According to his first report,[7] Ms Atkinson said that she had been involved in a motor vehicle accident thirty years before, where she had neck pain with whiplash, from which she took about twelve months to recover. Mr Speck reported:
“When asked specifically whether she had back or neck pains prior to the transport accident she said that she didn’t and stated, ‘not that I am aware of’. She also denied having acupuncture prior to the transport accident.”[8]
[7]Defendant’s Court Book (“DCB”) 7
[8]DCB 8
23 Mr Speck considered Ms Atkinson had suffered soft tissue injuries in a minor accident. He did not believe the symptoms from which she was suffering in 2019 and 2020 were related to the transport accident but rather, were in the nature of a Chronic Pain Syndrome or Somatic Symptom Disorder. He did not think the accident affected in any way her capacity for employment.
24 In his second report, Mr Speck said:
“The protracted history, and prescription by Dr. Waldron of narcotic analgesics for her over [a] prolonged period as well as prescribing other treatments such as acupuncture would indicate significant pre-existing symptoms and degenerative change within her lumbar and cervical spine consistent with the imaging noted but without evidence of any skeletal injury arising from the transport accident. The lack of reliability of her history also makes it difficult to assess the reliability of her stated restrictions and activities.”[9]
[9]DCB 23
25 When Ms Atkinson’s extensive past history of treatment for her neck and back and the entries in Dr Waldron’s clinical notes were put to her in cross-examination, she said she could not recall any real detail of those attendances and treatment aside from having some neck pain as a result of whiplash when she was nineteen.
26 At first blush, Ms Atkinson’s failure to disclose the true nature and extent of her pre-existing neck and lower back problems in her affidavits, and to the various medical practitioners, would have a serious impact upon her credibility. It could easily be said she had intentionally failed to make that disclosure for the benefit of a compensation claim; however, I am of the view that is not the case.
27 I accept Ms Atkinson genuinely does not clearly remember the nature and extent of her previous problems. The reason for that is the sad and traumatic events which have occurred over Ms Atkinson’s life. These events are best explored in the reports of Dr Hunt, and Dr Nigel Strauss, psychiatrist.
28 In the history Dr Strauss obtained, he noted that both Ms Atkinson’s parents were alcoholics and who died at a young age. She was made a Ward of the State at age two and was part of the Stolen Generation. She was one of ten children and has now little to do with her brothers or sisters, many of whom have been incarcerated or have died. She has been married once and most of her relationships have been violent.
29 One of her children has been involved with illicit drugs and there have been difficulties in their relationship. She has a history of depression, been on antidepressant medication for many years and has attempted suicide. She has had a problem with alcohol.
30 In these circumstances, it is not surprising Ms Atkinson has, with all the other trauma and disruptions in her life, only a limited recollection of pre-existing spinal problems. While I found her a relatively honest witness, making concessions where appropriate in the course of cross-examination, I am of the view her evidence is unreliable. This extends not only to her pre-existing spinal problems, but to other aspects of her evidence.
31 While I do not reject all the claims in her affidavit, I should, where possible, seek objective confirmation of the issues she raises. Her problems with recall were not, as Mr Hangay, counsel for Ms Atkinson, submitted, matters which one would expect a person would not normally be able to recall.
Was the injury suffered a physical injury, or psychological disorder?
32 The plaintiff’s general practitioner, Dr Waldron, said Ms Atkinson had sustained a whiplash-type injury in the accident, as a result of which he said she suffered significant pain in the lumbar spine. He said there had been some “wear and tear” prior to the accident. Since the accident, the neck and lower back problems had become chronic and consistent. He said she was fit for a return to employment in very light duties.
33 As earlier stated, Dr Waldron did not provide any real details of Ms Atkinson’s significant pre-existing spinal issues. Despite treating her over a considerable period of time, I find I cannot rely upon his reports.
34 While she was in Townsville, Ms Atkinson was treated by Dr Laurence Marshman, neurosurgeon, around March and May 2015. He received no history of past neck or lower back problems. He considered Ms Atkinson may have suffered a stress fracture in her spine, but this was not seen on MRI scan. He noted pre-existing spondylolisthesis at L5-S1. He thought Ms Atkinson may need a fusion at some time in the future. In May 2015, he noted her neck symptoms appeared to be in remission.
35 There were several other reports of treating practitioners which do not significantly advance the case.
36 Mr Peter Wilde, orthopaedic surgeon, first saw Ms Atkinson in 2016. Having received an initial history that she was in good health with a full lifestyle prior to the accident, he concluded she had aggravated cervical spondylosis in the lower spine in the accident. He thought her symptoms were chronic, that it was likely her condition would slowly improve, and that she would be able to return to work in sedentary or light duties. However, in his second report, having been provided with the earlier clinical records, Mr Wilde changed his view and concluded the symptoms Ms Atkinson was suffering after the accident were no worse than before. He thought she had suffered an exacerbation of the cervical and lumbar spondylosis, but that it had been temporary. He noted radiology taken both before and after the accident showed minimal change.
37 Ms Atkinson was examined by Mr Gary Speck, orthopaedic surgeon, in 2019 and 2020. He had access to the general practitioner’s clinical notes. He said Ms Atkinson had suffered a soft-tissue injury in the accident, which would have resolved within three months. He did not consider that the soft-tissue injury contributed to her incapacity for employment or daily living activities. He noted that her lack of reliability as an historian made it difficult to assess the extent to which the accident had caused restrictions in her spine and affected her activities. I share that view.
38 The psychiatrist, Dr Nigel Strauss, noted that certain people with unhappy backgrounds can suffer pain disorders in later life. He considered Ms Atkinson, both as a result of her background and the accident, had suffered a Somatic Symptom Disorder, also known as a Pain Disorder. He thought she was also suffering anxiety, depression and some symptoms of Post-Traumatic Stress Disorder largely related to the transport accident, but also the violence she had suffered in the past. He thought Ms Atkinson’s prospects of employment were very limited and he doubted she would be able to find suitable employment. He thought the transport accident had affected her social, domestic and recreational activities.
39 The report of Dr Hunt, neurologist, of July 2020 is significant, not only because she carefully investigated and detailed Ms Atkinson’s pre-accident history, but also analysed her condition from both a physical and psychological point of view. Dr Hunt concluded Ms Atkinson suffered a whiplash injury superimposed upon her cervical and lumbar spondylosis, together with a complex Chronic Pain Syndrome. She considered the radiological reports and said there had been very little change from the earlier reports of 2007. Dr Hunt said there were many psychosocial factors contributing to the plaintiff’s decompensation with the injury. She said chronic pain may be a manifestation of complex psychosocial issues or trauma. She suggested a formal pain management program may assist. As to whether the injuries suffered in the accident interfered with Ms Atkinson’s ability to work, Dr Hunt said this was a very complex issue. She said the input of a psychiatrist would be helpful, but Ms Atkinson presented as a genuine individual.
40 I am of the view that in the subject transport accident Ms Atkinson suffered an aggravation of underlying spondylosis in both the cervical and lumbar spines. While it is never a straightforward matter to relate the extent of injury to the severity of the impact in a transport accident, I note Ms Atkinson was able to get out of her car, drive a significant distance immediately afterwards and that no emergency vehicles were called to the scene. Mr Hangay submitted an inference that the impact was substantial can be drawn from the respective size of the vehicles involved. I am of the view no such inference can be drawn.
41 I prefer the opinions of Mr Speck and Mr Wilde as to the nature and extent of the physical injury. Both say Ms Atkinson suffered a mild soft-tissue aggravation of the underlying degenerative condition in her spine, which was relatively short-lived.
42 However, I accept the opinions of Dr Strauss and Dr Hunt that at some point, the soft-tissue injury developed into a Chronic Pain Disorder, or a Somatic Pain Disorder, which are psychological in nature. I further accept the opinions of those practitioners that, while there are a range of traumatic and complex issues in Ms Atkinson’s life, the transport accident was one of them and I accept a significant contributing factor to the onset of that disorder.
Do the consequences of the disorder make the “severe” test?
43 Were I to accept the evidence of Ms Atkinson, then given she claims to have suffered a very significant increase in pain in her neck and lower back, a significant impact upon her activities, in particular, her painting, and her capacity for employment, the consequences would meet the “severe” test.
44 According to her affidavits, Ms Atkinson claims the consequences of the injury (or disorder) she suffered in the transport accident are:
·Pain and restriction in the neck and lower back, much worse than before the accident and requiring medical treatment including medication.
·An inability to work, in particular, as a chef or hairdresser.
·An inability to continue her painting.
·A restriction in her ability to engage with her son and daughter.
·A restriction in a range of domestic and social activities, including the housework and cooking.
·A restriction in her capacity to socialise with friends.
45 Mr Hangay submitted there were a number of bases upon which satisfied the “comparison” test. They were:
·Since the accident, Ms Atkinson has made regular and consistent complaints of pain to her treating doctors and undergone numerous radiological investigations and procedures.
·She has given a consistent history of these problems to medical experts since the accident.
·She has required daily consumption of pain-relieving medication.
·She has been unable to work as a chef or hairdresser.
·She has lost her involvement in painting.
46 These consequences, Mr Hangay submitted, were not present before the accident. However, I am not persuaded that is the case.
47 I am not satisfied there has been a very significant increase in her pain and treatment since the transport accident as compared to before. Over the years from 2007, she was regularly seeing her general practitioner and prescribed large amounts of Endone. She was investigated by CT scan in 2007. Dr Waldron performed acupuncture. The radiology has not changed much since 2007 and there is nothing to suggest any focal structural damage as a result of the accident.
48 I am not satisfied that the treatment she has received, both here and in Queensland, has substantially changed as a result of the transport accident. I note she has not received any psychological or psychiatric treatment.
49 In relation to her employment, Ms Atkinson trained and spent many years working as a hairdresser. She worked for the Department of Employment from 1990 to 1995 and for the University of Ballarat from 1998 to 2000. She then worked as a cultural officer with the Ballarat Aboriginal Cooperative, including as a member of the Board. She could not remember how that work stopped or why she left.[10] In cross examination, Ms Atkinson accepted that between 2001 and 2009, including for a period in Townsville around 2005, she was not working, apart from some part-time jobs in photography and at an ice-cream shop. Those jobs only occupied about twelve months.[11]
[10]Transcript (“T”) 48
[11]T91-92
50 When she returned, she commenced working for Deakin University, cleaning and cooking for Indigenous students. She did this for three or four years.
51 In 2009, she commenced an apprenticeship through Deakin University as a chef and finished that apprenticeship in 2012. She was commended for her work.
52 During 2012, she was seeing Dr Waldron for, among other things, workplace stress. She said there was nepotism in her workplace. As a result, Ms Atkinson was having difficulty with sleeping, had poor energy, low self-esteem and her concentration was affected. There were also problems with her partner and children. She told Dr Waldron she was going to finish work at the end of the 2012 year, although said she was put off because of a dispute with her manager.[12] Ms Atkinson did not work from the end of 2012 until the accident. She said she was looking for work at the time, including at two local hotels.[13]
[12]T83
[13]T85
53 I am not satisfied from the evidence there has been any marked change in her capacity for employment since the accident.
54 After the accident, and by May 2013, Ms Atkinson had reported to Dr Waldron that life was difficult, including that her children were using ice and having problems with accommodation. Ms Atkinson decided to return to Townsville to get away from things.
55 I accept Ms Atkinson was an accomplished artist. Her artworks exhibited to her affidavit are impressive, as are the awards she received; however, she accepted she did not finish any of her art between 2004 and 2013; she did not have the “mental mindset” to do so.[14] Ms Atkinson said she was busy with her children and with her work; she did not have time to paint.[15] She said she had intended to return to painting after the children got older.
[14]T89
[15]T90
56 The difficulty in assessing the consequences of which Ms Atkinson complains is the unreliability of her evidence. I am unable to conclude that, even accepting she suffered pain and restriction in her neck and lower spine as a result of the Pain Syndrome, that the difference in that regard before, as compared to after, the accident was modest only. Further, that although she was working at Deakin University until late 2012, for a considerable period between 2001 and 2009, she worked only in several casual jobs, and for short periods of time. This is a significant gap in employment and given all the various other issues in her life, it is difficult to say that the effects of the accident had any significant impact on her work capacity.
57 Further, while I accept she was an artist of considerable ability, as with her employment, there was a very considerable period of ten years or so prior to the transport accident where she did not paint very much and did not complete her works. There were a range of reasons for this, including difficulties with her children, and other issues in her life.
58 Thus, when a comparison is made with a range of employment, social, domestic and recreational activities, both before and after the accident, the consequences of the Pain Syndrome, which I accept she suffers, do not meet the “severe” test.
59 The application should be dismissed.
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