Baker v Transport Accident Commission

[2016] VCC 621

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-14-00773

JENNIFER BAKER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	11 and 12 April 2016
DATE OF JUDGMENT:	19 May 2016
CASE MAY BE CITED AS:	Baker v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2016] VCC 621

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:           Damages – transport accident – serious injury – injury to the cervical spine – aggravation

Legislation Cited:     Transport Accident Act 1986, s93(4)(d)

Cases Cited:            Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

Judgment: Leave granted to bring proceedings for damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Rattray QC with Ms R Boyce	Slater & Gordon Ltd
For the Defendant	Mr J D Philbrick QC with Ms J E Clark	Solicitor to the 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 which occurred on 17 March 2009 (“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     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 not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]

[1](2000) 1 VR 79

7     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” – see Humphries & Anor v Poljak.[2]

[2][1992] 2 VR 129 at 140-1

8     The plaintiff swore two affidavits.  She was cross-examined.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

9       The plaintiff is presently forty-eight, having been born in March 2009. She is married and lives at home with her husband and their twenty-year-old son, Anthony, who has been her carer for the last three years.[3] 

[3]Transcript (“T”) 74

10      On the said date, a four-wheel drive vehicle collided with the rear of the vehicle the plaintiff was driving, causing significant damage (“the accident”).[4]

[4]A tendered photograph confirmed this damage

11      The plaintiff suffered a whiplash and neck injury in the accident and has continued to suffer ongoing symptoms and impairment.

12      Prior to the accident, the plaintiff suffered a significant neck injury in a transport accident in November 2001 (“the earlier transport accident”), as a result of which she ultimately required cervical fusion surgery in November 2005 (“the first neck surgery”).

13      Common law proceedings issued in relation to the earlier transport accident settled for $410,000.

14      The plaintiff deposed that by the time of the accident, she had substantially improved from her earlier transport accident injuries, although she continued to suffer ongoing symptoms in her neck, left shoulder, left upper arm and little finger, as well as headaches. She had reached a stage at which she could manage her ongoing symptoms and was looking forward to the future, with plans to open her own business in April 2009.

15      The plaintiff deposed that before the accident, she was taking 30 milligrams of OxyContin per day, as well as Panadeine Forte, Temaze, Valium and Endone.

16      The plaintiff confirmed the “substantial improvement” deposed to. It was a gradual thing, it just did not happen on a date.  She started to do a lot more twelve to eighteen months before the opening the shop in April 2009.[5] She started feeling better and when her mind got better; her body got better. When she saw the shop, she thought it was a business she could run.[6]

[5]T13

[6]T14

17      The plaintiff could not recall an increase in her medication in 2007 after some improvement in her neck condition in 2006.[7]  She thought, in 2007, she was still “laying about,” explaining depression was a funny thing that did not come one day and then just disappeared.[8]

[7]T14

[8]T15

18      In December 2007, the plaintiff might have “clicked” her neck and that led to a review by Professor Bittar, neurosurgeon, in March 2008, but she went to him for a check-up. She was not aware of a recurrence of her neck pain in around September 2007.[9]

[9]T16

19      The plaintiff could not remember Professor Bittar sending her for an MRI scan in 2008. She did not know whether there was a large increase in her medication intake in the twelve to fifteen months before the accident.[10]

[10]T17

20      The plaintiff disagreed she was first prescribed OxyContin in January 2008.  She had been taking it the whole time since the earlier transport accident.[11]  It was not added to her medication regime, as her doctor noted.  She did not know if she was having neck and arm pain at that time.[12]

[11]T18

[12]T19

21      The plaintiff agreed that, immediately before the accident, she was taking 40 milligrams of OxyContin.  She probably took Panadeine Forte and Endone, 5 milligrams. Sometimes she woke up “okay”, so she did not need any medication.[13]

[13]T21

22      The plaintiff agreed when she attended Swan Hill Hospital for a gynaecological procedure in July 2008, she completed a pre-operative history form. She accepted, as she noted on that form, she was then taking 50 milligrams of OxyContin. 

23      The plaintiff did not know if there was a very large increase in her Panadeine Forte intake in the three months before the accident.[14] She was taking Panadol Osteo, not Panadeine Forte. She agreed that the dosage mentioned in her doctor’s note in January 2009 seemed like a lot of Panadeine. There was no way she would take nine tablets a day, as that amount of tablets would have made her ill.[15]

[14]T24

[15]T26

24      The most Panadeine Forte the plaintiff has ever have taken in a day would be six.[16]  Whilst she deposed on 28 August 2013, she usually took eight a day and was taking OxyContin, 60 milligrams, she was then taking two Endone and six Panadeine a day.[17] 

[16]T40

[17]T42

25      The plaintiff could not argue with her medical records if they showed an increase in prescription medication before the accident but she did not think she was prescribed that much. She could not give any explanation for any increase.[18] She really did not know her level of medication before the accident.[19]

[18]T28

[19]T32

26      The plaintiff has always had trouble sleeping. Whilst the clinical notes referred to prescriptions of Temaze before the accident, she had not taken it. That medication gave her horrible nightmares and made her feel funny. 

27      While Temaze was listed on her form at Swan Hill Hospital in July 2008, the plaintiff was told at the hospital just to write down all the medication she had at home. She did not know if she was taking Temaze right through 2008.[20] 

[20]T37

28      The plaintiff agreed that before the accident, she sometimes took more OxyContin than was prescribed.[21]

[21]T30

29      The plaintiff could not recall telling Mr Brownbill on examination in March 2011:

“I was progressing very well and was nearly off all medication until I had the second accident.”[22] 

[22]T33

30      At the time of that examination, the plaintiff was doing a lot better. She did not know what the doctors were going to do about her medication. She thought her medication was reduced pre accident and did not know there was a substantial increase before. She was progressing really well before the accident.[23] 

[23]T34

31      The plaintiff was not going to her general practitioner less frequently; however, mentally, she was better and, physically, able to do a bit more. Once her mind was better, her body was better. She denied she was trying to mislead Mr Brownbill, describing her condition pre accident in these terms.[24]

[24]T35

32      The plaintiff was taken through a number of medico-legal examinations relating to the earlier transport accident and the problems she described with her neck on those occasions.

33      When the plaintiff saw Mr Brownbill in August 2006, she agreed she told him of problems with housework. She did not know if she then spent most of the day sitting around the house but that was probably the case. She did not know if she then told him that since the first neck surgery she had been able to move her neck more freely, but the pain in her neck and arm had not improved.[25] 

[25]T57

34      The plaintiff did not deny she had sleep problems as noted by Mr Huson in March 2006.[26]

[26]T58

35      The plaintiff mentioned problems with housework to Professor Bittar when examined in October 2006. She was then still trying to recover. She did recover, and then the accident happened. The plaintiff worked really hard physically and mentally to get where she was, then she had the accident.[27]

[27]T60

Treatment post accident

36      In the first three weeks after the accident, the plaintiff had pain on the left side of her neck and was experiencing a heaviness in her left arm.  She did not know when she first saw a general practitioner after the accident.  She did not know whether the first visit to her doctor, three weeks after the accident, was pre-planned when it was pointed out to her he had noted “repeat script” on the note of that attendance.

37      The plaintiff returned to Professor Bittar, the neurosurgeon who had carried out the first neck surgery.  Following an MRI and CT scan, he informed her that she had suffered a further discrete injury to other areas of the cervical spine.

38      The plaintiff then underwent further surgical treatment from Professor Bittar in October 2010, but did not get much improvement at all thereafter and he referred her for pain management.

39      After the accident, the plaintiff’s use of OxyContin increased significantly due to her pain.  Her intake eventually reached 240 milligrams a day, as well as large amounts of Panadeine Forte.  In 2012, she was hospitalised in Swan Hill due to problems with her medication intake.

40      The plaintiff’s doctors recommended a Ketamine infusion at the Epworth Hospital, as they were becoming concerned about the addictive nature of OxyContin. This took place in November 2012, during which time the plaintiff was an inpatient for seven days. The procedure and its side effects were terrible. 

41      The plaintiff’s neck symptoms improved following that procedure, although they started to increase again as the infusion began to wear off and her headaches worsened.

42      As of August 2013 when she swore her first affidavit, the plaintiff continued to experience daily, almost constant symptoms in her neck, left shoulder, left upper arm, and ring and little fingers. She continued to see her general practitioner and also had physiotherapy.  She continued to take Endone, usually one a day; OxyContin, 60 milligrams per day; Panadeine Forte, usually eight per day, and Temazepam and Valium on a regular basis.

43      Nerve root injections from Professor Sullivan, a pain specialist, produced no long-term benefit.  At that stage, the plaintiff was no longer seeing Professor Bittar, as he did not believe there was any further treatment he could offer.

The shop

44      Shortly prior to the accident, the plaintiff had entered an oral agreement to lease a gift shop in Swan Hill.  It was an established business known as “Debbie’s Dreamers.”[28]  The plaintiff had taken out a mortgage on her home to set up the shop, and borrowed $60,000. 

[28]This business name was registered on 21 June 2007

45      The plaintiff confirmed with that loan she bought a car and then paid for the stock and the shop.[29]    

[29]T46

46      There was one Mortgage for $240,000 with Bluestone dated February 2007.  The plaintiff took out this loan for her kitchen and she then borrowed further money on that loan for the shop.[30]

[30]T50

47      It was the plaintiff’s intention to run the business on her own, commencing trading on 1 April 2009.  She was in the process of preparing to take the business over as at the said date, having purchased the existing stock. 

48      The plaintiff was unable to continue running the business after the accident.  Her sons tried to help her out by operating it for several months, but the business ran at a significant loss.[31] After the accident, the plaintiff tried to involve herself in the business for an hour or two a day but she could not lift the stock as required and she had problems being on her feet. Ultimately, she had to close the shop and lost a lot of money.[32]

[31]T45

[32]T47

49      The plaintiff did not have any documentation as to the profitability, or otherwise, of the shop before she took it over. There is no documentation at all from the business’ previous owner.[33]

[33]T46

50      The plaintiff had not had any experience running a small business before purchasing the shop. She also had not had any administrative experience or sales experience. She denied the business was unprofitable from the start.[34]

[34]T47

51      Whilst a number of examiners had noted the plaintiff had improved following the earlier transport accident to the point where she had opened a small gift shop before the accident,[35] the plaintiff did not mean to give the impression she was working in the shop and everything was going well when she had the accident.[36]

[35]T55

[36]T52

52      In her September 2013 affidavit, the plaintiff deposed that prior to the said date, despite having the symptoms described, she was active in all domestic and recreational activities, performing home duties, going to football with her boys and taking them to training and games. She was doing some gardening and helping the family with repairs and renovations. She was active socially, active with shopping, driving and looking forward to moving into the gift shop and operating a business.

53      As a result of her accident injuries, the plaintiff was significantly more restricted in all her activities. Although her physical symptoms were basically in the same body parts as prior to the said date, their intensity was significantly greater and had significantly reduced her ability to take part in everyday life, as she had been doing prior to the accident. 

54      Although the plaintiff drove locally, she did not like driving as she had some loss of neck movement.  She was limited in walking and very limited in what she was able to lift, which included cooking.

55      The plaintiff had particular difficulty with heavy domestic activities.  She was also limited in her ability to do the shopping and, in general, obtained assistance from her family members.

56      Anthony, as the plaintiff’s carer, undertook most of the housework and usually took her to appointments. This was not the case before the accident.

57      The plaintiff was much more confined and immobile since the said date, and had also become depressed because of her ongoing chronic pain and impairment.

58      The plaintiff saw a psychiatrist at Swan Hill Mental Health between 2009 and 2010, or 2011, and was then taking an antidepressant, Cymbalta.

59      The plaintiff was unfit for any work at all and believed that situation would continue indefinitely. She believed she had an opportunity to derive income from successfully operating the shop, but once she became impaired by reason of her injury, there was no prospect of it ever being able to succeed. The shop required hands-on work and administration and, following the accident, she was incapacitated for those activities.

60      As a consequence of the further injuries she suffered in the accident, the quality of the plaintiff’s life had been devastated, as had her ability to participate in and enjoy life.  Further, not being able to work, and not being able to work in a self-employed capacity, was not only a devastating blow because of the loss of income, but it also deprived the plaintiff of the pleasures of involvement and interest, and independence, which came with earning an income.

61      The plaintiff swore a second affidavit in February 2016.

62      Following re-examination in January 2015, Professor Bittar had referred the plaintiff to Dr Sullivan for pain management. She received physiotherapy for a long time for her neck injury, but that treatment stopped in early 2014 when she no longer derived any benefit from it. 

63      Dr Moynihan, in Swan Hill, continues to treat the plaintiff. He prescribes OxyContin. The plaintiff continued to see him through 2014 and 2015, and he referred her for an MRI scan in late 2014 because her cervical spine pain was worsening. The pain continued in her neck and referred to both shoulders and arm.  She experienced tingling and pins and needles in each hand, and was increasingly dropping items on a daily basis.

64      Dr Moynihan sent the plaintiff for an MRI scan, and he referred her back to Professor Bittar, whom she saw again in early 2015.

65      In about March 2015, Professor Bittar performed a cervical fusion, which was funded by the defendant. The plaintiff was an inpatient for two days and an outpatient for a further five days. That surgery did help improve her neck pain.  It is less severe and not as constant as prior to that surgery. 

66      The plaintiff’s arm pain is now not as severe, but she still experiences a heaviness in her arms and shoulders, with the surgery having improved the pins and needles in her hands.  Since the recent surgery, she still drops things but less frequently.

67      The plaintiff continues to experience daily symptoms in her neck, left shoulder, left upper arm and ring and little finger, which is usually constant.

68      In re-examination, the plaintiff said she really felt the effects of the accident.  The pain underneath her shoulder blades is constant and is different from the earlier transport accident pain in every way. It is always an aching.  She demonstrated the site of soreness as both sides of her neck, down across her shoulders, ending behind the lower level of her bra strap.[37]

[37]T76

69      The plaintiff cannot play with her children or her grandchildren and she cannot bend over.[38] 

[38]T77

70      Since the accident, it has been harder to get to sleep and the plaintiff does not doze off until 4:00 or 5:00am, having gone to bed at 9:00pm and just lying there.  Since the accident, she sometimes has spent the day in bed as she is sore and, mentally, she does not want to get up. Anthony continues to be the plaintiff’s full-time carer.  He prepares meals and does the vacuuming, mopping, washing dishes, washing and hanging out washing.  He does the shopping.  The plaintiff has recently started to go with him and help him carry lighter items.

71      As a result of her accident injuries, the plaintiff continues to take 40 milligrams of OxyContin twice a day, six Endone per week, four to six Panadeine Forte per week, Valium most days and Celebrex daily. 

72      In recent months, the plaintiff has started to experience a sensation of her right leg giving way without warning. She had had two falls at home in the previous fortnight.  She fell to the ground outside her home on 23 January 2016, and her son drove her to Swan Hill Hospital.  The following Monday, a plaster cast was applied to her foot after x-rays revealed a fracture.

73      On a normal day, the plaintiff tries to get herself out of the house and may do some light gardening or potter around. She forces herself to do so as she becomes frustrated and miserable stuck inside. She no longer walks longer distances as her neck pain worsens with walking.

74      The plaintiff’s husband works for Pickering’s Transport doing local deliveries and is home each night.

75      The plaintiff continues to spend time in bed during the day because of her ongoing neck pain. With the prescription of 90 milligrams of Cymbalta, her mood has improved a little, which has enables her to get out more. 

76      As a result of her injuries, the plaintiff has difficulty driving and generally stops four or five times on trips to Melbourne, even when a passenger.  She can drive for roughly for 45 minutes.

77      The plaintiff has six sons, three of whom play football and travel all around the Mallee for matches.  Before the said date, she regularly drove many hours to watch them play, but now avoids this. She last went to a match about three years ago, but her neck pain became intense.  She cannot sit in the car and watch the games as the parking is too far from the oval.[39]

[39]T55

The Plaintiff’s treaters

78      There was one brief report dated 11 February 2016 from Dr Moynihan at Swan Hill Medical Group. He noted he has been seeing the plaintiff since 2 September 2013.

79      Dr Moynihan simply noted the earlier transport accident following which the plaintiff underwent a fusion. There was then the accident which necessitated further cervical surgery in 2010 with fusion of C5-7. There were further pain problems and the plaintiff underwent radiofrequency denervation which was unsuccessful and later a ketamine infusion.

80      Dr Moynihan pointed out his role was principally monitoring pain relief, restraining opiate use, and managing one or two depressive episodes.

81      Dr Moynihan noted that In December 2014, he was concerned about a new numbness over the median distribution on the right. Carpal tunnel injection did not help, so an MRI scan was requested, which showed severe cervical canal stenosis with compressive myelomalacia of the cord. 

82      Urgent review with Professor Bittar followed, and surgery was undertaken in March 2015. Dr Moynihan noted that surgery had been fairly successful but the plaintiff was emotionally very unstable, and she was nursed through that period.

83      Dr Moynihan thought the plaintiff has a long way to go. She is weak and lacks balance, and cannot bend down. She has fallen over twice and on the second occasion, suffered a spinal fracture to the fifth metacarpal and was having to use a CAM Walker.

84      Dr Moynihan recommended the defendant fund a cross trainer for the plaintiff to use when she is better. He noted that she had reduced OxyContin to 40 milligrams daily. She had sub-occipital pain.  She had 50 per cent of cervical flexion and extension and 50 degrees rotation to the right and 45 degrees to the left.  Lateral flexion was very limited and there was spasm.

85      Dr Moynihan noted the plaintiff pottered around the house, she cooked once a fortnight and was unable to clean or vacuum. 

86      There were a series of reports from treating neurosurgeon, Professor Bittar detailing his examinations of the plaintiff both before and after the accident.

87      Professor Bittar first saw the plaintiff on 13 September 2005. She then presented with longstanding neck and lower back pain since the earlier transport accident.

88      Professor Bittar thought the plaintiff’s injuries severely limited what she could do socially and around the house. She was then taking Valium and non-steroidal anti-inflammatory medication, and also antidepressants.

89      On presentation, the plaintiff’s main problems were neck and scapular pain, with bilateral pins and needles in her fourth and fifth fingers.  The scapular pain was progressively worsening and her main problem.  She also had lower back pain with intermittent radiation down both legs.

90      Professor Bittar then diagnosed neck pain and cervical radiculopathy and lower back strain. He carried out a C5-6 and C6-7 anterior cervical decompression and fusion on 9 November 2005.  Post operatively, there was an excellent improvement in the plaintiff’s right arm but no improvement in the left.  Accordingly, he ordered shoulder investigations and then thought the plaintiff’s prognosis was guarded.  He also noted the plaintiff suffered from a significant degree of stress, anxiety and depression related to the earlier transport accident.

91      Professor Bittar reviewed the plaintiff on 14 October 2006, when she complained of left shoulder pain with pain radiating down her arm to her left triceps, and headache.

92      Professor Bittar noted, whilst her neck mobility and left arm pain had improved, the plaintiff continued to experience a significant amount of arm pain.  She had cervicogenic headaches.

93      Professor Bittar then thought the prognosis was guarded, and that the plaintiff had a residual permanent disability. In his view, she had a capacity for suitable modified duties (restricted lifting and use of her neck) and may require an occipital peripheral nerve stimulation in order to control her headaches.

94      Professor Bittar also thought the plaintiff’s ongoing pain was affecting her ability to engage in a wide range of recreational and domestic activities, with an almost zero ability to play sport with her children. She could not mop, vacuum or hang out the washing, and it was unlikely these limitations would improve.

95      Professor Bittar then planned to review the plaintiff in twelve months’ time, mainly to assess the cause of her headaches.

96      On the next review on 12 March 2008, the plaintiff reported a recurrence of symptoms, which occurred around September the previous year. She then complained of neck and interscapular pain, with significant arm pain and headaches, which were cervicogenic.

97      On further review on 7 May 2008, the plaintiff was symptomatically unchanged, and complained of occipitocervical headaches, posterior cervical neck pain radiating to the right trapezius, and right elbow pain.

98      Professor Bittar noted a repeat MRI scan demonstrated bilateral foraminal stenosis at C5-6 and an annular disc bulge at C4-5. He recommended six to twelve months of physiotherapy and hydrotherapy, with the avoidance of pain aggravating activities.

99      On the next review on 6 August 2009, the plaintiff complained of an exacerbation of neck pain, interscapular pain and left brachialgia, the onset of which followed the accident when she was in a sedan and was struck from behind by a four-wheel drive. Those symptoms commenced immediately and had persisted since.  In addition to neck and arm pain, she also complained of numbness in her fifth finger.

100     On the next review on 14 October 2009, the plaintiff continued to complain of a number of symptoms, the most problematic being that of left brachialgia, with numbness in her left fifth finger and a weakness of the left hand. 

101     Professor Bittar noted a recently performed MRI scan and flexion extension x‑rays demonstrated satisfactory appearances at the fused levels of C5-6 and C6-7. The plaintiff had bilateral foraminal stenosis at C7-T1, with probable compression of the C8 nerve roots.  He arranged for her to undergo a diagnostic left C8 nerve sheath injection, which offered her excellent benefit for several days.

102     The updated diagnosis at that stage was left C8 radiculopathy, secondary to C7-T1 foraminal stenosis.  Professor Bittar thought the radiculopathy was a direct result of the accident.

103     Professor Bittar undertook a left C7-T1 decompression C8 and rhizolysis on 15 October 2010.

104     On review on 2 December 2010, the plaintiff’s left hand numbness had improved substantially; however, her pain did not improve. It was worse than pre operatively and she complained of swelling in her feet and hands. Given the disappointing early outcome, Professor Bittar referred the plaintiff to pain management specialist, Dr Richard Sullivan.

105     On review by Professor Bittar on 21 March 2011, the plaintiff’s condition had not improved.  He thought her long-term prognosis was relatively poor and she was likely to suffer from significant pain and disability into the foreseeable future and required ongoing management by Dr Sullivan.

106     Professor Bittar concluded it was highly likely the accident had aggravated the plaintiff’s pre-existing cervical spine condition following the earlier transport accident.

107     Professor Bittar advised the plaintiff’s general practitioner he agreed with Dr Sullivan’s strategy to perform C7 nerve block as well as bilateral facet blocks.

108     Professor Bittar provided a supplementary report in June 2012, having reviewed the MRI scans of April 2008 and, post accident in September 2009.  He specifically paid attention to the C7-T1 intervertebral disc, at which level the C8 nerve roots exit the spinal canal. 

109     Professor Bittar noted the 2008 MRI scan demonstrated some mild left-sided foraminal stenosis at C7-T1. The MRI scan the following year demonstrated that the left-sided foraminal stenosis was worse and the plaintiff had developed right-sided foraminal stenosis at C7-T1. On the basis of that scan, he thought it likely that the exiting C8 nerve roots were compressed.

110     Professor Bittar explained that it should be noted that following a cervical fusion, additional stress may be placed on the adjacent segments of the cervical spine.  He noted the 2006 anterior cervical decompression and fusion at C5-6 and C6‑7.  He thought it was very likely that, with the passage of time, additional stress on the C7-T1 level had resulted in accelerated degenerative changes and, as a consequence, the plaintiff had developed bilateral foraminal stenosis with compression of the exiting nerve roots.

111     Professor Bittar considered that the plaintiff’s condition was favourable until about two months prior to her most recent review in January 2015. She then began to experience worsening of the tingling in her left hand, as well as the development of tingling in her right.  She reported losing fine motor control and strength in both hands and was having some balance issues. She also experienced a burning sensation in the retro-scapular region, radiating into both shoulders and upper arms, but not beyond her elbow.  Her lower limb reflexes were brisk, but there was no other evidence of myelopathy.

112     Professor Bittar noted the January 2015 MRI scan demonstrated the development of a large disc osteophyte complex at C4-5, the level adjacent to her previous fusion.  It was causing significant spinal cord compression and myomalacia. 

113     Professor Bittar thought the plaintiff presented with symptoms related to adjacent segment disease at C4-5, with early cervical myelopathy. In his view, the previous cervical spine injury, and the fact of a two-level cervical fusion at C5-6 and C6-7, had played a significant contributing role to the development of degenerative change at C4-5, with associated spinal canal stenosis and spinal cord compression.  He thought adjacent segment disease diagnosis was fairly clear.

114     Professor Bittar noted approval was obtained from the defendant for surgery, which was carried out in March 2015.  He had not seen the plaintiff post operatively. 

115     Professor Bittar commented it was difficult to form a confident view in relation to the relationship between the requirement for the recent surgery and the accident. He considered that the accident certainly aggravated the plaintiff’s cervical spine condition and resulted in further procedures, including surgery at C7-T1.

116     Prior to that accident, however, the plaintiff had undergone a two-level anterior cervical decompression and fusion at C5-6 and C6-7. Professor Bittar thought that the earlier transport accident which resulted in the plaintiff undergoing that two-level fusion, as well as the two-level cervical fusion itself, had played a more significant role in the development of adjacent segment disease at C4-5.

117     Considering the accident did result in the sustained aggravation of the plaintiff’s neck-related symptoms, Professor Bittar considered it most likely that had played some contributing role to the need for current operation by accelerating the development of her pre-existing cervical spine condition, but noted it was impossible to determine the extent of that contribution.

118     Professor Bittar reported in January 2016, having seen the reports of Mr Shannon’s examinations in July 2005 and June 2006.  Professor Bittar thought there was no evidence which would lead to the conclusion that the plaintiff was suffering from C8 radiculopathy at the time of either one of those earlier examinations.

119     Dr Sullivan, pain management specialist, reported in November 2012 noting he had carried out left C3, C4, C5 and C6 medial branch nerve radiofrequency denervation and left, third occipital nerve pulse radiofrequency treatment.

Medico-legal evidence

120    The plaintiff was examined on a number of occasions by Mr David Brownbill, neurosurgeon, both before and after the accident.

121    Examinations in August 2004 and 2006 were for the purposes of an AMA assessment. On the later examination, the plaintiff did not complain of pins and needles in her left ring and little fingers. Mr Brownbill noted there was no objective neurological abnormality and no signs of radiculopathy.   

122    On re-examination post-accident in March 2011, the plaintiff told Mr Brownbill that following the earlier transport accident and surgery, her pain had improved to the level that she was able to run a small gift shop, but following the accident, because of the increasing pain, she had to cease work in June 2010. 

123    The plaintiff added she was “progressing very well and was nearly off all medication until [she] had the second accident”. 

124    On examination on 9 March 2011, there was restriction of cervical spine movements.  There was no specific neurological abnormality of the upper lower limbs and there were no signs of radiculopathy or myelopathy. 

125    On the information provided, Mr Brownbill thought the plaintiff’s symptoms had been improving and the medication requirements had been reducing, with her having been able to run her own gift shop until March 2009, when the accident occurred.

126    Thereafter, the plaintiff’s neck pain increased, with pain being situated slightly higher than her earlier neck pain, with left arm pain for which she had undergone a foraminotomy without pain improvement. 

127    On this history, Mr Brownbill considered, on balance, the plaintiff’s accident remained a significant contributing factor towards her current neck injury.

128    Mr Brownbill provided a supplementary report in 2012, having been provided with the 2008 and 2009 MRI scans. Having reviewed those investigations, he was not able to detect any change between them in the anatomical alignment or the degenerative changes. Mr Brownbill noted, however, radiological findings do not correlate specifically with clinical symptoms.  Clinical experience showed there may be significant increase in symptomatology following aggravation of spinal degenerative changes without demonstrated radiological change.

129    Mr Brownbill re-examined the plaintiff in January 2015. 

130    On examination, there was decreased sensation to touch and pinprick in both hands (involving the ring, little and index fingers to varying degrees). Reflexes were difficult to obtain in the upper and lower limbs.  There was no alteration to power in the upper or lower limbs, and tone and plantar responses were normal in the lower limbs.

131    Mr Brownbill again concluded, on balance, the accident remained a material cause of the plaintiff’s injuries, noting there had been a further aggravation of the degenerative changes in the accident in March 2009 with, subsequently, increasing pain, as a result of which the plaintiff had not returned to employment.

132    Mr Brownbill saw the plaintiff again in November 2015. 

133    On examination, there was no objective neurological abnormality at the upper or lower limbs and there were no signs of radiculopathy or myelopathy.

134    Mr Brownbill reviewed Mr Shannon’s 2005 and 2006 reports, noting the examination findings on each occasion.  Mr Brownbill considered that these did not show any neurological abnormality and there was no evidence from Mr Shannon’s reports of any signs of C8 radiculopathy on either occasion.

The Defendant’s medical evidence

135    The defendant relied upon a number of histories given by the plaintiff to medico-legal examiners who saw the plaintiff in relation to the earlier transport accident. 

136    Mr Huson, psychologist, noted in his report of 16 March 2006 that the plaintiff’s anxiety stressors at that time included inability to work, uncertainty regarding health and future, continuous high levels of pain, sleep difficulties, loss of libido and increased difficulty with coping. 

137    In April 2006, Judith Long, occupational therapist, described the plaintiff’s functional tolerances as limited lifting, problems with sustained posture, not being able to walk far and walking slowly, reduction of grip strength and experiencing numbness in the fourth and fifth fingers of the left hand, causing opening jars, managing buttons and laces to be problematic,

138    Dianne Perrett-Abrahams, forensic psychologist, on 31 October 2006, noted worsening symptoms, including continued severe pain in the neck, episodic back pain, severe chronic migraine headaches, pins and needles in both arms (mainly the left, with the left index and little finger affected the most), problematic driving because of panic attacks, irritation, distress and prescription of antidepressant medication. 

139    Dr Epstein, psychiatrist, on 25 August 2006, recorded the plaintiff having continuing difficulty with bending, lifting, kneeling and carrying.  As far as housework was concerned, she did light cleaning and cooking but no gardening.  She had help from her son with household chores and shopping.  She continued to have pain in her neck, less severe, and had more movement of her neck.

140    The history taken by Professor Bittar on examination in October 2006 was also relied upon.[40]

[40]See paragraphs 94-96 of this judgment

141    The plaintiff attended Swan Hill Hospital on the said date following the accident.  She was reported as complaining of pain in the back of her neck and right shoulder. She was alert and orientated:

“Stiff neck collar insitu.  Past history of MCA in 2001.  Patient sustained?C6 fracture and needed fusion of C4 & C5.  Patient has no neurological deficits..  Currently taking Diazepam, MS Contin, Oxycontin, Endone and Panadeine Forte.  Initially patient had some tingling in right hand but once she stopped hyperventilating, this resolved.”

Medico-legal evidence

142     The plaintiff was examined by orthopaedic surgeon, Mr Michael Shannon, on two occasions prior to the accident and once thereafter. 

143     On the first examination in July 2005, the plaintiff described ongoing neck stiffness and headaches. She was experiencing tingling in the fourth and fifth fingers of both hands with pain extending to the back of both shoulders into the elbows.

144     On clinical examination, there was moderate restriction of cervical movement.  There was no objective neurological abnormality, although reflexes were relatively inactive.

145     Mr Shannon noted the x-ray of the cervical spine of November 2001 and a CT scan which was reported to show degenerative change at C5-6.

146     Mr Shannon also noted a 2003 MRI scan which showed disc degeneration with posterior osteophytes and some flattening of the cervical cord but no evidence of cervical myelopathy. There was a foraminal stenosis at C5-6 and minor disc bulging at C4-5 and C6-7.

147     Mr Shannon diagnosed a soft tissue injury to the cervical spine with aggravation of pre-existing disc degeneration. He noted the plaintiff had some radiation of symptoms to the interscapular region but he believed those symptoms were arising in her neck.

148     On re-examination in June 2006 (post November 2005 fusion), the plaintiff continued to complain of pain in the neck, extending to the left trapezius muscle, the left scapular region and the upper arm as far as the elbow. She still had pins and needles in the ulnar border of both hands.

149     On physical examination, cervical movements were limited by half and there was some limitation of shoulder movement. There was no objective neurological abnormality in the upper limbs, although the reflexes were relatively inactive.

150     Mr Shannon viewed the November 2004 MRI scan which demonstrated multilevel disc degeneration with moderate disc bulging at C5-6 and C6-7.  He thought that, post-fusion, there had only been quite modest improvement in symptoms and no change in physical signs.

151     Mr Shannon re-examined the plaintiff after the accident, seeing her in December 2009.

152     The plaintiff then complained of ongoing neck and shoulder pain at the back of the left upper arm.  She had numbness in the left fifth finger and cramps in both hands.

153     On formal examination, there was gross restriction of cervical movement but the plaintiff rotated fairly freely in conversation. There was no objective neurological abnormality. Mr Shannon noted that assessing the plaintiff’s left biceps reflex caused her to burst into tears because of her fear of being hurt.  Elevation of her left arm to 150 degrees produced left trapezius muscle pain and then her legs started to tremble.

154     Mr Shannon noted an MRI scan showed no significant disc herniation at C7‑T1 but showed some foraminal stenosis due to bony changes encroaching on the exiting C8 nerve roots bilaterally.

155     Mr Shannon stated that since the previous examination, the plaintiff had had a further transport accident which may well have resulted in an extension injury to the neck. He thought that her present complaints were quite similar to those at the previous two examinations and the physical signs were essentially the same. 

156     Mr Shannon noted the plaintiff had degenerative change at the levels above and below the fusion and that was the situation prior to her fusion.  He did not believe there had been any specific new injury, nor did he think her physical signs were significantly worse than when last examined. Therefore, at most, he considered the accident had resulted in some aggravation of the pre-existing condition.

157     Mr Shannon thought it would not be unreasonable to perform nerve conduction studies or indeed, a C8 nerve root injection, accepting the plaintiff’s neck condition is at least related to the earlier transport accident.

158     Mr Shannon thought there had probably been some aggravation by the more recent accident but in fact the physical signs were very little different. The request for a nerve root block was not unreasonable and the symptoms in the C8 distribution were present prior to “this accident”.

159     In general, Mr Shannon thought the plaintiff’s symptoms had an organic basis, although there was also a significant functional overlay. He then considered that she was capable of working in a business and should be encouraged to do so. He thought her partial incapacity was predominantly due to the earlier transport accident but was further complicated by the accident. 

160     Mr Shannon noted the plaintiff had had the last six weeks off work but was planning to go back in the near future. He was not sure whether she would get back to full-time duties in the shop.  He considered she was permanently unfit for work as a cleaner.

161     Dr Boys, consultant orthopaedic surgeon, examined the plaintiff in February 2016.

162     Dr Boys was provided with the Swan Hill Medical Group clinical notes, Professor Bittar’s reports and those of Dr Sullivan and all of the investigations undertaken.

163     On examination, the plaintiff confirmed chronic disability referrable to the neck.  She confirmed a history of neck and back pain following the earlier transport accident but was unable to confirm the details of treatment leading up to surgery in November 2005.

164     Dr Boys noted the plaintiff had a disappointing response to the first neck surgery with subsequent reported chronic neck and left arm pain (Dr Stanbury).  Dr Boys noted ongoing narcotic dependency with use of prescription Panadeine Forte, Endone and ultimately, OxyContin. Chronic neck pain with narcotic dependency was ongoing in the period prior to the subject motor vehicle accident.

165     Dr Boys noted the attendance at Swan Hill Hospital and later, with the general practitioner.  There was referral back to Professor Bittar with a left C7-T1 foraminotomy in October 2010 following a nerve root injection at C8 and then, later, the March 2015 revision anterior cervical fusion, which had been partially successful, with relief of sensory symptoms in the hands.

166     Dr Boys had a history of the plaintiff opening a gift shop in 2007 and maintaining employment in that business until the accident, and she had not worked since. 

167     On examination, there was some limitation of the cervical spine, with full range of movement of both shoulders. Neurological examination was normal.

168     Dr Boys had the reports of the 2008 and 2009 MRI scan of the cervical spine.

169     Dr Boys thought the plaintiff would appear to have suffered a musculoligamentous injury to her neck with aggravation of pre-existing chronic symptomatic degenerative change in the accident.  He noted her complaints of chronic neck pain with radicular symptoms following the earlier transport accident. There were persisting symptoms, despite C5-6 and C6-7 fusion in 2005, with ongoing narcotic dependency in the period prior to the accident.

170    Dr Boys concluded the plaintiff had suffered a temporary exacerbation of chronic pain specific to the accident. He noted the post-accident procedures and that the plaintiff had undergone a revision fusion of her neck – nature and level unknown – which had currently controlled upper limb neurological symptoms. 

171    Dr Boys believed the requirement for surgery in October 2010 and March 2015 reflected the natural progression of degenerative change within the cervical spine, which would have existed notwithstanding the accident.  He did not believe that surgery had been necessarily specific to the accident. He considered the plaintiff had suffered progressive degenerative changes at C4‑5 and C7-T1, above and below the pre-existing two-level cervical fusion.

172    Dr Boys noted the plaintiff’s complaints of chronic pain and narcotic dependency preceded the accident. He considered the plaintiff suffered work incapacity reflecting chronic disability secondary to progressive degenerative changes at multiple levels in the neck subsequent to 2001. 

173    Dr Boys thought there was reason to believe the plaintiff did suffer a symptomatic exacerbation of neck pain following the accident. He considered that there was reason to believe she required additional assistance at home for four to six weeks after the event.  Her requirements for assistance thereafter, reflected a condition that would have existed, notwithstanding this specific accident. He did not believe the plaintiff had suffered ongoing additional impairment on her capacity to undertake domestic or leisure activities specific to this accident.

174    Dr Boys provided a supplementary report, having been provided with Mr Shannon’s three reports, the report of Dr Kam, Mr Brownbill’s reports and those of Professor Bittar, Dr Sullivan and the plaintiff’s general practitioner.

175    Dr Boys diagnosed a temporary exacerbation of chronic degenerative neck pain specific to the accident. He thought the plaintiff's history was consistent with soft tissue injury of the cervical spine sustained at that time without specific structural derangement.

176    Dr Boys noted the plaintiff’s related persistent sensory symptoms in the left hand (a pre-existing condition). He thought that she would appear to have suffered, over a period of time, symptoms associated with degenerative foraminal stenosis initiating the C7-T1 foraminotomy in October 2010. In his view, that condition reflected the natural progression of the pre-existing condition.

177    Dr Boys noted that more recent complaints of chronic pain had precipitated a C4-5 anterior cervical discectomy and fusion in March 2015. Dr Boys thought discopathy at the C4-5 disc space reflected degenerative changes above successful fusion of C5-6 and C6-7 levels in November 2005, and reflected a condition which would have occurred, notwithstanding the accident.

178    Dr Boys considered persistent disability and any future deterioration of the plaintiff’s neck function would reflect the ongoing effects of her cervical spine condition which predated the accident.

179    Dr Boys thought the need for the second fusion reflected progressive degenerative change associated with cervical fusion surgery. He considered the long-term prognosis was poor, and that the plaintiff would continue to experience degenerative neck pain and associated disability associated with the pre-existing conditions.

180    Dr Anthony Kam, consultant radiologist, reported in October 2012, having been provided with Mr Shannon’s 2009 report and reports from Mr Brownbill, Professor Bittar and Dr Sullivan. He was also provided with the films of the MRI scan of April 2008 and September 2009 and the CT scan of September 2009.

181    Having compared the April 2008 MRI scan with that of September 2009, Dr Kam thought there was no difference in the radiology taken before and after the accident.

182    In a supplementary report of 10 April 2016, Dr Kam confirmed that the images from the September 2009 MRI scan showed changes similar to those shown on the 2008 MRI scan.

183    Dr Hayman, consultant psychiatrist, examined the plaintiff at the request of her solicitors in November 2015. 

184    While there clearly had been underlying organic pathology, Dr Hayman thought there also appeared to be a psychological overlay with pain disproportionate to that expected of the nature of the injury sustained. That had been referred to as a Chronic Pain Syndrome by Professor Bittar. 

185    Dr Hayman thought the plaintiff’s condition met the criteria for a Chronic Pain Disorder associated with both psychological factors and a general medication condition.  He also noted, by definition, that the plaintiff had developed an opiate dependence, given her longstanding chronic use of multiple opiates. 

186    In his view, the plaintiff was a poor historian. This was not due to any deliberate poor cooperation on her part, but appeared more a function of her personality style and her current very agitated stated.

Medical and chemist records

187    A summary was agreed upon by the parties detailing chemist records for filling prescriptions presented by the plaintiff and paid for by the defendant.[41]

[41]T64

188    The plaintiff attended her general practitioner for her neck injury as follows:

§  2006 – eleven times

§  2007 – six times

§  2008 – twenty-one times

§  2009 – five times before and twenty-two times after the accident

§  2010 – four times

§  2011 – twenty-three times

§  2012 – eighteen times

§  2013 – twenty-four times

§  2014 – ten times until March 2014.

189    In a pre-operative history given by the plaintiff at Swan Hill District Hospital in June 2008, she listed her current medications as Valium, 10 milligrams, one a day for her back and neck; OxyContin, 40 milligrams, one a day; Endone 5 milligrams; Temaze, 5 milligrams; Panadeine Forte, three times and another 10 milligrams of OxyContin, once a day.

Claim documentation

190    By letter dated 21 October 2009, Professor Bittar requested funding for the left C8 nerve sheath injection pursuant to accident claim number 0816255 (“the accident”).

191    By letter dated 29 January 2010, the defendant advised Professor Bittar it agreed to pay for his request (21.10.09) pursuant to the claim number relating to the earlier transport accident (01/67075).

192    By letter dated 17 August 2010, Professor Bittar sought funding for a left C7-T1 foraminotomy, pursuant to the accident claim 0816255.

193    By letter dated 8 September 2010, liability was accepted by the defendant for the foraminotomy procedure pursuant to the earlier transport accident claim (01/67075).

194    By letter dated 17 August 2011, Dr Sullivan requested the defendant fund radiofrequency denervations (claim no 0116255/0816255 – the accident claim). 

195    By letter dated 4 July 2012, the defendant advised it accepted liability for the radiofrequency denervations pursuant to the earlier transport accident claim (01/67075).

196    By letter dated 13 April 2011, the defendant advised it accepted liability, pursuant to the earlier transport accident claim (01/67075), for the costs of injections requested by Dr Sullivan.

197    By letter dated 28 January 2015, Professor Bittar sought approval for a C4-5 anterior cervical decompression pursuant to the accident claim (0816255).

198    By letter dated 5 March 2015, the defendant advised it would fund this surgery pursuant to the earlier transport accident claim (01/6705).

Overview

199    It is not disputed the plaintiff suffered a compensable injury to her cervical spine in the accident on the said date. 

200    The issue however is whether, as at the date of hearing, any cervical impairment suffered by the plaintiff is related to the accident, with the plaintiff having suffered a significant injury and undergone surgery following the earlier transport accident.

201    Where there is a pre-existing cervical condition, I must consider what the evidence discloses as to the plaintiff’s pre-accident neck condition and determine whether the additional impairment resulting from the accident is serious and permanent.

202    In Petkovski v Galletti,[42] the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.….”

[42][1994] 1 VR 436

Credit

203    As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[43]

“…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.”

[43](2010) 31 VR 1 at paragraph [12]

204    In my view, the plaintiff was an unreliable witness.

205    It was conceded the plaintiff was a poor historian[44] as was evident in relation to a number of issues, including the date of commencement of OxyContin,[45] her level of Panadeine Forte intake and the prescription of Temazepam pre accident.[46] 

[44]T4

[45]T85

[46]T86

206    I accept that the plaintiff has at times attempted to portray herself as having substantially improved prior to the accident when in fact she was still regularly attending her general practitioner and also taking large quantities of heavy painkilling medication.  Her history to Mr Brownbill in March 2011 was one such example.[47]

[47]T87

207    In these circumstances, I have difficulty accepting the plaintiff’s evidence as to any changes in her neck condition post accident and the effects thereof.[48]  Therefore corroboration is required from a reliable witness who can speak as to her pre and post-accident condition.[49]

[48]T103

[49]T86

208    Further, in this case, I am not assisted by any affidavit from a family member or friend of the plaintiff addressing these issues.[50] 

[50]T87

209     As a preliminary issue, it must be determined whether there is a causal relationship between the accident and the plaintiff’s requirement for surgical procedures post accident and her current condition.

210    The resolution of this question was an extremely difficult task, particularly when the defendant did not seek leave to cross-examine the main witness in this regard, the plaintiff’s treating neurosurgeon, Professor Bittar.

211    Counsel for the plaintiff relied largely on Professor Bittar’s view that the C8 radiculopathy was a direct result of the accident and that the accident certainly aggravated the plaintiff’s neck condition and resulted in her undergoing further procedures including surgery at C7/T1.

212    Consistent with this view, Professor Bittar requested funding for the recent fusion surgery and other procedures pursuant to the accident claim. The defendant, however, paid for these procedures pursuant to the earlier transport accident claim. Dr Sullivan’s request for pain management was made and accepted in a similar fashion.[51] 

[51]T130

213    On review post accident in August and October 2009, the plaintiff complained to Professor Bittar of left brachialgia following the accident. 

214    Counsel for the plaintiff submitted there then appeared to be a new symptom, with numbness in the plaintiff’s left fifth finger, on these examination in 2009.  That was not mentioned in May 2008 when the complaint was right trapezius pain and right elbow pain. 

215    Professor Bittar’s updated diagnosis was then left C8 radiculopathy, secondary to C7-T1 foraminal stenosis. He thought the C8 radiculopathy was a direct result of the accident. He arranged for a diagnostic left C8 nerve sheath injection and then undertook a left C7-T1 decompression with C8 rhizolysis on 15 October 2010.

216    In his supplementary report of June 2012, Professor Bittar noted the 2008 MRI scan demonstrated some mild left-sided foraminal stenosis at C7-T1. On the post accident MRI scan in 2009, the left-sided foraminal stenosis was worse and the plaintiff had developed right-sided foraminal stenosis at C7-T1 – findings that made it likely the exiting C8 nerve roots were compressed.

217    In a further supplementary report of April 2015, Professor Bittar, in answer to specific questions, noting the first neck surgery and its significant role in the development of adjacent segment disease at C4-5, thought the accident resulted in a sustained aggravation of the plaintiff’s neck-related symptoms and it most likely played some contributing role to the need for further surgery by aggravating and accelerating the development of her pre-existing cervical spine condition, although it was impossible to determine the extent of this contribution. 

218    Counsel for the defendant submitted that Professor Bittar was on his own in his view as to the worsening of the foraminal stenosis on the later scan, with Dr Kam, specialist radiologist, not of this view, nor Mr Brownbill.[52] 

[52]T99

219    Counsel for the plaintiff conceded the radiological findings may be a “red herring,” because this was a severe accident. Whilst it was submitted there was a change shown on the radiology, if it was not accepted this was the case, “it was not the end of the world”[53] as there was positive support for the plaintiff’s case from Professor Bittar as to the issue of causation.[54]

[53]T132

[54]T132

220    Whilst Mr Brownbill and Dr Kam agree there was no radiological change, Mr Brownbill opined, what is shown on investigations is not everything, and that there could be clinical findings of some significance, although not supported by radiological evidence. 

221    Counsel for the defendant submitted Professor Bittar based his new diagnosis in August 2009 on a false premise. While he considered the C8 radiculopathy was attributable to the accident, Professor Bittar also thought the problem could develop as a result of simple wear and tear.[55]

[55]T100 – report of June 2012

222    It was submitted there was nothing objective Professor Bittar could point to, when attributing that C8 radiculopathy to the accident,[56] having not adequately explained why C8 was related thereto.[57]

[56]T101

[57]T102

223    It was submitted the radiculopathy was not a new symptom, but a continuum.[58]  

[58]T145

224    Further, in August 2006, Mr Brownbill’s found tingling at the top of the left ring and little fingers. The plaintiff herself, deposed to those symptoms up until the time of the accident.[59]  Dr Stanbury on 13 January 2009 noted chronic cervical pain and radiculopathy.   

[59]T145, ongoing symptoms in the left little finger

225    Counsel for the defendant also relied on the views of Mr Shannon as to a pre-existing radiculopathy. However, in my view, Mr Shannon’s opinion in this regard and the evidence upon which it is based is very unclear.

226    It was submitted Mr Shannon thought there was a problem at C8 before the accident.[60] In 2005, he noted tingling in the fourth and fifth fingers of both hands.[61]  In June 2006, he noted pins and needles in the ulnar border of both hands.[62]

[60]T109

[61]T144

[62]T102; T144

227    It was submitted, with the onus on the plaintiff to prove a causal relationship, she “barely got to the edge of the high jump bar” with Mr Shannon’s findings, that there was a C8 problem prior to the accident.[63] 

[63]T109

228    However, in both his 2005 and 2006 reports, Mr Shannon noted there was no objective neurological abnormality, although reflexes were relatively inactive.

229    Professor Bittar thought, in these reports from Mr Shannon, there was no evidence which would lead to the conclusion the plaintiff was then suffering from a C8 radiculopathy.

230    Having reviewed Mr Shannon’s reports, Mr Brownbill also thought examination findings did not show any neurological abnormality and there was no evidence from the reports of any signs of C8 radiculopathy.

231    The issue becomes somewhat complicated by Mr Shannon’s comments in his 2009 report, where he noted symptoms in the C8 distribution being present prior to the accident and that his 2005 and 2006 examinations showed some C8 involvement.[64]

[64]T103

232    In 2009, Mr Shannon however acknowledged some aggravation in the plaintiff’s neck condition as a result of the accident, although the physical signs were very little different. He thought the request for a nerve root block was not unreasonable, noting that the symptoms in the C8 were present prior to the accident.

233    Whilst in his 2009 report, Mr Shannon mentioned C8 symptoms before the accident, in his earlier reports there were no objective neurological findings noted by him.[65]  It was submitted by counsel for the plaintiff that there may have been some complaints by the plaintiff but they were not borne out by any objective neurological testing.[66]

[65]T135

[66]T136

234    Neither Professor Bittar nor Mr Brownbill have commented on Mr Shannon’s 2009 report.  His comments in 2009 as to his previous examination findings in these circumstances remains a mystery.[67]

[67]T111

235    Further as to causation, counsel for the defendant relied on Dr Boy’s view that the plaintiff had suffered a temporary exacerbation of chronic pain specific to the accident, diagnosing a musculoligamentous injury to the neck and aggravation of pre-existing chronic degenerative change in the accident   

236    Dr Boys considered the requirement for surgery post accident reflected the natural progression of degenerative change within the cervical spine, which would have existed, notwithstanding the accident. He did not believe that surgery had been necessarily specific to the accident.   

237    Dr Boys thought there was a reason to believe the plaintiff required additional assistance at home for four to six weeks after the event. He did not believe the plaintiff had suffered ongoing additional impairment on her capacity to undertake domestic or leisure activities specific to this accident.

238    Counsel for the plaintiff criticised Dr Boys’ conclusion that there was a natural progression in the plaintiff’s condition when he did not even know the level of the first neck surgery. Further, he did not explain why the plaintiff was incapacitated for six to seven weeks after the accident and why any aggravation was only temporary. 

239    It was submitted that Dr Boys had “locked himself” into his initial opinion and was unlikely to change it when he was provided with further information as to the original surgery undertaken. Dr Boys did not explain his view that the accident had no impact on the plaintiff’s current situation – a view not shared by the treating neurologist in any event.[68]

[68]T140

240    Whilst Mr Brownbill concluded that the accident remained a significant contributing factor towards the plaintiff’s current neck injury, he did not analyse the medicine in any detail and reached his conclusion largely on an acceptance of an inaccurate history given by the plaintiff.[69]

[69]T99

241    In those circumstances, counsel for the plaintiff conceded he could not put up Mr Brownbill as supportive of his submission as to causation and his opinion was not relied upon.[70]

[70]T137

242    Whilst Professor Bittar has made a number of comments as to the involvement of the accident in the plaintiff’s current presentation, on examination in the months post accident, he found a new symptom of C8 radiculopathy which he considered to be a direct result of the accident.

243    In reaching this diagnosis and his views in relation thereto, it was submitted Professor Bittar had the advantage of operating in 2005, seeing the plaintiff from then until 2009 and thereafter. He also had the benefit of recent investigations and being involved in other procedures in conjunction with Dr Sullivan.

244    I accept that as the treating surgeon who had looked after her pre accident and post accident, Professor Bittar in the best position to explain the plaintiff’s condition at those times.[71]

[71]T126

245    In my view, Professor Bittar’s evidence takes the case out of the realms of guesswork and speculation, as counsel for the defendant submitted was the case.[72]

[72]T146

246    I am satisfied therefore that there is a causal link between the accident and the plaintiff’s present cervical condition.

247    I was not assisted by Dr Boy’s opinion that there is no accident involvement and that the plaintiff’s present situation is simply one of naturally progression of degenerative disease.

248    Dr Boys lacks higher specialist qualifications, practising as an occupational physician, not a neurosurgeon or orthopaedic surgeon as other practitioners who have provided an opinion. Understandably, he did not undertake any analysis of medical issues.[73]

[73]T116

249    Further, without any real analysis or explanation, Dr Boyes concluded the accident had not added to the plaintiff’s previous impairment and there was only a temporary aggravation of her condition for five or six weeks after the accident.

Are the consequences of any accident aggravations “serious”?

250    Having accepted there is casual relationship between the accident and the plaintiff’s current cervical condition, the issue is whether any accident-related aggravation is serious and permanent.

251    Counsel for the defendant submitted it could not be established any such aggravation was “serious” because of the state of medical evidence as to the plaintiff’s neck condition immediately prior thereto.

252    It was submitted that the plaintiff could not even show what she was like pre accident for the test in Petkovski v Galletti[74] to be undertaken. In the present case, this was therefore a matter of guesswork and speculation.[75]

[74]Supra

[75]T147

253    Counsel for the defendant submitted there was a very significant transport accident in 2001, in which the plaintiff suffered a severe injury.  Her case really foundered because of the totally unsatisfactory state of the medical evidence as to her pre accident neck condition.[76] 

[76]T82

254    Reliance was placed on the views of Dr Boys and Dr Hayman who thought that the plaintiff was opiate dependent before the accident.[77]

[77]T106

255    Further, the defendant relied on histories given by the plaintiff at medico-legal examinations in relation to the earlier transport accident,

256    It was submitted that at the end of 2006, the plaintiff was suffering from a pretty severe level of disability, as Professor Bittar confirmed in October that year.[78]  She could not work in a number of occupations. She was restricted in housework.  He expected she would have permanent pain and disability as a result of her injury.

[78]T83

257    Reliance was also placed on histories from other examiners referred to earlier in this judgment – Mr Huson;[79] Ms Long;[80] Dr Epstein[81] and Ms Perrett Abrahams.[82]

[79]Paragraph 136

[80]Paragraph 137

[81]Paragraph 139

[82]Paragraph 138

258    It was submitted these histories showed a very significant level of disability and “cried out” for further medical evidence as to progression of the plaintiff’s neck condition thereafter, leading up to the accident.[83] It was a glaring omission not to have a detailed report form the plaintiff’s general practitioner as to her medical progress leading up to the accident. All that doctor said in his recent report was that the plaintiff had another car accident in 2009 which necessitated further surgery. 

[83]T82

259    It was submitted it was inexplicable why there was no detailed report from the plaintiff’s general practitioner. Even if the plaintiff was a reliable witness – and she was clearly not – that would be a very fatal error.[84] 

[84]T85

260    It was submitted that in this void, if anything, it should be inferred that the plaintiff’s situation was parlous, and worsening, as was evidenced by the long and increasing history of medication.[85]

[85]T88

261    In the absence of such a report, however, the clinical notes from the Swan Hill practice filled the gaps in the period leading up to the accident.[86]

[86]T83

262    It was submitted there was no “recovery” when those clinical notes were examined. If anything, there was a worsening after 2007, and a “ramping up” of medication right through to the time of the accident.[87] It was unlikely a number of general practitioners at that clinic would be prescribing such a high level of opiate medication, including OxyContin, unless the plaintiff was complaining of severe pain.[88]

[87]T88

[88]T88

263    Whilst there could be said to be some improvement in 2007 with only six visits to the clinic, attendances increased significantly the following year when the plaintiff attended on twenty-one occasions and six times in 2009 before the accident. It was submitted, those attendances, together with the level of medication prescribed, were very important when considering her pre accident condition.[89]

[89]T89

264 The note of 14 December 2007 referred to a significant recurrence in about September. The plaintiff was then trying for an earlier appointment with Professor Bittar,[90] and OxyContin was added to her medication regime. The dosage thereof was increased the following January 2008.[91]

[90]T89

[91]T90

265    On further examinations in 2008, the plaintiff’s pain and symptoms were unchanged. On examination on 10 March 2009, the week before the accident, she was taking 40 milligrams of OxyContin, and spasms in her hands and back were noted. 

266    The plaintiff was then being prescribed 5 milligrams of Endone (20 tablets); 10 milligrams of OxyContin (20 tablets); 20 milligrams of OxyContin (20 tablets); 5 milligrams of Valium (50 tablets); Panadeine Forte (100 tablets) and 10 milligrams of Temazepam (50 tablets).

267    It was submitted these notes were not consistent with the substantial recovery deposed to by the plaintiff.[92]

[92]T91

268    A summary of medication received by the plaintiff from March 2008 to March 2009 complied on the defendant’s behalf, set out there had been periods in 2008 when the medication prescribed exceeded the amounts recorded in March 2009. 

269    Counsel for the defendant undertook a detailed analysis of the plaintiff’s pre-accident medication intake.

270    There were 200 tablets of Panadeine Forte in January, February, May, July and December 2008.

271    There were 60 Endone tablets in January and April 2008, and 40 tablets in February, March, June and December 2008 and January 2009.

272    There were 100 Valium 5-milligram tablets in February-April, June, July September 2008 and January 2009. There were 150 Tablets in January 2008.

273    There were 40, 10 milligram OxyContin tablets January-April, June and July 2008 and January 2009. There were no tablets of this dosage in October 2008 and February 2009.  In the other months, there were 20 tablets.   

274    There were 20, 20-milligrams OxyContin tablets in April-June, September, November and December 2008 and March 2009. There were 40 tablets in January 2009. There was no prescription of that dosage in January- March, July, August and October 2008 and February 2009.

275    Temaze was prescribed at 10 milligrams, 50 tablets in March 2009. There were 25 tablets in January, April, August – November 2008 and February 2009.

276    It was submitted that in January 2008, there were very significant amounts of painkillers, with 150 Valium; 60 Endone; 60 OxyContin and 200 Panadeine Forte tablets prescribed. Whether the plaintiff took that medication or not, it was prescribed, and it made sense that she was taking it.[93] While the plaintiff swore confidently that she was not taking Temaze pre accident, prescription that medication was noted on a number of occasions in the clinical notes in 2008 and on that basis, it could be inferred the plaintiff was having significant trouble sleeping during that time.

[93]T92

277    It was submitted that it was “commonsense” that no doctor would be supplying this sort of medication unless the plaintiff was in a very bad way.[94] It was submitted that the whole scenario was just a continuum of the situation that was fluctuating from the time of the earlier transport accident.[95]

[94]T95

[95]T107

278    Medication was being ramped up prior to the accident and there was no immediate increase in medication thereafter.[96]

[96]T116

279    In general terms, it was submitted the whole issue as to the plaintiff’s neck condition prior to the accident could have been explained by a detailed report from her general practitioner and that report simply had not been provided.[97]

[97]T117

280    Whilst counsel for the plaintiff conceded the general practitioner’s short report was of little assistance, it was submitted Professor Bittar’s evidence dealt with the relevant issues.[98]

[98]T122

281    Further, counsel for the plaintiff submitted that the plaintiff’s mediation regime had changed quite dramatically after the accident. The dosage of every medication had been increased and new medication was also added. There was a marked increase in the need for medication as confirmed in the clinical notes.[99]

[99]T119

282    It was submitted there was, in fact, a ramping up of medication following the accident which tied in with increased visits to the doctor at that time.[100]

[100]T126

283    Norspan was first prescribed in April 2009 and Fenac first prescribed the following month.

284    In April 2009, the plaintiff’s dosage of Panadeine Forte, Endone and Valium doubled. In May, Endep was prescribed for the first time in a year. OxyContin doubled from 10 and 20 milligrams to 40 milligrams and 60 tablets, last prescribed a year earlier.  Endep increased from 10 to 25 milligrams.  An antidepressant, Cymbalta, was first prescribed in October 2009.[101] 

[101]T118

285    OxyContin increased to 70 tablets in December 2009, Tegretol was introduced in February 2010 with 200 Tablets continuing until the time of the October 2010 foraminotomy. Tegretol was again prescribed in 2011, with OxyContin, 60 tablets, and Panadeine Forte, 100 tablets. 

286    The plaintiff deposed she presently takes 40 milligrams of OxyContin twice a day; six Endone per week; four to six Panadeine Forte per week; Valium most days, and Celebrex daily.

287    The outcome of this application does not turn simply on a comparison of the plaintiff’s pre and post medication regime.  It is clear from this analysis that both before and after the accident, the plaintiff has taken significant amounts of heavy painkillers at various times.

288    In my view, the treatment undertaken post accident is of greater significance in terms of the seriousness of any accident-related aggravation.

289    When Professor Bittar saw the plaintiff in 2008 following the 2007 exacerbation, he suggested conservative treatment and did not consider surgery was necessary.  He did not mention any problem at C7-T1 on that examination.

290    While there was an exacerbation in 2007, it was submitted it was part of the normal peaks and troughs, and while there was an increase in medication, it was not to the extent as post accident.[102]

[102]T127

291    It was conceded that of course there were going to be problems after the first neck surgery, as was detailed in the histories to medico-legal examiners in 2006 and 2007.[103]

[103]T127

292    There was no finding of left brachialgia on examination in March or May 2008, and no left fifth finger numbness found by Professor Bittar on examinations after the first neck surgery.

293    Prior to the accident, the last invasive procedure was the fusion surgery in 20015.

294    Significantly, since the accident, there has been a considerable worsening in the plaintiff’s condition and she has had to undergo a number of invasive procedures, starting with a C8 sheath injection, then surgery – a foraminotomy in 2010. She later underwent a Ketamine infusion in 2012, radio frequency denervation in July 2011 and September 2012 and a further fusion in 2015.

295    In my view, this is not a continuum of a naturally progressing condition, it is a major change in the plaintiff’s condition following the accident warranting very significant medical intervention by Professor Bittar and others, without major improvement.

296    Despite my concerns as to the plaintiff’s reliability, I accept that she continues to experience constant daily symptoms in her neck, left shoulder, left upper arm and ring and little finger having undergone this range of significant and at times, painful procedures.  

297    Whilst Professor Bittar had imposed some restrictions on the plaintiff’s work capacity in 2006, before the accident, he thought, with suitable retraining, she could return to some work.  He considered she had a capacity for modified work not involving heavy lifting or repetitive use of her neck.  I accept that working in a country gift shop would be within the restrictions Professor Bittar thought were appropriate.[104] 

[104]T121; T127

298    Although there is no documentation relating to the purchase of the business, I accept the plaintiff was committed to the business at the time of the accident.  Whilst she may not have had sales or administration experience and the business might have been a dream, she felt physically and mentally capable of taking it on.  Thereafter, despite some help from her sons, the plaintiff was unable to continue running the shop and the business had to be sold. 

299    Counsel for the plaintiff also relied on the principles set out by Winneke P in Richards v Wylie[105] as to the expected emotional consequences of a physical injury which may be taken into account when considering a pain and suffering application.[106] 

[105]Supra

[106]T141

300    I am also satisfied that there has been further interference with the plaintiff’s ability to carry out her daily activities as a result of her accident neck aggravation.  She now appears unable to do even light housework as was the case pre accident[107] and her son now receives a carer’s pension to look after her.

[107]Confirmed by Dr Moynihan in his 2016 report

301    I accept also that the plaintiff’s driving and general enjoyment of daily activities, such as attending her sons’ football matches, is also more limited.

302    These consequences alone are not serious but when taken in conjunction with the plaintiff’s pain and need for extensive treatment post accident, I am satisfied that they meet the requisite test.  

303    I am satisfied that the consequences of the accident aggravation are “serious”.

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

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