Beecroft v TAC
[2009] VCC 551
•29 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MORWELL
CIVIL DIVISION
Case No. CI-08-00912
| KAYE LOUVIAN BEECROFT | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Morwell |
| DATE OF HEARING: | 27 April 2009 |
| DATE OF JUDGMENT: | 29 April 2009 |
| CASE MAY BE CITED AS: | Beecroft v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0551 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.93(17) Transport Accident Act – injury to the cervical spine – whether impairment satisfies the criteria of being at least very considerable and certainly more than significant or marked.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC and | Slater & Gordon Ltd |
| Mr J Goldberg | ||
| For the Defendant | Mr P Elliott QC and | Solicitor to Transport |
| Mr J Batten | Accident Commission |
| COUNTY COURT OF VICTORIA | !Undefined Bookmark, I |
| 250 William Street, Melbourne | |
| HIS HONOUR: |
1 This is an application pursuant to s.93(17)(a) of the Transport Accident Act 1986 (“the Act”) in which the plaintiff seeks leave to commence proceedings claiming damages for the pain and suffering consequences of the injuries suffered by her by reason of a transport accident in which she was involved on 22 February 2005.
2 In considering the effect of the plaintiff's injury-related impairment, I am required to consider whether the consequences of that impairment upon the plaintiff are serious. The plaintiff must satisfy me on the balance of probabilities in order to meet the threshold test established by s.93(17)(a) of the Act that the consequences of her injury in terms of impairment when judged by comparison with other cases in the range of possible impairments or losses can be fairly described as being at least very considerable and certainly more than significant or marked.
3 The injury relied upon in the present application is an injury to the cervical spine. The impairment relied upon is impairment of the cervical spine together with recurring sensory disturbance in the upper limbs, particularly the right upper limb, occurring as a consequence of the injury to the cervical spine.
4 In this application the plaintiff relies upon two affidavits sworn by her on 27 September 2007 and 29 July 2008 respectively. In addition, the plaintiff gave evidence and was cross-examined. The plaintiff further relies upon an affidavit of her daughter, Caroline McKenzie, sworn 19 May 2008. The parties have tendered a Joint Court Book.
The Evidence
5 The plaintiff deposes to the fact that she was involved in a motor vehicle collision on 22 February 2005, following which she was taken to the Latrobe Hospital from where she was subsequently transferred and admitted to the Alfred Hospital.
6 An MRI scan taken of the plaintiff's neck following the accident revealed that the plaintiff had suffered:
(i) a fracture of the C6 spinous process; (ii) a fracture of the body of the C7 spinous process; (iii) a complete tear of the anterior longitudinal ligament at the C5-C6 level; (iv) a tear of the ligamentum flavum at the C6-C7 level; (v) a moderately severe injury to the posterior ligament complex extending from about the C3 level to the C7 level; and (vi) a mild compression fracture at C3 and a central disc protrusion at C4-C5. 7 There is no issue that the plaintiff suffered a significant injury to her cervical spine in the accident which had the potential of causing very serious consequences and disability.
8 Fortunately, the injury was able to be managed conservatively and the condition in the plaintiff's cervical spine reached anatomical stability without the need for surgical intervention.
9 The medical reports and the medical records with which I have been provided reveal that other than for her intensive management at the Alfred Hospital, the plaintiff has required very little medical treatment in respect of her injuries once those injuries stabilised.
10 The plaintiff’s consultations with her general practitioner in respect of the injury to her cervical spine have been limited and her medical treatment has essentially involved the use of modest levels of pain-relieving medication.
11 The plaintiff gave evidence that she could not tolerate Panadeine Forte and that she took three to four tablets of Panadol three to four times a week at the present time to help control her symptoms of pain. She said that she tried to limit her use of medication due to her past history of non-Hodgkin’s type Lymphoma. She said that she also made use of heat packs and massage with Tiger Balm which she administered herself virtually each evening.
The Medical Evidence
12 The medical evidence which is descriptive of the plaintiff's present incapacity is contained in the following medical reports.
• Reports from orthopaedic surgeons, Mr Stanley O'Loughlin, dated 21 August 2007 and 7 April 2009 and a report from Mr Brian Dooley dated 8 May 2008. • A report from Mr G Klug, neurosurgeon, dated 1 May 2008. • Reports from the plaintiff's general practitioner, Dr Polmear, dated 9 May 2007 and 24 April 2008. 13 In his first report, Dr Polmear comments:
"In the period over two years since the accident the plaintiff still has ongoing issues with her neck pain and stiffness which is likely to be of a permanent nature. As noted above, she has had detailed investigations to check there has been no neurological damage and there is no evidence on the MRI nor nerve conduction studies of this having occurred. Unfortunately that means that there is little that can be done in treatment at this point and I think her current status is likely to remain stable but there is an element of discomfort that she will be required to put up with over the long term. Kaye has a complex medical past history and has had medical issues of hypertension, hypothyroidism, non- Hodgkin’s Lymphoma in remission, gastritis, dry eye syndrome and a mild anxiety disorder. Her current medical conditions are all well controlled and she is very compliant on her treatment regime. None of these conditions have been particularly exacerbated by her motor vehicle accident."
14 In his second report, Dr Polmear commented:
"I suggested a trial of non-steroidal anti-inflammatories, Mobic 7.5 milligrams daily, and also to add Glucosamine fish oil tablets to help with
Formatted: Normal-Cover
the osteoarthritis. Mrs Beecroft has known hypertension and hence the use of long-term non-steroidal anti-inflammatories would be a relative contra-indicator. With reference to the x-ray findings, Mrs Beecroft has osteoarthritis in her neck which may have a relationship to her previous cervical fracture from her motor vehicle accident. She is likely to have ongoing intermittent pain and stiffness due to arthritis and is going to try some simple pharmacological measures to try and help settle the problems when they occur. Hopefully this will only have a minimal impact on her lifestyle in the future."
15 Although Dr Polmear raises an issue with respect to causation, commenting as he did that the changes in the plaintiff's neck may have a relationship to her previous cervical fracture, the other medical examiners who have assessed the plaintiff do not raise such an issue and I accept the relationship between the motor vehicle accident and the symptoms which the plaintiff is presently suffering both in her neck and her right arm.
16 In his first report, Mr O'Loughlin comments:
"The plaintiff suffered a significant disruption to her lifestyle because of this accident. She has difficulty playing with her grandchildren and cannot perform any of the strenuous activities she formerly did herself. She has been a self-sufficient countrywoman who has looked after herself, done her own gardening and wood chopping et cetera and these activities now pose difficulties."[1]
[1] Plaintiff’s Court Book (“PCB”) 30
17 In the course of that report, Mr O'Loughlin described the plaintiff's disabilities as being associated with the dysfunction in her cervical spine due to the compression fracture at C7 and the disc injury at C4-5.
18 In his second report, Mr O'Loughlin noted that the plaintiff presented with considerable stiffness and discomfort in her neck which she reported as remaining relatively constant since the previous examination of her. He expressed the opinion:
"I do not think there is going to be a great deal of improvement in her condition because she has sustained a significant compression injury of the seventh cervical vertebra. This will lead to a worsening of degenerative changes in that area. Hopefully she will not deteriorate significantly but she has quite a significant restriction of neck movement at the moment. Because there has been little improvement since my review in August 2007 I do not think the prognosis for any significant further improvement is particularly favourable."
19 In his report dated 1 May 2008, Mr Geoffrey Klug expressed the opinion that the plaintiff sustained a significant injury to her cervical spine, that satisfactory healing had occurred and that the spine was now stable. On examination, he noted a restriction of movement of the plaintiff's cervical spine which he commented appeared to be quite genuine and related to pain. He expressed the opinion that the plaintiff's prognosis was fair, it being more likely than not that she would continue to complain of symptoms of pain of variable severity referable to her neck with some radiation symptoms into her right upper limb.
20 In his report dated 8 May 2008, Mr Brian Dooley expressed the opinion that the orthopaedic injuries had stabilised and that he expected that the plaintiff would continue to suffer from intermittent neck pain and right upper arm pain.
21 I accept the submission made by Mr O’Dwyer, Senior Counsel for the plaintiff, that it is appropriate to view the plaintiff’s condition as being essentially stable with the presence of a possibility that there may be a deterioration in her condition in the future associated with the progression of the degenerative disease now present in her cervical spine.
22 The plaintiff's medical history prior to the accident is set out in paragraph 11 of her first affidavit and includes non-Hodgkin’s lymphoma which is in remission, high blood pressure, a thyroid deficiency and mild depression.
23 The plaintiff gave evidence that these conditions are well-controlled at the present time and I accept that evidence which is supported by the comments made both by Dr Polmear and Mr Klug.
24 The plaintiff is sixty-five years of age. She presents as an intelligent person and my impression of her was that she in no way exaggerated her injuries or their effects upon her. Neither was this suggested by the defendant.
25 She described the fact that she suffered from constant pain in her neck which was exacerbated by activity and that her symptoms invariably increased in intensity as the day wore on. She stated that she could not tolerate Panadeine Forte, to which she had an allergic reaction, and that she generally avoided the use of medication having regard to her previous diagnosis of non- Hodgkin’s lymphoma.
26 She said that she managed her symptoms by the use of Panadol which she took as needed, together with self-massage with Tiger Balm and the application of hot packs which she administered virtually every evening.
27 The plaintiff described her condition as involving constant low-grade pain and severe pain from time to time and that she needed to be careful with movements of her neck.
28 She described herself as a very private person. She said that the two major joys in her life before the accident were the maintenance of her garden and her involvement with her grandchildren. The plaintiff has seven grandchildren who are located close to her, three of whom are the children of her daughter, the remaining four being the children of her son. Both families live approximately a half an hour away from her and their houses are located on dirt roads.
29 The plaintiff has difficulty when driving on dirt roads as corrugated surfaces aggravate her neck pain. She said that by reason of her injuries her contact with her grandchildren had been limited and that she now sees them only on one occasion each week. She said that by reason of the symptoms in her neck her ability to play with her grandchildren was quite restricted. She described the loss of her ability to be an active grandmother as having the effect of “breaking her heart”.
30 The plaintiff's house is located on a double block in Meeniyan. Before the accident the plaintiff described gardening as being her love from which she derived great pleasure. She described her present ability to garden as being limited to pulling little weeds and some trimming. Before the accident she said that it was not uncommon for her to spend up to four hours at a time in the garden in the course of a day and to forget to go inside. She described the present state of her garden as being derelict.
31 The plaintiff's daughter describes her mother before the accident as being a stoic lively individual who was unrestricted in her ability to manage her grandchildren and play energetically with them.
32 Since the accident she describes the plaintiff as being in pain and requiring assistance from the family in activities such as shopping. She comments that her mother's life has been dramatically changed by her injuries.
33 In these reasons for judgment I have only briefly summarised the evidence the subject of the application. In arriving at my determination of the case, I have, of course, taken into account the totality of the evidence, being the affidavit evidence, the medical evidence and the evidence given by the plaintiff both in- chief and in cross-examination.
34 In considering whether or not the plaintiff's impairment satisfies the threshold established by the Act, I take specific account of the following matters.
35 I accept that the plaintiff has constant low-grade pain in her cervical spine and intermittent symptoms extending into her right arm; that these symptoms can be exacerbated so that they are sometimes extreme and that generally the symptoms worsen as the day progresses.
36 I accept that the symptoms are exacerbated by activities as simple as the basic way in which the plaintiff holds her head. I further accept that the plaintiff's lifestyle has been changed from one in which she was, before the accident, physically active, to one in which physical activity is now restricted.
37 I accept that the plaintiff has effectively lost the ability to garden and that because of the travelling involved in visiting her grandchildren she sees them less frequently and when she does see them she is limited in her ability to physically interact with them and that these losses are very significant losses to her.
38 The plaintiff impressed me as a very straightforward witness who made no attempt to exaggerate the extent of her impairment or its impact upon her. Rather, I formed the impression that the description of the plaintiff by her daughter as being a stoic type was apt, and that the plaintiff has sought to manage her condition not by resorting to medication but, rather by restricting her activities of daily life in an attempt to minimise the exacerbation of her symptoms. In turn, this has had the effect of changing the plaintiff from an active woman to a person who is one who now requires assistance in the simple activities of life such as household cleaning and other tasks, including shopping, and is one who avoids any form of moderately strenuous activity.
39 The task which I am required to perform in an application of this nature is a difficult one. It requires me to make a value judgment as to whether the plaintiff's impairment, when considered in comparison with other cases in the range of possible impairments, is appropriately described as being “very considerable”.
40 Whilst I am of the opinion that the plaintiff's impairment falls at the very borderline of cases which could be so described, it is my opinion that it is appropriate to so categorise her impairment, having regard to the fact that it has deprived the plaintiff to a very significant extent from engaging in the two activities from which she derived the most pleasure in her life, namely unrestricted involvement with her grandchildren and her garden. When these restrictions are considered in the context of the presence of daily pain which is exacerbated by activity such that at the end of each day, even with careful moderation of the activities in which she engaged, the plaintiff suffers from symptoms which require attention in the manner which I have previously described. I am of the opinion that the plaintiff has suffered an injury which fulfils the criteria of “serious injury” within the meaning of s.93(17)(a) of the Act.
41 I propose to make an order giving the plaintiff leave to commence proceedings claiming damages for pain and suffering as a consequence of the transport accident in which she was involved on 22 February 2005 and I will hear the submissions from counsel with respect to costs.
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