Bochiridis v Transport Accident Commission
[2013] VCC 622
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04172
| IRENE BOCHIRIDIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24, 27 and 28 May 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Bochiridis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 622 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck – pre-existing and supervening injuries – whether transport accident injury is “serious” – “serious injury” paragraph (a)
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Humphries v Poljak [1992] 2 VR 129; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Dordev v Cowan & Ors [2006] VSCA 254
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley | Patrick Robinson & Co |
| For the Defendant | Mr D Masel SC with Ms B A Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By way of Originating Motion, the plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common-law proceedings to recover damages for a neck injury (“the injury”) suffered by her arising out of a transport accident on 13 January 2005 (“the transport accident”).
Relevant Legal Principles
2 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See Section 93(6) of the Act
3 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section –
…
Serious injury means –
(a) serious long-term impairment or loss of a body function; or
(b) …
(c) …
(d) … .”
4 In order to succeed in her application, the plaintiff must satisfy the Court that the consequences of her injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries v Poljak [1992] 2 VR 129 at paragraph [140]
5 The plaintiff alleges that the pain and suffering consequences of her injury satisfy the threshold test as being at least “very considerable”.
6 The defendant denies that this is so and further, that any impairment of the lumbar spine is not causally related to the transport accident as at the date of hearing.
The injury
7 On 13 January 2005, the plaintiff suffered a traumatic injury to the neck whilst travelling on a tram which braked heavily. The plaintiff was thrown forward so that her face came into contact with the back of the seat in front of her, resulting in a kind of twisting injury to her neck.[3]
[3]Transcript (“T”) 37
8 The plaintiff was taken by ambulance to The Alfred Hospital, where an x‑ray and CT scan were taken of her cervical spine. The Alfred Radiology clinical note states:
“… Minor injury. Tender over C-3 … .”[4]
[4]Exhibit R
9 The x‑ray report of the same date recorded, inter alia:
“… Disc space narrowing at C4/5. No fracture identified in the visualised portions. The dens is not well-seen. CT will be required for radiological clearance.”[5]
[5]Exhibit R
10 The CT scan of the same date recorded, inter alia:
“… The spine in this region [cervical] as [skil is] well aligned.
The facet joints are intact.
No fracture seen.”[6]
[6]Exhibit R
11 On the next day, 14 January 2005, the plaintiff was seen by a chiropractor, Dr George Michael, who recorded:
“Cervical spine and left upper fibres or traps dull ache … cervical spine rotation left and flexion, S/B left and right sore. Palpation cervical spine soreness. … Treatment: acupuncture cervical spine and shoulder girdles.”[7]
[7]Exhibit 11
12 The plaintiff reported to Dr Michael again on 24 January 2005 for further treatment.
13 On 24 January 2005, the plaintiff attended a general practitioner, Dr Gouras.[8] He recorded:
“Patient injured her neck and felt pain in shoulders … since then pain in above areas – stiffness in neck.”[9]
[8]Exhibit A,
[9]Exhibit A
14 On 1 February 2005, the plaintiff attended another general practitioner at the Beacon Cove Medical Centre in Port Melbourne, being Dr Nowotny.
15 Thereafter, the plaintiff attended a physiotherapist, Dr Fishman, on 2, 3, 8, 11, 18, 21, 25, 28, 4, 15, 21, 22, 24 and 31 March and 19 April 2005. All these consultations were for treatment to her cervical spine.
16 In that same period, the plaintiff also attended Dr George Michael on 9, 13 and 19 April 2005 for treatment to the same area.
17 On 29 March 2005, the Chelmer Imaging Group reported back to Beacon Cove Medical Centre on a CT scan taken of the plaintiff’s cervical spine. The report recorded, inter alia:
“The scans have demonstrated moderately degenerative changes at C3/4, and C4/5 particularly. There are disc bulges and associated osteophyte formation at both these levels, which produce some impingement on the spinal canal, particularly centrally at C3/4 and to a lesser degree, to the right of the midline of C4/5.
At the other cervical levels, and at the upper thoracic levels, there are no encroachments on the spinal canal, and no bony destructive lesion or para-vertebral mass is evident.”[10]
[10]Exhibit R
18 In April 2005, the plaintiff travelled to Greece until approximately March of 2006.
19 On the plaintiff’s return to Australia, she was seen by Dr Nowotny again, on unspecified dates, but the last of which was 22 May 2006. At that time, he recorded a diagnosis as “chronic left neck, shoulder, upper arm and upper chest pain.” He further stated:
“… Our medical records have no entries relating to pain in any of these regions prior to the incident described by the patient as having occurred on 13 January 2005. … .”[11]
[11]Exhibit F, Plaintiff’s Court Book (“PCB”) 16A
20 Dr Nowotny further noted a number of pre-existing illnesses or conditions being:
“Metabolic Syndrome (obesity, type 2 diabetes mellitus, hypertension & hyperlipidaemia); Obstructive Sleep Apnoea; Chronic Low Back Pain; Generalised (degenerative) Osteoarthritis. … .”[12]
[12]Exhibit F, PCB 16A
21 He further stated:
“… With the exception of the osteoarthritis, it is unlikely that any of the pre-existing illnesses were exacerbated by the reported transport accident injury, and while the osteoarthritis may have contributed to the post-injury symptoms it is difficult to see how this might still be a factor 16 months post accident.”[13]
[13]Exhibit F, PCB 16A
22 The plaintiff’s medications (as at 22 May 2006) included, relevantly, Panamax, 500 milligrams, two tablets 6 hourly PRN. Her pre-accident medications did not include Panamax or its equivalent.[14]
[14]Exhibit F
23 Thereafter, on 9 June 2006, the plaintiff saw another general practitioner, Dr Gouras, who recorded as follows:
“Return from overseas 2 months ago – while overseas she was taking medication and at one stage had x‑rays taken.”[15]
[15]Exhibit A
24 Thereafter, the plaintiff attended another general practitioner at the Bridge Street Clinic, Dr Michael Gross, who referred her to a sports physician, Dr Peter Baquie.[16]
[16]Exhibit D
25 On 22 June 2006, an MRI scan report of the cervical spine addressed to Dr Baquie recorded, inter alia, as follows:
“C3-4
A broadbased disc bulge/osteophyte complex in conjunction with ligamentum flavum hypertrophy produces a moderate central canal stenosis, with mild impingement upon the anterior and posterior aspect of the cord seen. There is no evidence of signal hyperintensity within the cord at this level.”[17]
[17]Exhibit R, PCB 59A
26 Thereafter, the plaintiff was then seen again for treatment by Dr George Michael on thirteen occasions between 3 July 2006 and 11 April 2007.
27 On 24 April 2007, the plaintiff was seen by Mr Gregory Matthews, the Neurosurgical Registrar at St Vincent’s Hospital, at the request of Dr Baquie. He took a history of symptoms including neck pain and stiffness. In addition, the plaintiff reported pain in the occipital and left supraclavicular regions. He recorded that an MRI scan of the cervical spine had shown “disc osteophyte complexes at C3/4 and 4/5 with compression of the spinal cord at C3/4 but no signal change”.[18] He seemed to be in some dilemma as to whether the symptoms recorded were directly attributable to the lesion, but however he recommended “surgery for her C3/ disc prolapse to prevent the development of myelopathy”.[19]
[18]PCB 43
[19]PCB 43
28 Mr Matthews then recorded:
“… I have provided her with information on the procedure of anterior cervical discectomy infusion. She will see us in Clinic in a few weeks time and let us know whether she wants to go ahead.”[20]
[20]PCB 43
29 The plaintiff also attended her general practitioner at the Bridge Street Clinic for treatment to her neck on 20 March 2007, 2 April 2007, 13 September 2007, 13 March 2008, 25 June 2008, with respect to her cervical injury. In the same period she attended on other numerous occasions for other complaints.
Findings as at 25 June 2008
30 Based on the foregoing evidence, it would appear to me that the following findings are open:
(a)In the transport accident of 13 January 2005, the plaintiff aggravated pre-existing degenerative changes at C3-4 and possibly C4-5, consisting of disc bulges and associated osteo formation at both these levels, which produced some impingement on the spinal canal, particular centrally at C3-4 and, to a lesser degree, to the right of mid line of C4-5;[21]
(b)The degenerative changes had been asymptomatic prior to the transport accident, at least from 2002 until 2005;
(c)After the transport accident, the degenerative changes had been rendered symptomatic, resulting in the treatment regime referred to above, and continued to until at least June of 2008;
(d)Accordingly, there was a causal link between the transport accident and the state of the plaintiff’s cervical spine as at June 2008 in that the effects of the aggravation injury had not ceased.
[21]Exhibit R, CT scan 29 March 2005
31 Having identified the injury at this stage, I am now required to alienate the impairment consequences of the injury in light of the fact of a supervening injury on 27 August 2008. The 2003 injury must qualify as a “serious injury” in its own right. Further, neither any pre-existing injury or the supervening injury on 27 August 2008 can be accumulated with the transport accident.[22]
[22]See generally AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
The supermarket fall of 27 August 2008
32 On 27 August 2008, the plaintiff fell in a supermarket, falling forward on her knees and then onto her right side. She attended The Alfred Hospital complaining of severe pain to her left shoulder and left hand, and was referred for an x-ray of her pelvis and lumbar spine. She was prescribed analgesics and kept in hospital overnight.[23] At 22:10 on the same day, a nurse has recorded that she was complaining of “10 out of 10 pain on movement to right flank – back, left wrist and both knees”.[24]
[23]Exhibit 14
[24]PCB 81
33 On the following morning at 10.05am, the nursing note records that the plaintiff was lying in bed, reporting a ‘sleepy/dizzy’ feeling in her head and also complaining of stiffness on the left side of the neck at the base of the occiput (report that this was pre-existing prior to fall but now worse). When asked to look up/forward: decrease in balance, unable to turn head while walking. Reports that walking altered from prior to fall.”[25]
[25]PCB 81-82
34 A further nursing note on the same date at 10.10am records:
“Also exac[rebated] chronic neck pain. …
For ● CT cervical spine.”[26]
[26]PCB 82
35 On the same day at 15:55, the note records:
“[Patient] reports feeling a bit better. Keen to go home today. Has mobilised independently … .”[27]
[27]PCB 82
36 A CT scan was taken at 10.57am on 28 August 2008. It recorded, inter alia:
“Degenerative changes seen at C3-4, C4-5 and C5-6. …
… Further evaluation with MRI imaging is suggested. …
Conclusion;
… Possible undisplaced fracture through the C4 vertebral body. MRI correlation is suggested.”[28]
[28]PCB 83
37 Later, on 5 September 2008, the plaintiff was referred for physiotherapy at The Alfred Hospital.[29] In the section which was headed “Why the Consumer is Seeking Services”, it is recorded:
“Mrs Bochiridis presented to emergency dept following a fall, she tripped on a mat while entering a shop and landed on both knees.
She sustained some bruising to the L hand. She reported long standing neck problems which were exacerbated by the fall and she experienced some dizziness while in ED which resolved over the day + with Stemitel (sic). She had no recent falls history prior to this fall.
(3 x falls on trams years ago).”[30]
[29]Exhibit 16, Defendant’s Court Book (“DCB”) DCB 84-90
[30]PCB 88
38 There is no mention of this fall or the exacerbation of neck pain in the plaintiff’s affidavit.
39 The plaintiff was cross-examined about the incident, to the following effect:
Q:“Yes, and what happened on that occasion?---
A:I tripped on the floor covering and I fell. They called the ambulance that took me to the hospital.
Q:Yes, and what part of your body was injured?---
A:My hand, my small finger and my hip.
Q:And your knees?----
A:Not so much the knees as the finger and the hip.
Q:Have you continued to be troubled by the pains that you have since you fell at Coles?----
A:Yes, yes.
Q:So much so that you have instructed your lawyers to commence legal proceedings against Coles?----
A:Yes.
Q:And you are claiming damages against Coles for the injuries you have suffered and the effects that those injuries have had on your lifestyle and enjoyment of life?---
A:Even when I use the walking stick, the walking stick still hurts, especially my hip and that’s why I’ve decided to have the wheelchair.”[31]
[31]T86, L27 – T87, L12
40 Further on, the plaintiff was asked:
Q:“When you slipped at Coles, one of the complaints you made in fact, after the fall at Coles you were complaining of stiffness on the left side of your neck, weren’t you?---
…
A:No, I didn’t have this. I have my head problems and that’s not because of – due to the incident at Coles.”[32]
[32]T87, L23-30
41 Further on, the plaintiff was asked:
Q:“You were at the Alfred Hospital on 28 August 2008, you saw a person there for a mobility review, you said that you felt sleepy and dizzy, and you also complained of stiffness on the left side of your neck at the base of your skull?---
A:Yeah.
Q:And you said you had the stiffness on the bottom of your neck pre-existing, but that it was now increased?---
A:I don’t remember having – having said that.
Q:And because of that they took at CT scan of your brain and your spine and your neck?---
…
A:I don’t recall that.”[33]
[33]T88, L12-27
42 Further on, the plaintiff was asked:
Q:“[At the] Rehabilitation Centre in September of 2008 you told the person who you were making the request that you had had a fall resulting in soft tissue injury to both knees, and the left wrist, and an exacerbation of neck and shoulder pain?---
A:Yes, and it’s still getting worse.
Q:So we go back to the question, the true answer is that when you fell at Coles it made your neck and shoulders worse, didn’t it?---
A:Not the - not the fall at Coles. Even now I sort of sit around for a while, it’s pretty bad and since 2005 I – I have had to be very careful even turning around I have to turn left or right a car could – could hit me the way the cars travel these days. And I get dizzy if I turn suddenly from one side to the next - to the other.”[34]
[34]T89, L30 – T90, L12
43 Further on, it was put to the plaintiff:
Q:“… there are records here which suggest that after the fall at Coles your neck pain was made worse, is that true?---
A:Maybe, maybe it is, I don’t know, I don’t know.”[35]
[35]T90, L31 – T91, L3
44 In his final address, Senior Counsel for the defendant submitted that the fall significantly exacerbated the plaintiff’s neck symptoms, at least to the point that when the consequences of the aggravation injury are to be considered at the date of hearing (if any), they cannot be disentangled from the consequences of the supermarket injury such that the plaintiff has failed to discharge the onus of proof in establishing the necessary threshold.
45 Counsel for the plaintiff, on the other hand, submitted that the consequences from the supermarket fall were only temporary and it is consistent with the plaintiff’s admitted poor memory, that she should have forgotten that there was a temporary exacerbation of her neck injury following the fall. At this point, I note that although the plaintiff agreed in cross-examination that she had instituted proceedings with respect to the supermarket fall, it was not put to her that she had claimed damages for a neck injury on account of same.
46 In any event, the plaintiff attended her general practitioner at the Bridge Street Clinic on Friday, 29 August 2008. The general practitioner, Dr Morris Dvash, made the following entry:
“On 27/8/08 TRIPPED ON MAT AT COLES SUPERMARKET … [COMPLAINED] OF PAINFUL L SHOULDER, R HIP AND L HAND.
[ON EXAMINATION] R HIP TENDER POST, MOVTS OK.
L SHOULDER – TENDER …
L HAND – SWELLING/BRUISING 5TH DIGIT WITH TENDERNESS 5TH [METACARPAL MOVEMENTS] SORE.
.. XRAY PELVIS—NAD
XRAY L SHOULDER-SUPRASP. CALCIFICATION, NIL ELSE.”[36]
[36]Exhibit 8, PCB 54
47 On 3 September 2008, the plaintiff attended the same practice, with the only relevant history being:
“L hand still painful after fall last week.”[37]
[37]PCB 54
48 On Wednesday, 24 September 2008, the plaintiff attended the same practice where the general practitioner, Dr Michael Gross, recorded:
“still has pain from fall 3 weeks ago.
[Complains] of pain R patella, R 5th finger, R wrist L shoulder.
[On examination], R 5th finger – tender prox phalanx
R wrist – full rom minimal tenderness
L shoulder – full rom tender supraspinatus area.
having physio for neck.”[38]
[38]PCB 54
49 Counsel for the plaintiff submits that the inference from the record is that the fall was responsible for the pain in the knee, finger, wrist and shoulder, and they were the areas that were examined. The extra “for physiotherapy for the neck” would inferentially relate to the pre-existing chronic neck pain. It is submitted that by this date, the sequelae from the fall is limited to the right knee, the right fifth finger, the right wrist and the left shoulder.
50 The plaintiff, in her affidavit, at paragraph 14, swore:
“St Vincent’s then referred me to Mr Michael Murphy, neurosurgeon, in August 2008. In particular he was going to look at whether there were some injections that I could have to improve neck pain. However, he didn’t see TAC patients so this did not come about.”[39]
[39]PCB 8
51 I note it was not suggested to the plaintiff in cross-examination that her attendance upon Mr Murphy was not due to a Transport Accident Commission accident but in fact to a fall at Coles.
52 Further, the plaintiff has sworn that surgery was originally planned for February 2008 but she accepted the advice that it was too risky because of her weight and other health issues.[40]
[40]PCB 8
53 Thereafter, the plaintiff has sworn:
“Without the surgery my neck condition has continued to deteriorate. I have continued to be seen at St Vincent’s Hospital and by Dr Baquie. I have undergone further MRI’s on 2 December 2008, 24 October 2009, 22 March 2011, and 30 November 2012 … .”[41]
[41]Exhibit R, PCB 8, paragraph 15
54 Further, on 2 October 2008, the plaintiff attended the Bridge Street Clinic with a history:
“fall 5 weeks ago, ?# [fracture] 5th MC bone, patient requests a POP cast.
x-ray – not convincing # [fracture]
For strapping for pain relief and review 2 weeks.”[42]
[42]Exhibit T
55 Thereafter, the plaintiff attended the same clinic on 15 October 2008 and gave the following history:
1 rev L hand – still has pain lat side – for bone scan
…
3 neck pain from fall in tram 3 years ago---has no relief of pain from physio had CT scan 3/07 shows degenerative changes
Rx Mobic.”[43]
[43]Exhibit T
56 Thereafter, the plaintiff attended the same clinic on a number of occasions for unrelated matters until 24 December 2008. On that latter date, the history included:
“… NECK STILL SORE. … .”[44]
[44]Exhibit T
57 The next relevant consultation is 25 February 2009 where the record is:
“mri cervical spine 6/06 – severe degen spine—see scan
form completed for disabled equipme[n]t request
… .”[45]
[45]Exhibit T
58 The next relevant entry appears to be on 18 November 2009, where it is recorded:
“1 year right lumbar pain with sciatic radiation, started following fall at shopping centre.
unable to assess movements adequately
absent knee and ankle reflexes
SLR pain at 90deg
For cT back
… .”[46]
[46]Exhibit T
59 Thereafter, on 18 December 2009, the plaintiff attended the same clinic where she saw Dr Charles Okraglik, general practitioner, who recorded:
“[S]eeing Nowicki carbone lawyers for personal injury sustained in fall in tram january 2005, hit head, still getting headaches dizziness and stiff neck. nothing recorded
advised to obtain record from Alfred hospital where she was treated.
… .”[47]
[47]Exhibit T
60 On 31 December 2009, Dr Morris Dvash, general practitioner, has recorded:
“ongoing neck pain/stiffness/dizziness from tram accident few years ago when tram suddenly stopped and struck head on seat in front of her
requests hydrotherapy and taxi vouchers to get there and back as too slow to get on tram as mobility reduced and has fear of public transport since accident
…
[cervical] spine – tender mid and l[eft] paravert[ebral muscles] m[ovements] re[uced]. ext[ension]/lateral flexion.
… .”[48]
[48]Exhibit T
61 On 5 January 2010, the history is:
“still some neck & rul pain.”[49]
[49]Exhibit T
62 On 12 January 2010, Dr Charles Okraglik, general practitioner, has recorded:
“chronic neck pain causing disability and sleep disturbance. bed too small, cramped, can’t move easily to find comfortable position
wants to make application with TAC for increased home help – currently gets 2hrs/week from council, wants TAC to provide a larger bed and pay for hydrotherapy.
… .”[50]
[50]Exhibit T
63 The general practitioner’s record continues in a similar vein until the end of the Exhibit, which is recorded as 12 October 2012, with a history of “cervical spondylosis”.
64 Further, the plaintiff was seen by the Neurosurgery Registrar, Dr Gregory Matthews, at St Vincent’s Hospital on 27 January 2009.[51] He recorded that the plaintiff:
“… has been seen in our clinic numerous times previously for ongoing neck pain. This is due to cervical spondylosis. She has a degree of disc prolapse but no reticular symptoms in the arms. …
I gather a repeat MRI scan has been performed recently which does not show any change in the upper cervical spine. … .”[52]
[51]Exhibit P
[52]PCB 67
65 Further, Ms J Clayton, Neurosurgical Fellow at St Vincent’s Hospital, saw the plaintiff on 27 April 2010.[53] She recorded:
… She has been seeing us due to chronic pain in her neck radiating into her shoulders and has had discussions in the past regarding surgery at the C3-C4 level where there is evidence of degenerative change with osteophyte protrusion and disc herniation comprising the spinal canal and causing a minor degree of cord compression but no cord signal change. … .”[54]
[53]Exhibit H, PCB 38-39
[54]PCB 38
66 In essence, Ms Clayton did not recommend surgery and advised the plaintiff to lose weight.
67 Dr Nicholas Crump, neurologist and neurophysiologist, reviewed the plaintiff on 21 March 2011 and 2 May 2011.[55] He reported that the plaintiff had:
“… multiple medical comorbidities, including … chronic neck and headaches, … .”[56]
[55]Exhibit J, PCB 40-42
[56]PCB 41
68 Further, Dr Crump stated:
“Her current main concerns are regarding episodic sensations of unsteadiness, particularly when she gets up quickly, but also possibly related to movements of neck (more extension, also rotation either way). There is some associated vertigo but not a classical description. She finds she needs to grab walls etc for support, and has started to use a frame. She denies any falls but is increasingly reluctant to leave the house. Things are possibly worse without visual inputs. These symptoms are in the context of her gait gradually declining, with worsening balance. She started using a 4WF [4 wheel frame] some time ago, and I note with some concern that she last saw a physiotherapist 2 years ago.
Irene also tells me her neck [is] worse, with increasing stiffness, some numbness in fingers of both hands … .”[57]
[57]PCB 41
69 Dr Crump reviewed the plaintiff’s repeat MRI scan, which he opined:
“… shows marked loss of cervical lordosis, and extensive changes at C3/4 with anterior cord indentation but no definite signal change.”[58]
[58]PCB 41
70 Dr Crump went on to state:
“Whilst her nerve conduction studies do not prove a significant large fibre neuropathy, there could still be small fibre damage/emerging changes, and I suspect that clinically this is the case. With the normal nerve conduction studies and B12 however, it suggests the cervical disease of increased significance. There is also likely persistent vestibular symptoms.”[59]
[59]PCB 42
71 Dr Crump then stated:
“I advised Irene that there is not a lot more I can add to her management, but that she needs to await the Neurosurgical opinion from St Vincent’s. Given the MRI changes an argument could be mounted for decompression, particularly with her gait deterioration. However with her comorbidities, she would be a high surgical and anaesthetic risk. I suggested she tries physiotherapy and/or other local therapies.”[60]
[60]PCB 42
72 Counsel for the plaintiff submitted that the extensive and consistent treatment concerning the essential non-abatement of the neck symptoms following the transport accident supports the proposition that, as at May 2011, and indeed up to the present time, the plaintiff is still suffering the effects of the aggravation injury whereby the underlying degenerative changes are still symptomatic in a background where, prior to the accident, they were essentially asymptomatic.
73 Counsel for the plaintiff also submits that the above clinical record supports the submission that the August 2008 fall amounted to a temporary exacerbation of the plaintiff’s neck symptoms when seen at The Alfred Hospital on 27 and 28 August 2008. He submitted that thereafter, the evidence outlined above corroborates the progression of the underlying aggravation injury. On a prima facie basis, I agree.
74 Senior Counsel for the defendant, however, submitted that the onus of proof with respect to the above two propositions has not been discharged. In particular, he submits the plaintiff’s credit is so impugned, as an historian, that any medical evidence tendered on her behalf must be similarly tainted. He cites a number of examples, but relies significantly on evidence that the walking frame and the scooter were prescribed for the plaintiff in connection with her lumbar spine injury and not the neck injury. For example, on 7 November 2008, an occupational therapist has recommended a four-wheel frame “to maintain independence” on account of, inter alia, chronic low-back pain.[61] Further, in the therapist’s recommendation for the scooter dated 16 March 2012, the therapist has recorded, inter alia:
“Mrs Bochoridis (sic) requires the scooter for community access. She is no longer able to walk the distance from her home to the local services she requires. …
Mrs Bocoridis (sic) is very frustrated at not being able to walk around the local area as she used to do. She is reporting considerable pain in her lower back and both hips with the pain running down into her legs. She finds the severe level of pain is preventing her from completing her community activities of daily living.”[62]
[61]See Exhibit 10, DCB 68-72
[62]DCB 72
75 Counsel for the plaintiff submits that I should accept the plaintiff’s evidence that the scooter was also required because of neck pain because of her inability to look left and right whilst walking. He cites the medical history in the said prescription form to include as follows:
“… Atrial fibrillation, hypertension, Type II Diabetes, Obstructive Sleep Apnoea, Obesity, lower back pain, hip pain, leg pain and neck pain. Reduced mobility.”[63]
[63]DCB 70
76 At worst, he submits, the need for the wheel frame and the scooter is contributed to by all the comorbidities, but not excluding the neck pain. On the other hand, Senior Counsel for the defendant submits that the plaintiff is always selective in blaming her symptoms on her neck pain when in other situations she attributes her disabilities to other comorbidities when it suits her.
77 In a long and searching cross-examination, I agree that the plaintiff was often inconsistent and vague and perhaps at times was trying to assist her case in the manner submitted by counsel for the defendant.
78 In the light of the corroborating clinical evidence, I must do my best to try to assess whether I can accept that the plaintiff has suffered from chronic neck pain since January 2005 such that it is likely that there is still a causal link between that neck pain and the said transport accident. In this regard, Senior Counsel for the defendant also relies on the opinion of a treating neurosurgeon, Associate Professor Brazenor, in two reports dated 22 August 2011 and 17 November 2011.[64] In the first report, he takes a history that the plaintiff had developed a stiff neck, dizziness and numbness in her arms since the relevant transport accident. At that stage, her current problems were:
“… dizziness, particularly when she turns her head, and pain in the neck and numbness in the arms and weakness in the arms and hands such that she can do nothing for herself.”[65]
[64]Exhibit 9, DCB 59-61
[65]DCB 59
79 Professor Brazenor noted the plaintiff was taking Panadol Osteo, to which he had “no objection”. He examined an MRI of the cervical spine dated 22 March 2011 and a CT scan of the cervical spine dated 29 July 2011. It was his opinion that the plaintiff:
“… has a mild kyphosis from C2-C4 and a mild canal stenosis at C3/4 by a broad-based central disc protrusion without signal change in the cord on the MRI. … .”[66]
[66]DCB 60
80 Professor Brazenor gave the plaintiff an exercise program and then reviewed her on 17 November 2011. He noted on that latter date:
“… she hasn’t done anything that I suggested. … .
This lady has a normal neck for her age, showing just a bit of spondylosis at this time.”[67]
[67]DCB 61
And further:
“Where Irene’s headspace is at the present time was indicated by her question: ‘Can this be designated a Serious Injury?’ I told her that under no circumstances is this a serious injury. Rather (I told her) this is a case of Serious Self Neglect.
… .”[68]
[68]DCB 61
81 Apparently he did not see her again. His overall opinion was best summed up in his first report when he recorded that the plaintiff “was hopelessly functional” on examination. But given the history as recorded and the radiological findings as recorded, Professor Brazenor does not comment as to whether the organic condition was symptomatic and whether it was causally related to the transport accident.
82 Although Senior Counsel for the defendant concedes that the plaintiff has support for her case from medico-legal specialists, Mr K Brearley,[69] and Mr D Brownbill,[70] he submits that the histories relied upon by the two practitioners are so unreliable as to render their opinions nugatory.
[69]Exhibit F, PCB 26-30
[70]Exhibit G, PCB 31-37
83 Mr Kenneth Brearley, orthopaedic surgeon, for example, has a history that the plaintiff had suffered an injury to her knees back in 1996 and also a fall in 1998 whilst in Greece when she suffered further injuries to her knees and back. He has no history of the supermarket fall in 2008. In this context, he notes the radiological evidence as already set out and opines:
“Her complaint of persistent, ongoing neck pain is consistent with significant trauma to an already compromised cervical spine.”[71]
[71]PCB 29
84 Further, he stated:
“No doubt the injury to her neck has caused ongoing pain and suffering which would not have occurred had the tram accident not happened. Her daily living activities have been curtailed as she is no longer able to do any significant housework and her enjoyment of life has been correspondingly reduced.”[72]
[72]PCB 30
85 Mr David Brownbill, consultant neurosurgeon, took a history that on 13 January 2005, upon the happening of the transport accident, the plaintiff immediately noted severe pain in the back of the neck, “first time I had pain there”.[73] He took a further history that the plaintiff had not sustained any further accident or injury or undergone any surgery.[74]
[73]PCB 32
[74]PCB 32
86 Further, his history included the regular attendance upon Neurosurgical Outpatients at St Vincent’s Hospital but also that the plaintiff commenced using a walking stick some time afterwards, but “with also some pain in the right hip”. He also took a history that she had commenced using a walking frame about two years ago, but does not seem to consider whether the pain in the right hip was a possible co-existing cause.[75]
[75]PCB 32
87 On examination on 6 March 2013, Mr Brownbill found:
“… she was cooperative conversing well with the interpreter without any apparent embellishment and appearing straight forward.”[76]
[76]PCB 33
88 Mr Brownbill, however, does have a fairly detailed history of the treatment at the Neurosurgical Department of St Vincent’s Hospital for chronic neck pain. Further, he recites the MRI finding of 22 March 2011, which included the comment:
“… Right C4 radiculopathy is seen at this level secondary to neuro central joint osteophytosis/foraminal stenosis. At C5-6 bilateral C6 radiculopathy is seen moreso on the right than the left. Milder changes noted C4-5 with mild right C5 radiculopathy also being seen.”[77]
[77]PCB 34
89 Mr Brownbill also did not have a history of the supermarket fall in 2008; however, his opinion as to causation was as follows:
“On the information provided and noting that this lady did not have any previous neck pain or activity restrictions before the 13th January 2005 with the onset of such pain (and extending to both shoulders and upper arms) with radiological investigations demonstrating multiple level advanced degenerative changes and C3-4 osteophyte disc prolapse components, I consider this lady in that described accident in which she sustained a hyperextension injury to the cervical spine received aggravation of the pre existing asymptomatic degenerative changes with likely associated C3-4 disc derangement and protrusion.”[78]
[78]PCB 35
90 Further, he stated:
“Clinical experience shows that on occasions when cervical spine degenerative changes are aggravated the resulting pain and activity restrictions may continue indefinitely even when the aggravating factors cease.”[79]
[79]PCB 35
91 Although not finding true radiculopathy on examination, Mr Brownbill stated:
“… I consider that on probability her described shoulder and upper limb symptoms represent referred pain from the cervical spine.
… The described injuries are consistent with occurring as a result of the described incident.”[80]
[80]PCB 35
92 As to varying histories provided to medical practitioners, see Sejranovic v Berkeley Challenge Pty Ltd.[81]Also see Dordev v Cowan & Ors.[82]
[81][2009] VSCA 108 at paragraphs [145], [146], [177] and [178]
[82][2006] VSCA 254
93 In Sejranovic,[83] the Court of Appeal said as follows:
“In a number of cases, this court has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as historian. A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms ‘may have little or no probative weight where the court determines that such witness is not reliable’.
…
However, the fact that a court determines that a claimant is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by that claimant should be disregarded. For example, in Cakir v Arnott’s Biscuits Pty Ltd this court held that an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the appellant’s serious injury application under s 134AB of the Act. In that case, the County Court judge had refused the appellant’s application because he did not accept that he was a truthful witness. On this basis, all of the medical opinions in his favour were rejected. On appeal, this court held that the judge erred in failing to analyse and give appropriate weight to all of the evidence, including objective evidence which sustained a finding that the appellant had suffered a serious injury. … .”
[83]Sejranovic v Berkeley Challenge Pty Ltd (supra) at paragraphs [145] and [146]
94 Accordingly, I believe I am required to analyse and give appropriate weight to all of the evidence, including objective evidence when deciding whether or not the plaintiff has suffered a serious injury.
Causation findings
95 I refer to the findings as at 25 June 2008 contained in paragraph 30 of these reasons. Despite the fall at the supermarket on 27 August 2008 probably exacerbating the then existing neck symptoms, I consider that the clinical course thereafter suggests, on balance, that such exacerbation was temporary in affect and that the plaintiff shortly returned to her pre Coles fall symptomatology in the cervical spine thereafter.
96 In all the circumstances, I find that as at the date of hearing, the plaintiff is still suffering from the consequences from the transport accident consisting of symptomatic degenerative change as revealed on radiology and referred to above.
Consequences of cervical injury: threshold
97 In my view, the pathology demonstrated on radiology, particularly that of 22 March 2011 and commented upon by Mr Brownbill,[84] together with the clinical course of treatment outlined above, gravitates towards a finding of “serious injury” pursuant to statute. In addition, the plaintiff has sworn, without challenge, that the neck pain wakes her at night. At times she says she obtains relief by filling a bathtub and sitting in a warm bath.[85] Further, she has sworn that she has been given a prescription of Panadol Osteo and she also takes flaxseed oil and krill oil on the recommendation of her doctor, and these medications are all taken daily.[86]
[84]PCB 34
[85]Exhibit B, PCB 9, at paragraph 19
[86]Exhibit B, PCB 11, at paragraph 23
98 In my view, the plaintiff satisfies the statutory standard that the injury suffered to her cervical spine in the transport accident of January 2005 is at least very considerable and more than significant or marked.
99 Leave will be granted to the plaintiff to issue proceedings at common law for damages arising out of the transport accident on 13 January 2005.
100 I will hear the parties as to consequential orders.
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