Brosnan v Transport Accident Commission
[2012] VCC 1212
•26 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00013
| GERALDINE BROSNAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| and | |
| THOMAS DAVID COY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 August 2012 | |
DATE OF JUDGMENT: | 26 October 2012 | |
CASE MAY BE CITED AS: | Brosnan v Transport Accident Commission & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1212 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Damages – serious injury lumbar spine – causation – nature and extent of such injury – whether such injury is “serious”
LEGISLATION CITED – Transport Accident Act 1986, s93 – serious injury – paragraph (a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171; Watts v Rake (1960) 108 CLR; Petkovski v Galletti [1994] 1 VR 436; Falasca v Morrissy [1999] FCA 277; Mobilio v Balliotis [1998] 3 VR 833
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Robinson Gill |
| For the Defendants | Mr J Moore QC with Ms N Wolski | Norton Rose |
HIS HONOUR:
Introduction
1 On 12 April 2008, the plaintiff, Geraldine Brosnan, was a front-seat passenger in a car being driven by her husband. She was involved in a head-on collision. It is alleged a car driven by Mr Thomas Coy travelling in the opposite direction skidded into the path of her vehicle as both vehicles rounded a curve in the road.
2 The plaintiff was airlifted by helicopter to The Alfred Hospital, wherein she was a patient for five days. It is not in contention that she suffered the following injuries:
(a) fractured ribs
(b) fractured right lower radius
(c) bruising to the chest
(d) bruising of her left arm
(e) bruising down her left side
(f) left hip pain
(g) bruising to the right knee
(h) right pulmonary contusion
(i) pericardial effusion.
3 The plaintiff further alleges she suffered a back injury arising out of the motor vehicle collision, which is in contention.
4 By way of Originating Motion issued 10 January 2011, 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 the back injury (“the injury”) suffered by her arising out of the transport accident on 12 April 2008 (“the transport accident”).
Relevant Legal Principles
5 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
6 Initially the application proceeded with respect to Particulars of Injury filed on 14 April 2011 in the Court, but at trial proceeded with respect to the low-back injury alone.
7 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) … .”
8 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]
9 The plaintiff alleges that the pain and suffering consequences of her injury satisfy the threshold test as being at least “very considerable”.
10 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.
Background
11 The plaintiff is currently aged sixty-nine years. At the time of the transport accident, she was aged sixty-five. For many years she had worked as a teacher and in the hospitality industry, but at the time of the transport accident, she was retired.
12 Prior to the date of the transport accident, her lumbar spine was asymptomatic and she would appropriately be described as an active retiree. Her interests and activities included the following:
(a)she was a keen bushwalker and would walk regularly 5 kilometres to her daughter’s place and sometimes return on foot;
(b)she was an active yoga participant up until the time that her mother came to live with her some years before the transport accident, but it had been her intention to return to this activity after her mother died, which was approximately two weeks before the transport accident;
(c)She was an active gardener and performed the full range of gardening activities, including digging, shovelling, planting et cetera.
Aftermath of the Transport Accident
13 Following the transport accident, the plaintiff was airlifted by helicopter to The Alfred Hospital, where she was diagnosed as having suffered the injuries referred to in paragraphs (a) to (i) of paragraph 2 above. She was an inpatient for five days. Thereafter, she attended her general practitioner in Moe on 19 April 2008 for ongoing medical treatment.
14 The plaintiff felt pain all over her body for some considerable time after the transport accident but the most pressing issue was the fracture of her right wrist. She was referred to hand surgeon, Mr Anthony Berger, on 24 April 2008. On the same day, Mr Berger conducted surgery on the wrist, including the insertion of a steel plate. The plaintiff underwent a further operation on 22 January 2009 in order to have internal fixation plates removed from the wrist.
15 Once the acute injuries settled down, the plaintiff has sworn that she found that her back was particularly painful. In her first affidavit sworn 2 August 2010, she attests:
“I am left with often very significant and more or less constant pain in the lower back area. The back has certainly been the most significant ongoing problem for me. The pain is always there at least at a base level and flares up depending on my movements or activities.”[3]
[3]Paragraph 19
16 The defendant strongly contests this contention and contends that any back pain or impairment suffered by the plaintiff at the time of hearing is not causally related to the transport accident.
The Issues
17 Counsel for both parties agree that the two issues for decision are:
(a)causation
(b)alternatively, severity of the impairment.
Causation
18 It would appear from the reports of Mr Michael Fogarty, orthopaedic surgeon retained by the defendant, and dated 9 December 2010 and 5 December 2011,[4] that the following matters are not in contention:
[4]Exhibit 7
(a)There was a strong likelihood that the plaintiff had some degenerative disc disease in the lumbar and lumbosacral spine prior to the transport accident.[5]
(b)X-rays of the lumbosacral spine had been performed on 4 June 2009 and showed some degenerative disc disease, especially at the lumbosacral and L3-4 level.[6]
(c)At physical examination on 8 December 2010, Mr Fogarty found there was a limited range of motion, and forward flexion was only to 50 degrees and extension 20 degrees; lateral flexion 20 degrees to the right and 30 degrees to the left, and rotation 20 degrees to either side with respect to the thoracolumbar spine.[7]
(d)On the above date, Mr Fogarty took a history form the plaintiff that her low back was painful. She had finished with physiotherapy but was doing her own exercises and swimming a good deal. She said that she could walk reasonably well, but not for long distances (2 kilometres maximum).[8]
(e)Mr Fogarty considered the prognosis for the plaintiff’s low back was fair.
(f)Following his examination, Mr Fogarty considered there would be some permanent impairment related to the lumbosacral spine.
[5]Defendants’ Court Book (“DCB”) 13
[6]DCB 13
[7]DCB 12
[8]DCB 11 and 12
19 Mr Fogarty only examined the plaintiff on one occasion, being 8 December 2010. However, in a report dated 5 December 2011, he gave a further opinion. On page 1 of that report,[9] he repeated the history the plaintiff had given him that her low back had been painful. He also repeated that, as the pain from the rib fractured settled down, her back became more prominent. She later had physiotherapy directed towards her back.
[9]DCB 15
20 Before giving an opinion about causation, Mr Fogarty noted that in the copy of the physiotherapy initial consultation sheet sent to him, that there was no mention of low-back pain by the physiotherapist in her written record of assessing and treating the plaintiff, at least initially. He noted, however, in the entry by the physiotherapist for 24 February 2009, being nearly ten months following the transport accident, that there had been a complaint by the plaintiff of pain and some difficulty with cervical flexion, for which the physiotherapist had given her some advice.[10]
[10]DCB 15
21 At page 2 of his report, Mr Fogarty opined as follows:
(a)His diagnosis of the plaintiff’s current condition is that she had some degenerative disc disease in the lower lumbar spine.
(b)There was a strong likelihood that the plaintiff had at least some degenerative disc disease in the lumbar and lumbosacral spine pre-existing the transport accident.
(c)Although it was possible there may have been some aggravation of this condition as a result of the transport accident, there was no record of the complaint being made in the plaintiff’s initial treatment period and the documentation indicates treatment for this condition only from ten months following the transport accident.
(d)On the basis of the material provided to him, particularly the clinical notes of the Gippsland Physiotherapy Group, he considered that this material indicates that the low-back pain is now related to degenerative disc disease in the lumbar spine.
(e)Mr Fogarty then contrasts the plaintiff’s history to him that there had been low-back pain following the transport accident, which became more prominent once the rib pain had settled, compared to the documentation not showing a complaint for ten months following the transport accident. He then opines that the injury suffered in the transport accident would not have “initiated” the degenerative condition of the lumbar spine seen on the x‑ray fourteen months later. He believed that the x‑ray findings were consistent with a longer standing change of degenerative disc disease.
22 The clinical notes tendered in Court from the Gippsland Physiotherapy Group[11] would suggest that the plaintiff was in fact complaining of “some chest, thoracic spine and low-back pain (possibly secondary to rib trauma)” on 16 June 2008. It would also appear that on 23 June 2008, there was a history that the chest/low-back pain was slowly improving. Clearly, these histories are two months after the transport accident, rather than ten months. Further, as fairly conceded by counsel for the defendant, the notation allegedly relating to the cervical spine could easily have related to the lumbar spine, as the handwriting for the “c” and the “l” were very similar.[12]
[11]Exhibit 8
[12]See also the entry for 2 September 2009 at DCB 24
23 The notations of 16 June 2008 and 23 June 2008 referred to above would, in my opinion, be consistent with the plaintiff’s history and evidence that the back pain became more prominent once the rib pain settled.
24 Accordingly, once Mr Fogarty concedes there may have been some aggravation of the degenerative disc disease in the lower lumbar spine as a result of the transport accident, the fact that there was a record of a complaint being made in June 2008 would suggest that, as at that date at least, degenerative disc disease was symptomatic as a result of that aggravation.
25 In this context, Mr Fogarty’s opinion that the transport accident would not have initiated the degenerative condition, as distinct from aggravated it, is not quite to the point. Further, his opinion that the x‑ray findings are consistent with a longer standing change of degenerative disc disease does not preclude a finding that the aggravation is also causally related to those x‑ray findings, if one accepts the history as given to Mr Fogarty that the back pain had been extant since the time of the transport accident.
26 As discussed with both counsel in final addresses, there is a problem for the plaintiff in this regard, because there appears to be no treatment for the back between June 2008 and July 2009. Further, there is evidence from the physiotherapy notes that the plaintiff was discharged on 24 February 2009 as the treatment was complete. At that time, the physiotherapist had taken a history that the plaintiff had started doing yoga again, although she had complained of pain or difficulty with lumbar flexion, and was given advice. The plaintiff, herself, admits she went back to performing yoga classes of approximately one hour’s duration on at least eight occasions in this time. She said, however, she found that the yoga was aggravating her lumbar condition and she had to give it up.
27 It would appear that as at 31 July 2008, the plaintiff attended her general practitioner, Dr Vetha Rajeswaran, with respect to consequences for the transport accident in May 2009. The reason for the contact was said to be “Pain – chronic”. In her report of 24 June 2009,[13] Dr Rajeswaran stated that as at 31 July 2008, the plaintiff “also had generalised aches and pains of the body related to the accident”.
[13]Plaintiff’s Court Book (“PCB”) 40
28 Thereafter, there is a general practitioner’s note on 20 August 2008 that Panadeine Forte tablets have been ceased. Then, on 21 August 2008, the psychologist at the practice recorded: “Recovered mostly from physical trauma – still some problems in arm – physio.” On 13 March 2009, Dr Chris Lampel at the clinic stated: “Keen to reduce Endep … impression is that Geraldine is coping very well twelve months after trauma.” Dr Gaynor Perry, on 27 April 2009, took a history: “Much improved. Now feeling well.” On 30 March 2009, there is a history taken that the plaintiff is back at yoga and gaining benefits from same.
29 It would appear that it is only on 2 June 2009 that the plaintiff seeks treatment for “worsening lower back pain” leading to treatment, including x‑ray of the lumbar vertebra. Dr Rajeswaran gave evidence that if there had been a complaint of any significant low-back pain prior to that date, she would have ordered x‑rays sooner. The defendant points to the coincidence of the plaintiff seeking reports from Dr Rajeswaran through her solicitors, Robinson Gill, starting in April 2009, which calls into question, forensically, the complaints of worsening low-back pain starting from June. It is further contended by counsel for the defendant that this clinical history aligns with the reasoning of Mr Fogarty in terms of causation at the date of hearing.
30 The plaintiff, for her part, essentially relies on the reports of Dr Robert Gassin, dated 29 July 2011;[14] Mr Gary Grossbard, dated 13 August 2009;[15] Mr Kevin King, dated 17 November 2011[16] and the physiotherapist, Ms Caroline Raymond, dated 19 October 2009[17] in order to establish the causal link between the transport accident and the low-back impairment at the date of hearing.
[14]Exhibit C
[15]Exhibit D
[16]Exhibit D
[17]Exhibit C
31 Dr Robert Gassin is a consultant in the field of musculoskeletal pain management. He examined the plaintiff once on 26 November 2009 upon referral from her general practitioner. The history taken was one of chronic low-back pain which had been noticed as the fractured ribs healed. The pain was localised to the lumbar region bilaterally and interfered with several activities such as swimming, yoga, getting in and out of bed, getting up from the floor and most activities involving bending forward and back. She had attended physiotherapy, which had involved mainly passive modalities but also some exercises. This had been unhelpful. X-rays had revealed disc spondylosis, especially at L3-4 level, but was otherwise essentially normal. The examination had revealed a very limited range of lumbar movement, especially in flexion. The diagnosis was one of mechanical low-back pain which could be arising from any of the low lumbar structures. His treatment at that time appears to be encouragement to remain as active as possible, pointing out that “hurt is not harm” and suggested that she learn to pace herself. The plaintiff elected to treat her back pain conservatively and Dr Gassin offered to help in the future if the plaintiff liked to consider medications or interventional pain management strategies if there was an increase in pain.
32 I note at this point that the general practitioner’s notes reveal that Panadeine Forte tablets were ceased on 20 August 2008 by her general practitioner and there does not appear to be any further prescription up until the consultation with Dr Rajeswaran on 11 June 2009, when Panadol Osteo was prescribed. I note further there is no further prescription for Panadol Osteo until 15 February 2010, where there is a history of a “sore back in the sacroiliac region no trauma etc – had massage”.
33 Dr Gassin considered that –
“The temporal relationship with the motor vehicle accident and the onset of low back pain suggested that the accident had most likely been a significant contributing factor to the plaintiff’s low back injury.”[18]
[18]Exhibit C
34 He considered it likely that the low-back pain was initially masked by the more severe pain arising from the various fractures the plaintiff had suffered as a result of the transport accident. The prognosis was one of ongoing moderate pain and disability for the foreseeable future as a result of the back injury and at that time it had stabilised. He did not expect a significant deterioration or improvement in her condition in the future.
35 Mr Gary Grossbard, orthopaedic surgeon, saw the plaintiff on 11 August 2009 for medico-legal purposes.
36 Mr Grossbard took a history that at the time of the transport accident, most of her pain was in the region of her chest. This eventually settled and she noticed the presence of low-back pain which was present with any activity. Prior to the transport accident, she had some minor episodes of back pain in the past. The back pain has, however, persisted to the extent it is now her major concern. He took a further history that the plaintiff was unable to undertake gardening and do yoga regularly, and had not been able to do so since the transport accident because of her back pain. Prior to the transport accident, she had a fully mobile back and was able to undertake all of the poses required in yoga. She further stated she continued to use Panadol Osteo for her back pain.
37 On examination, the low back was tender at the lumbosacral level and there was limitation of movement. He did not see x‑rays of the lumbar spine, but a report suggested that there was a mild loss of the L3-4 disc height.
38 Mr Grossbard considered that the major impairment related to the plaintiff’s lumbar spine. He considered that if the plaintiff had a full range of movement and a very mobile lumbar spine prior to the transport accident, it must be concluded that her current restriction relates to the transport accident. He assessed her as having a 5 per cent whole person impairment according to the American Medical Association’s Guide to the Evaluation of Permanent Impairment (4th edition, 3rd reprint).
39 The plaintiff also relies on the impairment assessment conducted by the defendant on 12 February 2010.[19] In accepting liability for an impairment to the low back, the impairment benefit co-ordinator, Mr Morrissy, accepted the opinion of Mr Grossbard that the lumbar “issue” is accident-related because she had a low back problem since the transport accident. Mr Morrissy stated he had perused the general practitioner’s clinical records which verified that the plaintiff was not reporting low back problems prior to the subject accident. He further noted post-accident, the low back problem had been reported and “would be attributable to the forces involved in the accident”.
[19]Exhibit E
40 Counsel for the plaintiff relies on this assessment as being an admission against interest by the defendant pursuant to the principles of Ansett Australia Ltd v Taylor.[20]Counsel for the defendant, of course, contends that the opinions of Mr Grossbard and others are defective because of the incorrect histories, especially with respect to the period from June 2008 until June 2009. In this particular instance, I regard the principle as of being little assistance to the plaintiff because the issues that were considered by Mr Morrissy have been more fully canvassed in this particular hearing, and I believe reasonably so.
[20][2006] VSCA 171
41 Mr Kevin King, honorary consultant orthopaedic surgeon at The Royal Melbourne Hospital, saw the plaintiff for medico-legal purposes on or about 17 November 2011.[21] He took a history that the transport accident caused –
“… a jerking, jolting strain to her lower back and she was conscious of quite severe low back pain from the time of the accident and she has had back pain ever since.”
[21]Exhibit D
42 Mr King recorded that the plaintiff had slowly improved over the last three-and-a-half years but was never able to get back to exercise and activity at the same level; for example, she had been a yoga teacher and never got back to this activity. He took a further history of intermittent aching pain in her low-back region, present for several days a week and each bout of pain lasting for a few hours, tending to be worse in the morning, and precipitated by exertion such as gardening. The backache was said to be a constant nagging problem and she took analgesics at night to sleep. On examination, he found moderate limitation of low-back movement by some pain and spasm – approximately half the normal range of low-back movements are present.
43 On viewing an x‑ray of the lumbar spine dated 4 June 2009, he noted:[22]
“Generalised osteoporosis of moderate severity. Generalised spondylitic changes of moderate severity throughout the lumbar spine, consistent with age. No evidence of wedge fracture.”
[22]Exhibit D
44 Mr King then opined that the injury to the low back would involve –
“Damage to lumbar discs and associated ligamentous structures at multiple levels, this trauma being superimposed upon pre-existing, symptomless degenerative changes in the spine, consistent with her age.”
45 He then stated:
“Accepting her clear statement that she never had any previous problems with back ache and had been a yoga teacher without trouble, I would attribute all of her persistent, moderately severe problems with low back pain to the effects of the injuries she sustained at the time of the accident.”
46 He further considered that the backache had now stabilised and represented a moderately severe impairment of her overall function, equivalent on clinical grounds to 25 per cent loss of the lumbosacral spine.
Findings
47 The divergence in medical opinions referred to above can be explained, at least in part, by the accuracy of the histories supplied to each of the medico-legal examiners. As stated to counsel in final addresses, I found the plaintiff to be an honest and straightforward witness who at all times was doing the best to tell the truth. She made concessions where appropriate to do so and did not, in my view, attempt to “gild the lily” by exaggerating her level of disability while in the witness box. I accept counsel for the defendant’s observation that she appeared not to be in extreme discomfort while under cross-examination for some hours.
48 I consider that the following findings are open on the totality of the evidence:
(1)The plaintiff suffered an aggravation of underlying degenerative change in her lumbar spine as a result of the transport accident on 12 April 2008.
(2)The pain from the aggravation of the lumbar spine was masked to a considerable degree in the early stages because of very painful acute injuries to other parts of her body.
(3)By 16 June 2008, the low-back pain had become evident to the plaintiff and she complained of it to her physiotherapist, Ms Raymond.
(4)The pain thereafter continued on a fluctuating basis, such that there were records from time to time of the back pain “improving”, as referred to above.
(5)The level of pain was not such that the plaintiff pressed her case for further interventionist treatment, such as x‑rays, until June 2009.
(6)The deterioration that apparently occurred in or about June 2009 was probably largely a result of the underlying degenerative change and advancing age.
(7)Despite (6) above, it would appear to me that there was never full recovery from the back pain associated with the transport accident.
49 In light of the above findings, it becomes a rather difficult question as to whether the aggravation injury can be said to make a material contribution to the impairment that subsists after June 2009, or whether it is a material contribution only to the level of impairment that seemingly existed prior to that time.
50 The plaintiff, in applying the principles of Watts v Rake[23] and Petkovski v Galletti,[24] relies, prima facie, on the difference between the pre and post-accident condition. The plaintiff contends that it is not for her to disprove that the pre-accident condition would have eventually led to similar disability. The change in the plaintiff’s condition, if established satisfactorily, is enough to raise a presumption of fact in the plaintiff’s favour which a tribunal of fact should insist that the defendant should overcome.[25]
[23](1960) 108 CLR
[24][1994] 1 VR 436
[25]Watts v Rake (ibid) at page 160 per Dixon CJ
51 The defendant, for its part, contends that the rule in Watts v Rake does not come into operation so as to place an evidential onus on the defendant until the plaintiff has established that the defendant’s negligence has indeed caused a change in the condition.[26] In this regard, the defendant relies on the absence of treatment for the twelve months from June 2008 to July 2009 as breaking the chain of causation, or amounts to the plaintiff failing to discharge her burden of proof.
[26]Falasca v Morrissy [1999] FCA 277
52 On balance, in accepting the plaintiff as a witness of truth, I find that she never did recover the function of her lumbar spine in terms of levels of pain and range of movement that is likely to have existed immediately prior to the transport accident. Whilst acknowledging the force of the defendant’s contention that the absence of treatment for twelve months, together with the record of the condition improving, should be sufficient to either break the chain of causation or at least disentangle the aggravation from the underlying degenerative condition, I consider, on balance, that the plaintiff has succeeded in establishing the causative link between the pre and post-accident condition as it subsists at the time of hearing.
Range: Threshold
53 Having found that the transport accident has materially contributed to the impairment to the lumbar spine as already described, I find that the consequences of that impairment evolved in the following manner:
(1)The pain from the aggravation injury was initially masked by the acute injuries to other parts of the body and the back pain became evident to the plaintiff on or before 16 June 2008.
(2)On 7 May 2008, the plaintiff attended Dr Charles Perry, general practitioner, and gave a history that her aches were settling and she was “just using Panamax, nothing stronger”.
(3)On 11 June 2008, the plaintiff reported to Dr Perry that she was feeling “well” and “settling from [the] accident” but complained of a sore right breast. She also complained that she had had a lot of bruising.
(4)On 3 July 2008, the plaintiff attended Dr Rajeswaran, general practitioner, and was prescribed Panadeine Forte tablets.
(5)On 11 June 2008, when she attended Dr Perry, the plaintiff reported:
“She felt most symptoms from the accident were under control. However, she had noticed a lump in the right breast where the seatbelt had crossed her chest.”[27]
[27]PCB 39
(6)On 31 July 2008, the plaintiff attended Dr Rajeswaran and reported chronic pain, being: “Generalised aches and pain of the body relating to the accident”, which I find included lumbar back pain.
(7)On 10 June 2008, the plaintiff attended Ms Geraldine Raymond, physiotherapist, and reported she was taking one Panadeine Forte tablet during the day and one Panadol tablet at night, which dulls the pain. The history at that time was bruising to the ribs, which was resolving.
(8)On 16 June 2008, the plaintiff reported to Ms Raymond that she had some chest, thoracic and low-back pain which may have been secondary to the rib trauma.
(9)On 23 June 2008, the plaintiff reported to Ms Raymond that her chest and low-back pain were slowly improving.
(10)From 23 June 2008 until 24 February 2009, the plaintiff attended the Ms Raymond on twenty-seven occasion and made no further complaint of any symptoms referable to the back.
(11)In that latter period, the plaintiff reported to Ms Raymond:
(i)that she had attended an overseas holiday for three months in or about August 2008;
(ii)thereafter, her hand had been really good and held up well on the trip; she had to change hands when carrying luggage; no other limitations noticed (9 December 2008);
(iii)she had suffered pins and needles in her hand at night after house painting (6 January 2009);
(iv)she was doing well and able to garden, but was a bit fatigued afterwards (19 January 2009);
(v)when seen by Ms Gaynor Perry, psychologist, at the general practice on 21 August 2008, she reported she had recovered mostly from the physical trauma but there were still some problems in her arm which may require some physiotherapy;
(vi)on 24 February 2009, the plaintiff attended Ms Raymond with a history that she was doing well and was very happy with her hand. The plaintiff reported that she has started doing yoga again but complained of pain or difficulty with lumbar spine flexion, for which she was given advice by the physiotherapist. The further notation of Ms Raymond was that the plaintiff was to “come back if in any deterioration”;
(vii)on 13 March 2009, the plaintiff attended Dr C Lampel, general practitioner, and gave him the impression that “Geraldine is coping very well 12 months after trauma”;
(viii)on 30 March 2009, the plaintiff attended Ms Perry, psychologist, and reported that she was back at yoga and gaining benefits from same;
(ix)by March 2009, Ms Perry, treating psychologist, was of the view that following her three-month trip to Europe, the plaintiff had made excellent progress in therapy. When last seen, she was feeling emotionally well, her sleep patterns had improved and she was able to drive independently. It was further reported there were no significant remaining symptoms or impacts on her social, personal or daily life. There were no psychological barriers to her engaging in suitable employment if she so wished. Although not strictly relevant to the physical back impairment, it is significant, in my view, there was no complaint of significant ongoing back pain;
(x)the plaintiff returned to yoga, doing hourly sessions on at least eight occasions in the same period;
(xi)the plaintiff attended Dr Rajeswaran, general practitioner, on 24 April 2009 with a history of cough or cold over three days and a complaint of aches and pains intermittently, which Dr Rajeswaran related back to the cold;
(xii)on 27 April 2009, the plaintiff attended Ms Perry, psychologist, and reported that she was much improved and now feeling well. She did not require further psychological appointments and could be seen again if necessary;
(xiii)in or about April 2009, the plaintiff consulted her present solicitors concerning the present action;
(xiv)there is no further attendance at the general practitioner until 2 June 2009 when Dr Rajeswaran has a history of “worsening low back pain”. No analgesia is ordered but the plaintiff was sent for an x‑ray of the lumbar vertebrae;
(xv)on 10 June 2009, Dr Rajeswaran has recorded:
“Geraldine’s low back pain is persisting. No radiation of pain. X-ray minor spondylosis of the disc between L4 and L5.”
the diagnosis was one of chronic low-back pain – disc spondylosis L4-5. The treatment recorded was that the plaintiff would benefit from physiotherapy and muscle strengthening exercise.
(xvi)on 11 June 2009, the plaintiff reported to Dr Rajeswaran that her low-back pain was persisting, there was no radiation of pain and the former diagnosis was confirmed. On this occasion, Panadol Osteo tablets were prescribed. The plaintiff was also referred back to the Gippsland Physiotherapy Group;
(xvii)on 30 July 2009, the plaintiff reported to Ms Raymond that she had had low-back pain on and off for several months since the transport accident. She further recorded that x‑rays had been taken showing lower lumbar degeneration. The plaintiff, herself, gave evidence, which was confirmed by the notes, that she had had a number of physiotherapy sessions with another unnamed physiotherapist in the meantime. Ms Raymond has recorded that those sessions led to an improvement but since then, deterioration. Aggravating factors were said to be gardening, consisting of shovelling and raking and prolonged sitting. There was a query whether yoga was an aggravating incident. The pain was eased by stretching. Query whether there was any analgesia. The physiotherapist recorded the pain was worse in the morning but better later in the day;
(xviii)on 5 August 2009, the plaintiff re-attended Dr Rajeswaran and gave a history that she had been experiencing low-back pain over one year. The plaintiff further gave a history that her physiotherapist had told her that the transport accident would have had an impact on her degenerative spine and the plaintiff, herself, felt that is what had happened. The physiotherapist’s opinion is confirmed in her report dated 19 October 2009.[28] The plaintiff further felt that prior to the accident, she had been doing more activities like gardening;
[28]PCB 49
(xix)Dr Rajeswaran gave evidence that nonetheless, she could not support a causal connection between the back complaints then existing and the transport accident;
(xx)the plaintiff then re-attended Dr Rajeswaran on 17 August 2009 and reported that she felt her back problems were deteriorating because of the accident. She further reported that she gets back spasm while gardening and she felt that the accident had made her conditions worse;
(xxi)on 2 September 2009, Ms Raymond recorded that the plaintiff had “improved quite a lot, 50 per cent?”;
(xxii)on 9 September 2009, Ms Raymond recorded the plaintiff was going well but had had one bad night of pain then “much, much better, one episode of grabbing pain”;
(xxiii)on 16 September 2009, Ms Raymond recorded the plaintiff was good until five days ago when she fell onto her bottom, which aggravated her pain. She was still managing exercises without pain. She was also complaining of coccyx pain;
(xxiv)on 28 September 2009, the plaintiff reported that the pain was worse in the cold and morning and she was getting grabbing pain with bending and reaching activities. She had had pain for three periods at rest. The coccyx pain was settling and she was sleeping well;
(xxv)on 30 July 2009, Ms Raymond recorded that her impression was one of lumbar spine hypo mobility on a background of degenerative change. The physiotherapist noted that the plaintiff was to continue with the current exercises but there was to be no yoga but with some walking. There was review in six days’ time;
(xxvi)on 5 August 2009, the plaintiff reported the back was a little better and she was walking easier;
(xxvii)on 12 August 2009, the plaintiff reported that her symptoms had been up and down over the week, better in the last two to three days, but aggravated by a three-hour car trip today;
(xxviii)on 18 August 2009, the plaintiff reported that she was a lot better this week and felt more mobile;
(xxix)on 12 October 2009, the plaintiff reported she had been very busy caring for her husband and she was not able to do her exercises as regularly;
(xxx)on 14 October 2009, the plaintiff was feeling unwell generally. She was not walking but remained very busy;
(xxxi)on 26 October 2009, the plaintiff reported she was a bit better than last week and has had a few walks and was exercising;
(xxxii)on 17 February 2010, the plaintiff reported a very painful low back for the past two weeks and had spent two days in bed. The pain was aggravated by stress and prolonged sitting on hard chairs. There was pain reported in left and right buttocks;
(xxxiii)on 22 February 2010, the plaintiff reported significant improvement. She had had severe lumbar pain two nights ago but had been on a few walks;
(xxxiv)on 1 March 2010, she reported that she was gradually improving with no further episodes of severe pain;
(xxxv)the history thereafter is one of fluctuating pain, but on 9 April 2010, there was a history that she was improving overall, that she had done some vacuuming that had caused some increasing pain;
(xxxvi)on 17 May 2010, she reported some aggravation after picking up her grandson three days ago;
(xxxvii)on 24 May 2010, she reported that she was getting back on track and she was to continue with her pool program at Morwell;
(xxxviii)on 21 June 2010, there was increased pain which had developed post housework activities;
(xxxix)on 15 September 2010, aggravating factors included attempting to move larger furniture and “lifting light items and things in low position”;
(xl)there appears to be no further attendance upon the physiotherapist for nearly two years;
(xli)from 21 July 2010 until 13 September 2011, the plaintiff attended her general practitioner on some thirty occasions. The consultations were for a variety of conditions but none to do with her lumbar spine;
(xlii)the plaintiff travelled to Europe in the southern winter of 2011;
(xliii)there was no evidence of any further consultations with her general practitioner after July 2011.
54 At the hearing, the plaintiff gave relevant evidence as follows:
(1)“On a given day, if I was right I could probably walk 2 kilometres on even ground.”[29]
[29]Transcript (“T”) 51, L9
(2)The plaintiff has never taken sleeping tablets since the transport accident.[30]
[30]T 51, L19
(3)On 15 September 2010, in answering a questionnaire, she stated that the pain does not prevent her walking any distance.[31] (This was subsequently qualified by “If my back’s not hurting and I'm feeling okay”.[32])
[31]T 49, L30
[32]T 50, L26
(4)As at September 2010, she told Ms Perry that the pain had no significant effect on her social life because:
“I force myself to go and do things, so I still participate, I might go and come a little bit early but I try and go and try not to miss things.”[33]
[33]T 60, L12
(5)She stated that she can travel anywhere but it gives her extra pain.[34]
(6)The plaintiff did not like driving to Melbourne but she did so because she had relatives and people to see in Melbourne.[35]
(7)Although not practising yoga at the time of the transport accident, the plaintiff did get back to that exercise in or about February 2009, about eight months after the transport accident.[36]
(8)The yoga would last for about one hour and start out just moving joints and then she would get into some of the more difficult postures and then at the end of that time there would be relaxation, probably taking a quarter of an hour to 30 minutes.[37]
(9)The yoga sessions went for about two months at the most.[38]
(10)Before the transport accident, the plaintiff was a keen gardener and now the garden is a mess.[39]
(11)The physiotherapist had told her to stop the yoga.[40]
(12)The plaintiff said she takes Panadol probably four days out of seven.[41]
(13)Although the plaintiff had undertaken two European holidays of some months’ duration each, since the transport accident, she was not as active as she would like to have been, such that she would retire for the day at three or four o’clock compared to say nine or ten o’clock in the evening if her back had been in the state it was pre-accident.[42]
[34]T 60, L14
[35]T 64, L9
[36]T 80, L27
[37]T 81, L8
[38]T 81, L10
[39]T 82, L4
[40]T 83, L23
[41]T 84, L26
[42]T 11, L5-27
Legal Principles
55 The principles to be applied in deciding whether the consequences amount to “serious injury” are set out in the seminal decision of Humphries & Anor v Poljak,[43] wherein a majority of the then Full Court stated:
“[The trial Judge] is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[44]
[43]Supra
[44]See Humphries & Anor v Poljak (supra) at page 140; see also Mobilio v Balliotis [1998] 3 VR 833
Conclusions: Causation
56 The treatment regime referred to above would, in my view, gravitate against the consequences as being “very considerable” and certainly more than “significant’ or “marked”.
57 On the other hand, the plaintiff was formerly a keen bushwalker and would walk either 5 or 10 kilometres to visit her daughter on a regular basis. Now, she can only walk up to 2 kilometres at a time. The plaintiff was also a keen gardener and performed all the manual tasks normally associated with that pastime. She is now restricted by pain in being able to carry out such activities, such that her garden is now described as a “mess”. The plaintiff, although prevented by her mother’s illness from participating in same, was intending to return to yoga after her mother’s death and in fact did so in or about February 2009. I am prepared to accept that her ability to perform and enjoyment of yoga is much restricted on account of the transport accident.
58 Further, the plaintiff has relied on affidavits from her husband, son, daughter and friend, Lovett Brown, in support of the consequences flowing from the transport accident. None of the witnesses were required for cross-examination.
59 The plaintiff’s son, Stuart Brosnan, in his affidavit, swears that at the time of the transport accident in April 2008, he was living with his parents. As at December 2011, he had recently returned to residing with his parents. He attests that prior to the transport accident, his mother was a very “hands on” grandmother and thoroughly enjoyed going bushwalking, particularly with her grandchildren. Since the back injury, he says that she has been unable to attend to her garden and was constantly worried about it becoming overgrown and unkempt. He had witnessed attempts to do some light gardening; however, if she bends down she is unable to pick herself back up and will require assistance in this respect. She will also pay for this activity with a number of days with back pain thereafter. He helps his mother lift pot plants and any other potting mixture or fertiliser, and she has had to pay a gardener on occasions to tidy up the garden, but has been restricted by the costs involved. He has also witnessed his father taking over most of the household work and chores that his mother had previously performed. Further, he has attested that sometimes his mother has days where she will be confined to bed or the couch, particularly following any sort of activity, and that physiotherapy treatment often requires recuperative naps in the afternoon. He has also noticed that the younger grandchildren are no longer able to be involved with her in an active “involved way”.
60 The plaintiff’s daughter, Anne Stevens, has sworn that prior to the transport accident, her mother was an avid bushwalker, often walking the return distance of 5 kilometres to her house on foot. She enjoyed such walks with her grandchildren as well. Ms Stevens attests that prior to the transport accident, her mother was an active gardener and loved to do all aspects of gardening, including mowing lawns, laying mulch, pruning, weeding, raking and digging. Following the back injury in the transport accident, she notices her mother is no longer able to fully engage in bushwalking or playing with the grandchildren, yoga sessions and gardening. Her mother complains to her of back pain on regular occasions. She also complains of pain after a small amount of gardening or lifting her grandson and she has noticed it has taken some weeks to overcome any aggravation caused by such activities.
61 The plaintiff’s husband, Raymond Brosnan, has sworn that his wife has changed from an independent and active person to someone who is now very much reliant on him for help with many basic day-to-day chores or tasks. An example he gives is that he will often find his wife reduced to being on “all fours” if she has tried to pick something up or perhaps tried to do some light gardening. He says he has had to help her up and take her to bed so that she may rest. He said such an example is typical of how limited his wife has now become in what she can and cannot do. He states that this is in stark contrast to someone who enjoyed yoga and was very physically fit. He also notices that she no longer has the strength to physically interact with the grandchildren, and he is well aware that she is greatly upset by this. He also notices that she becomes very tired, even after quite light or limited activity, and simply goes to bed when she is like this. He further states there are periods when his wife is confined to bed or at least the couch for hours or even days. With respect to gardening, she was once a keen and proud gardener and it seems to him that now this is largely lost to the plaintiff. With respect to their second European trip in 2011, he states that the holiday was very much compromised by his wife’s pain and restrictions and she frequently needed to rest her back.
Conclusions
62 Having accepted the plaintiff as a witness of truth and finding that she has established a causal connection between the transport accident and her back impairment, I have to consider whether she has discharged the onus of proof with respect to the Humphries v Poljak[45]dictum referred to earlier.
[45]Supra
63 The case for the defendant was very persuasively argued by counsel, but on balance, I consider that the plaintiff has just tipped the balance in her favour in discharging the onus of proof with respect to consequences, when judged by a comparison with other cases in the range of possible impairments or losses, can fairly be described at least as “very considerable” and certainly “more than “significant” or “marked”.
64 Leave will be granted to the plaintiff pursuant to s93(4)(d) of the Act to bring common law proceedings to recover damages for the back injury she suffered arising out of the transport accident on 12 April 2008.
65 I will hear counsel as to consequential orders.
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