Brown v TAC
[2010] VCC 1639
•17 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04057
| ANDREW BROWN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O’NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27, 28, 29 October 2010 |
| DATE OF JUDGMENT: | 17 November 2010 |
| CASE MAY BE CITED AS: | Brown v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1639 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Section 93 Transport Accident Act 1986 – Nature and extent of pre-existing degenerative condition – causative relationship between injury to cervical spine and transport accident – where the consequences of injury “very considerable”.
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| APPEARANCES: | Counsel | Solicitors |
| For Plaintiff | Mr J H Mighell SC with | Slater & Gordon |
| Mr M J Garnham | ||
| For the Defendant | Ms M A Hartley SC with | Solicitor to the Transport |
| Ms R J Boyce | Accident Commission |
Preliminary
1 On 18 May 2005, the plaintiff was walking along a road in Dandenong, when the side of a tray truck swung off the truck and struck him in the abdominal area. As a result, he claims to have suffered an injury to his neck which has led to chronic pain, restriction in movement and the need for medical treatment and pain relieving medication. He claims as a result that, while maintaining full-time employment, he is working in a supervisory capacity, and earning less money than at the time of the accident. He further claims restriction in a range of recreational, social and domestic activities.
2 This is an application for leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in a transport accident which occurred on 18 May 2005.
3 Mr Mighell, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.93(17) of the Act.
4 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
5 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, affidavits of the plaintiff, medical and radiological reports, affidavits of the plaintiff’s wife and brother-in-law and extracts from various clinical records were tendered into evidence.
Relevant Background
6 The plaintiff is forty-four years of age, and was thirty-eight at the time of the accident. He attended school up to Year 10 and worked for several years in a welding apprenticeship. He worked then in a range of labouring and factory jobs. Eventually he found work as a foundry labourer. The work was physically demanding and required him to regularly lift substantial weights.
7 On a number of occasions, the plaintiff had incidents of low-back pain, requiring some time away from work, and occasional treatment. These were relatively transitory.
8 In 2003 and 2004, the plaintiff also had episodes of neck pain and pain into the left shoulder.[1] In September 2002, he complained to his general practitioner of a sore left shoulder. In April 2004, he complained of pain in the trapezium region. On examination on that occasion, his range of neck movement was full. An injection was administered to the trapezium region. A complaint of pain in the neck region was also recorded in September 2004. Some medication was prescribed. Again, these complaints of pain and restriction were modest and transitory.
[1] Report of Dr Rudiger, Plaintiff’s Court Book (“PCB”) 55; report of Mr Brownbill – PCB 132-133; clinical notes – DCB 126-127
9 Prior to 18 May 2005 the plaintiff was otherwise well. He worked in an occupation which required significant physical strength. According to the affidavits of his wife and brother-in-law,[2] the plaintiff enjoyed a range of activities including ten-pin bowling, billiards, golf, roller skating and bike riding. He did not hold a motor vehicle licence and regularly rode a pushbike. His achievements in ten-pin bowling included awards for competition bowling and he played to a high standard. He also played competition pool/billiards in Dandenong. He and his wife did not have children, but he participated in a range of household chores, including vacuuming, mopping, kitchen and laundry activities. He was mainly responsible for the gardening including mowing the lawns, weeding and planting.
[2] PCB 154-163
10 Subsequent to the transport accident, and as part of investigations for ongoing abdominal and stomach pain, an abdominal CT scan of 18 November 2005 revealed the presence of a malignant tumour to the left kidney. The plaintiff was referred to Mr Alwin Tan, and in December 2005, Mr Tan performed a left nephrectomy. After a period of rehabilitation, the plaintiff recovered well from the surgery and is in remission. He was away from work in relation to the kidney cancer from December 2005 until May 2006.
The Transport Accident and its Consequences
11 On 18 May 2005, the plaintiff was walking along a track near Abbotts Road, Dandenong. The side tray of a truck being driven past the plaintiff swung out and struck him in the stomach area. In the histories provided to various of the medical practitioners, the plaintiff alleges the truck was travelling at 60 to 70 kilometres per hour.
12 There is an issue in the application as to whether the plaintiff fell to the ground and whether the incident was capable of causing injury to the plaintiff’s cervical spine. According to the history provided to the ambulance officers who attended the scene:[3]
“This thirty-eight year old male was walking beside [the] road when the metal rail of a passing vehicle came loose, flew off, striking him across the abdomen and pelvis. Patient doubled over but did not fall to the ground. No head strike nor LOC [loss of consciousness]. Patient then sat down on ground, driver came to his aid. MAS called.”
[3] PCB 43
13 According to the plaintiff’s affidavit, he claims that he was “thrown a large distance to the ground”.[4]
[4] PCB 22
14 According to the clinical notes of the Dandenong Hospital Emergency Department, the nursing assessment stated:[5]
“Walking along side of road metal tray off ute came off hit patient in pelvic and lower abdominal area, complains of a heavy feeling from chest area radiating down into pelvic area, GCS 15, nil LOC at time of incident, able to weightbear with no difficulties post incident.”
[sic]
[5] PCB 44
15 According to these records, there appears to have been no complaint to the ambulance officers, nor the Emergency Department of the Hospital of any neck or left shoulder pain.
16 The plaintiff was subsequently discharged from hospital after observation. He attended his general practitioner, Dr Peter Rudiger, on 24 May 2005, and in addition to complaints of pain and bruising to various areas of his body, complained of a tender stiff neck.[6] He was prescribed pain-relieving medication by Dr Rudiger and referred for physiotherapy. He attended Ms Erica Bluett, physiotherapist, on 8 June 2005,[7] and she received a history that the plaintiff’s “neck was whiplashed”. From that time until 2010, the plaintiff received physiotherapy treatment from Ms Bluett and complained of pain in the neck and left shoulder area with pins and needles into his left arm which reduced over time. He also complained of headaches several times per week and sensory impairment in the shoulder and left arm.
[6] Clinical notes – DCB 128
[7] PCB 65
17 In evidence, the plaintiff said he experienced neck pain from the time of the accident. According to the clinical notes of Dr Rudiger, the first recorded complaint of pins and needles or altered sensation in the left arm was on 30 September 2005.[8]
[8] DCB 130
18 The plaintiff was off work with his employer, A W Bell Pty Ltd, as a result of the accident for approximately six weeks. He returned to work in late June 2005 and subsequently had a further month away from work. In November 2005, as stated, he was diagnosed with cancer of the kidney and underwent surgery in December 2005. He was off work from that time until May 2006. In May 2006, he returned to employment with Bell, but found he was unable to continue with the heavy work activity as it placed a strain upon his neck. He required time off on occasions because of neck and arm pain and stated that he was struggling with many of the tasks.
19 In August 2007, through a former co-worker, he moved to another foundry, Alliance, and worked full-time in a supervisory capacity. The work did not require the same heavy lifting as before although it is clear from his wage records,[9] that he is now earning less than he was when working with Bell. To the year ended 30 June 2005, the plaintiff had gross earnings of $45,604. To the year ended 30 June 2010, he earned $38,416. He explained the difference in that because of his neck pain and restriction, he is unable to take the overtime work which is available, with the same regularity which he did for his former employer. He is thus suffering a loss of earnings of approximately $140 gross per week.
[9] PCB 153
20 According to the report of his general practitioner,[10] x-rays of the plaintiff’s cervical spine were ordered at the time of initial assessment. The plaintiff continued to complain to that doctor of pain and stiffness in the neck and left shoulder.
[10] PCB 50
21 On 8 August 2006, Dr Rudiger referred the plaintiff to Mr Xenos, neurosurgeon. A CT scan of the cervical spine of 3 February 2006[11] showed:
“… Annular bulge at the C6-7 level with slight narrowing of the left exit
foramen and at the left C5-6 exit foramen… .”
[11] PCB 33
22 In the history provided to Mr Xenos, the plaintiff complained of chronic problems with pain in his neck and left shoulder with intermittent radiation into the back of the head causing headaches and constant progressive pain down the left arm into the hand associated with sensory disturbance to all fingers. On examination, there was restricted neck movement and left mild C7 weakness and reduced left triceps jerk (C7) and some mild distal left hand weakness.
23 Mr Xenos noted findings on an MRI scan of March 2006[12] as indicating mild degenerative changes in particular at C6-7 level with lateral disc bulging extending into the foramen and compressing the C7 nerve root. He suggested to the plaintiff a CT-guided nerve root sheath injection with the possibility of a subsequent C6-7 discectomy and fusion. Approval from the TAC was obtained for the injection, but the plaintiff decided not to proceed with it. He did not return to see Mr Xenos.
[12] PCB 34
24 The plaintiff was prescribed medication from time to time, including anti- inflammatory and pain-relieving medication. His intake of anti-inflammatory medication ceased after his kidney surgery.
25 In 2006, the plaintiff was also referred to Dr Russell Rollinson, neurologist, who observed the plaintiff’s neck movements were full, and diagnosed left C6 radiculopathy.
26 He has not sought nor been referred for any other specialist consultation. He remains under the care of Dr Rudiger, and Ms Bluett, the physiotherapist. He takes up to ten Panadol per day and Tramil once or twice per week.
27 He complains that his sleep has been affected and he often wakes with a stiff and painful neck. Because of his disturbed sleep, he and his wife now sleep in separate bedrooms.
28 Since the transport accident, he is unable to ride his bicycle as much as before as the movement aggravates his neck pain. This is a considerable restriction as he does not drive. For a period he was unable to play any tenpin bowling but in July 2010, attempted to return to the sport. He has played on occasions but with difficulty. He is now no longer the bowler that he used to be. He no longer plays netball, nor competition snooker. He has played occasional golf, but is restricted.
29 He does work around the house and mows the lawn and does some of the gardening, although suffers increased neck and left shoulder pain. His wife’s affidavit[13] refers to the significant restriction that his neck injury has placed upon his recreational, domestic and sporting activities.
[13] PCB 154-159
Medical Opinions
30 In 2008, Dr Rudiger referred the plaintiff for a further MRI scan[14] which confirmed bilateral foraminal narrowing at C6-7 said to be moderate to severe and due to lateral extension of posterior vertebral body disc/osteophyte formation. Dr Rudiger diagnosed cervical spondylosis, more prominent at C6-7. He also noted relative weakness of left arm grip but not sufficient to impair his function, particularly at work.
[14] PCB 102
31 The plaintiff was examined by Dr Nathan Serry, psychiatrist, in 2007 at the request of his solicitors[15]. Dr Serry detected significant initial stress and depression which had settled to some degree. He considered the plaintiff was suffering significant post-traumatic anxiety and phobic features, including flashbacks to the scene, frequent intrusive thoughts of the accident, anxiety as a pedestrian and passenger and sensitivity at the site.
[15] PCB 120-126
32 The plaintiff was examined by Mr Brownbill, neurosurgeon, in September 2009 and October 2010[16]. The plaintiff complained of neck pain present all the time and worse with holding his neck in any one position, or prolonged sitting. The pain extended into the left shoulder. He complained of headaches regularly present at the back of the head. There was intermittent tingling throughout the left hand with pain shooting down the left arm. Mr Brownbill diagnosed multi-level cervical disc degeneration, most prominent at C6-7 with posterior disc protrusion and osteophyte formation with foraminal narrowing and nerve compression on the left. He said that the May 2005 transport accident progressed the underlying degenerative change, particularly at C6-7, and led to neck pain and referred headaches. Mr Brownbill thought that the pain would continue in a fluctuating manner with the possibility of increase with the passage of time. He recommended the plaintiff avoid heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. He suggested the plaintiff avoid heavier work duties and heavier domestic, social and leisure activities.
[16] PCB 127-137
33 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in October 2007 and September 2010.[17]
[17] PCB 138-152
34 He complained on both occasions of persisting neck pain radiating into the upper thoracic region and to both shoulders. Mr King noted moderate limitation of neck movements, but no neurological symptoms. He observed the various CT and MRI scans and noted degenerative changes at C4-5, C5-6 and most particularly at C6-7. He considered the plaintiff had suffered damage to the cervical disc and associated ligamentous structures with mild intermittent nerve root irritation at C6-7. He considered the impairment of the plaintiff’s neck as mild to moderate in severity, severe enough to prevent the plaintiff undertaking his previous heavy work activities, but permitting him to continue in his light supervisory job at the foundry. He thought the plaintiff would be able to continue that work into the future.
35 On behalf of the defendant, the plaintiff was examined by Mr Stephen Doig, orthopaedic surgeon, in September 2006.[18] The plaintiff complained of neck pain radiating into the left shoulder which was severe. There was left arm weakness and paraesthesia which had come on after the accident. He said that the mechanism of the injury was consistent with the transport accident as had been described to him. He did not consider the plaintiff’s history of neck pain prior to the transport accident as being significant and thought that that accident had materially contributed to his current situation. He noted evidence of nerve root irritation although without any focal neurological signs. He considered the proposed nerve sheath injection as appropriate.
[18] DCB 42-43
36 The plaintiff was examined by Professor Stephen Davis, neurologist, in July 2010[19]. Professor Davis noted that the plaintiff was not keen for surgery to his neck as it may require him to give up his occupation. He considered the plaintiff had a “complex of pain” involving the neck and left shoulder, constantly present. Professor Davis said the plaintiff clearly had pre-existing problems in the neck and left shoulder and it was likely there had been an aggravation of the pre-existing cervical spondylosis in the transport accident. The symptoms in the left arm, he said, were consistent with mild non-verifiable cervical radiculopathy/brachial neuralgia. He thought treatment ought be conservative rather than surgical. He described the plaintiff as hardworking and conscientious.
[19] DCB 44-48
37 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, in April 2009 and August 2010[20]. He noted that on examination of the cervical spine there was limitation of movement. Mr Dooley considered the plaintiff had aggravated pre-existing disc degenerative changes in his neck in the transport accident, which had caused the onset of left brachial neuralgia but with no clear signs of radiculopathy affecting the left arm. He noted some weakness of flexion of the left hand which was not consistent with left C7 nerve root compression. He considered that the condition had a good chance of natural resolution. He saw no place for surgery given there were no definite neurological signs.
[20] DCB 49-62
Credibility of the Plaintiff
38 I found the plaintiff an honest, straightforward and credible witness. There were some inconsistencies with the answers provided in the defendant’s claim form,[21] but the failure to refer to previous problems reflected more the paucity of the symptoms suffered before the transport accident rather than any intention to mislead.
[21] DCB 105-106
39 In my view, the plaintiff is a stoical person, making little of the symptoms of his neck problems and, to his credit, has remained more or less in full-time employment, including through to the present time.
40 I have little difficulty accepting the history of the onset of symptoms, both to the neck and into the left arm, and their persistence through to the present time.
Causation
41 It is put by Ms Hartley I ought to have significant reservations about the causative relationship between the plaintiff’s neck and left arm symptoms, and the transport accident. She points out that in the ambulance report, there is no evidence of the plaintiff being thrown to the ground nor losing consciousness. This is similar to the history provided to the Emergency Department of the Dandenong Hospital. It is further put that the plaintiff’s left arm pain did not come on until after the kidney operation. Further, there was no complaint of neck pain to the ambulance officers, nor to the hospital. This is not completely accurate as the general practitioner’s clinical notes refer to pins and needles going into the left finger in September 2005.[22] Further, when the plaintiff first consulted Dr Rudiger, on 24 May 2005,[23] there is reference to the plaintiff complaining of a sore and stiff neck. A similar history was provided to the physiotherapist on 8 June 2005.[24] Shortly thereafter, the general practitioner arranged a cervical x-ray.
[22] DCB 130
[23] DCB 128
[24] PCB 65
42 As was stated by Mr King,[25] the impact of the blow to the plaintiff’s body with a vehicle travelling at 60 to 70 kilometres an hour is sufficient to explain the onset of neck pain. That was also the view of Mr Doig[26]. There is no medical practitioner who has raised any uncertainty about the causative relationship between the onset of symptoms, and the plaintiff’s neck condition. The defendant has not placed in evidence the opinion of any doctor suggesting the lack of such relationship.
[25] PCB 141
[26] DCB 43
43 In my view, a blow of the force described would be well capable of creating a whiplash effect to the plaintiff’s cervical spine. Such is the opinion of almost all of the doctors.
44 I am satisfied that there is a causative relationship between the transport accident and the plaintiff’s current symptoms.
Conclusions as to the Severity of the Injury and its Consequences
45 It is clear the plaintiff developed kidney cancer which required significant surgery in late 2005. He was away from his employment for a period of approximately seven months on that account. It appears, however, that he has made a reasonable recovery from that surgery. There is no evidence linking the transport accident and Mr Mighell did not allege loss or impairment of the body function of the kidney.
46 I am satisfied the plaintiff suffered an underlying degenerative condition in his cervical spine at several levels, including C4-5, C5-6 and C6-7. He did have intermittent pain to that area on a number of occasions before the transport accident which were sufficient to require him to see his general practitioner. However, I regard these incidents as relatively minor.
47 The bulk of the medical opinion is that the plaintiff suffered an aggravation of this underlying condition in the transport accident which caused the onset of significant constant pain in the neck and referred symptoms into his left shoulder, left arm and fingers. I accept the plaintiff’s evidence and that of his general practitioner and physiotherapist that the onset of neck pain was shortly after the transport accident. It would appear from the clinical notes that the onset of altered sensation into the left arm may have been somewhat delayed. Nonetheless, most doctors accept that the changed sensation in the left arm relates to foraminal stenosis at C6-7, consistent with the picture shown on CT and MRI scans.
48 The pain and limitation of movement in the plaintiff’s neck has required treatment by his general practitioner and referral to Mr Xenos and Dr Rollinson. At one time nerve sheath injections were suggested with the possibility of a discectomy. Given the plaintiff has been able to maintain full employment and with the risks of such surgery, that is now not being contemplated, and his treatment is conservative.
49 Nonetheless, I accept his complaints of ongoing pain and the effect of such pain upon a wide range of recreational and sporting pursuits. He was a skilled tenpin bowler, competed in team events and enjoyed his involvement in the sport. He was also a bicycle rider, snooker player, occasional golfer and netball player. All of these pursuits are either lost to him or significantly curtailed.
50 I accept his sleep has been affected and that has affected his relationship with his wife. The effect of his injury upon him is the more marked as I assess the plaintiff as a stoic type, not given to make the most of his injuries.
51 Of significance is that I accept his work capacity has been restricted. I accept he is no longer able to undertake his heavy physical work in the Bell foundry in which he was working at the time of the transport accident and that, despite attempts to remain in that employment, he was forced in 2007 to take up supervisory duties for another employer. That has led to a loss of overtime, and a consequential wage loss of approximately $140 gross per week.
52 It is true the plaintiff has modest treatment from his general practitioner and the bulk of his medication is “over-the-counter”. He is not currently seeing any specialists. However, I accept that the injury arising from the transport accident has had a very significant impact upon his life, both personal and employment-wise. In my view, the consequences to the plaintiff achieve the “very considerable” test as postulated by the authorities.
53 In these circumstances, I propose to grant leave to the plaintiff to issue proceedings at common law. I shall make consequent orders.
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