Brown v Transport Accident Commission
[2011] VCC 386
•18 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-06029
| Dorothy Brown | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 & 23 March 2011 |
| DATE OF JUDGMENT: | 18 April 2011 |
| CASE MAY BE CITED AS: | Brown v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 386 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – Transport Accident Act 1986 – s93(17)(a) – serious long-term impairment or loss of a body function – cervical and thoracic spine – aggravation of pre-existing degenerative changes – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Middleton SC | Slater & Gordon |
| with Mr S. Martin | ||
| For the Defendant | Mr C. Blanden SC | Solicitor for the Transport |
| with Dr R. McNeil | Accident Commission | |
| HER HONOUR: |
1 The plaintiff applies under s. 93 (17) of the Transport Accident Act 1986 (“The Act”) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the thoracic and cervical spine suffered in a transport accident on 21 January 2006. The injury relied upon is the aggravation of pre-existing symptomatic degenerative changes in the cervical spine as well as aggravation of pre-existing but asymptomatic degenerative changes in the thoracic spine. The impairment relied upon is a serious long- term impairment of the body function of the cervical and thoracic spine.
2 The plaintiff acknowledges that prior to the transport accident she had a history of neck pain and lower back pain which required treatment with prescription analgesics and some physiotherapy. However, she says that prior to the transport accident she had no thoracic pain, and intermittent episodes of neck and low back pain which did not substantially impact on her domestic and recreational activities or on her enjoyment of life. She says that since the transport accident she has suffered more pain in the cervical spine, and persistent thoracic pain which has required daily ingestion of prescription medication and which has significantly restricted her activities and her enjoyment of life.
3 The defendant says that there was no radiologically confirmed compression fracture at T6-7. The defendant concedes that as a result of the transport accident the plaintiff suffered the aggravation of pre-existing degenerative changes at the relevant levels of the spine, but says that for a number of reasons the pain and suffering consequences of the impairment are not serious, regardless of whether they are treated together (as an impairment of the body function of the spine) or separately (cervical spine and thoracic spine). First, the plaintiff’s affidavit is inconsistent with the medical history (disclosed in the clinical notes of her longstanding treating general practitioner and in the medical report of Dr Barraclough). Second, there is no report from her treating doctor, Dr Buckley, who has treated her since 1994 and is uniquely placed to report on the plaintiff’s pre-accident and post-accident symptomatology, treatment and restrictions. It was submitted that the court should draw the inference that his evidence would not have assisted the plaintiff. Third, another doctor (Dr Thys) who also treated the plaintiff in the months after the transport accident made no mention of any complaint of pain in the thoracic spine following the transport accident. Fourth, the evidence in relation to medical treatment after the transport accident reveals only nine visits to Dr Buckley from 2008 to 2011 which suggests no great worsening of her condition after the accident. This is consistent with the absence of any specialist assessment or treatment, and the absence of physiotherapy or hydrotherapy. The plaintiff was getting scripts for painkillers from her doctor both before and after the transport accident and before the transport accident the plaintiff was suffering chronic low back pain and neck pain which was being treated with physiotherapy and prescription medication. On the evidence, the court cannot be satisfied that the picture painted in the affidavits of the plaintiff and her husband fully articulates the real state of her pre- accident lifestyle. In this regard, it was submitted that the plaintiff was an unimpressive witness, who was evasive and selective in her memory of pre- accident symptomatology.
4 The plaintiff gave evidence and was cross-examined. Dr Serry, psychiatrist, who provided three medico-legal reports to the plaintiff’s solicitors, gave evidence and was cross-examined. There were no other witnesses. The plaintiff relied on the following documents: her affidavit and that of her husband; the medico-legal reports of Dr Serry, Mr Peter Wilde, Dr Claire Thye, Dr David Barraclough, Mr David Brownbill and Mr Michael Fogarty; a referral to the spinal clinic;[1] an x-ray of the thoraco-lumbar spine taken in December 2009; a letter of instruction from the defendant’s solicitors to Dr Dinesh Varma dated 28 January 2011; extracts of radiological reports; extracts of the clinical notes of Dr Thy and Dr Shetty; and a claim for compensation form dated 24 March 2006.
[1] Joint Court Book (JCB) pp 308-311.
5 The defendant relied on the following documents: the medico-legal report of Dr Dinesh Darma; the TAC Printout of Payments dated 28 March 2010; extracts from the Mildura Base Hospital Records; extracts from the subpoenaed records of Sundraysia Medical Imaging, Dr Parakesh Shetty, Dr Claire Thys, Dr John Buckley.
6 I have read and considered all the material tendered by the parties.
Plaintiff’s evidence
7 In her affidavit sworn on 17 December 2008, the plaintiff said that prior to the transport accident she was physically active, and walked twice a day up to 12 kms at a time. She did all the housework as well as the gardening. She said at paragraph 3 of her affidavit:
Prior to the transport accident I was in good general health, able to undertake an unrestricted range of social, domestic and recreational activities.
8 Of her prior medical conditions and restrictions, she said at paragraphs 4 and 5 of her affidavit:
As an 18 year old I had been involved in a transport accident when I suffered amongst other things whiplash injury to the neck. I effected a complete recovery.
I have suffered from a number of conditions warranting one form of treatment or another including hysterectomy, ovarian cysts and hypertension.
I had also experienced symptoms in the neck and back which commenced when aged about 40. Such conditions largely settled. I had occasional intermittent flares of low back and neck pain. The same did not give rise to any persisting disability or restriction of my activities. At the time of the transport accident I was grieving following the death of my only child in October 2005.
9 As a result of the transport accident, she said she experienced symptoms in her spine together with pain into the shoulders and headaches. Her treatment has been conservative, with medication, hydrotherapy, stretching exercises and some walking. She has low grade intermittent low grade back pain and “ongoing persistent upper back and neck pain” which is referred into her left shoulder and elbow. Her symptoms affect her ability to walk, bend or sit for long periods, or to lift and reach, and this in turn affects her usual domestic and personal care activities, including doing driving, doing the dishes or washing her hair. Her sleep is disturbed by spinal pain, and prolonged walking exacerbates the pain. She socialises less than before the transport accident.
10 At the hearing, the plaintiff said that she takes six Panadol Osteo per day and uses Norspan patches. She also uses a TENS machine at night. She said that her thoracic pain is worse since the transport accident, and is there all the time and is quite severe when she does not take a lot of painkillers.
11 In cross-examination, the plaintiff agreed that she had lower back pain for many years prior to the transport accident, but said that the symptoms did not stop her doing what she needed to do. She was careful to avoid digging in the garden, but otherwise only had intermittent symptoms which came and went depending on her activities. She insisted that she did not suffer from thoracic pain prior to the transport accident, in spite of the history recorded by Dr Barraclough in his report of 1 July 2010. She did not recall taking Naprosyn in 2005 even though Dr Buckley’s notes indicated that it had been prescribed. She agreed that she had been prescribed Mobic and other medications prior to the transport accident but said that she did not take medication regularly then and she never needed to use Norspan patches before the transport accident. In re-examination she said that although Panadeine Forte had been prescribed for her before the transport accident she told her doctor she did not like it because of the side-effects and rarely took it. She said that she does a lot less now than she did before the transport accident. She walked up to 6 kms per day when her son was sick[2] but can no longer walk long distances due to her back pain. She sleeps poorly. She cannot drive as much as she used to, and it causes her more pain to look after herself than it did before the transport accident. She agreed that she had been treated for anxiety for some time from 2002.
Medical Evidence
[2] He died in October 2005.
12 Mr Peter Wilde, orthopaedic surgeon, reported in late 2008 that the plaintiff complained of upper thoracic/neck pain and low grade lumbar pain. She reported a severe intensity of pain but some moderate relief from painkillers. She reported that doing washing and dressing caused extra pain and her sleep was disturbed. She did not go out often and could not manage long drives. He noted that the x-ray report of the thoracic spine of 8 February 2006 found a “20% anterior wedging mid-thoracic vertebral body thought consistent with a crush fracture”.[3] He noted the x-ray findings of degenerative changes in the cervical and lumbar spine. He concluded that in the transport accident the plaintiff aggravated pre-existing degenerative lumbar spondylosis, aggravated pre-existing cervicothoracic spondylosis and possibly sustained a compression fracture of T6 or T7 vertebrae. He noted that the x-ray of the thoracic spine was of poor quality and that it was difficult to be certain whether changed represented “an old fracture or degenerative wedging”.[4] He felt that she was likely to suffer thoracic and lumbar pain and stiffness permanently and would need to modify and restrict her personal activities to accommodate her symptoms. He found a 5% whole person impairment in each of the lumbar spine and the thoracolumbar spine.
[3] Joint Court Book (JCB) p 36.
[4] Ibid.
13 In late November 2010, Mr Wilde noted complaints of significant upper thoracic pain and persisting low back pain, with pain levels of 8 out of 10 on the visual analogue scale. There was interference with sleep, and exacerbation of pain with prolonged sitting, lifting, walking or bending. She was using Norspan patches and taking 6 Panadol Osteo per day, as well as other medication occasionally. He reached the same conclusions as in his earlier report, although he noted that there was no thoracic or lumbar radiculopathy.
14 In July 2010, Dr David Barraclough, rheumatologist, reported that he initially saw the plaintiff in late 2004 and mid-2005 in relation to problems of osteoarthritis and fibromyalgia. In May 2006 she mentioned longstanding spinal soreness, and told him of the transport accident, “and said that her thoracic back pain had been worse after this”.[5] He concluded that it was difficult to say when the wedging noticed on the x-ray of the thoracic spine occurred.
[5] JCB p 46.
15 In late November 2010, Mr David Brownbill, neurosurgeon, took a history of intermittent low back pain for many years for which she took analgesics intermittently. He also took a history of longstanding neck pain after a previous transport accident. After the 2006 transport accident she was put in a neck brace and then experienced severe thoracic pain. She gave a history that her low back pain did not change after the transport accident but gradually increased over the next few years if she did too much. She told him that her thoracic pain remained increased compared with the level before the transport accident. She told him that whereas prior to the transport accident she could control her neck and upper back pain with occasional pain killers, after the transport accident she has to take much more analgesia and even that does not completely remove the pain. He felt that any aggravation of the demonstrated lumbar spine degenerative change was mild only. He felt that there was a severe increased mid thoracic pain after the transport accident which was consistent with a mid thoracic vertebral crush fracture having occurred in the transport accident. He said that there was a 10% whole person impairment of the neck, mid thoracic spine and thoraco lumbar spine.
16 Mr Michael Fogarty, orthopaedic surgeon, reported in May 2009 that the injuries resulting from the transport accident were a soft tissue injury to the neck (which aggravated pre-existing degenerative disc disease in the neck) for which he assessed a 5% whole person impairment and a compression fracture in the mid-thoracic spine for which he assessed a 5% whole person impairment. He felt that the transport accident caused a wedge compression fracture of one of the vertebrae in the mid-thoracic spine. In March 2011, Mr Fogarty noted a history from the plaintiff that she was taking more painkillers than before for her neck and mid-back. Her walking limit was about 500 metres to 1 kilometre. She could do some housework slowly but found vacuuming, floor washing, and hanging out the washing difficult. Stooping aggravated her neck and thoracic back pain. He agreed with the opinion of Dr Varma that the x-ray of 8 February 2006 probably showed no recent wedge compression fracture, and that the shape of the vertebrae related to pre- existing degenerative change in the mid-thoracic spine. He adopted his earlier conclusion in relation to the neck but felt that there had also been an aggravation of the pre-existing degenerative changes in the thoracic spine. He felt that the aggravation of degenerative changes in these parts of the spine led to the persistence and likely permanence of the symptoms reported in the thoracic and cervical spine as well as to the interference in her domestic, leisure and personal activities.
17 Associate Professor Varma reviewed all the radiological material and reported in February 2011 that the plain x-ray of the thoracic spine dated 8 February 2006 showed generalized mild degenerative changes with multilevel anterior osteophytes but no fracture.
18 Dr Nathan Serry, psychiatrist, reported in September 2008 that the plaintiff suffered mid-back and neck pain since the transport accident. He noted that the plaintiff had been grieving the loss of her son some four months prior to the transport accident but felt that she was getting on with her life. After the transport accident she was also depressed because of her ongoing pain and restriction. She suffered anxiety in relation to driving and being a passenger. He diagnosed an entrenched pain syndrome with prolonged physical symptoms “and a nexus between the physical and psychological aspects of her presentation along with premorbid vulnerability given grief regarding her son’s death”.[6] He assessed a whole person psychiatric impairment of 15%, of which 5% “would be secondary and reactive to the physical injuries sustained in the accident”.[7] He concluded that her lifestyle had clearly been altered by the transport accident in that she was much less mobile given physical restrictions and socialised less due to a combination of factors. He felt that she needed anti-depressant medication and should attend a pain management program.
[6] JCB p 23.
[7] JCB p 22.
19 In late November 2010, Dr Serry provided a further report in which he adopted the conclusions reached in his first report namely, that the plaintiff continued to suffer from a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation as well as a pain disorder associated with psychological factors and a general medical condition.
Legal principles
20 In determining a pain and suffering application under s.93(17)(a) of the Act, the court must be satisfied that the pain and suffering consequences of the physical injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[8]
[8] Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833.
21 In cases involving aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[9] In an aggravation case, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.
[9] Petkovski v Galletti [1994] 1 VR 436 at 444.
22 In an application under s.93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, it is permissible and appropriate for the court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[10]
Findings and reasons
[10] Richards v Wylie (2000) 1 VR 79 at 87; Rodda v TAC [2008] VSCA 276.
23 Much of the medical evidence outlined above conflates assessment of the impact of the transport accident on the cervical spine (which is not the subject of the application before me) and the thoracic spine (which is the subject of the application before me) and not all of the material addresses the impact of the transport accident on the lumbar spine. In the circumstances, I consider it appropriate, as counsel suggested,[11] to treat the injury the subject of the application as an injury to the spine (thoracic and lumbar, but not cervical).
[11] Counsel for the defendant suggested at the outset that the proper approach was to consider the application as one relating to injury to the thoracic and lumbar spine taken together. Counsel for the plaintiff initially suggested otherwise but, when making final submissions, agreed that this was the proper approach given the state of the evidence in this case.
24 I note that in late 2009 the plaintiff received a lump sum payment in respect of the cervical and thoracic spine.[12] I also note that in the clinical records tendered there is no serious complaint of thoracic pain or of treatment for such pain prior to 2009, and that Dr Thys appears to have ordered an x-ray of the thoracic spine in 2006 after the transport accident.
[12] JCB p 193.
25 I prefer the opinion of Dr Varma, an expert radiologist, with whom Mr Fogarty agreed, that the thoracic spine x-ray of 8 February 2006 does not show a crush fracture of the thoracic vertebrae. Leaving this aside, however, the weight of the medical evidence was to the effect that the transport accident caused an aggravation of the plaintiff’s pre-existing degenerative changes in the thoracic and lumbar spine. None of the examining doctors questioned the reported limitations flowing from the thoracic and lumbar spine pain, and each confirmed that the injuries have interfered with her domestic and leisure activities. Mr Fogarty, Mr Wilde and Mr Brownbill each assessed a permanent impairment of function in the thoracic and/or lumbar spine.
26 I found the plaintiff to be a straightforward witness. Whilst it is regrettable that there was no updated affidavit concerning the impact of the transport accident, nor any report from the treating general practitioner, Dr Buckley, I accept her evidence as to the impact of the transport accident on her pre- existing low back pain, and I accept her evidence (in spite of the material recorded in the history noted by Dr Barraclough and Mr Brownbill, which the plaintiff insisted was incorrect) that she has suffered thoracic pain since the transport accident. I accept her evidence that whereas she only took analgesics intermittently prior to the transport accident for her neck and low back pain, since the transport accident, she has been consistently taking substantial medication (Norspan patches which last a week and six Panadol Osteo per day) for the thoracic and low back pain. I accept her evidence that prior to the transport accident she was able to manage her domestic and leisure activities quite well, but that since the transport accident there has been a substantial reduction in the range of domestic activities she can undertake. In addition, she is very limited in the distance she can walk, and the time she can sit or drive. Her sleep is interrupted by pain. Her enjoyment of life has been affected. I accept Dr Serry’s evidence that the chronic pain suffered as a result of the transport accident is a cause of her adjustment disorder, and that she requires anti-depressant medication as well as pain management for her psychiatric condition.
27 In all the circumstances, I consider that the persistent pain requiring substantial medication, the restrictions on daily activities, together with the psychological sequelae secondary to the chronic pain flowing from the aggravation of the pre-existing degenerative changes to the thoracic and lumbar spine caused by the transport accident are sequelae which in terms of pain and suffering are more than considerable when compared with other cases in the range of long-term impairment of a body function.
Conclusion
28 It follows that leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the thoracic and lumbar spine sustained in the transport accident on 21 January 2006. I reserve the question of costs.
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