Buttigieg v TAC

[2024] VCC 1704

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-01898

HARRIETTA BUTTIGIEG	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2024
DATE OF JUDGMENT:	28 October 2024 (ex tempore)
CASE MAY BE CITED AS:	Buttigieg v TAC
MEDIUM NEUTRAL CITATION:	[2024] VCC 1704

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:          Serious injury – spinal injury – motor vehicle accident – impairment consequences

Legislation Cited:         Transport Accident Act 1986

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Humphries and Anor v Poljak [1992] 2 VR 129

Judgment:  Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Saunders	Slater and Gordon Lawyers
For the Defendant	Mr S Pinkstone	Hall & Willcox

HIS HONOUR:

1The plaintiff in this proceeding, Ms Harrietta Buttigieg, is now 54 years of age.  She is a separated lady and mother of a teenage daughter.

2There is no dispute that she was involved in a motor vehicle accident on 23 June 2021.  In fact, the description of it, as contained in the material is also not in dispute, that being a description of an accident of some significance and some force.  And perhaps on one view, the plaintiff may be fortunate not to have suffered more significant or serious injuries. 

3But, in any event, as I say, there is no dispute that it occurred.  Indeed, there's also no dispute that the plaintiff suffered injury in that accident, being the injury relied on by her as a serious injury, described in opening as injury to the spine, in particular the cervical and thoracic spine.

4Shortly after the accident, the plaintiff was taken to the Box Hill Hospital and then on to St Vincent's.  She underwent radiology.

5A radiology report described, "In conclusion, C7, T2 and T3, superior end plate microtrabecular compression fractures, minor interspinous ligamentous sprain from C4/5 to C6/7, no other ligamentous injury."[1]

[1] Plaintiff’s court book (“PCB”) 34.

6For the purposes of this proceeding, the defendant accepts that the microtrabecular fractures relate to the accident. 

7The plaintiff claims to have suffered a serious injury within the meaning of s93 of the Transport Accident Act 1986, namely a serious long-term impairment or loss of body function to the spine. She relied on pain and suffering consequences and some minor pecuniary loss consequences in the sense of some need to change her place of employment.

8Although appropriately, as opened by her counsel, she does not provide any evidence or point to any actual pecuniary loss.  Rather, the economic loss claim is more subtle, being an impact on her ability to undertake employment without suffering increased symptoms in her neck, requiring her to relocate her employment as an optometrist in a Specsavers' franchise to Doncaster, which is closer to her home.

9The application proceeded in the usual way.  The plaintiff tendered affidavits sworn by her, together with affidavits of her friends and colleagues, Sharon Campbell and Rowena Wells-Smith, together with medical reports and documents upon which she relied.

10In response, the defendant tendered medical reports from Mr Drnda, together with entries in clinical files from the Camberwell Junction Medical Clinic and the Complete Physio Clinic.

11The plaintiff was otherwise cross-examined and re-examined in respect to the contents of her affidavits and the other evidence. 

12I should record that the oral evidence in this case, in my view, was appropriately swift, efficient and confined to the issues in dispute, bearing in mind the relatively narrow issues. 

13As mentioned earlier, counsel for the defendant, Mr Pinkstone, appropriately conceded that the fact of the accident was not in dispute, nor was it in dispute that the plaintiff suffered some injury, at least to the cervical spine, and the fractures as I've referred to.

14The dispute in the proceeding was twofold.  First, whether I should prefer the opinion from Mr Drnda to that of Professor Richard Bittar, which broadly relates to causation in the sense that Mr Drnda, in his most recent report, opined that any ongoing symptoms "are no longer related to the transport accident.".[2]

[2] Defendant’s court book (“DCB”) 28.

15Next, and perhaps more critically, the defendant broadly challenged whether or not the plaintiff had sufficient consequences so as to meet the test of serious injury.

16Leaving to one side the dispute in the medical material between the doctors relied on by the plaintiff, principally Professor Bittar, and the most recent opinion from Mr Drnda, in my view, the dispute in this proceeding is really whether or not the plaintiff had suffered a serious injury.  In that regard, the legal principles are well-known and are not in dispute.  But for completeness, I quote the often cited paragraph in Humphries and Anor v Poljak, namely that, "the seriousness of an impairment or disfigurement is determined by whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequences, 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'".[3]

[3] [1992] 2 VR 129.

17Further, as has been said on several occasions in more recent times by the Court of Appeal, in considering the 'very considerable' test, the Court is required to consider the possible range of impairments and impairment consequences and not just those that come before the courts.

18Next, I should record for completeness that Mr Saunders appeared on behalf of the plaintiff and perhaps not surprisingly but appropriately submitted broadly that the plaintiff did have impairment and impairment consequences that met the 'very considerable' level. 

19Next, as counsel raised, this is not a case where the plaintiff's credit is directly challenged.  As has frequently been said in these types of applications, he credit of the plaintiff is a relevant factor, particularly when it comes to an assessment of the seriousness of the impairment consequences and whether or not a court accepts what the plaintiff has had to say about an accident, the impairment and the impairment consequences.  See as an example of that proposition the Court of Appeal decision in Johns v Oaktech Pty Ltd.[4]

[4] [2020] VSCA 10.

20While in this proceeding there is no direct challenge to the plaintiff's credit, there is a more subtle challenge and that is to her reliability.  Mr Pinkstone urged me to carefully consider the objective evidence in an assessment of serious injury.  There is some merit in that submission in my view. 

21Having seen the plaintiff in the witness box, she struck me as a pleasant, likable and mostly reliable lady.  Broadly I accept her affidavit and her oral evidence as to the injury and impairment consequences as she perceives them.  But having said that, and having seen her demeanour and presentation in the witness box and in a consideration of the whole of the evidence, I do have some difficulty accepting her description of pain, for example, to Professor Bittar as having neck pain that at times extended to 8 or 9 out of 10.  That is an extreme level of pain that in my view might be the plaintiff's genuine belief but is not supported by the objective evidence.

22Next by way of preliminary comments, as I have said previously, and at the risk of repetition in this proceeding, there are some injuries, impairments and impairment consequences that are clearly serious and some that are clearly not.   As mentioned, I must consider the broad range of impairments and impairment consequences and not just those that come before the courts and of course I must also consider the whole of the evidence.

23There are some impairments and impairment consequences that sit somewhere in the middle of what might broadly be called the range, that is, there are some injuries that cause pain and restriction but overall are more finely balanced as to whether they meet the test of 'very considerable.'  And in my view, leaving to one side Mr Drnda's opinion about causation comma the proceeding before the court is one such application.

24Turning briefly then to the medical evidence as set out in the plaintiff's court book, commencing with the evidence from her long-term general practitioner, Dr Rebecca Leong.  That is confined to a short report dated 18 June 2024.[5]  In that report, Dr Leong records something like five attendances on the plaintiff for the symptoms in her neck and upper back. 

[5] PCB 48.

25In summary, she said at her last consultation on 25 June, although there might be a doubt about whether there's a typographical error in the date of the report or the date of that consultation, Dr Leong recorded the plaintiff stating that she suffered from chronic neck pains, back pains and headaches occurring in the morning which partially improves by taking Panadol Osteo. 

26Dr Leong also recorded the plaintiff as experiencing sharp jolts of pains in her arms, back and legs. 

27Pausing there, it's difficult on the objective medical evidence to understand how sharp jolts of pain in the arms, back and legs would relate to the claimed transport-related spinal injury.  In any event, Dr Leong noted the current medication as duloxetine, also known as Cymbalta, 90 milligrams daily, and Panadol Osteo, in other words slow-release Panadol, two tablets taken once to twice a day. 

28Dr Leong's opinion is supportive of the plaintiff having some ongoing pain in the spine requiring prescription Panadol.  Equally, Dr Leong does not suggest anything particularly sinister or the need for any other treatment. 

29Next, the plaintiff has been provided with physiotherapy by David Thwaites, although that physiotherapy ceased in about August of 2022.  He provided a report date 7 June 2024,[6] which set out the plaintiff's progress over treatment.

[6] PCB 50.

30He noted the plaintiff's treatment and use of exercise classes at his clinic.[7]  He said the plaintiff's frequency at those classes was a little difficult given her work schedule.  She'd managed to attend 10 sessions up to 13 August 2022.  He described her as having a good attitude to her rehabilitation and accepting of exercise and rehabilitation as her main intervention.  He noted symptoms had improved, especially early on, but work stress on her return to work in October 2021 provided some real challenges.  He noted other difficult situations at work. 

[7] PCB 52.

31His opinion is supportive of the plaintiff having had an injury which required physiotherapy and exercise classes but his opinion is of little assistance in an assessment of impairment and impairment consequences as at today's date, but broadly the flavour of it is an improvement with his treatment and other stressors contributing to the challenges the plaintiff was experiencing.

32That is the extent of the treating medical evidence, save for material from the hospitals to which the plaintiff was referred after the accident, which doesn't add much to the discussion.

33Next are the opinions from Professor Richard Bittar, consultant neurosurgeon.  He first reported to the plaintiff's solicitors on 12 July 2022.[8]  I note that he took a history, including a history of symptoms, and conducted a physical examination which showed broadly, in my words, a pretty good range of movement in the neck and upper back, although some pain on extension of the thoracic spine, perhaps some mild restriction of rotation and mildly restricted cervical spine extension which was painful.  He said she presented with a C7 vertebral body fracture with ongoing neck pain and a cervicogenic headache and T2 and T3 vertebral body fractures with ongoing back pain. 

[8] PCB 55.

34In that report, he recommended that the plaintiff be restricted to working around 38 hours per week and to regularly change posture.  He said he thought there was unlikely to be any material change in her condition.

35Professor Bittar reported again to the plaintiff's solicitors on 7 August 2024.[9]  That report largely repeats his earlier examination finding and opinions, although he did note the plaintiff as having experienced persistent neck and back pain since the accident, which in his words had improved slightly but the improvement had plateaued.[10]  He noted ongoing conservative treatment which had included analgesic medications and physiotherapy, although I note that the physiotherapy had in fact ceased.

[9] PCB 71.

[10] PCB 73.

36Professor Bittar then said the plaintiff experienced widespread intermittent burning and pins and needles affecting her limbs but particularly her the left arm.  He noted there'd been an MRI scan of the left brachial plexus on 26 August 2021 and he reviewed the images and described them as demonstrating stable end plate fractures at C7, C2 and C3 with no evidence of brachial neuritis or other neurological abnormalities.

37Pausing here, Professor Bittar does not explicitly say so but as I understand his opinion, he doesn't seem to ascribe an organic cause or an accident-related cause for the described intermittent burning and pins and needles affecting the plaintiff's upper limbs.

38In any event, on examination he described a full range of thoracolumbar spine flexion, extension remained mildly restricted, rotation to each side was normal.  He described a full range of cervical spine flexion and rotation with moderate restriction of cervical spine extension.  Extension of the neck was more painful than flexion. 

39He went on to repeat his diagnosis, he said the plaintiff should continue with her current treatment regime.  He said in relation to her prognosis, the plaintiff was likely to continue to experience significant pain and some associated disability into the foreseeable future. 

40Professor Bittar then reported for a third time by a report dated 30 September 2024,[11] in which he was largely asked to critique the opinion of Mr Drnda in his report of 27 August 2024, in particular Mr Drnda's opinion that non-organic or Waddell signs were to be found.

[11] PCB 76.

41I think it unfortunate that Professor Bittar didn't simply say that Mr Drnda's examination finding and conclusions about non-organic signs were different to his.  Instead to some extent he decided to enter the fray and comment upon Mr Drnda's opinion and conclusions. 

42He said that when one took the plaintiff's overall presentation into consideration, including the fact that she was involved in a serious transport accident and had documented radiological evidence of spinal fractures, together with ongoing complaints of pain in the region of the above mentioned fractures, and also when one considers that she's been motivated to remain at work and does not have any other features in relation to her presentation that suggest a significant non-organic component, then it was his opinion that her ongoing presentation is consistent with an organic basis to her pain.

43Not that anything turns upon it in this proceeding, but I consider that section of his report to go well beyond his area of expertise and almost a venture into expressing a conclusion about serious injury, which is ultimately a legal and not a medical issue.

44In any event, that's the extent of the relevant medical opinion in the plaintiff's court book.  Turning then to the defendant's book, there are two opinions relevant from Mr Armin Drnda, neurosurgeon.  In his first report of 10 January 2024, he opined that the plaintiff had suffered soft tissue injuries to the neck and upper back, and also subclinical fracture of C7, which he said was the only significant signal change on the MRI, as well as subclinical microtrabecular fractures of T2 and T3, with minimal deformity of the end plates.

45He said those fractures were quite unusual for the type of accident the plaintiff had been involved in  which raised a suspicion that the plaintiff might have underlying osteoporosis or osteopenia, but I note in light of the concession made by counsel for the defendant that that part of the opinion is not relied on.[12] 

[12] DCB 18.

46Mr Drnda went on to say that in his opinion, the plaintiff seemed to be coping very well, busy with work and focusing on helping her daughter.  He said the prognosis should be very good.  He reported again by report dated 27 August 2024.[13] 

[13] DCB 23.

47In that report, he conducted an examination finding. Effectively, he found a full range of movement in the neck and upper back.  He described the plaintiff as pleasant and cooperative but then went on to record Waddell signs of non-organic illness, in particular, the axial loading on the head and shoulders.[14]

[14] DCB 26.

48Next, Mr Drnda diagnosed chronic mild musculoskeletal or soft tissue disorder in her upper back and cervicothoracic junction without evidence of radiculopathy, but he then said, "complicated by her family situation."  He said, "on the balance of probabilities, the current symptoms were no longer related to the transport accident".[15] 

[15] DCB 28.

49He went on to say that effectively there was no need for treatment, that the plaintiff should regularly exercise to maintain general fitness, but broadly, it seems to me, that the inference from his second report is that the prognosis is good.

50Pausing here, in respect to the medical evidence, there's no great difference of opinion.  The treating general practitioner, physiotherapist, to some extent, but more relevantly, Professor Bittar and Mr Drnda, accept that the plaintiff suffered musculoskeletal or soft tissue injury to the neck and upper back without evidence of radiculopathy.

51Professor Bittar seems to place more emphasis on the radiological findings than Mr Drnda does, although it seems to me at the end of the day not much turns on that in circumstances where there's no radiculopathy.  It may be that Professor Bittar's opinion is that the factors explain some of the pain, although that's not entirely clear from his opinions.

52Turning to the first of the defendant's arguments, that is that I should accept Mr Drnda's opinion that the symptoms are no longer accident-related.  I don't accept that submission.  It seems to me on a consideration of the whole of the evidence, there is a sufficient balance of medical evidence to say that the symptoms are accident-related, and, in any event, there's no clear path of reasoning that I can see in Mr Drnda's second report that would explain how, between January and August of this year, the symptoms are no longer related to the transport accident.

53The real issue in this proceeding, in my view, is whether or not the plaintiff has made out a very considerable consequence.  In that regard, I have considered the contents of her affidavits, in particular her most recent affidavits, sworn September of this year. I've also considered the limited useful evidence in the affidavits from her friend and co-worker.

54In her oral evidence, the plaintiff made several concessions or made what could be said to be admissions against interest, in my view, appropriately.  Relevantly, she conceded that in or about 2022, she had been busy running her Specsavers' franchise, dealing with her daughter's schooling and other life issues, as well as maintaining a social life such as attending choir.  In particular, she conceded that she was able to drive three to four hours a day from her home in the eastern suburbs to get to her place of work in the western suburbs.

55It was put to her in cross-examination that she had a very busy life in early 2022 through until the end of 2022 when she took over the Specsavers' franchise in Doncaster and she unequivocally agreed and said, "Yes."

56Equally, as an example of candid evidence against interest, when she was asked in re-examination about her reasons for selling out of the Altona franchise and taking over the Doncaster franchise, she said it had been her intention but for the motor vehicle accident to continue in Altona, "a while longer." 

57It is frequently said in these sorts of applications that an objective assessment of serious injury is informed not only by what has been lost, but what has been retained.  As the plaintiff said in her affidavit and oral evidence, what has been retained is her ability to run the Specsavers' franchise, to work full time and to also, I think in a commendable and as a parent understandable way, devote much of her time to supporting her daughter through her daughter's own challenges, including no doubt the significant challenge of shortly to sit her Year 12 exams.

58Again, as she said during her evidence, she does what has to be done around the house, she does what has to be done to look after her daughter, including getting her to appointments and the like. 

59In closing submission, counsel for the plaintiff placed much emphasis on the plaintiff as having a constant daily pain, requiring some level of medication. Firstly, it is difficult to form an assessment as to the objective level of that pain in circumstances where I consider the plaintiff's subject complaints are out of proportion to the objective evidence.  But taking that submission at its highest, the plaintiff has some level of ongoing daily pain, which requires her to use, in particular, Panadol Osteo, perhaps several times a day, which I note is a slow-release form of Panadol.  She also uses Cymbalta, but that appears to be for a mixed purpose of stress and possibly also for pain.

60But objectively, she has no other treatment and there is, in the medical material, no suggestion of the need for any other treatment.  Objectively, she works full time, has a social life, even if it is, in her words, diminished because of symptoms, but nevertheless it still exists, including catching up with friends, family and colleagues, including attending compulsory ongoing training. 

61The level at which it has been diminished is difficult to say from the objective evidence and indeed from the plaintiff's affidavit evidence, but as her counsel candidly conceded, the evidence is that she doesn't socialise as much as she would like.  The plaintiff has given up choir, which was a pleasurable activity, although the reason for that came out in response to a question from me as to be a little more complicated than simply because of pain and in part relates to the fact that her close friend, Sharon Campbell, dropped out of the choir.

62Ultimately, I accept that the plaintiff suffered injury to her neck, soft tissue injury with clinical fractures.  The significance of those clinical fractures as a driver for pain seems to me is up for grabs, but perhaps not much turns on that. 

63On an overall consideration of the evidence, bearing in mind the range of impairment and impairment consequences that come before the courts, the plaintiff has symptoms, pain and impairment consequences, which are certainly more than trivial and may even be capable of being described as marked or significant, but, in my view, do not meet the well-known test of "very considerable."  Therefore, for the reasons expressed, I find that the plaintiff has not suffered a serious injury. 

64I’ll hear from the parties as to consequential orders.