Byrne, Lorraine v Transport Accident Commission
[2009] VCC 1783
•18 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES/COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02037
| LORRAINE INGRID BYRNE | Plaintiff |
| v | |
| THE TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 December 2009 |
| DATE OF JUDGMENT: | 18 December 2009 |
| CASE MAY BE CITED AS: | Byrne, Lorraine v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1783 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.93(17) Transport Accident Act 1986 – injury to the cervical spine – aggravation of pre-existing asymptomatic condition – whether impairment satisfies the criteria of being at least very considerable and certainly more than significant or marked.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Philbrick SC with | Rennick Briggs |
| Mr R B Harper | ||
| For the Defendant | Ms J A Dixon SC with | Solicitors to the Transport |
| Ms D A Galbally | Accident Commission | |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages in respect of injury and loss suffered by her by reason of a transport accident in which she was involved on 10 December 2004 (“the accident”).
2 The injury relied upon by the plaintiff is an aggravation of a pre-existing asymptomatic degenerative condition in her cervical spine. The impairment of body function relied upon is that of the cervical spine and right arm by reason of radicular and neuropathic pain.
3 In the proceeding, the plaintiff relies upon two affidavits sworn by her, the first dated 15 April 2009 and the second dated 2 December 2009. Further, the defendant required the plaintiff to attend the proceeding for the purpose of cross-examination, in the course of which the plaintiff gave viva voce evidence which is relied upon by both parties.
4 In her first affidavit, the plaintiff deposed that:
•
her first marriage ended in divorce in 1994, and in December 2006, she married her present husband who is a director of BUI Pty Ltd, the company by whom the plaintiff has been employed for a period commencing prior to the happening of the accident and continuing as at the present date;
•
prior to the accident, her general health was good. She said whilst she had had some previous neck and mid-back pain, these symptoms were of short duration and were of no consequence to her;
•
in the accident, she suffered an injury to her cervical spine which has impaired the function of her spine and her right arm and hand;[1]
•
following the accident, she was taken by ambulance to the Monash Medical Centre. She described suffering from an “electric shock” sensation in her neck and head, together with dizziness and nausea. The plaintiff was an inpatient at the Monash Medical Centre for approximately three days and was subsequently discharged;
•
following her discharge from the Monash Medical Centre, the plaintiff’s condition was managed by her general practitioner, Dr O Mellios,2 who referred her for physiotherapy, which treatment continued on a regular basis until approximately October 2005. At that time the plaintiff consulted Dr R Ghaffurian, a general practitioner, who treated the plaintiff with acupuncture, together with alternative therapies;
•
her symptoms as involving pain and restriction of movement in her right shoulder of varying intensity. She said that she regularly suffered from flare-ups of pain which produced disabling headaches which she managed by taking Nurofen and Panadol. She described carrying heavy objects in her right hand as aggravating her shoulder pain and said that her right upper limb was weak and was restricted in movement. She said that she regularly had to employ a neck brace to assist her to sleep and that she was unable to do the heavier household chores. She said that her sleeping patterns were impaired and that she was irritable and fatigued. She described her injuries as interfering with her ability to walk her dog and to cope with the demands of her work at BUI.
[1] There is no issue in the case that the injury involves an aggravation of pre-existing relatively
5 In her second affidavit, the plaintiff said that her neck condition was getting worse. She said that over the previous two months she had required assistance from her husband in dressing herself and that she did not believe she would retain the ability to remain in full-time employment with BUI. She said that each year she had been required to make use of her full quota of
asymptomatic degeneration which was present in the plaintiff’s cervical spine.
The plaintiff said that Dr Mellios prescribed various forms of analgesia and anti-inflammatory medication for her use, including Mersyndol Forte, Nurofen, Valium, Endep, Somac and Prexige.
sick leave days to manage her symptoms of neck, shoulder and arm pain, and headaches. The plaintiff described feeling anxious at not being able to be relied upon to perform her work and said that her financial position was such that she had been required to work on a full-time basis.
6 In the course of her cross-examination, the plaintiff said that in approximately 2002 she had registered an ABN number for the purpose of commencing a business involving the sale of jewellery which she made by hand. She said that she had not commenced that business because her jewellery tools had been stolen and that she had subsequently found employment with BUI Pty Ltd.
7 The plaintiff said that when she commenced employment with BUI she was involved in counter work, together with some administrative work. She said that after the accident she had been forced to abandon that counter work because it required her to lift objects of up to 5 kilograms in weight which she was no longer able to do, and that subsequently she had been employed in administrative type duties
8 Essentially it was the plaintiff’s evidence that, whilst following the accident she initially required ongoing treatment in the form of physiotherapy and thereafter the alternative therapies administered by Dr Ghaffurian, she had until approximately six months ago been able to self-manage her condition by making intermittent use of a neck brace, together with a regime of Deep Heat treatment, rest and a massage therapy which she administered when required by the use of a Ho Medics massaging machine which she purchased at the recommendation of her physiotherapist.
9 The plaintiff said in the last six months or so there had been an escalation in her symptoms which had resulted in a significant increase in her pain and associated incapacity. She described the effect of this escalation in her symptoms in the following terms:
“I am just fed up with the whole thing. I can’t express – I feel it has wrecked my life because I’m not the person that I used to be. I can’t do a lot of things. I don’t socialise a lot like I used to do before. I have to wear a scarf all the time. I can’t do my cooking. I can’t do the vacuuming. I can’t do the shopping. It wasn’t like this before.”[3]
[3] Transcript (“T”) 47
10 The plaintiff said that whereas she had, prior to the recent exacerbation in her symptoms been able to put up with her condition, she could no longer do so. She described her symptoms as interfering with her ability to do housework, resulting in the necessity of her husband to do all the vacuum cleaning and the cleaning of areas such as the bathrooms. She said her symptoms made her tired, that she required regular assistance from her husband in massaging her neck, that she could no longer walk her dog because she could not hold onto its leash, that she had had to give up gardening and that she required assistance from her husband in dressing herself.[4] She said that whilst she had previously exercised by cycling and walking, she was now limited to walking around the block. She described arriving home at the completion of a day’s work “so tired with pain that I can’t do anything”.[5]
[4] T 47
[5] T 50
11 The plaintiff described her social life as being significantly affected. Her evidence in this regard was as follows:
“I don’t want to go in the evening when I have got the pain. I don’t because I have to keep moving my neck from side to side to give me relief and I don’t like doing that because my husband has pointed out to me that you do that a lot and I have to because I want to relieve the pain in my neck and I can’t sit there and keep doing that comfortably.”
12 As to the effect of her symptoms upon her present capacity for work, the plaintiff was asked whether she had discussed with her husband[6] reducing her hours, to which she replied:
“I think I was trying to be there to help him and also to help contribute to the finances. But recently I’ve told him I can’t do it any more because what I used to do before in 2005 and 2006 the pain has got worse now. It’s worse than it ever was.”[7]
[6] The plaintiff’s husband is a director of BUI Pty Ltd
[7] T 55
13 When further pressed as to whether she had discussed reducing her hours, the plaintiff commented:
“I’ve spoken to him about it and he said, ‘yes, we’ll look into it’ I don’t think you could work seeing the way you are’, because he’s had to do a lot of my work at home and he realises that I am in a lot of pain now.”
The Medical Evidence
14 In a report dated 21 March 2008, Dr Mellios, the plaintiff’s general practitioner, described the plaintiff as presenting following the accident with numbness in both hands and feet for three days and as suffering from spinning dizziness and nausea. He said that the plaintiff had been known to him for a period of four years prior to the accident as being an intelligent and extremely competent woman. In the weeks following the accident, he described the plaintiff as suffering from labile emotions with spontaneous crying and also bouts of anger which were very uncharacteristic of her.
15 At the time of the preparation of his report, Dr Mellios opined that the plaintiff had suffered a severe whiplash injury which involved the aggravation of a pre- existing spinal degenerative disease. He commented:
“In my opinion, the extent of the soft tissue injury suffered to the neck and right shoulder are of a permanent nature and likely to trouble her into the foreseeable future and she is likely to require intermittent treatment in the form of occasional analgesia and physical therapies for her pain.”
16 In a further report dated 9 December 2009,[8] Dr Mellios described the plaintiff as attending his practice in March and August 2009. In March 2009, the plaintiff described suffering from ongoing headache, neck pain and right shoulder and upper limb pain since the accident which required her to make use of Nurofen. She told Dr Mellios that she had been unable to use a vacuum cleaner or fully abduct her right arm. In August 2009, the plaintiff again presented complaining of left shoulder pain with tingling in both arms and occasionally the legs. The plaintiff’s presentation at this time led Dr Mellios to request an MRI scan of her cervical and dorsal spines and to refer her to Mr Chris Xenos, a neurosurgeon.
[8] Plaintiff’s Court Book (“PCB”) 21
17 As at 9 December 2009, Dr Mellios opined:[9]
“It is likely that the above has had a very significant exacerbation of her cervical degenerative disease in her motor accident of 2004 and that this is having ongoing effects and is almost certainly likely to do so in the foreseeable future. Lorraine will be in need of medications for pain and inflammation, as well as appropriate physical therapy for exacerbations of her pain into the foreseeable future. Given her age, there is at least a moderate chance that she may come to require surgery to the cervical spine.”
[9] Report dated 9 December 2009 - PCB 22A
18 Mr Kevin King,[10] an orthopaedic surgeon, examined the plaintiff on 22 July 2007. At that time he expressed the opinion that the plaintiff had suffered injuries to her cervical discs and associated ligamentous structures at the time of the accident and that this explained the onset of neck pain at that time and the persistence of chronic neck pain ever since. He described the plaintiff as having stabilised at her present level.
[10] Report dated 22 June 2007- PCB 39
19 In a further report dated 6 October 2009, Mr King commented that in the course of an examination undertaken in September 2009, he had obtained a history from the plaintiff that her neck and shoulder symptoms had become “about forty per cent worse over the last year, this being a slow deterioration”[11] The plaintiff complained to Mr King of the following specific problems:
[11] PCB 42
(i)
a constant aching pain and stiffness in her neck, always present, fluctuating in intensity, always of at least moderate severity and about forty per cent worse;
(ii)
persistent aching pain and some stiffness in the right shoulder of moderate severity and getting worse;
(iii) equally severe symptoms in the left shoulder over the last year. 20 Mr King opined that he attributed all of the plaintiff’s persisting neck pain and stiffness to the effects of the injury sustained to her cervical spine at the time of her motor vehicle accident. He maintained his previous position that the plaintiff’s condition had largely stabilised and that the degree of stiffness and pain in her neck represented a chronic long-term impairment of the function of moderate severity to the cervical spine.
21 In a report dated 26 November 2009, Mr Chris Xenos, having examined an MRI scan of the plaintiff’s cervical spine which was undertaken on 7 October 2009, opined:
“This patient has significant cervical spondylosis possibly aggravated or caused by the motor vehicle accident and she has mechanical and muscular chronic neck and shoulder pain. I don’t think I’ll be able to cure that. She does have associated arm pain, initially on the right and now more so on the left which is radicular and neuropathic in nature.”
He continued:
“I have advised the patient to exhaust conservative measures, but also to accept that she will continue to have chronic neck and shoulder pain with intermittent upper limb symptoms. … I have advised that in the long-term there is a possibility that she may require both a C4-5 and a C5-6 discectomy and a fusion to decompress any compressed nerves, to improve upper limb function and to stabilise her spine. Unfortunately, I am not convinced that that will make a significant improvement to her chronic neck pain. The patient at this point in time is keen to exhaust conservative measures, and is wanting to avoid surgery.”
22 The plaintiff relies upon the following further medical reports:
•
Dr Simon Bower, who opined that the car accident may have aggravated but did not cause the degenerative changes present in the plaintiff’s cervical spine;[12]
•
Mr R Dalziel,[13] who expressed the opinion that the plaintiff’s ongoing right shoulder symptoms were a result of referred pain into the back of her right shoulder and the upper aspect of her right elbow;
•
Dr G Ghaffurian,[14] who observed that the plaintiff was lucky to be alive following her accident and described treating her between November 2005 and 26 April 2006, during which period she gradually improved with less symptomatic pain.
[12] Report dated 17 November 2008 - PCB 26
[13] Report dated 4 September 2008 - PCB 25
[14] Report dated 30 March 2009 - PCB 32
23 The defendant relies upon two reports from Mr Michael Shannon, orthopaedic surgeon, the first dated 20 October 2009, in which Mr Shannon opined that:
(i) the plaintiff’s shoulder symptoms were predominantly referred from her neck; (ii) there was radiological support for ongoing pain and stiffness in her neck; (iii) it appeared that there had been a deterioration in the plaintiff’s symptoms in the last two years, as well as in her physical signs; (iv) the plaintiff’s prognosis was for ongoing discomfort and stiffness in her neck and shoulders which may continue to give her trouble intermittently; 24 In his second report dated 8 December 2009, Mr Shannon expressed the opinion that the degeneration which was demonstrated as being present in the plaintiff’s cervical spine was clearly not caused by the accident but may well have been aggravated by it, and that the plaintiff was better to accept her chronic neck symptoms rather than to embark upon surgery which would involve a two-level cervical fusion.
The Issues
25 The defendant takes issue with the severity of the plaintiff’s symptoms and the consequence of those symptoms for her. Essentially it is the defendant’s position that the plaintiff has been able to manage the exacerbation of her underlying degenerative condition with little impact upon her life and that this is demonstrated by:
(i)
the absence of any need by the plaintiff to make use of regular medical treatment following the cessation of her treatment by Dr Ghaffurian;
(ii) the ability of the plaintiff to continue in full-time employment. 26 In response, it is put on behalf of the plaintiff that if she is accepted as a witness of truth, the evidence given by her as to the escalation in her symptoms over the last six months is such that it easily meets the criteria of “serious injury” as established by the provisions of the Transport Accident Act 1986.
27 Having had the opportunity of assessing the plaintiff in the course of her evidence, I formed the opinion that she was doing her best to provide truthful answers as to the effect of her symptoms upon her. The plaintiff was obviously emotionally affected as she described the recent escalation in her symptoms and the restrictions which they now imposed upon her life and lifestyle. An examination of both the affidavit material and the plaintiff’s viva voce evidence reveals that the most descriptive evidence given by her as to the effect of her injuries was given in a response to cross-examination when the plaintiff was pushed to provide answers upon specific issues. In my opinion, this confirmed the impression which I formed of the plaintiff, namely that she was a reserved and stoic person who was uncomfortable speaking about her injuries and their effects.
28 It was put on behalf of the defendant that the plaintiff’s description of the escalation of her symptoms was inconsistent with the histories provided by her to the medical practitioners who had examined her. I do not accept this proposition. The history which the plaintiff provided to Mr King in the course of his re-examination of 6 October 2009, in which she described a significant increase in her symptoms over the previous twelve months, was consistent with her viva voce evidence as to the increase in her symptoms. In addition, I am of the opinion that the decision by Dr Mellios to refer the plaintiff for an MRI scan, and subsequently for assessment by Mr Xenos, is consistent with a heightened concern in Dr Mellios as to the plaintiff’s presentation. Further, I interpret the change in the concluding comments by Dr Mellios in his report of 9 December 2009 which emphasised the ongoing effects of the significant exacerbation of the plaintiff’s cervical degenerative disease, when compared with that of his previous report in which he had expressed the opinion that it was likely that the exacerbation of this condition by the motor vehicle accident had ceased, as being consistent with the plaintiff’s evidence that there had been a recent severe escalation in her symptoms and their effect upon her.
29 It was the plaintiff’s evidence that her symptoms have been such that they have required her regularly to make use of both her sick leave entitlement and her annual leave entitlement for the purpose of managing her symptoms. In this respect, she gave evidence that she had already employed her 2010 holiday allowance for this purpose. Although the defendant questioned the practice of the plaintiff of failing to attend her general practitioner regularly to seek treatment for her symptoms or to obtain certificates of incapacity, I accept the plaintiff’s evidence that she found little point in consulting Dr Mellios in circumstances in which there was little he could offer her in terms of treatment.
30 I have previously commented that I formed the impression that the plaintiff was a reliable witness. Whilst I accept the fact that the plaintiff’s income taxation returns do not reveal any significant diminution in the plaintiff’s income in recent years, I accept her evidence that she has reached a point at which her symptoms have progressed to such a degree that it is likely in the future that she will be required to reduce her working position from that of full- time work to part-time work. In the circumstances, the evidence satisfies me that taking a long-term view of the plaintiff’s position, the effect of the accident is such that it will probably interfere with her capacity to work to a significant degree.
31 In assessing the consequences to the plaintiff of the impairment in the function of her cervical spine by reason of the effect of the accident in exacerbating the degenerative condition which was present in her cervical spine, I am satisfied:
(i) that the pre-existing degenerative condition in the plaintiff’s cervical spine was asymptomatic prior to the accident; (ii) that the effect of the accident has been to exacerbate a pre-existing symptomless condition in the plaintiff’s cervical spine so as to render it permanently symptomatic with the result that the plaintiff now suffers from cervical pain together with radicular and neuropathic pain; (iii) that the plaintiff’s evidence as to the escalation in her symptoms in recent times provides an accurate account of the consequences of her accident- related impairment upon her at the present time with respect to pain and suffering and loss of enjoyment of life, in that it adversely impacts on a daily basis on most of the plaintiff’s social recreational and working activities; (iv) that the plaintiff’s condition is largely stabilised although she does face an unlikely prospect that she may require treatment in the form of surgery to her cervical spine; (v) that it is likely that the plaintiff’s accident related symptoms will, in the near future, have a significant impact upon her working capacity, in that she will be required to substitute part-time employment for her present full-time employment, in order to better manage her symptoms. 32 In these circumstances, I am satisfied that the consequences to the plaintiff of the injury to her cervical spine, when judged by a comparison with other cases in the range of possible impairments, can fairly be described as being “at least very considerable” and as being more than “significant” or “marked”. For these reasons I am of the opinion that the plaintiff is entitled to the leave sought by her in this application.
33 Accordingly, subject to hearing from the parties as to the precise terms of the order, I propose to make an order that the plaintiff is entitled to leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 arising out of the motor vehicle accident in which she was involved on 10 December 2004 in East Boundary Road, East Bentleigh, in the State of Victoria.
34 I will hear the parties on the precise form of the orders sought and the issue of costs.
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