Camilleri v Transport Accident Commission
[2013] VCC 529
•22 April 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05889
| FAY JACQUELINE CAMILLERI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2013 | |
DATE OF JUDGMENT: | 22 April 2013 (Revised) | |
CASE MAY BE CITED AS: | Camilleri v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 529 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck and left shoulder
Legislation Cited: Transport Accident Act 1986
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Fitzpatrick | Ryan Carlisle Thomas |
| For the Defendant | Mr G Lewis QC with Ms B Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her by reason of a transport accident which occurred on 4 April 2008.
2 In the proceeding, the plaintiff relies upon two affidavits sworn by her, dated 17 November 2010 and 11 March 2013 respectively. In addition, the plaintiff gave viva voce evidence in the proceeding. Otherwise, the parties rely upon medical reports and records tendered by them.
3 Little point is served by setting out verbatim the content of the plaintiff’s two affidavits. In summary, the plaintiff deposed that:
· She left school at age fifteen;
· In 1997, she suffered a left shoulder and neck injury in the course of her employment as a kitchen hand;
· Prior to the transport accident, she had worked as a kitchenhand at two premises. She said that the last period of this employment (which had involved her working three hours a day, three days a week) had ceased some four weeks or so prior to the transport accident. She said that in undertaking that work, she was not able to lift heavy pots “… and that sort of thing, but provided I could work within my reservations I was happy to work and enjoyed doing so”;
· In the transport accident, she suffered injuries to her neck, left shoulder and low back, and that the accident had caused her to “struggle emotionally”;
· She had developed an addiction in association with the prescription of Ducene in treatment of Depression which had pre-existed the transport accident and was associated with a violent personal relationship. She said that in approximately 2009, she had taken an overdose of medication “by mistake”, as a result of which she was admitted to the Blacktown Hospital, and that the effect of this incident had been that she had “well and truly kicked my addiction”;
· Prior to the transport accident, she had enjoyed cycling and walking. She said that she had been unable to cycle since the accident and that the accident had restricted her ability to walk, to garden and to undertake her housework.
4 In her second affidavit, the plaintiff deposed that:
· She employed:
§ Norflex – morning and night;
§ Norspan patches – one per week;
§ Coloxyl – in the treatment of constipation;
§ Voltaren 50 – used sporadically to complement the Norspan patches, and particularly when they wore off;
§ Nurofen Plus;
to manage her symptoms.
· Her main problem was lower back pain which varied “from a base level and gets worse with activity”, and which required her “to constantly watch what I do”;
· Her walking was restricted, such that she has a Disabled Parking Permit to allow her to park close to shops, and that when her symptoms were bad, she stayed at home to rest;
· Her neck was getting “painful sometimes, but I have learnt to look after it”;
· The intensity of her back pain was “shocking”, and was regularly so. She said that her symptoms were aggravated by standing on her feet and that it did not take long for that posture to cause her low back to feel uncomfortable;
· On a good day, she had a capacity to walk for between ten and fifteen minutes, whereas prior to the accident, she would walk for twenty or thirty minutes on most days;
· Her sleep was affected, causing her to toss and turn, to feel agitated and to wake during the night;
· She had been forced to give up pushbike riding and that she still suffered from nightmares about the accident, which now occur occasionally.
The plaintiff’s viva voce evidence
5 The plaintiff readily volunteered that following the injury sustained to her neck in 1997, she had made an incomplete recovery, in that her symptoms settled, but required management and were prone to exacerbation. She described the effect of the 1997 injury as at the time if the transport accident as causing her problems which were not constant all the time but required her to manage her activities so as to avoid aggravating her symptoms, for example whilst she had been able to resume bicycle riding she had not been able to return to horse riding. She was prevented from lifting anything heavy with her left hand. She said, however, that whilst she was initially precluded from riding a bicycle, she was able to return to bicycle riding after a while. The plaintiff further conceded that up until the time of the transport accident, she needed help on occasions in undertaking activities around the house such as carrying clothes to the clothesline and hanging out washing.
6 The plaintiff said that she was nevertheless able to undertake:
· Her duties whilst employed in a retirement village, which involved –
“… going from house to house vacuuming for elderly people or taking them, like, grocery shopping, if they had no car; and the Anglican Retirement Village was, well like working in a nursing home sort of thing.”[1]
· The activities required of her in employment with David’s Restaurant, where the plaintiff was employed as a kitchenhand. In this respect, the plaintiff gave evidence that her position with David’s Restaurant came to an end when her contract was renewed but said that had the contract been renewed, she would have been working there at the time of the accident. It was put to the plaintiff that she had left David’s Restaurant because of “claustrophobia”, which the plaintiff denied.[2]
[1]T34
[2] T38 the plaintiff was taken to a medical record dated 26 March 2008 which recorded:
7 The plaintiff described her present condition as causing her pain –
“… like, I – sitting here is driving me crazy. I’ve got to keep twitching and moving because that’s very painful, and it’s just very hard to find something that would be suitable for me to do.”[3]
[3]T39
8 The plaintiff was clearly here making a reference to suffering from back pain and the effect of that pain on her current ability to work.
9 The plaintiff was asked:
Q:“Have you thought about looking around for a sedentary, seated sort of job?---
A:Well, I – sorry Sir, what was that again?
Q:A job where you could sit and stand and sit and stand, have you looked around for that sort of work?---
A:Sir, I don’t really think there’s a job that would be appropriate that would let you sit and stand and sit and stand, is there?
Q:Well?---
A:Because I’ve no education, I only know how to be a kitchenhand and wash dishes.
Q:Do you say that’s the only work you’ve ever done?---
A:Yes Sir, and be a carer.”
The Medical Evidence
10 In a report dated 11 May 2009, Dr Peter Lim, a general practitioner, described the plaintiff as presenting as at 6 September 2008 with no ill effects from the transport accident except for slight back pain, and opined that the effect of the transport accident upon the plaintiff’s employment was negligible.
11 Dr Andrew Cam, a neurosurgeon and spinal surgeon, assessed the plaintiff on 31 March 2009, and opined:
(i) that her condition had not stabilised at that time;
(ii) that the restriction of motion in the plaintiff’s cervical spine and her lower back pain substantially affected her ability to work and her social and recreational activities.
12 Dr Samir Elsokkary, the plaintiff’s general practitioner, in a report dated 11 September 2009, described the plaintiff as presenting to him with neck and back symptoms of fluctuating severity, depending on activity. He commented that the plaintiff’s symptoms were “expected to last long with remission and relapses” (sic), and said that the plaintiff’s employment opportunities had been badly affected by her condition such that they were restricted to work which was not physically demanding and involved alternate sitting and standing.
13 In a further report dated 20 November 2012, Dr Elsokkary commented:
“I examined her several times for pain and anxiety related to her back, hips and leg pain and she is given many types of painkillers and muscle relaxants and sent for spec and for MRI etc. She is still suffering from the accident since 2008 and its consequences.”[4]
[4] I am satisfied, by reason of the failure in Dr Elsokkary to mention any problems associated with the plaintiff’s cervical spine in this report; that the primary focus of the plaintiff’s current problems emanate from her lumbar spine. My finding in this respect is supported by the plaintiff’s evidence in which the plaintiff agreed, in cross-examination, that her neck symptoms depended upon how she managed that condition:
14 In a report dated 5 February 2010, Mr Russell Miller, orthopaedic surgeon, opined that by reason of the transport accident the plaintiff had suffered a musculoligamentous strain of her cervical spine and had aggravated the pre-existing degenerative disc disease in her lumbar spine. He further opined that the plaintiff’s prognosis with respect to this condition was only fair.
15 Whilst Mr Miller opined that the transport accident was responsible for the plaintiff’s symptoms, he expressed that opinion on the basis that the plaintiff’s previous neck and left arm conditions had resolved themselves prior to the transport accident.[5]
[5] This history, which is clearly inaccurate, undermines the position taken by Mr Miller as to the relationship between the transport accident and the symptoms with which the plaintiff presented in her cervical spine.
16 Mr Miller opined:
· that the plaintiff was not fit for work which involved –
“… repetitive bending, repetitive lifting and repetitive neck movements. She will only be suitable for sedentary tasks and duties. She could not return to work as a kitchen hand. These restrictions are permanent and work related. In my understanding of her age, education and work experience, return to work will be problematic in this case.”
· that the plaintiff’s condition would restrict her in her ability to undertake heavy domestic activities and gardening activities, together with her ability to walk, ride a pushbike and engage in leisure pursuits “of a physical kind”.
17 In a report dated 21 September 2012, Mr Thomas Kossmann, orthopaedic surgeon, opined that:
· The plaintiff presented with “mild disc bulges at L3-4, L4-5 and a bigger disc protrusion at L5-S1”;
· The plaintiff presented with pain and restriction of movement in her cervical and lumbar spines which required her to employ maintenance therapy in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture;
· The plaintiff was restricted in her ability to engage in work which required her to:
§ bend and twist her upper body
§ lift heavy items or walk long distances
§ walk on uneven ground
§ walk up and down stairs or climb up and down ladders;
but that the plaintiff was fit for sedentary work.
18 In a further report dated 19 March 2013, Mr Kossmann commented that, whilst the plaintiff was fit for sedentary work, she would not be able to tolerate sitting for prolonged periods.
19 Mr John F O’Brien, orthopaedic surgeon, examined the plaintiff on two occasions on behalf of the defendant on 1 September 2011 and 17 December 2012.
20 Mr O’Brien’s first examination of the plaintiff was essentially undertaken for the purpose of a ‘no fault’ impairment assessment of the plaintiff. As the result of his December 2012 examination of the plaintiff Mr O’Brien opined that the plaintiff presented with chronic non-specific back and leg pain and non-specific neck pain. He described the plaintiff’s clinical condition as being stable; functional impairment as mild; and her prognosis as being poor, commenting:
“This patient certainly does describe significant severity, particularly of low back pain. Nevertheless, physical findings, as indicated, do not demonstrate evidence of major pathology and the plaintiff does indeed appear reasonably active. I would therefore consider that the patient is not totally incapacitated and I do believe from the physical perspective she would be capable of what could be regarded as modified duties.”
21 In a report dated 17 December 2012, Professor Richard Stark, neurologist, described the plaintiff as presenting with ongoing lower back pain resulting from either a soft-tissue injury of the back or discogenic pain. He described the plaintiff’s cervical spine as not causing her major ongoing symptoms, and opined that the plaintiff presented with mechanical lower back pain which was likely to continue. Professor Stark opined that the plaintiff’s lower back symptoms interfered to some extent with her domestic and leisure activities, at least intermittently, and commented that the plaintiff’s lower back area was the only area which had been substantially injured in the transport accident.
Findings
22 In my opinion the medical reports in this matter support the position that the plaintiff suffered an accident-related aggravation of pre-existing pathology in her lumbar spine which was responsible for the production of symptoms, amenable to control, to some extent, by the plaintiff:
· modifying her activity so as to avoid exacerbating her symptoms; and
· employing appropriate pain control agents.
23 Whilst there is little issue that the transport accident has initiated the symptoms with which the plaintiff presents in the lumbar spine; the effect of the accident upon the plaintiff’s cervical spine and left shoulder is not easily assessed given the inaccurate history provided by the plaintiff to most of the medical practitioners who have examined her in this case. [6]
[6] Generally the plaintiff provided the history that prior to the transport accident she had effectively made a full recovery from her pre-existing cervical and shoulder when the true position was that she was able to control her symptoms by moderating the activity which she undertook, but her symptoms were exacerbated by injudicious movement or activity.
24 Given the inaccurate history upon which most medical practitioners have relied when opining as to the relationship between the transport accident and the condition now present in the plaintiff’s cervical spine and left shoulder, I am not satisfied that the plaintiff has established that, at the present time, the transport accident continues to be responsible for the presence of increased symptoms of pain or disability in either the plaintiff’s cervical spine or her left shoulder; when compared with the pain and level of disability which was present in those areas prior to the transport accident.
25 I am satisfied, notwithstanding what would appear to be a selective history given by the plaintiff to the various medical practitioners who have examined her in the course of this proceeding as to the absence of symptoms both in her cervical spine and left shoulder prior to the accident; that the plaintiff accurately described in the course of her evidence:
(i) The level of the symptoms and restrictions which the pre-accident conditions present in her neck and left shoulder were responsible for;
(ii) The level of symptoms in her lumbar spine following the transport accident and the restriction in the type and level of activity which was associated with those symptoms.
26 In making this statement, I do so on the basis of my impression that the plaintiff’s reliability as a witness was demonstrated:
(i) Firstly, by her preparedness in the course of both her affidavits and her evidence to volunteer concessions as to:
§ The extent of the symptoms in her cervical spine and left shoulder prior to the transport accident and the way in which she was required to moderate her level of activity in order to control those symptoms;
§ The limited effect which the transport accident had had upon the symptoms in her neck and left shoulder;
(ii) Secondly, by reason of the fact that prior to the transport accident the plaintiff returned to work on a part-time basis such that:
§ In the financial year ending 2006, the plaintiff earned $7,546.00 in employment with a home care service and the Anglican Retirement Village, where in the latter employment she was “working in a nursing home sort of thing”, and in the former, “going from house to house vacuuming for the elderly people and taking them, like grocery shopping if they had no car”;
§ In the financial year commencing 1 July 2006, up until approximately February 2007, the plaintiff had earned $3,000.00 working in a pastry shop, and at David’s Restaurant undertaking the duties of a kitchen hand. The plaintiff said that her employment as a kitchen hand at David’s Restaurant had been renewed “two or three times on a two or three-month basis and then just before the accident he didn’t renew my contract. He was being subsidised by Centrelink to pay my wages”, and that if her contract had been renewed, she would have been working at the time of her accident;
notwithstanding the presence of a condition in her neck and her shoulder which restricted her in engaging in repetitive heavy lifting or elevation of her left arm, or repetitive movements of her neck. [7]
It is to the plaintiff’s credit, in my opinion, that, in the presence of these restrictions, she returned to the workforce on a part-time basis undertaking the activities to which I have previously referred.
[7]See the report of Dr Elder dated 31 May 2000 at DCB 15; the report of Dr Walder at DCB 33 and the report of Dr Bedi at DCB 37
Findings as the consequences of the plaintiff’s transport accident related back condition
The effect of the Transport accident upon the plaintiff’s symptoms of pain her lumbar spine
27 It is clear that the reason for the prescription of the medication which the plaintiff presently employs lies in the acceptance by Dr Elsokkary that it is necessary to manage the plaintiff’s symptoms of pain.
28 Prior to the transport accident, the medical records reveal that the plaintiff was a regular user of Ducene up to the time of her collapse in 2009. There is no issue that the plaintiff was addicted to that drug as at that that time; however I accept the plaintiff’s evidence that by the time of the transport accident she had overcome her addiction, there being no persuasive evidence (medical or otherwise) to discredit her evidence in this regard. It follows that I am satisfied that the plaintiff’s current use of medication is not sponsored by her prior addiction.
29 There is no suggestion that prior to the transport accident the plaintiff was employing significant pain control agents to manage the conditions in her neck and shoulder. In these circumstances I am satisfied that the plaintiff employs her current regime of medication (which includes a narcotic patch), in order to manage her back pain, and that her need to resort to this medication supports the statement in her affidavit that she suffers from significant symptoms of back pain.
30 In September 2012, Mr Kossmann took no issue with the cocktail of medication which the plaintiff was ingesting to control her symptoms as being inappropriate in the management of her condition.
31 In December 2012, Mr O’Brien, whilst raising a concern that narcotic analgesia had been introduced into the plaintiff’s pain management regime did take issue with the plaintiff’s history to him that she suffered from significant low-back pain.
32 Given the content of these two most current medical assessments of the plaintiff’s condition, I am satisfied that the plaintiff requires significant medication to deal with her back pain, and that this attests to the severity of the pain which she suffers.
The effect of the Transport accident upon the plaintiff’s ability to work
33 I am satisfied, having regard to:
· the plaintiff’s work history;
· the plaintiff’s limited education;
· the pre-existing condition present in the plaintiff’s cervical spine and left shoulder;
· the consensus of medical opinion that the plaintiff is at best now fit only for “sedentary duties”;[8]
that the effect of the transport accident has been to cause the plaintiff to suffer from low-back symptoms which limit the type and range of work which she is fit to perform such that it is likely that the plaintiff is now permanently precluded from all forms of employment which are suitable for her given her work history and level of education.
[8]In respect of this statement, Mr Kossmann expresses some misgivings, noting that the plaintiff is not fit to sit for prolonged periods – PCB 56B
34 Notwithstanding the fact that the plaintiff was exercising her capacity for employment on a part-time basis prior to the transport accident and that, at the time of the transport accident she was not working, I accept the plaintiff’s evidence that:
· she intended to exercise her capacity for employment in the future;
· she would have been exercising that capacity at the time of the transport accident had her contract been renewed;
and I am satisfied that the loss to the plaintiff of the ability to exercise such a capacity is a real one, both in terms of the satisfaction she derived from working and also the financial benefits to her from working.
35 In the two years prior to the transport accident, the plaintiff had earned an income in the vicinity of $10,000. The loss of the ability of a person whose income is derived through unemployment benefits or the receipt of some other government benefit, to supplement their income by approximately $100 per week is, in my opinion, a very significant loss.
The effect of the Transport accident upon the plaintiff’s activities of daily living
36 Prior to the transport accident, the plaintiff had not complained to those medical practitioners upon whose reports the defendant relies of any restriction in her ability to walk.[9] Indeed, such a restriction would be unlikely to be present in a condition confined essentially to the plaintiff’s cervical spine and left shoulder.
[9]In this respect, see the report of Mr Bedi dated 4 June 2001 which contains no such complaint.
37 I am satisfied that, prior to the transport accident, the plaintiff had a largely unrestricted capacity to walk, and that by reason of the condition of her back, her ability to walk is restricted in the manner described in paragraph 18 of her affidavit of 11 March 2013. I am further satisfied that such a restriction is one which is very significant for a person of a relatively young age.
38 Further, I am satisfied that whilst prior to the transport accident the plaintiff was restricted in the activities she could undertake by reason of the pre-existing condition in her cervical spine and left shoulder, she retained the capacity to assist in the care required by her elderly mother,[10] and that she no longer retains that capacity by reason of the condition of her back. Indeed, the fact that prior to the transport accident the plaintiff was able to work in an occupation which required her to care for, support and accompany elderly people whilst they were shopping, and that her position is now such that she employs a Disabled Parking Permit to park in the near vicinity of any shop which she is required to attend, puts into perspective the alteration of the plaintiff’s capacity to engage in the activities of daily living by reason of the injuries suffered in the transport accident.
[10]This finding being supported by the fact that the plaintiff was fit to undertake the activities required of her employment in a retirement village.
Conclusion
39 I am satisfied that:
· the level of back pain which the plaintiff experiences; and
· the restrictions which that pain places upon the plaintiff’s day to day life and her ability to earn income;
are such that it is appropriate to describe the consequences of the plaintiff’s transport accident related injury as involving an impairment of the function of the lumbar spine which is more than significant or marked and is at least very considerable and that in these circumstances the plaintiff is entitled to the leave sought by her in this application.
40 Accordingly, I propose to make an order granting the plaintiff leave to commence a proceeding claiming damages for the injuries suffered by her by reason of the transport accident the subject of this application and will hear the parties as to the issue of costs.
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“New job. [unintelligible] – claustrophobia. Couldn’t go back to work.”
Having regard to the plaintiff’s evidence that her work with David’s Restaurant was her last job prior to the transport accident, and the medical entry, the writing in respect of which is, for the most part, unintelligible, I consider, in the absence of any concession as to the content of the entry being made by the plaintiff, it is otherwise appropriate to rely upon the entry.
Q: “But that’s how it was before the accident and that’s how it’s been since the car accident?---
A: Yes, it depends on how I managed it.”
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