Cohen v Transport Accident Commission
[2015] VCC 360
•27 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05253
| YASMIN DEANA COHEN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSOIN | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 March 2015 | |
DATE OF JUDGMENT: | 27 March 2015 | |
CASE MAY BE CITED AS: | Cohen v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 360 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – soft-tissue injury to cervical and lumbar spines – aggravation of pre-existing migrainous condition – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Judgment: Leave granted to bring common law damages proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan | Adviceline Lawyers |
| For the Defendant | Mr P D Elliott QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff suffered a soft-tissue injury to her cervical and lumbar spines in a transport accident of 10 September 2009. After a short period away from her work as a childcare worker, she resumed work on full-time duties, although now only works two to three days per week. She claims a range of consequences to both her cervical and lumbar spines. In particular, she complains of increased migraine headaches as a result of the soft-tissue injury to her neck. She had previously suffered migraines from the age of ten, but they were controlled with medication. She claims the frequency and intensity of the headaches increased after the transport accident.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in the transport accident on 10 September 2009. The body function said to be lost or impaired is the spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s93(17) of the Act.
3 The plaintiff was the only witness to be called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, her husband and other lay witnesses, together with reports of treating and consultant medical practitioners were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to refer to the relevant sections and those authorities.
Relevant background
4 The plaintiff is now thirty-seven years of age, is married and has two young children. She completed her VCE and then worked as a receptionist, an administration officer and in the security industry. She completed a Certificate in Childcare and commenced working in that area in 2001. She also worked as a private nanny.
5 From the age of ten she suffered migraine headaches. She said these were infrequent, and controlled with the medication Zomig, which she took once per month. She described the headaches as not being a major concern. The medication was prescribed by her general practitioner and she did not require specialist treatment. They were not debilitating and before the accident did not affect her capacity to work as a child carer.
6 In addition, she went to see a chiropractor, Dr Mark Dimotsos, on a regular basis prior to the accident. According to his clinical notes, over the period from March 2004 until shortly before the transport accident, she saw him on 103 occasions on an average of twice per week. He undertook “adjustment” treatment for her spine. She accepted in cross-examination this treatment was largely related to pain and stiffness in her cervical and lumbar spines. Notwithstanding these problems, she was able to maintain full-time employment without difficulty and pursue a range of recreational pursuits, including indoor rock climbing, which she used to enjoy once a month or so with members of her family. She also enjoyed playing regular competition pool one night of the week. She had a competition-sized pool table at her house.
7 She was unrestricted in relation to her domestic interests and did all the washing, cooking, cleaning and the like without restriction. She enjoyed gardening and was able to drive long distances. She was petite in stature and weighed approximately 48 kilograms. At the present time, her weight is approximately 74 kilograms.
8 Shortly prior to the transport accident, she was working five days a week, three days per week at the Minifie Park Childcare Centre in Balwyn, and two days per week as a nanny. She was caring for children ranging in age from six months to four years. The older children tended to be more independent.
The transport accident and its consequences
9 On 10 September 2009, the plaintiff was driving to work when a truck struck the front of her vehicle. Her car was written off. She was taken by ambulance to the Royal Melbourne Hospital complaining of pain in her neck, back, chest, ribs and arms. She was discharged after thirteen hours. The next day, 11 September 2009, she went to see her general practitioner, Dr Finkelstein. On examination he found multiple bruises across her chest, face and knees. He described her as suffering “a severe whiplash injury to her neck, chest wall & ribs”.[1] He noted pain in her lower and upper back. He referred her to a physiotherapist but the treatment caused discomfort. He prescribed pain-relieving medication. He certified her as being unfit for work until 14 October 2009.
[1]Plaintiff’s Court Book (“PBC”) 48
10 On 2 October 2009, the plaintiff returned to see Dr Dimotsos, chiropractor, complaining of spinal pain and headaches. She has continued to see that practitioner to this time. According to his report,[2] she “… showed a steady improvement in her rehabilitation throughout 2010 with some exacerbations noted including migraines, intermittent sciatic pain and an episode in late January of left sided facial paraesthesia/anaesthesia. …” and because of a psychological reaction to the transport accident, Dr Finkelstein referred the plaintiff to a psychologist, Dr Martin Barker, for treatment for traumatic stress.
[2]PCB 50
11 On 14 October 2009, the plaintiff returned to work at Minifie Park Childcare Centre, on a full-time basis, five days per week. According to her affidavit,[3] she had a sympathetic employer and she was able to do relieving, lighter work, with the older children.
[3]PCB 7
12 The plaintiff was married on 14 November 2009. According to an affidavit of Mr Sloots,[4] she was not as lively as before the transport accident and did not dance at the wedding ceremony.
[4]PCB 36
13 The plaintiff and her husband moved to Pakenham, and she found the travel from Pakenham to Minifie Park difficult because of pain in her neck and back. She was also suffering increased migraine headaches.
14 In April 2010, she left Minifie Park and went to work at Little Beacons Learning Centre in Pakenham. She said her co-workers were aware of her neck and back restrictions and were able to provide support and assistance. She complained that at the end of a day, she was exhausted and in pain.[5] According to the plaintiff’s résumé,[6] she described her interests as including “rock climbing, travel & country driving. My personal health and fitness is of an excellent standard.”[7] She accepted in cross-examination that this was untrue. She admitted that she did not inform the management of Little Beacons of her transport accident and injuries, as she did not want to jeopardise the prospects of obtaining employment there.
[5]PCB 17
[6]Defendant’s Court Book (“DCB”) 49
[7]DCB 54
15 On 16 March 2010, the plaintiff was referred by her general practitioner to Associate Professor Owen White, neurologist, for treatment for her migraines. He obtained a history that she had suffered migraines since an early age and prior to the transport accident, they had occurred once or twice a month and had been responsive to the medication, Zomig. After the transport accident, she complained to Associate Professor White of “… severe, unresponsive migraine type headache, associated with nausea, sometimes vomiting and invariably photophobia, at least weekly”.[8] She also complained of less severe headaches two to three times per week.
[8]PCB 38
16 In his report to the general practitioner of 16 March 2010, Associate Professor White said:
“Clearly Yasmin has migraine but that was relatively well controlled until the motor vehicle accident. She has since experienced a very substantial increase in the frequency of her migraine and I believe this is as a result of the trauma.”[9]
[9]PCB 38
17 The plaintiff has remained under the care of Associate Professor White to the present time, seeing him presently two to three times a month. Various drugs have been trialled, and she currentlytakes Topamax, 50 milligrams twice per day, to prevent the onset of the migraines, and a further medication Relpax, which she takes three to four times a week as needed when the migraines commence. She also takes Voltaren, Nurofen and Panadol to deal with her neck and back pain and the less severe headaches. She sees her general practitioner only occasionally and for the prescription of the medication.
18 In 2011, she became pregnant with her first child, and her son was born in September 2011. She obtained maternity leave from Little Beacons in August 2011.
19 In the middle of 2012, the plaintiff was diagnosed with a benign tumour in the area of her kidneys. This required surgery to remove the tumour and she made a good recovery.
20 In April 2012, she commenced employment through a local council with the Windmere Family Day-Care. This enabled her to take children into her house and care for them there.
21 In April 2013, she resigned from her employment with Little Beacons, and according to her letter of resignation,[10] the reason was so she could have another child. There is no reference in that letter to any difficulty with performing her work duties because of accident-related injuries.
[10]DCB 35
22 In July 2014, her second child, a daughter, was born.
23 At the present time, the plaintiff continues working for Windmere Family Day-Care, working two to three days per week, 14 to 21 hours per week, and looking after two children in addition to her own young children. Her house is specially set up to accommodate the children. Windmere Family Day-Care carries out safety audits each year or so, and her supervisor visits every three or four weeks. She had to satisfy Windmere that she was physically capable of looking after the children. The children she cares for are one year and three-and-a-half years, in addition to her children, who are presently eight months and three-and-a-half years. She said the work was demanding, but she had learnt techniques to assist her in lifting and bending, which she did as little as possible.
24 In re-examination, the plaintiff said she was not capable of working more than two to three days per week.[11] She said that, to some extent, when she suffered migraines while looking after the children, she could control the environment. She could shut out light, use the air-conditioning and try to restrict noise.[12] She said that if she had not suffered injuries, she would be working in a childcare centre, probably back at Little Beacons, on a full-time basis.[13]
[11]Transcript (“T”) 46, L18
[12]T46, L3
[13]T49, L3
25 According to her affidavits and evidence, the plaintiff suffers a range of consequences as a result of injuries sustained in the transport accident. Most significantly, the regularity and intensity of the migraines has increased. She says that she suffers them three times a week, and sometimes they last for days. They require treatment with the medication referred to. When the migraines are bad, she does not function well, cancels social engagements and is unable to undertake domestic chores. She does most of the shopping, cooking and cleaning, although her husband does the heavier aspects, including vacuuming.
26 She further suffers constant pain in her neck and lower back, which varies according to the activities in which she is engaged. She finds driving long distances difficult. She is unable to bend and lift to the same degree as before the accident. She says she can no longer wear high-heels as they hurt her lower back. She socialises much less. She has been unable to return to rock climbing or playing pool. She only now does a little gardening. Because of her lessened activity, she has been unable to lose the weight she gained when she was pregnant, and her weight and dress size has increased. She says this makes her feel sad. She is unable to care for her young children in the way that she would have wished. She has broken sleep and her intimate relations with her husband are significantly reduced.
27 Generally, the complaints of pain and restrictions, and the effect upon the plaintiff of the migraines are supported in affidavits of her husband, Ms Novytarger and Mr Sloots.
Medical opinions
28 According to a report of Dr Mark Dimotsos of March 2012, he said that the plaintiff’s rehabilitation progress, although hampered by underlying psychological trauma, was good.
29 According to a report of Associate Professor Owen White of April 2002, the physical examination was normal. He diagnosed the plaintiff as suffering migraine headaches, aggravated by the motor vehicle accident, and the soft-tissue injury suffered to her neck. He said:
“… I would have anticipated that the severity of the aggravation would have been such that her migraine would have returned to its normal frequency by this stage. Unfortunately, migraine can vary independently and may remain fairly bad after accidents such as she described, for some years.
…
The prognosis must be guarded that under normal circumstances migraine can be controlled with medication and I would anticipate improvement over the next 6 months.”[14]
[14]PCB 45
30 In his final report of November 2014,[15] Associate Professor White noted the plaintiff continued to complain of migraine headaches, two to three times per week. He said:
“The prognosis must be guarded at this time but usually headache settles within 3-5 years from the time of accident.”[16]
[15]PCB 47
[16]PCB 47
31 The plaintiff was examined by Dr John Waterston, neurologist, in June 2012 and November 2014. He described the plaintiff as suffering significant soft-tissue injuries to the cervical and lumbar spine, with resultant pain and limitation of movement. He accepted that the accident had aggravated her pre-existing migraine headaches because of cervical spine pain and dysfunction. He said:
“It is likely that this lady will have permanent and ongoing problems with cervical and lumbar spine dysfunction. She will be prone to the effects of premature degenerative change as a result of these injuries.
It is possible that there will be some further improvement in her migraine headaches with appropriate medical treatment.”[17]
[17]PCB 55
32 Further, in his report of 2014, Dr Waterston said:
“This lady remains significantly disabled by her migraine headaches and spinal symptoms.
She is able to work part time but it is unlikely that she would be able to undertake full-time work. She will be restricted in the type of work that she can undertake in future on account of her spinal problems.
She is likely to require ongoing physical treatment on her cervical and thoracic spine and will also require neurological advice regarding management of her migraine headaches. She will be prone to the effects of premature degenerative change in her spine as a result of these injuries.”[18]
[18]PCB 60
33 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in November 2014. He diagnosed her as suffering a musculoligamentous strain to the cervical and lumbar spines, with aggravation of degenerative disease in both areas. He said she would require ongoing conservative treatment with an emphasis on pain management and rehabilitation. He said that the plaintiff’s work capacity was a complex issue and that he believed she would be able to continue her work as a childcare worker but with ongoing symptoms. He said that she would have difficulty returning to full-time work.
34 Mr Kevin King, orthopaedic surgeon, said that the transport accident resulted in a “violent jerking jolting strain” to the plaintiff’s cervical, thoracic and lumbar discs which explained the immediate onset of pain in those areas. He thought she would be able to continue on her restricted work duties but with flare-ups of her neck and back pain with bending and lifting. He described her as strongly motivated to work with a high pain threshold.
35 The plaintiff was examined by Mr Michael Fogarty, orthopaedic surgeon, in January 2015. On examination, he found only slightly reduced range of movement in the cervical and lumbar spines, and could not detect any traumatic injury to those areas. He concluded there were some inconsistencies between his findings on examination and the plaintiff’s complaint of pain and disability. He said he thought that the prognosis for recovery from the injuries would have been good. He said the injuries only slightly interfered with the plaintiff’s work capacity and interfered to some extent with her domestic and leisure activities.
36 The plaintiff was examined by Professor Stephen Davis, consultant neurologist, in March 2015. On examination, he found that the plaintiff’s spontaneous movement was unremarkable. He accepted she suffered a whiplash-type injury in the transport accident, with some soft-tissue damage to the cervical spine in particular. He described her complaints of pain as rather diffuse, with marked psychological changes, including depression and flare-up of pre-existing migraines. He said that he would have expected the effect of the soft-tissue trauma to have resolved. He concluded:
“I am reluctant to attribute the increased migraine frequency to the residual consequences of the soft tissue injury to the neck and would consider that psychological factors are the relevant precipitating factor.”[19]
[19]DCB 20
37 Professor Davis thought her workload could be increased.
Credibility of the Plaintiff
38 Although there were no significant credit issues put to the plaintiff in cross-examination, Mr Elliott described the plaintiff’s complaints of pain and restriction as somewhat theatrical and colourful. He urged caution in accepting all of her complaints of pain in the cervical and lumbar spines, and the migraine headaches. He pointed to relatively normal physical examination, particularly by Mr Fogarty and Professor Davis, and the comments by a number of doctors on both sides, to the effect that they would have expected the symptoms to have reduced by this time in the normal course of events. In relation to the plaintiff’s complaints of migraine, he submitted that to the extent there were migraines, Professor Davis’ analysis that they had a psychological genesis was correct.
39 I had the opportunity to observe the plaintiff in the course of cross-examination. I found her to be a thoroughly honest witness giving a credible account of the injuries she suffered in the transport accident and the consequences as a result. I found her responsive to questions put and that she made concessions I would expect of an honest witness. I did not find her descriptions of the pain and restriction as a result of the injuries as being theatrical nor colourful, as urged by Mr Elliott. To the contrary, I found her complaints measured and careful.
40 Nowhere in any of the medical reports was there a suggestion that the plaintiff was exaggerating her symptoms. I have little difficulty in accepting all of her complaints, not only of the pain and restriction in her cervical and lumbar spines, but also the increase in the intensity of the migraine headaches since the accident and the effect of them upon her.
Conclusions
41 I am satisfied that the consequences suffered by the plaintiff as a direct result of the injuries suffered in the relevant transport accident are “more than significant or marked” and do meet the statutory test of “very considerable”.
42 The most significant consequence to the plaintiff is the increase in the intensity and regularity of migraine headaches which she has suffered from the time of the accident to the present. It is clear that the plaintiff had an extensive history of migraine headaches from an early age, but I accept her evidence that these would occur approximately once sometimes twice per month, and were responsive to and largely controlled by the medication, Zomig. The headaches did not significantly interfere with the plaintiff’s capacity to work full-time duties in childcare, did not require the intensive medication regime she is now on, and did not require treatment by a specialist neurologist. I further accept her evidence that the intensity of the migraines is more severe, and that they involve nausea, vomiting and photophobia. As the plaintiff said in evidence, the effect of the migraines is debilitating.
43 I accept the opinions of Associate Professor White and Dr Waterston that the increase in the migraines relates to the soft-tissue injury to her cervical spine. In particular, Associate Professor White has treated the plaintiff over a considerable period and is, in my view, in the best position to draw a causative relationship between the transport accident and the migraines. I do not accept the opinion of Professor Davis that the genesis of the migraines is psychological.
44 I further accept that the plaintiff suffers pain and restriction both in her cervical and lumbar spines as a result of soft-tissue injury. There is no demonstrated significant structural injury to those areas, and the plaintiff takes some pain-relieving medication. However, I accept her evidence that the pain and restriction affects her capacity to enjoy her pre-injury recreational activities, domestic chores, ability to drive longer distances and to carry out, in particular, the more strenuous aspects of her work as a childcare employee. I further accept that her sleep is affected, she has gained weight, which she finds distressing, and her intimate life with her husband is affected.
45 I am satisfied that as a result of the injuries, the plaintiff has suffered a reduced work capacity. It is difficult to measure precisely that loss, but I accept that at the present time, working two to three days per week, that she is exhausted at the end of the day, and she has reached her work capacity. I accept her evidence that absent the transport accident and its consequences, she would be working in full-time employment at the present time.
46 In these circumstances, I propose to grant leave to the plaintiff to bring proceedings at common law, and will make consequent costs orders.
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