Collins v Transport Accident Commission
[2008] VCC 1841
•10 October 2008
| IN THE COUNTY COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-02-04030
| DIANNE COLLINS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, 28 May and 1 August 2008 | |
DATE OF JUDGMENT: | 10 October 2008 | |
CASE MAY BE CITED AS: | Collins v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2008] VCC 1841 | |
REASONS FOR JUDGMENT
---
Catchwords: Transport Accident Act – Section 93 – serious injury – impairment of the spine – psychiatric impairment – vestibular disturbance
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with Mr A D B Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr P Elliott QC with Ms A M Magee | Transport Accident Commission |
HER HONOUR:
Introduction
1
This is an application brought by Originating Motion filed on
6 August 2002, by which the plaintiff applies for leave pursuant to section 94(4)(b) of the Transport Accident Act 1986 (the “Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 9 October 1995 (“the accident”).
2 The application is brought pursuant to Section 93(4)(d) of the Act. Sub-section (6) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of serious injury relied upon by the plaintiff is under
Section 93(17)(a):
“serious long term impairment or loss of body function”
4 The inquiry under (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by sub paragraph (a) could have its seriousness measured in part by a mental response to a physical impairment: Richards v Wylie (2000) 1 VR 79.
6 The plaintiff further relies upon the psychiatric impairment pursuant to sub-paragraph (c)-
“Severe long term mental or severe long term behavioural disturbance or disorder.”
7 The body functions relied upon by the plaintiff in this case are the thoracic, cervical and lumbar spine, vestibular dysfunction and psychiatric impairment.
8 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”.
9 The plaintiff relied on three affidavits and gave viva voce evidence. She was cross examined. The plaintiff also relied upon an affidavit sworn by her daughter, Alissia Robinson.
10 Professor Byrne, neurologist, was required for cross examination and gave evidence by video link from London. Dr Brodsky, the plaintiff’s general practitioner, was also required for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff was born on 1 January 1948 and is presently aged sixty. She is a widow with an adult daughter.
12 The plaintiff is currently in receipt of a partial disability pension. She also derives income from investments. Most of her money is in managed funds. She has some independent shares, land, some private equity and a superannuation fund. Periodically, perhaps four times a year, she withdraws $20,000 or $30,000 at a time and transfers it to a J B Were Working Account.
13 The plaintiff completed Leaving at the age of sixteen and then worked as a law clerk/secretary for about twenty two years in Melbourne and Sydney. After the birth of her daughter in May 1984, the plaintiff’s only employment was nine months’ work in 1989/1990 doing the books, invoicing and acting as a Girl Friday with a quilt manufacturing company two days a week.
Pre Accident Health
14 The plaintiff was involved in a car accident in 1978, in which she suffered injury to her right sacroiliac joint. She had problems down her right side for four to five years after the accident. She did not think she was experiencing these problems at the time of the 1995 accident. She received compensation of $50,000 and loss of wages for almost a year.
15 After the 1978 accident, the plaintiff developed ulcerative colitis for some weeks. She had previously had irritable bowel syndrome in her twenties, and those symptoms returned and remained for some years thereafter, requiring medication for partial control. She deposed over the years she developed recurrent urinary tract infections requiring medication.
16 The plaintiff has undergone a number of colonoscopies over the years, and was once informed she was suffering from diverticular disease. As of the most recent tests, this disease is not present.
17 The plaintiff deposed that she also had psychiatric difficulties following the 1978 accident. She was off work for eleven months, became depressed, and was referred for assessment by a psychiatrist at the Melbourne Clinic. She received inpatient treatment over a period of several weeks and she may have been prescribed anti-depressant medication. She deposed subsequent to that discharge, her psychiatric state settled down considerably and she did not have any further problems until the Ash Wednesday fires.
18 In cross examination, the plaintiff recalled another car accident when she was about eight months’ pregnant in 1983. She suffered bruising across her stomach and contractions started and she had some increased back pain. Proceedings were not issued in relation to this accident.
19 The plaintiff did not think she had problems with her balance after this accident because she was not really badly injured. All she could remember was having a very sore back and it was exacerbated by having a newborn baby.
20 Ever since she was a teenager, the plaintiff has had problems with temporomandibular joint dysfunction. She has had surgery on her chin to correct an immature bite. In 1990, she had the first of four operations to correct a deviated septum. She still has a problem with obstructed breathing but it does not cause dizziness.
21 The plaintiff said that she had blurred vision on and off throughout her life because of keratoconus, which has been corrected by glasses.
22 In the early 1990s, the plaintiff was diagnosed with bilateral breast cancer and had multiple operations. In the months prior to the 1995 accident, the plaintiff had been advised that she was at some risk of development of duct carcinoma in the breast, and her nipples were removed. The stitches were still in place at the time of the accident.
23 The plaintiff deposed over the years she had had a number of psychological problems. When she was about sixteen, in Leaving, she consulted Dr Seal, psychiatrist, in relation to difficulties at home. She took an overdose of migraine tablets and was admitted to Hospital, where she received ECT therapy over a number of weeks but did not require ongoing treatment on discharge.
24 The plaintiff next received treatment at the age of twenty one in the context of a relationship breakdown. She took an overdose of painkilling medication and was admitted to the Royal Melbourne Hospital for two weeks, and then transferred to Royal Park Psychiatric Hospital for some months. She was in a confined ward for a short period of time, then subject to day release. She deposed that the primary cause for her psychiatric problems at that time was her workload with Haines Blakie & Polites, solicitors.
25 The plaintiff married in March 1977. She and her husband lived on a ten acre property at Macedon. In the bushfires of 1983, the house, the property and its contents, and a substantial part of her life were destroyed. She deposed that the fires had a devastating effect upon her husband and herself and she developed further psychiatric problems in the years which followed.
26 The plaintiff underwent grief counselling and at times she developed panic attacks. She attended a psychiatrist, Dr Krasky from January 1986, and by the late eighties was being prescribed the anti anxiety medication, Clonazepam, for these attacks. She deposed on one occasion she took an overdose of that medication and was admitted to the Royal Melbourne Hospital.
27 In cross examination, the plaintiff said she did not think she was taking Clonazepam at the time of the 1995 accident. On admission to the Latrobe Regional Hospital following that accident, the history sheet indicated she had been taking Clonazepam for panic attacks for the last four years.
28 In cross examination, the plaintiff denied having panic attacks as late as June 1994. She said that did not actually sound right because she had been quite well for a number of years prior to the accident and could not recall having had panic attacks just prior thereto. She said she was also prescribed Clonazepam because it helped her sleep. She could not recall being given a prescription for that drug by Dr Willaton on 5 May 1995.
29 The plaintiff’s husband’s psychiatric condition deteriorated to the point where he committed suicide on 4 July 1988. The plaintiff was looked after for six weeks in the Home for Mothers and Babies in Carlton after his death. In or about 1989, the plaintiff’s daughter was taken into care for a period of about three weeks because the plaintiff was experiencing suicidal thoughts.
30 The plaintiff continued to consult Dr Hrasky for a number of years after her husband’s death until 8 September 1992. The plaintiff deposed her psychiatric state improved during that time and by the early 1990s, she had come to terms with all the events that had befallen her. She had been able to travel overseas and form a relationship with another man, which lasted for about four years, then with a second man, which lasted for about eighteen months.
31 The plaintiff deposed that she had financial independence following the receipt of $700,000-$800,000 in settlement of her fire claims and she was able to maintain herself and her daughter in a reasonable lifestyle. She deposed in the years before the accident, her life was stable and her health issues were largely controlled. She had a good relationship with her daughter, with whom she used to go on holidays.
32 The plaintiff could not remember specific back problems in November 1992 but agreed that over the years since the first two car accidents she had occasional lower back problems which were aggravated by activities such as gardening, and that she did not have any real treatment. She said she did not have a definite memory of telling a doctor in March 1995 that she had a sore back. She said prior to 1995, she did not have problems with balance.
33 She was cross examined about an incident which she reported to a doctor on 29 May 1990. She fell at a fence whilst talking to a neighbour and hit her head. It was noted that she suffered tenderness over the upper occipital region on the right side and she had a massive headache afterwards, and also some low back ache. She did not have an independent recollection of the incident and she could not remember undergoing a CT scan of her brain. She could not recall complaining to a doctor in June 1990 that she felt off balance.
34 She could not remember telling Dr Willaton on 12 March 1995 that she was feeling unwell and dizzy, nor could she recall telling Dr Willaton on 5 May 1995 that she was concerned about her alcohol intake and her inability to sleep.
The Accident
35 The plaintiff deposed that on 9 October 1995 (“the said date”) she was driving home from New South Wales. Her daughter, who was nearly twelve, was travelling in the passenger seat.
36 When the plaintiff approached a bend in the road, which was marked by a double white line in the centre, a large logging truck moved onto her side of the road. She was forced to steer to the left side of the road, where she hit gravel and her car spun and rolled a number of times, coming to rest on the other side of the road, having hit an embankment.
37 The plaintiff deposed she had some loss of memory of events immediately preceding the car coming to rest. She believed she regained consciousness very shortly thereafter. She was trapped in the car for two and a half hours before the “jaws of life” arrived. During that time she could not move and had problems breathing and was administered oxygen.
38 In cross examination, the plaintiff said that when she first saw the other driver he was coming off the bend and he was way over the side of the line, at least half on her side of the road. The next thing she remembered was being slumped over the console of the car and hearing her daughter screaming. She could remember talking to her daughter. Her last recollection was a feeling that her car was rolling. She said she would not swear that she had actually lost consciousness, although she felt it was probably most likely, but she could not say absolutely. She could vaguely remember being taken away in a helicopter and speaking to people at the Traralgon Hospital.
Medical Treatment
39 The plaintiff was taken by air ambulance to the Latrobe Regional Hospital, where she was diagnosed as having suffered a burst fracture of the fourth thoracic vertebra and as suffering bruising to the right arm. She deposed that whilst in hospital she recalled having a fairly large lump on the back of her head.
40 Three days later, the plaintiff was transferred to Bethesda Hospital where she remained until 24 November 1995 under the care of Mr Wilde, orthopaedic surgeon.
41 The plaintiff consulted Dr Thomas, rehabilitation specialist, and was then discharged for outpatient treatment at the Essendon campus of the Royal Melbourne Hospital, where she underwent extensive rehabilitation.
42 The plaintiff deposed in 2004, she had considerable difficulty coping with the after effects of the accident and that she suffered constant pain, particularly in the mid thoracic area, but also into her lower back, and from there tightness affecting her left thigh and referred symptoms around her chest. She had numerous other sore points, including her neck, right shoulder, left hip, knee and ankle and both elbows, and intermittent pain in her right knee.
43 The plaintiff was initially prescribed the anti depressant, Aropax, and Nurofen and Panadeine Forte. She required assistance with household tasks and gardening. During that time, the plaintiff consulted Dr Small, general practitioner, who practised alternative therapy.
44 In about late 1997, the plaintiff began to consult Dr Sia and Dr Evans at the Sia Medical Centre in Essendon.
45 The plaintiff was referred to rheumatologist, Dr Moran, who injected the plaintiff’s right shoulder with cortisone in October 1996. In about 1998, the plaintiff was referred to an endocrinologist, Dr Grill, who referred her for bone density tests, which showed no bone deficiency.
The Falls
46 The plaintiff deposed she had been troubled by loss of balance and falls from mid to late 1996 – some four to six months after the accident. When she began to gain mobility after the accident, she found increasingly that she was noticing a lack of balance and coordination when walking, having difficulty judging distances, moving or turning quickly, having to veer off walking into objects, and she also began suffering a number of falls. She also began to develop hearing loss.
47 The plaintiff had intermittent feelings of nausea and increasingly severe headaches, starting in the left side of her neck, which spread over the left side of her face and across the temples into the eyebrow. She had difficulty spatially. When she was going through a doorway she would brush the side of the door jamb, putting her off balance.
48 In May 1998, the plaintiff fell, fracturing her left ankle. This was the first of many falls, resulting in numerous fractures. She was treated by Mr Lynch, orthopaedic surgeon, and at other times by her general practitioners at the SIA Medical Clinic.
49 The plaintiff was also referred to a neurologist, Dr Kilpatrick, to ascertain the reason for her falls. He referred the plaintiff for an MRI scan of the thoracic and cervical spine performed on 5 June 1998.
50 The plaintiff was referred to Mr Damian Ireland, hand surgeon, having fractured her wrist in a fall in 1999. She was referred to orthopaedic surgeon, Mr Young, in March 2000 in relation to a left knee condition. The plaintiff deposed she was concerned that weakness in her left knee had contributed to the falls.
51 On Mr Young’s advice, the plaintiff was subsequently referred to Professor Byrne on 1 August 2000. She complained to him of a swimming sensation in her head, feelings of unsteadiness, a history of drop attacks causing multiple fractures, and intermittent throbbing headaches. He recommended she undertake a series of tests under Dr Mark Paine at the Royal Victorian Eye and Ear Hospital. Dr Paine arranged for vestibular function tests to be performed and later further tests were performed by an audiologist.
52 The plaintiff deposed the search for the correct diagnosis of her condition continued. She saw Dr Hjorth, a neurologist, who was unable to provide a diagnosis. She was referred to an ENT specialist, Mr Basham, in August 2002, who arranged testing of her hearing and also a CT scan of her skull.
53 The plaintiff subsequently consulted an ENT and audiologist specialist, Professor Franz, in April and August 2003. At that time she was having some feelings of being unbalanced and her ability to judge distances was restricted. He arranged an MRI of her craniocervical junction.
54 The plaintiff said she last attended Dr Brodsky following a fall possibly at the end of April 2008, when he referred her for an x-ray of her pelvis, which she did not undergo.
55 The plaintiff deposed she has continued to suffer from drop attacks which are variable in frequency and occur perhaps ten to fifteen times a year. In addition, sometimes when she is gardening or doing other active tasks and attempts to move too quickly, particularly after bending, she feels off balance and this all causes her to fall frequently.
56 She deposed she had not suffered any further fractures for about four years. She had a suspected hairline fracture of her right hip, but that did not require an operation.
57 She was cross examined about her opinion as to the cause of her various falls and medical opinion in relation thereto and whether she thought the falls were caused by her knee problems. She said she did not know the reason why she was falling; she thought maybe it was to do with her knee. She said that the drop attacks happened so quickly that she was not aware of what caused her to fall.
58 When she was told by Mr Basham in August 2002 that she was suffering from Meniere’s disease, she said she was confused and accepted it as a possibility. She was becoming more confused because specialists were telling her different things.
59 The plaintiff could not recall an incident in November 2004 when she was slumped over the steering wheel of her car. She classed a fall in Austria in 1997 as a “drop attack”.
60 The plaintiff said that she felt off balance most of time; it was like an off balance spatial feeling, not like dizziness. With the drop attacks she was not aware of how she felt before them because they happened so quickly and they were the least frequent of the falls, although she has had a lot of them. Most of the fractures happened during them.
61 She deposed she has other problems which she believes are related to the vestibular injury from which she suffers. She has more severe hearing loss in the right ear. She suffers tinnitus, and tends to leave the radio on all day to distract herself from the ringing in her ears. She also has hearing problems, particularly affecting her right ear, to which an aid has been fitted.
Other Health Problems Following the Accident
62 The plaintiff deposed that since the accident her life had been very painful and difficult. She required hearing aids for hearing loss. She continued to suffer dizziness and headaches and had problems with balance. Her memory and concentration were reduced. Her sleep was poor. She constantly felt tired and rundown.
63 She has also suffered from frequent severe, debilitating migraines which render her incapable of leaving home, causing her to miss appointments, both medical and social, and they have caused her considerable distress and inconvenience. The migraines appear to be activity related and also brought on by hot weather. She uses Imigran spray, which on occasion helps initially. During the period of the migraine she also has problems with vomiting and diarrhoea. When she has a migraine she sees dots moving in front of her eyes, and the pain is initially on the left side of her head and then becomes more widespread. Her headaches are less severe in nature.
64 In evidence, she distinguished between migraines and headaches, saying the former seemed to be brought on when she was working in the garden. She said migraines do not relate to falls. When she gets “dots” and feels sick and has a migraine, it is a different situation from when she is gardening and feels off balance.
65 She deposed that her memory and concentration are poor. She said her pain caused her some difficulty answering questions put to her by counsel for the defendant. Her sleep is affected by her narcolepsy condition, despite the use of Dexamphetamine.
66 She continues to suffer left wrist pain as a result of earlier falls. She continues to suffer some bilateral knee pain which she believes results from the falls, which aggravated the left knee injury she sustained in the accident. Her right hand fracture remains painful during colder periods, as do her left ankle symptoms.
67 The plaintiff was diagnosed with narcolepsy four or five years ago by Dr Jamison after her daughter had suggested there was something wrong with her. She has problems with excessive tiredness, difficulty waking up. She sleeps extremely heavily and can sleep for very long periods of time, the longest being 34 hours continuously. It is not a condition, in her case, where she falls asleep for no reason suddenly. She disagreed she told Dr Jamieson she did not want to take Dexamphetamine because she attributed her blackouts to the commencement of that drug.
68 She described the two incidents as blackouts – one where her daughter found her unconscious in the bathroom and the other at the wheel of her car. There were “weird” episodes that she did not really remember. She was not worried that Dexamphetamine was causing her the problems because it was a drug that woke you up not made you sleep.
69 She thought it was more the concoction of drugs. Dexamphetamine was the last one she had been prescribed. At that time she was taking Aropax for anti-depression and pain management; Serc and Stemetil to help with balance disorder and nausea; Maxolon for nausea when she has a migraine; Evista, an anti-cancer drug, which was also for osteoporosis reasons; Ostelin, a vitamin D3 calcium supplement for her bones; Imigran for migraines, and herbal supplements.
70 She thought there was a possibility the sleep disorder was connected to the car accident. While she had problems waking up even as a child, she was never really like that before the car accident.
71 She was diagnosed with hearing problems by Mr Basham, the loss being more severe in her right ear. She has had the right hearing aid for five years, although the loss started long before that.
72 She deposed more generally there is almost no aspect of her life that has not been severely impacted upon as a result of the injuries.
Psychiatric Condition
73 The plaintiff was prescribed Aropax for nine years after the accident until December 2004. Wanting to come off that drug because of bad publicity it was receiving at that time, the plaintiff was referred by Dr Brodsky to his wife, Dr Krapivensky, psychiatrist, in 2003 and 2004 with a view to helping her get off the medication.
74 The plaintiff saw Dr Krapivensky twice. The plaintiff said that she did not feel well psychologically at that time and within three days of coming off the drug she felt highly suicidal.
75 The plaintiff was referred by Dr Brodsky to Dr Prodromou, psychiatrist, in January 2005 for “post traumatic stress disorder, depression, blackouts, failure to cope”. At that time she thought the plaintiff was seriously depressed and at risk of self harm. The plaintiff last consulted Dr Prodromou in October 2007, having seen her approximately every three weeks since January 2005. The only report in evidence from Dr Prodromou is dated September 2005.
76 The plaintiff deposed in May 2008 that her psychological condition is reasonably controlled by Aropax, which she believes she will require for life. She deposed it is taken at an elevated dosage as without it she considered her depressive symptoms would rapidly become more severe.
Employment
77 The plaintiff deposed that following her husband’s death in July 1988, her primary concern was to maintain her lifestyle and opportunities with her young daughter. At that time, her expenditure exceeded her income, and she had to draw on capital investments totalling on average $27,000 per year to provide for herself and her daughter.
78 The plaintiff deposed that prior to the 1995 accident, she intended to return to the workforce in or about 1998 when her daughter had reached approximately Year 8. In cross examination, the plaintiff disagreed that she had given away all thoughts of work before the accident.
79 She deposed the effects of the transport accident, both physically and psychologically, had prevented her from returning to work in any career, such as a legal secretary or clerk, on a part or full time basis, and in addition, prevented her from retraining to establish herself in an alternative career.
80 She deposed she had lost about $20,000 a year which she would have earned had she been able to work approximately 25 hours a week as a law clerk/legal secretary from 1998.
81 She deposed that once her daughter’s secondary schooling had finished in 2002, she would have anticipated returning to full time employment, and, as an experienced legal secretary/law clerk, she would have been able to secure employment earning approximately $35,000 to $40,000 gross per year.
82 She said that prior to the 1995 accident, she was getting herself geared towards possible study at university as a mature age student and she was interested in doing either an arts course, majoring in psychology or anthropology. In 1990, she studied five VCE subjects, getting an A plus in each subject. She also completed a computer course to update her qualifications to get a job.
83 In 1991, she was diagnosed with her first breast cancer when she was in the middle of study and was not able to sit for her final exams. The following year she had further surgery on the right breast and she had a lot of difficulty with the implants. She said that she had perhaps five or six operations, was a single parent and had a young daughter and it was all a little bit much to continue studying.
84 In her third affidavit sworn on 23 May 2008, she deposed she thought, because of her injuries and her psychiatric condition, each considered separately, she would be unable to engage in any gainful employment.
85 She said she had not looked for a job since the accident. It was not possible for her to work, even though she thought about it. There was never any stage at which she felt she could cope with a job. The plaintiff said that she had now given away returning to the workforce and taking a different career path.
86 In May 2008, the plaintiff deposed that she continues to suffer pain, particularly in the middle back. She has some pain in the lower back which is not too bad. The pain in her neck is more like an ache. She has referred symptoms into her right and, more particularly, left leg. The medication which she takes provides only a partial relief from her spinal symptoms.
87 She gave evidence that the pain in the middle of her back is really very severe. Sometimes it is like a total burning feeling right across the thoracic area. At least every other day this causes her to lie down. When this occurs, she has to lie down no matter what she is doing because it does help, and if her back does not improve she takes painkillers. The plaintiff agreed she had learnt to manage her pain better, but said that she was not pain free and was still taking painkillers.
Current Medication and Treatment
88 The plaintiff deposed that Dr Brodsky prescribes Aropax, Stemetil, Serc, Maxolon, Ostelin, Caltrate and Evista to assist in bone density problems, and Dexamphetamine, Imigran nasal spray, Endone and Mersyndol Forte to assist with pain.
89 She was last prescribed Endone by Dr Brodsky in March 2008 and said that she obtains prescriptions from other specialists when she sees them. She thought she may have been prescribed Endone by Mr Carlisle.
90 The plaintiff may go for months without seeing Dr Brodsky. She is currently treated by Dr Jamieson for narcolepsy. She has seen Professor Rome, an oncologist/gynaecologist, who thought she might benefit from removal of her ovaries to decrease her risk of further cancer.
Domestic and Social Activities
91 The plaintiff deposed her social, domestic, and recreational activities have been severely affected by her injuries. Her relationship with her daughter has broken down completely. Their last telephone contact was in November 2007. The plaintiff deposed she has also lost a number of friends who cannot cope with her. Her ability to maintain a house is limited. She is restricted in the amount of vacuuming and sweeping she can do. She does her best to maintain her garden as TAC has ceased funding.
92 She deposed she has not been able to resume any sporting or recreational activity, such as dancing, tennis, table tennis or skiing. She used to enjoy bushwalking and camping. She also enjoyed sewing, knitting and embroidery, but those activities aggravate her symptoms. Whilst she reads, she is no longer able to read the way she used to. Before the accident she played sport. She did not have any problems with her balance. She said she was a dancer into her thirties. She enjoyed ballet and callisthenics as a young child. More recently she played tennis with her daughter and she joined the Strathmore Tennis Club for a little while. They also had a family table tennis table.
93 The plaintiff also enjoyed snow skiing before the accident but has been advised against resuming it. Prior to the accident she had been on several holidays skiing with friends and her daughter and she described her standard as below intermediate. She had no problems doing sharp turns or with balance.
94 The plaintiff bought a house with her daughter in Inverloch a bit earlier than 2003/4. The plaintiff said that she does not go down there that regularly of late and has not been down there at all in the last year. The house is not rented. It is on a quarter acre block and has a garden and the plaintiff does a lot of gardening there. At home she has an ornamental garden. She said gardening is definitely a passion and that she had two acres of garden at Macedon.
95 For a number of years the plaintiff has found it difficult to drive, and finds that she is a very nervous driver and very hesitant to drive passengers. She becomes scared when large trucks are nearby. She commenced driving nine to twelve months after the accident and not earlier because she was nervous getting back into the car and TAC funded some driving lessons to get her confidence back. She can now drive to Inverloch and she is not prevented or prohibited from driving because of drop attacks and falls.
96 The plaintiff went on an extensive overseas trip with her daughter in 1997, travelling to Zimbabwe, Austria and England. She said she was restricted because of pain in the amount of activities she could engage in and that she organised the trip for her daughter’s benefit.
97 Mr Peter Dunn, financial investment adviser, valued the plaintiff’s portfolio in 1995 at $258,102.00. It has most recently been valued at $441,144.00 on 30 June 2007.
98 The plaintiff’s daughter, Alissia Robinson, swore an affidavit on 24 June 2004, in which she deposed to the deteriorating nature of the relationship with her mother and her mother’s numerous complaints following the accident. She deposed that it took 30 seconds to 2 minutes before her mother replied when she spoke to her after the accident. In a statement to Dr Krapivensky, Ms Robinson she said that she believed her mother was unconscious after the accident and that she thought she was dead.
The Plaintiff’s Medical Evidence - Orthopaedic
99 Dr Brodsky, the plaintiff’s general practitioner, was required for cross examination. He first treated the plaintiff on 1 June 2001 and has been involved in the prescription of medication and referral to various specialists.
100 The plaintiff visited him twice in 2003, six times in 2004, three times in 2005 and four times in 2006. She next attended in March 2007, and most recently in March 2008.
101 In his most recent report, Dr Brodsky noted the plaintiff continued to attend his clinic with the main problems of back pain and depression. He diagnosed depression, post traumatic stress disorder, chronic pain syndrome, multiple falls due to loss of balance that led to various fractures, recurrent headaches, narcolepsy and blackouts.
102 He thought the prognosis of her injuries was not encouraging, with ongoing chronic pains and the possibility of more falls in the future. He also thought her mental condition did not appear to be improving.
103 He thought in the meantime she appeared to be coping a little bit better. He noted she had been treated by multiple specialists in various disciplines with very limited success and that she had required antidepressants as well as some analgesics for a long time.
104 He thought the plaintiff’s capacity to complete or partake in activities of daily living and even recreational activities had been severely impaired by her physical and psychological injuries. Further, he thought her capacity to work was severely impacted by the accident and further additional injuries since.
105 Dr Brodsky had not really noticed any improvement over the years in relation to the plaintiff’s back pain. In his view, the thoracic spine certainly was broken and two vertebras were broken. He thought, although the fractures healed, there was generally an ongoing issue for people who are not young. He noted the plaintiff still experienced a fair bit of chronic pain from the back injury.
106 He thought the drop attacks were a genuine problem because, as far as he was concerned, the plaintiff had sustained multiple injuries over the years which were very hard to explain by any but some sort of neurological problem.
107 Dr Brodsky thought that the plaintiff’s psychiatric condition over the years generally had not improved at all and maybe even had worsened. He did not anticipate any change in her various conditions.
108 Dr Brodsky was cross examined as to his prescription of drugs to the plaintiff. He confirmed he most recently examined the plaintiff on 5 March 2008, having last seen her a year earlier. Following the 2008 examination, he requested imaging of the plaintiff’s pelvis. Dr Brodsky confirmed the plaintiff first complained of a fall in March 1996 and that she last mentioned a fall in September 2005.
109 Dr Ingpen, rheumatologist, saw the plaintiff in September 2001. He thought she appeared to have sustained a fairly significant injury in the car accident and the major consequences appeared to have been a head injury and crush fractures involving thoracic vertebra.
110 Mr Michael Johnson, orthopaedic surgeon, examined the plaintiff in September 2007 for medico-legal purposes. She told him of ongoing problems with thoracic back pain, headache, poor balance and tinnitus.
111 Mr Johnson concluded the plaintiff had clearly suffered fractures at T4 and T6 in the accident. The fracture at T6 had resulted in a 60 per cent loss of height and moderate localised kyphotic deformity. The plaintiff complained of pain in that region, which he thought was genuine and related to the original fracture. She also complained of ongoing discomfort in the neck and low back.
112 He thought the plaintiff would be at greater risk of developing a progressive thoracic deformity if she became significantly osteoporotic. He thought she may be osteopenic and her bone density needed to be fully assessed. He thought her interscapular pain, which had been experienced for a prolonged period, would persist permanently.
113 Mr Stephen Doig, orthopaedic surgeon, first examined the plaintiff for medico-legal purposes in September 2002. He diagnosed a crush fracture at T4, a minor crush fracture at T6, chronic soft tissue injury to the lumbar spine and multiple falls, stated to be due to vestibular disturbance.
114 Mr Doig noted that the injury to the upper thoracic area was certainly consistent with the accident, as was the injury to the cervical and lumbar spine. In his view, the plaintiff had made a moderate recovery from the thoracic injury, although she continued to have ongoing pain and discomfort in the area. He thought her prognosis was a little guarded and that it was likely that she would continue to have some pain in both the upper and lower back. He thought it was very unlikely the plaintiff would get better, especially as it was so long after the accident.
115 Mr Doig re examined the plaintiff in July 2007. He thought her level of impairment was permanent. He did not expect her to significantly improve.
116 Mr Doig disagreed with Mr Wilde’s view that a chronic regional pain syndrome was a non organic problem. He thought the plaintiff’s pain and suffering from the organic injury, namely the fracture, and the secondary regional pain syndrome contributed to at least 75 per cent of the plaintiff’s ongoing problem.
117 He noted the significant crush fracture at T6. He said the reason why there was some burst element was that there appeared to be some retropulsion of T4 fragments on the early MRI scan. In his opinion, that would certainly account for a lot of the plaintiff’s thoracic symptoms.
118 Dr Horsley, occupational physician, examined the plaintiff for medico-legal purposes in April 2007, having previously assessed her in February 2005. She noted the plaintiff had ongoing disability related to her thoracic and lumbar spine and that when her thoracic and lumbar discomfort was significant she required Endone and her pain was at the level of 9 out of 10.
119 Dr Horsley diagnosed ongoing mechanical cervical dysfunction and mechanical thoracic pain. She thought the clinical presentation was consistent with the plaintiff’s history. In her view, the plaintiff’s ongoing cervical dysfunction and thoracic discomfort were directly related to the accident and she thought significant work and domestic restrictions applied.
The Plaintiff’s Medical Evidence - Vestibular Dysfunction
120 Professor Trevor Kilpatrick, neurologist, examined the plaintiff in May 1998 with a presenting history of recurrent falls. He subsequently reviewed her on 6 June 1999.
121 He concluded the plaintiff had an ongoing pain syndrome without examination evidence of significant complicating neurological compromise, although, in his view, a component of her pain sounded reminiscent of thoracic nerve radiculopathy.
122 He concluded there was a continuing problem with the chronic pain syndrome. On balance, he thought it important for the plaintiff’s management to be directed under the auspices of a pain clinic and also for her to have a continuing psychiatric review. He thought her headaches likely represented common migraine.
123 Professor Byrne, who gave evidence by video link, first saw the plaintiff on referral from Dr Sia in August 2001. He noted an MRI scan of the brain showed no definite abnormalities. He diagnosed a vestibular trauma in the course of the accident which had resulted in drop attacks which had persisted for some years.
124 Following medico-legal assessment in 2005, Professor Byrne noted the etiology of drop attacks was quite complex. In some patients a definite etiology is never established and they are regarded as idiopathic. Having investigated a number of drop attacks, he concluded that a vestibular problem was the dominant basis in many patients. He felt the probability was high, that this was the case with the plaintiff. She had had symptoms consistent with a vestibular problem since she began to mobilise after the accident.
125 In cross examination, Professor Byrne said that it was not surprising that the plaintiff’s first fall was not for some months after the accident. He accepted there had been a brief loss of consciousness suggesting a minor head injury, relying upon her history that she had a bump on her head after the accident.
126 Professor Byrne rejected the view of neurologist, Dr White, that the falls were due to non organic factors. Professor Byrne mentioned that most medical opinion in this case, including Mr Hjorth and Professor Davis, disagreed with Dr White’s opinion.
127 In Professor Byrne’s view, people do not fall with such suddenness that they may break limbs without having a physical cause. He thought a balance disturbance in the inner ear was the probable cause of many patients who have drop attacks where another pathology is not determined. He drew a direct connection between a minor vestibular injury at the time of the car accident and resulting drop attacks because, in his opinion, minor vestibular problems were often a cause of drop attacks where there was no other cause.
128 Further, Professor Byrne did not accept the plaintiff’s falls were as a result of Meniere’s syndrome, which he said was quite a different history to the one given by the plaintiff. He noted that her symptoms were quite distinct to those typically encountered in Meniere’s syndrome, in that she did not have episodic tinnitus coming out of nowhere, building up to a marked intensity and then followed by intense vertigo.
129 Professor Byrne disagreed with Mr Millar’s view that the plaintiff suffered from hydrops. He said he had never encountered or read of any cases of drop attacks caused by early endolymphatic hydrops.
130 He concluded the plaintiff’s symptoms were quite atypical for Meniere’s disease or hydrops, which are the same thing. Secondly, where patients do get falling attacks with hydrops, it seldom occurs out of the blue and it is in the setting of intense dizziness, thus a patient would almost always have some warning and have time to sit down.
131 He thought the plaintiff presented with a very different diagnostic problem, hence the reason for differing views as to a diagnosis. He commented, however, that most people agreed that the plaintiff has a balance problem, a vestibular problem and that it is organic and that it came on some months after a fairly major accident. He thought most people accepted that accidents where you hit your head and are knocked out can cause vestibular symptoms. He could not exclude with a 100 per cent certainty that this was due to Meniere’s syndrome because the diagnosis was a matter of opinion.
132 Professor Byrne described a drop attack as an episode where, with minimal warning not sufficient to protect themselves, a person will fall heavily to the ground. There is no loss of consciousness. What distinguishes that from a faint or a seizure is that consciousness is preserved – the key thing is the person will have no sufficient warning to protect themselves. A fall, in the context of Meniere’s disease, will be where a person might be lying down with nausea and experience severe dizziness. It is a fall in the midst of a very major vestibular upset, not the minor prodromal symptoms the plaintiff has with very little warning before her falls.
133 When cross examined as to what he meant about postulating but not proving a causal link, he said he could not say with certainty that these abnormalities were the cause of the problem. He said it was not established with definite absolute certainty, and that is the case with much of medical science. He said it did not establish a link conclusively – it was not established with absolute certainty.
134 Professor Byrne continued to hold the opinion that the balance of probability was that the plaintiff’s drop attacks were as a result of a post traumatic vestibular problem.
135 Mr Alan Basham, ear, nose and throat specialist, first saw the plaintiff in August 2002 in relation to her vertiginous symptoms. He noted vestibular function testing at the Eye and Ear Hospital in October 2000 was consistent with a non localised vestibular pathology. He thought the development of endolymphatic hydrops could have a relationship with the head injury, as a fracture of the skull base as a consequence of head injury can lead to the development of hydrops over time. However, there was no evidence of a fracture of the skull base at that time and the current CT scan was considered normal.
136 He thought there was always the possibility the plaintiff’s current symptomology related to the accident, but there was no direct evidence, other than the fact that she had a tendency to fall over for seven years and had sustained fractures. He commented many patients with hydrops do not go on to develop Meniere’s syndrome.
137 He noted that electrocochleography was positive in the left ear consistent with hydrops, which can cause imbalance, but not diagnostic of Meniere’s disease.
138 He later reported in 2005 that he was of the view that the plaintiff had only sustained a very minor head injury, and a brief loss of consciousness was most unlikely to have occurred. Having what he thought was a history of a three year gap between the accident and the onset of vestibular symptoms, he thought the period appeared to be wanting. In his view, in regard to the head injury and the development of vestibular symptoms, cause and effect seemed not to be sustained, and he did not think the head injury contributed to the development of vestibular symptoms.
139 The plaintiff was tested by Mr Basham’s audiologist in 2002. Low frequency tone bursts were found to be abnormal, indicative of hydrops, which can cause minor vestibular symptoms. Whilst Mr Basham accepted the plaintiff had developed vestibular symptoms, he noted the exact nature of their cause was a matter of some considerable controversy. In his experience, people with well developed hydrops and Meniere’s disease do develop drop attacks. However, sustaining multiple fractures over a period of time was not part of the picture and he could not explain that from the point of view of inner ear disequilibrium.
140 Professor Franz, ear, nose and throat surgeon, on examination in 2003, diagnosed cranio cervical instability due to head and neck injury.
141 Dr Clayton Thomas saw the plaintiff on referral from Dr Brodsky in July 2005. He was unable to give the plaintiff an answer as to whether the car accident was responsible for her vestibular problems and he thought her problems were extraordinarily complex and difficult to tie in together. He suggested to the plaintiff that it would be appropriate for her to attend Dorset Rehabilitation Centre for a balance program
142 The plaintiff was examined by Mr Waterson, neurologist, in August 2006. He thought it was possible, even probable, the plaintiff sustained some degree of vestibular dysfunction as a result of the accident. He concluded any such damage to the vestibular apparatus must have been reasonably mild, as evidenced by the lack of any definite significant peripheral vestibular abnormalities on vestibular testing. Such damage, in his view, might explain the plaintiff’s complaints of motion induced dizziness and mild disequilibrium. He noted that migraine can also be associated with similar vestibular symptoms.
143 Mr Waterson could not, however, explain the ongoing problem of drop attacks on the basis of any degree of presumed mild post traumatic peripheral vestibular dysfunction. He noted the plaintiff apparently sustained a mild head injury on the basis of a short period of loss of consciousness, but there was no prolonged period of post traumatic amnesia to indicate that anything more than a mild head injury occurred. He commented this was despite the fact the plaintiff had a significant injury to her thoracic spine.
144 Mr Waterson was not convinced the symptoms described in the Bethesda Hospital’s records were necessarily indicative of vestibular dysfunction. He was of the view that complaints of nausea and light headedness could well be associated with postural hypotension and that the plaintiff had spent a significant period of time lying in bed. He said it was also possible the plaintiff experienced nausea and dizziness as a result of the severe pain and anxiety that she was experiencing at that time. In his view, therefore, it was not possible to be certain about the cause of her symptoms.
145 He concluded it was possible the plaintiff sustained some mild vestibular damage as a result of the head injury, but he could not explain the most debilitating problem of her drop attacks.
The Plaintiff’s Medical Evidence - Psychiatric
146 Dr Krapivensky, psychiatrist, who treated the plaintiff between 2003 and 2004, diagnosed a severe post traumatic stress disorder.
147 Dr Prodromou, psychiatrist, first saw the plaintiff on 18 January 2005. Her initial assessment was the plaintiff was likely suffering a recurrence of a major depressive disorder with sufficient severity that she presented a significant risk of self harm and perhaps harm to others. She noted that the plaintiff’s marked sense of despondency and multiple health, financial and personal difficulties, in addition to the impending litigation, contributed to her depressive illness.
148 Dr Prodromou concluded the plaintiff’s anxiety and depressive disorder commenced prior to the accident but was exacerbated following the death of her husband and the accident. She thought the plaintiff’s prognosis was guarded and that her major depressive disorder and attendant anxiety had not resolved. She thought the plaintiff appeared to suffer a mood disorder, and likely personality vulnerabilities contributed to its destabilisation at times. The plaintiff had not recovered from post traumatic stress disorder and psychiatrically, she was unemployable. Dr Prodromou last examined the plaintiff in October 2007. Her only report is dated September 2005.
149 Dr Glasser, psychiatrist, examined the plaintiff for medico-legal purposes in May 2005. He diagnosed a major depressive disorder which was of mild to moderate severity. He also found some prominent anxiety symptoms. He noted the plaintiff’s problems included depressed mood, suicidal thoughts, recent overdoses of prescribed medication, sleep disturbance, concentration and memory difficulties, loss of self confidence, relative social isolation, loss of appetite and weight and some anxiety in specific situations, for example, associated with driving a car.
150 Dr Michael Epstein, psychiatrist, examined the plaintiff for medico-legal purposes in January 2008. Having noted her difficult life with many trials and tribulations, he commented that since the accident, her level of depression had worsened, contributed to by ongoing pain and discomfort and other symptoms.
151 Dr Epstein diagnosed a major depressive disorder of long standing which was made worse by the effects of the accident. In his view, the plaintiff had developed a post traumatic stress disorder following the accident, that settled over eighteen months to two years. She had been left with some mild phobic anxiety that manifested itself when travelling in traffic. He thought her condition was stable and her prognosis for improvement was poor.
Investigations
152 A plain x-ray of the thoracic spine taken on 9 October 1995 showed –
“Partial wedging of a vertebral body approximately T3 with some depression of the superior vertebral end plate.”
153 A CT scan of the thoracic spine taken on 10 October 1995 demonstrated –
“A compression fracture at the body of T4. No posterior fragment is visible. No involvement of the posterior elements is seen. No evidence of compromise to the spinal cord is seen. The fracture appears stable.”
154 An MRI scan of the thoracic spine taken on 13 October 1995 demonstrated –
“There is a crush fracture of the T4 vertebra with substantial angulation due to anterior wedging. There is minor posterior protrusion with no clear involvement of the spinal cord at this level. There is an associated indentation of the superior aspect of the 6th thoracic vertebra which is relatively minor and not associated with displacement.”
155 A plain x-ray of the thoracic spine taken on 19 October 1995 showed –
“There is a moderate compression type fracture involving the T4 vertebral body. This area is a little difficult to visualise on the lateral film however general alignment of the thoracic spine appears satisfactory. There is also a minimal compression fracture of the body of T6 with minor depression of its superior end plate.”
156 A plain x-ray of the thoracic spine taken on 17 October 1996 showed –
“Minor thoracic scoliosis with the convexity to the right and a scoliosis angle of 5 degrees. There was moderate to marked compression of the body of T4 and mild compression of the body of T6. These are unchanged in degrees since the previous examination in 1995. Since 1995, a little spondylitic change has developed at the T3-4 level.”
157 An MRI scan of the thoracic spine taken on 5 June 1998 showed –
“Increased kyphosis seen centred at T4 level where there was a chronic benign type crush fracture with greater than 50 per cent loss of height at the T4 vertebral body. All discs from T1-2 to T10-11 demonstrate loss of signal intensity consistent with multilevel disc degeneration. There was no focal disc protrusion, significant central canal stenosis, cord compression or intrinsic cord abnormality seen. Loss of vertebral body height was seen at T6 vertebra. Again, no retropulsed fragment is seen.
Conclusion – increased kyphos due to a benign type crush fracture at T4 and T6 with greater than 50 to 60 per cent of loss of height at the T4 vertebra. There is multi level disc degeneration without cord compression or intrinsic cord abnormality.”
The Defendant’s Medical Evidence - Orthopaedic
158 Mr Max Esser, orthopaedic surgeon, examined the plaintiff on 5 September 2002. The plaintiff complained of pain and discomfort in the thoracic and lumbar spine and also the right shoulder. The plaintiff told him that back pain came on approximately twelve months after the accident and that she also had a problem with pain and discomfort in her neck, which started six to nine months after the accident.
159 Having been shown various investigations, Mr Esser thought the plaintiff had sustained injuries of T4 and T6. He thought the plaintiff had recovered from the injury to her thoracic spine. He noted her back and neck pain were unrelated to the accident, given their late onset. He thought the plaintiff almost certainly had a constitutional abnormality of the cervical and lumbar spine which was causing her symptoms.
160 Mr Esser thought there were no specific psychogenic factors associated with the plaintiff’s assessment. He considered she had very little disability in relation to her upper thoracic spine and that her thoracolumbar spine movements were almost normal.
161 The defendant also relied upon reports provided by the plaintiff’s treating orthopaedic surgeon, Mr Wilde, who examined her for medico-legal purposes in 2007, having been involved in her care at Bethesda in 1995.
162 In February 2007, the plaintiff told him she had been suffering from excessive pain in her thoracic spine, headaches and poor balance. Mr Wilde noted the plaintiff had difficulty performing heavy physical tasks such as gardening (her main hobby) or vacuuming. He commented that the severe pain in the interscapular region of the thoracic spine with referral into her neck and both shoulders associated with headaches and migraines limited the plaintiff in many activities, whether social, recreational or domestic, that she was able to perform without difficulty prior to the car accident.
163 He noted the plaintiff continued to complain of symptoms arising from her thoracic fractures which, in his view, was difficult to comprehend as the fractures were well and truly healed, in satisfactory alignment and position. He thought she had had appropriate treatment and it was difficult to attribute her current symptoms to the pathology sustained in the accident. In his view, the reason why she had so much ongoing pain was that she had developed a chronic regional pain syndrome, a form of hypersensitisation of neural function as a result of her T4 and T6 fractures.
164 Mr Wilde, in a supplementary report, said it was very difficult to separate organic and non organic pathology. He noted that it had been his experience from managing many patients with thoracic compression fractures over many years that the vast majority of patients continued to experience intermittent low grade symptoms at the site of their fracture, although a significant proportion – 30 per cent – of patients made a full recovery with no residual symptoms whatsoever. He said it was unusual for a patient to complain of severe chronic pain after a simple compression fracture of the thoracic spine. For that reason, he said he was at a loss to explain why the plaintiff had continued to experience the stated severe symptoms.
165 Mr Wilde concluded, therefore, there was likely to be a substantial component of non organic contributors – 80 per cent of her ongoing pain and suffering. By non organic factors, he referred to the psychological adjustment disorder that was amplifying the plaintiff’s symptoms. He said this was a “best guess” opinion.
166 In his last report of May 2008, Mr Wilde made the point that there are no objective criteria that can be applied in the plaintiff’s situation and doctors will be of differing views in making an assessment regarding the contribution of organic versus non organic disease. He noted doctors’ assessments may vary from day to day, as there is a large subjective component to a doctor’s evaluation under these circumstances. Patients with non organic disease present badly on certain days, highlighting significant psychological factors, whereas on other days they present without the psychological component and therefore the assessment would be different. He commented that perhaps when he examined the plaintiff on 22 February 2007, the psychological component represented a considerable distress, and hence her symptoms were embellished. He said it was not for him to make a final adjudication, but perhaps it would be prudent for the Court to take an intermediate view of about 55 per cent in assessing the doctors’ reports in apportioning non organic and organic components.
The Defendant’s Medical Evidence - Vestibular Dysfunction
167 Dr Robert Hjorth, neurologist, examined the plaintiff in 1999 and 2000. He diagnosed serious injuries to her spine, depression and reduced memory. He noted her falls had not been satisfactorily explained. As the plaintiff had injured herself quite seriously in some of the falls, he thought it was unlikely they had a psychological origin. He noted that if he accepted the falls had a physical origin, then, even though he could not be sure of the mechanism, he thought it was likely the motor vehicle accident was responsible.
168 On re examination in February 2000, Dr Hjorth noted the plaintiff complained of migraines, a problem not mentioned on examination on 4 August 1999. In his view, if the migraines came on within a few months of the accident, it would probably be reasonable to accept them because the plaintiff did hit her head quite substantially in the accident and aggravation of migraines were a common consequence of otherwise minor head injuries.
169 Mr Hugh Millar, otolaryngologist, examined the plaintiff in August 2004. The plaintiff complained of a feeling of disequilibrium which amounted to a sensation of constant unsteadiness but not dizziness. She also said she lacked spatial sensation. He thought the plaintiff’s problem was a complex one and it was difficult to provide an exact diagnosis. In his view, the history of constant disequilibrium, episodes of prolonged dizziness and sudden drop attacks suggested she was suffering from vestibular disorder.
170 Mr Millar commented it was unfortunately difficult to establish the time relationship of the onset of these symptoms following the apparent mild head injury. In his view, if there was a direct relationship he would have expected the plaintiff would have suffered from vertigo whilst at Latrobe Regional Hospital.
171 He noted that clinical examination provided no objective evidence of a vestibular disorder and suggested a hint of exaggeration of her balance disturbance.
172 He noted that serial audiometry suggested the plaintiff may have a progressive bilateral hearing loss which would then suggest she was suffering from a bilateral vestibular disorder. He noted vestibular function testing carried out at Melbourne University on 27 October 2000 when non specific abnormalities were detected and that her results were consistent with a significant non localised vestibular pathology. However, he noted electrocochleography undertaken in August 2002 showed a positive result in the left ear consistent with endolymphatic hydrops.
173 Mr Millar thought the plaintiff was suffering from the clinical triad of chronic disequilibrium with recurrent vertigo, chronic bilateral tenderness and a probably progressive bilateral asymmetrical sensorineural deafness which equated to a diagnosis of bilateral Meniere’s disease.
174 In his opinion, this bilateral vestibular disorder was most likely unrelated to the head injury. He thought, independently of the accident, the plaintiff had some form of bilateral inner ear disorder causing progressive deafness and possibly the associated disequilibrium.
175 He disagreed with Professor Davis’s view that it was probably reasonable to regard these spells as some form of episodic neurological disturbance plausibly related to the accident.
176 Professor Stephen Davis, neurologist, initially examined the plaintiff on 30 July 2004. He noted the major injury was a crush fracture at T4 and also some crush fracture at T6 of a lesser degree. He thought the plaintiff presumably also sustained some musculo ligamentous injuries to her neck and a minor head injury, and, in his view, there was no evidence of acquired brain injury.
177 He thought the plaintiff had a chronic pain syndrome involving the low back but also rather diffusely up the vertical column into the neck and head, experiencing frequent migraine type headaches, giddiness and depression.
178 He noted perhaps the biggest problem over and above the chronic pain were drop attacks. He thought in the plaintiff’s case it was very difficult to understand their cause. In his view, they may in part relate to the vestibular dysfunction that had been demonstrated on testing, but that would not be likely to explain many of the episodes. He was sure the episodes were organic in nature and they only came on after the accident, but the nexus between the minor head trauma, trauma to the vertical column and more major vertebral column trauma was quite uncertain in his view. He concluded, because of that uncertainty, it was probably reasonable to regard the spells as some form of episodic neurological disturbance plausibly related to the accident.
179 The plaintiff was re examined by Professor Davis in March 2007. She told him overall she was definitely not getting any better. Having seen a number of other medical reports, Professor Davis confirmed his earlier opinion.
180 Dr Owen White, neurologist, has examined the plaintiff on a number of occasions for medico-legal purposes, most recently in April 2007. At that time the plaintiff’s main complaint was pain in the lower thoracic and lumbar region radiating down the back of her legs, headaches, persistent balance disorder, drop attacks, impaired hearing and tinnitus.
181 Dr White concluded it was clear the plaintiff had pain in her thoracic and lumbar spine that may well be associated with trauma from the motor vehicle accident. She also had complaints of headaches that may well be post traumatic migraine, although they were extremely frequent and had not ameliorated to any degree in many years.
182 He noted the multiple falls, some of which appeared to be related to a vestibular syndrome of undefined nature. He was of the view this syndrome was not clearly related to the accident in any way except it was a temporal relationship. He did not believe it to be related to the accident and thought there was a phobic vestibular disorder that may well have psychogenic causes.
183 He commented that the pathology to moderately frequent drop attacks was extremely nebulous and that it was difficult to determine whether they were organic or non organic and that it would be unusual for drop attacks to occur in a patient as young as the plaintiff.
184 He thought the plaintiff had significant mechanical problems related to the accident and also significant psychological problems that may be related to the accident.
185 Having been provided with a report from Professor Kilpatrick, neurologist, and Dr Prodromou, psychiatrist, Dr White concluded the salient features would appear to be that the plaintiff had a chronic pain syndrome that appeared to date from the time of the motor vehicle accident and was probably related to her multiple fractures. He considered there was also evidence of longstanding psychiatric disorder not entirely attributable to the accident and seemingly predating it.
The Defendant’s Medical Evidence - Psychiatric
186 Dr Barry Kenny, psychiatrist, examined the plaintiff in 1999 and in September 2000. He thought the plaintiff did not have any significant continuing psychiatric problems by the time of the accident. Following the accident, he noted the plaintiff had severe and persistent physical symptoms as well as significant and continuing depression. He diagnosed an adjustment disorder and a significant post traumatic stress disorder.
187 Mr James Drury, clinical neuropsychologist, examined the plaintiff in November 2000. The plaintiff reported difficulties with memory and concentration, psychological changes involving feelings of irritability, stress, flattened mood and disinhibition, regular migraines, hearing loss, balance difficulties, fatigue and constant pain.
188 Mr Drury thought there was no clear evidence of a significant head injury and it would not be expected any significant organic brain damage would have been sustained in the accident. He thought there were deficits shown on cognitive testing which were due to the plaintiff’s level of fatigue and pain. In his view, these deficits were not consistent with organic brain damage.
189 He noted that the plaintiff’s leisure activities had changed substantially as a result of the accident. He noted that she used to enjoy playing tennis, daily table tennis with her daughter and also skiing. She told him she always enjoyed gardening but was now confined only to light gardening, such as growing pot plants.
Thoracic Impairment
190 In this case, where there is a pre existing spinal condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and long term.
191 In Petkovski v Galletti (1994) 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. . . .”
192 The plaintiff therefore, to reach the threshold of serious injury, is required to establish the aggravation is permanent at the time of the hearing in its effects on the spine and the effects of the aggravation must be very considerable – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622.
193 I must be satisfied therefore that the aggravation resulting from the transport accident can be described as “serious”, namely, whether the consequences to the plaintiff of spinal injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being at least “very considerable” and more than “significant” or “marked”.
194 Whilst I accept that the plaintiff had some spinal problems before the accident including:
§ five or six years or so of pain and she was off work for ten to eleven months after the 1978 car accident;
§ a sore lumbar spine following the 1984 accident;
§ some aching in her back in 1990 when she fell when leaning over to pick up a cat;
§ 1991 – complaint of mid thoracic pain;
§ 1992 – several complaints regarding the low back for three to four months and she attended her general practitioner;
§ seven months prior to the accident complaint of a sore back to Dr Willaton who noted physiotherapy was not helping;
§ breast implants caused her to be uncomfortable and led to backache at times
these were not of any significance at the time of the 1995 accident and did not affect the plaintiff’s enjoyment of life or ability to participate in her daily activities or sporting pursuits.
195 In the accident the plaintiff suffered a compression fracture at the T4 vertebral body and a mild compression fracture of the T6 vertebral body confirmed by the MRI scan taken on 5 June 1998.
196 Despite the comment in the Bethesda Hospital Discharge Summary that the fracture was declared stable, the seriousness of the plaintiff’s thoracic injury has been noted by a number of medical practitioners.
197 In August 1998, Dr Hjorth noted the plaintiff had ongoing serious injuries of her spine.
198 In 2004, Professor Davis commented that the major injury was a crush fracture at T4 and there was also some crush fracture of T6 of lesser degree and that the plaintiff had pain at the fracture sites
199 Professor Byrne noted on 2 July 2005 that mid thoracic back pain continued to be a major problem and that the plaintiff had suffered a major injury to the thoracic spine.
200 Both Mr Doig and Mr Johnson, orthopaedic surgeons, emphasised that a fracture of this magnitude was of significance and consistent with the plaintiff’s ongoing pain.
201 In September 2007, Mr Doig noted the plaintiff had a “significant crush fracture that could certainly account for a lot of her thoracic symptoms”.
202 As Dr Brodsky said in evidence, certainly the thoracic spine was broken and two vertebras were broken in the accident. Even though he was sure the two fractured vertebrae healed over a period of time, he thought that was generally an ongoing issue for people, “particularly for people who are maybe not so young”.
203 It was submitted on behalf of the defendant that there were a number of occasions where the plaintiff did not complain to doctors of thoracic pain or that she mentioned it was not of concern to her.
204 Upon examination of the extensive medical evidence in this case, such occasions – telling Dr Moran, rheumatologist, in 1996 that her thoracic spine was not her major problem and not complaining of ongoing thoracic pain when she saw Dr Ingpen, rheumatologist, in September 2001 – were rare.
205 Since the accident, the plaintiff has consistently complained of thoracic pain of some magnitude. She gave evidence that immediately following the accident she was encompassed with immense pain and that since the accident she has continued to suffer pain in her thoracic spine.
206 Whilst Mr Esser was of the view the plaintiff had recovered from her thoracic injury, she complained to him on examination in September 2000 of pain and discomfort in the thoracic and lumbar spine with a burning and tingling sensation of the whole of her back and upper spine.
207 In May 1997, the plaintiff reported to Dr Small that she was suffering severe pains in her neck and back.
208 On 6 June 1998, the plaintiff complained to Dr Kilpatrick of intermittent severe thoracic pain radiating around the ribs to the anterior torso.
209 In September 2002, the plaintiff reported to Mr Doig of ongoing pain and discomfort in the thoracic spine.
210 In September 2007, the plaintiff complained of ongoing pain in the thoracic region to Mr Johnson. He thought this was a genuine complaint related to the original fracture.
211 In February 2007, when examined by Mr Wilde, the plaintiff reported severe pain in the interscapular region of her thoracic spine.
212 I accept that the plaintiff suffered a major organic injury to her thoracic spine in the transport accident.
213 I accept the preponderance of medical evidence that the plaintiff has not recovered from that condition, contrary to the view of Mr Esser, who only saw her once in September 2000 and thought she had very little disability.
214 Whilst the fracture may have healed, the injury to the thoracic spine has had and continues to have serious consequences for the plaintiff.”
215 Further, the view of Mr Wilde relied upon by the defendant that the spinal procedures had well and truly healed, and that non-organic factors were causative of 80 per cent of her symptoms, must be read in light of his most recent comments. In February this year, he agreed there is a large subjective component to a doctor’s evaluation and patients with non-organic disease present badly on certain days, highlighting significant psychological problems, whereas on other days they present without any psychological component.
216 In any event, the serious injury defined by sub paragraph (a) could have its seriousness measured in part by a mental response to a physical impairment: Richards v Wylie (2000) 1 VR 79.
217 Further, Mr Wilde noted that the severe pain in the interscapular region of the thoracic spine with referral into her neck and both shoulders associated with headaches and migraines limited the plaintiff in many activities, whether social, recreational or domestic, that she was able to perform without difficulty prior to the car accident.
218 The plaintiff has had severe thoracic pain for approximately twelve and a half years which is ongoing and causes her every other day to have to lie down to recover, and she has been taking anti-inflammatories intermittently and painkilling medication on an ongoing basis for twelve and a half years. She described that the pain in her middle back can become very sore and sometimes it is like a total burning feeling right across the thoracic area.
219 She is presently prescribed morphine based Endone for pain relief, having last been prescribed it by Dr Brodsky on 5 March 2008. This drug was also prescribed by her general practitioner on 20 March 2006, together with Voltaren. She gave evidence that she had obtained prescriptions from other specialists.
220 The plaintiff has had physiotherapy on and off since the accident and also has had two spinal injections.
221 It was submitted by counsel for the defendant that the consequences in respect of pain and suffering were not serious as the plaintiff could drive her car long distances, such as to Inverloch where she had purchased a holiday home. Further, it was submitted that the plaintiff was able to establish a garden at the holiday house and take extensive holidays overseas, including travel to England and on a safari in Zimbabwe in 1997 and travel around Australia in 2006.
222 The plaintiff, however, gave evidence that on her trip to London, she did not do any “touristy” things because she was exhausted by that stage. It was difficult for her to do the trip and her main reason for travelling was to take her daughter. She had been sick at various stages of the trip. She had to leave tours because she was ill and it was not as if she was 100 per cent.
223 Further, whilst the plaintiff reported to Dr Ingpen in December 2003 that she was an enthusiastic gardener, and still is, and she told Mr Ireland in June 2006 that she was able to garden every day, and still does, her evidence was that when she does so she gets a total burning feeling right across the thoracic area.
224 I accept that the thoracic pain impairs the plaintiff’s ability to undertake gardening, which is her passion in life, and it also affects her ability to engage in other activities including housework.
225 In relation to pecuniary loss, it was submitted by counsel for the defendant that there was no direct evidence that the plaintiff had suffered any loss. The plaintiff had not been in paid employment for many years. Her last work was as a Girl Friday job in the early 1990s and before that she had worked as a law clerk in about 1984.
226 At the time of the accident, the plaintiff was living off investment income received from her fire claims. She has continued to live off those investments and she has a working account from which draws such sums as $20,000 and $30,000 when required.
227 It was submitted, that whilst the plaintiff might have had some thoughts about re-entering the workforce in the future, her intensions were vague and uncertain and covered the broad areas of psychology and anthropology. Further, because of her financial situation, she had little motivation to return to the workforce.
228 Whilst the plaintiff last worked briefly in 1990 when her daughter was aged six, I accept that the plaintiff did intend to return to work at least on a part time basis when her daughter reached secondary school.
229 The plaintiff successfully completed a number of VCE subjects, obtaining high marks in 1990 before the onset of breast cancer in 1991. I accept that she had undertaken further study with a view to returning to some sort of paid employment, whether it be in a new field or one where she had previously worked.
230 Once her daughter had finished school, I accept there was a likelihood she would have returned to work as a law clerk or undertaking clerical work, and by virtue of the injury to her thoracic spine alone, she does not have the capacity to do this work.
231 Whilst there is no evidence as to any actual financial loss suffered by the plaintiff as a result of the accident, I accept that she has lost the chance of returning to any clerical or other office work by reason of her thoracic complaint.
232 Further, I accept that her thoracic condition affects her ability to participate in various sporting and social activities she enjoyed prior to the accident.
233 I accept the plaintiff is a credible witness who has had an extremely difficult life. There was no evidence contradicting her complaints of severe pain and restriction. The index to the Defendant’s Court Book indicates surveillance video was obtained and no film was shown.
234 I find that the plaintiff has suffered a serious injury to her thoracic spine and the impairment relating thereto, when judged by comparison with other cases in the range of possible impairments, can be fairly described as at least “very considerable” and more than “significant” or “marked”.
Lumbar and Cervical Injury
235 The plaintiff did not complain of back pain until twelve months after the accident. She first complained of neck pain six months to a year after the accident. Due to the delay in the onset of spinal symptoms at these levels, I do not accept they are related to the accident.
236 Further, the plaintiff’s present level of symptoms in these regions is not significant. She described some pain in her lower back which “is not too bad” and she described her neck pain as an ache.
237 Whilst it appears relatively established that the use of the spine can be regarded as a single body function and that damage to vertebral levels in a single accident can be aggregated – Josevski v Chiquitta Mushrooms Pty Ltd & Victorian WorkCover Authority [2007] VCC 1653, per Judge O’Neill; Ivanovski v Menzies International Cleaning Contractors Pty Ltd [2006] VCC 447, per Judge Wood; Filippou v Dimitros & Transport Accident Commission (unreported VCC, March 2001) per Judge White – in this case the thoracic spine is the body function which I find is related to the 1995 transport accident and constitutes a serious injury.
Conclusion
238 Having found the injury to the thoracic spine is serious, it is unnecessary for me to consider further the plaintiff’s claim in relation to psychiatric injury or vestibular dysfunction.
239 In deference however to the detailed submissions made by counsel and the viva voce evidence called in relation to the plaintiff’s balance problems, I should indicate that I accept the evidence of Professor Byrne and Professor Davis, that the plaintiff’s falls have an organic basis and that they are related to injury suffered by her in the transport accident. The plaintiff did not experience falls prior to the accident and, as Professor Byrne noted, people do not fall with such suddenness that they may break limbs without there being a physical cause.
240 Further, I am not satisfied that any accident related aggravation of the plaintiff’s psychiatric condition meets the definition of “severe”.
241 Accordingly, I grant the plaintiff leave to bring proceedings in relation to the transport accident of 1995.
- - -
0
3
0