Conole v Transport Accident Commission
[2015] VCC 1026
•23 July 2015
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01063
| JENNIFER LOUISE CONOLE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 16, 17, 20 and 21 July 2015 | |
DATE OF JUDGMENT: | 23 July 2015 | |
CASE MAY BE CITED AS: | Conole v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1026 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – leg injury
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E A Macnab | Slater & Gordon |
| For the Defendant | Mr M Rawlings | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Almost 14 years ago, on 20 December 2001, Ms Jennifer Conole was crossing a road as a pedestrian. She was struck by a motor vehicle. She suffered a number of injuries but, in particular, fractures of the left tibia and fibula. She was operated on several times and had the insertion of implants to stabilise the tibia.
2 An application for leave under s93 of the Transport Accident Act (1986) was lodged on 12 February 2012. It relies on the left leg injuries. In particular, the consequences relied on are pain and its impact on her enjoyment of life.
3 Unfortunately, Ms Conole has suffered a deal of ill-health over many years. Some problems have been physical and others psychological, involving stress and depression conditions. These conditions include endometriosis. Her symptoms in that regard have been at such a severe level that she has required the strongest form of high-range narcotic painkillers, such as MS Contin, Endone, Kapanol and OxyContin for something like the last 18 years or so.[1] That need is still ongoing, and she has been on OxyContin over the last five years. The medication has been prescribed over those years by her general practitioner, Dr Joseph Virgona. In an application that involved four hearing days, he was the only doctor who gave oral evidence.
[1]Plaintiff’s Court Book (“PCB”) 88 and Transcript (“T”) 165-166
4 In addition, she suffered several traumas at work in the past. These have ranged from stress-related events that included a physical assault in 2004-2005, and emotional stress and anxiety was also suffered. It caused 12 months or so off work on WorkCover.[2]
[2]PCB 94
5 A shoulder injury then occurred at work on 23 December 2010 that also led to time off, symptomology and another successful WorkCover claim.[3] Serious injury was granted for the shoulder, and that damages claim was settled in December 2014. This shoulder injury also led to recommencement of treatment for depression that required attendances on a psychologist about every two to four weeks.[4]
[3]PCB 97
[4]PCB 99-100
6 The affidavit in support of serious injury set out the wide variety of consequences the shoulder impairment has caused in her daily life.[5]
[5]PCB 92-106
7 Turning to the subject leg application, the plaintiff has not had any treatment from any doctor for her left leg since November 2003. That was when she was discharged by her treating surgeon, Mr Richard Angliss.
8 An absence of treatment is sometimes seen in this jurisdiction when a plaintiff, who for one reason or another, does not like going to doctors and does not go. That is not the case here. She has had consistent attendances on and treatment from doctors for various other health needs over the 12 years since 2003 but none for the leg. After some medico-legal opinion raised the question of removing the hardware from her leg, she did see a general practitioner about that after her solicitor raised the matter with her.[6] As well as the many visits for other health treatment issues, those visits included the left shoulder. The records show that with respect to the left shoulder medical attendances, there were 14 or 15 in 2011, 13 in 2012, 20 in 2013 and 7 up to July in 2014.
[6]PCB 109.2; T151-152
9 The plaintiff bears the onus of proving consequences of the leg impairment on its own that can fairly be judged in the range of possible impairments or losses as being at least very considerable. On all the evidence, I find the evidence does not discharge that onus.
10 The functions clearly peculiar to the leg, for example walking, do not reach the very considerable mark as to their consequences. Other consequences are concurrently impacted by other health issues and they have not been disentangled to the necessary degree.
11 Turning to the evidence, I found the plaintiff a witness who did her best to recall events, symptoms and treatment going back over many years. That exercise encompassed dozens and dozens of visits to doctors for various health problems. I find that when medical treatment or advice is required, she is a person who does not hesitate to seek them. Those visits though did not involve a single note or record of treatment being sought for left leg symptoms or complaints since November 2003.
12 In the absence of complaints, it is no surprise that there has been no referral by a doctor to any specialists or other health practitioners in regard to her leg condition. I find she has not sought any treatment from TAC since 2003 for her leg.[7] TAC paid for her treatment up until her discharge by the treating surgeon, Mr Angliss, in November 2003, but no approach has been made to them over the last 12 years.
[7]T70; T180-181
13 While she did her best to recall matters in the witness box, I did not find her evidence reliable. Understandably, when her mind was focused on the shoulder claim, for example, it came with some exclusion of other health issues. When focused on this leg claim, it was largely to the exclusion of the consequences of other health matters, physical as well as psychological and emotional. This was understandable to some extent, as she has commendably tried over the years to put things aside and get on with her difficult day-to-day life in the face of a number of health issues. Still, she knew she was pursuing two serious injury claims.[8]
[8]T128
14 The unreliability of the evidence as to just what the consequences of any leg symptoms presently are leads to my ultimate conclusion, that those consequences of the leg, judged now almost 14 years after the transport accident, do not satisfy the test.
15 At other times, she gave evidence that was just wrong. She said Dr Virgona, “… fobbed her off” when she was confronted in cross-examination with the lack of complaint to him. She said he did not want to deal with WorkCover or TAC patients. Dr Virgona, in oral evidence, made it clear he treated TAC patients and WorkCover patients.[9] In fact, he treated her in a WorkCover context.
[9]T163
16 There were other examples of her evidence not being reliable. I do not accept the first she had heard of possibly removing the hardware was when her solicitor told her about that medico-legal opinion.[10] On the probabilities I accept Mr Angliss did mention it back in November 2003.[11] After all, he had implanted the hardware and on the probabilities would have said something to his patient about it as he discharged her.
[10]T151
[11]PCB 129
17 A reading of the affidavits sworn with respect to the application for serious injury in regard to her shoulder and then a reading of the affidavits in support of the leg application, is illustrative. Each of them excludes adequate reference to other problems in terms of the disentanglement task on which the plaintiff bears the onus. Concurrent conditions clearly impact on a number of activities of daily life.
18 A case such as this, in the absence of any treatment for about 12 years, depends largely on the plaintiff's evidence. The difficulty for a court with other and subsequent health issues has been commented on where there is some concurrent production of pain and suffering consequences, see Peak Engineering & Anor v McKenzie.[12]
[12][2014] VSCA 67 at paragraphs 1 and 2
19 The plaintiff's first affidavit in relation to the leg was sworn on 12 February 2014. It exhibited the serious injury shoulder affidavit sworn only six months earlier on 14 August 2013.[13] The shoulder symptoms and its consequences were set out, and it is clear they are very wide-ranging. They impact on employment, family, home, recreations, sports and other areas of life. So does the claimed leg injury when that affidavit material is then read.
[13]PCB 84-106
20 Just to compare what is said about one activity, amongst many others, such as gardening, is informative as much for what is not said as what is said.[14] Another example is what the shoulder affidavit said about the impact on her involvement with her children and their sports.[15] On that topic, the third leg affidavit then reads in not dissimilar terms, but now it is said to be due to the impairment of the leg.[16]
[14]PCB 103 and 109.14
[15]PCB 103
[16]PCB 109.5
21 There are other examples of the evidence being unclear. Sleep is still impacted by the shoulder.[17] Concurrently it is affected by her leg.[18] No attempt to disentangle is made. The second affidavit in relation to the leg claim was sworn on 12 September 2014. Only a passing reference is made to the concurrent shoulder condition.[19]
[17]PCB 101; T117
[18]PCB 109.3
[19]PCB 108
22 The third and final leg affidavit of 2 March 2015 does not assist in explaining how the shoulder impairment impacts on the very wide-ranging consequences said to be caused by the leg impairment. Only one brief reference to the shoulder appears in that affidavit but no attempt at disentangling is made. The shoulder damages claim at this stage had settled some four months earlier in December 2014.
23 Clearly, the plaintiff is not personally the author of these legal affidavits. They are drawn by up by lawyers. Those affidavits, in my opinion, do not even attempt to disentangle, explain, elaborate or distinguish the consequences of these vastly different arm and leg injuries. Rather, it is just left up to the Court.
24 The plaintiff bears the onus of disentangling and proving serious consequences. The affidavits do not really ever properly attempt the exercise. It is not enough to just tender both leg and shoulder affidavits and leave it there.
25 No adequate explanation is made of how the stress claim, that required 12 months off work, impacts on her life.[20] Similarly with depression, it is left unexplained. She was prescribed Lovan for depression and it is largely left unsaid as to its impact on her enjoyment of life.[21] It was obvious from the plaintiff's oral evidence that depression and mental or emotional issues are still very much a problem in her dealing with daily life. She referred to depression several times in her evidence.
[20]PCB 94
[21]PCB 99
26 The same inadequate history of injuries, conditions and complaints is seen in the reports of a number of the doctors asked to assess the consequences of the leg impairment. While the function of the leg is discrete in a sense from her shoulder and stress conditions, a proper medical opinion depends at least in part on a full picture being given to him of other matters that impact on her enjoyment of life.
27 It may be that Ms Conole’s various serious injury applications being obviously looked after by different lawyers at her law firm has led to some of these problems with the evidence but I cannot reach any conclusion about that.[22] In the end, she bears the onus of discharging the proofs.
[22]PCB 84, 92, 107, 108 and 109.1
28 As to consequences generally, the plaintiff has been able to work in a number of employment positions over the years. At one stage, she worked two jobs that would have totalled 35 to 40 hours a week.[23] While there are some leg symptoms that made some adjustments to her duties necessary, she worked around those adjustments, for example working around the needs of her patient, Sally. She was able to accommodate this respect to any leg problems.[24]
[23]PCB 95
[24]T198-179
29 These were jobs that she was capable of performing until other health problems or changed circumstances intervened. For example, the stress claim and the shoulder claim led to employment ceasing for periods. On the evidence, I do not accept any impairment of the function of the leg very considerably impacted on these various employment positions or on her present work capacity.
30 In terms of enjoyment of life consequences, the evidence falls short of discharging the onus in regard to the leg impairment on its own either by way of discrete leg functions and or also by way of disentangling consequences also caused by concurrent conditions. Those discrete leg functions include some effects on walking and running, for example, but most of the impacts on enjoyment of life clearly have concurrent medical causes.
31 There are cases where the consequences of an injury are so clearly separate and distinct from the consequences of subsequent injuries and other health conditions that no disentangling is necessary, see Peak Engineering & Anor v McKenzie.[25] This is not such a case in regard to many of the consequences relied on, pain being one.
[25](Supra) at paragraph 25
32 Here, there is something of a blurring of the causes and consequences with other medical injuries and other health conditions, some of which have been very long standing and are still being treated. The plaintiff is required to disentangle and attribute consequences to the leg alone. This has not been done.
33 The affidavit of her partner suffers from the same defect, in that it does not adequately address the disentangling exercise against other major health issues that still require narcotic medication of the highest grade. He says little more than “… she had some other medical problems”.[26] His affidavit also raises specific examples of consequences from concurrent causes. He speaks about the leg causing difficulty with her sleeping.[27] She has deposed to the shoulder still concurrently causing such problems as well as the leg.[28]
[26]PCB 109.7
[27]PCB 109.9
[28]PCB 101 and 109.3; T117
34 In the end, I accept the plaintiff still has symptoms and some consequences resulting from the impairment of the left leg. However, on the evidence, I am not satisfied they reach the serious injury level.
35 Turning to the medical evidence, of itself, it does not discharge the onus on the plaintiff. With no treatment over so many years, the treaters’ opinions do not help. The medico-legal opinions also do not take the matter very far. Even the radiology that has been presented has all originated from requests by medico-legal people. They have not been instigated by any doctors treating the leg injury for treatment purposes.
36 The brief documents from Mr Angliss do not take the plaintiff’s case any further, as they end in 2003 when he effectively discharged her with some advice to pursue physiotherapy. He optimistically stated, “Hopefully, that will give her back an independent gait and remove her symptoms of pain and discomfort”.[29]
[29]PCB 129
37 As indicated, the only doctor to give oral evidence was the general practitioner, who knows her best of all. Dr Virgona’s last report on the matter stated, “There is no reference in my notes of anything to do with this incident after the note of August 7, 2003”.[30] He said he continued to treat her for unrelated chronic pelvic pain. He repeated, in January 2015, that he had nothing further to add.[31]
[30]PCB 130
[31]PCB 130.1
38 In oral evidence, he said she had been a patient of his since May 1999. He does treat WorkCover and transport accident patients. He treated her for the WorkCover stress claim and gave certificates and scripts for that in 2007 and 2008. His practice was to record in notes, complaints of a patient that he considered significant, as well as findings about examination and radiology reports. Dr Virgona’s evidence did not advance the plaintiff’s case. I conclude from hearing him, as well as from his reports and records, that the plaintiff has not complained to him of leg symptoms for many, many years, although he still sees her regularly, and has done since 1999.
39 The only other material from a treater is a brief note without any report from a general practitioner, Dr S Stinson.[32] All it records is a discussion on 2 December 2014 that originated from TAC doctors raising the possibility of removing the hardware and her solicitor then telling her about it. The visit was not a patient seeking treatment for serious ongoing symptoms.[33]
[32]PCB 188.1
[33]T151-152
40 I reject the plaintiff’s submission that there was really no treatment open or advised to her and that answers the defendant’s criticism about lack of treatment. That submission flies in the face of what her affidavit describes as really unrelenting daily leg symptoms now for nearly 12 years since Mr Angliss last saw her. That submission also flies in the face of his parting words in 2003. Those words were that after an enthusiastic physiotherapy program, we will “… then have a look at things in terms of taking the metal out at the end of that time”.[34]
[34]PCB 129
41 The submission also ignores what I find as a fact, that the plaintiff readily gets medical advice and treatment if she needs it for problems that are pressing enough. For example the shoulder complaint saw her attend at the local clinic: in 2011, 14 to 15 times; in 2012, 13 times; in 2013, 20 times and a further seven times in 2014.[35]
[35]T268-269
42 What is worth noting is this case not only involves 12 or so years of no treatment, but there was no exploration or enquiry about leg treatment by the plaintiff. If the pain and symptoms were as bad as the affidavits tend to portray, the absence of either an enquiry or a request for a referral is very informative about the lack of serious or troubling consequences from the leg injury.
43 The other medical evidence was from medico-legal people who had nothing to do with her treatment. Mr G Grossbard, orthopaedic surgeon, reported after an examination in 2013 for an AMA percentage assessment. He thought there were some difficulties with cycling, kicking a soccer ball and perhaps with kneeling. He said, “She is, however, able to undertake all of the activities of daily living”.[36]
[36]PCB 166
44 His brief opinion does not support a finding of serious injury. In time, total knee replacement may eventuate because of knee alignment problems he said, but it is not even put by him as a probability nearly 14 years post-injury. He only uses the language of possibility.
45 Mr Iain McLean, orthopaedic surgeon, examined the plaintiff in July 2014 and in 2015. He described consequences of the leg injury.[37] He barely recorded any history about the shoulder beyond one or two sentences.[38] Whether he had read the enclosures that included the affidavit exhibited about the shoulder, I am unable to say. As to consequences, such as home duties, domestic chores, leisure, painting, the concurrent role of the shoulder is not really analysed.[39]
[37]PCB 180.6-7 and 184-185
[38]PCB 170-171
[39]PCB 173-174
46 When he saw her the second time in February 2015, again the shoulder was barely mentioned.[40] It was not disentangled in any way when he spoke of consequences, such as domestic chores and gardening.[41] He did speak of some functions that are peculiar to the leg and not the shoulder. Examples were walking, jumping and running. But on all the evidence, I do not accept Mr McLean’s opinion amounts to evidence that the consequences of the leg alone meet the bar of serious injury.[42]
[40]PCB 180.4
[41]PCB 180.6
[42]PCB 180.4 – 180.6
47 Dr T Wood, sports physician, examined the plaintiff in September 2014. Again, his enclosures included the first leg affidavit to which the shoulder affidavit was exhibited. He does deal with some limitations to the shoulder, but it is not of much assistance in the disentangling exercise.[43]
[43]PCB 183
48 No reference to being off work for 12 months due to stress, nor depression were recorded in the report. I do not accept Dr Wood’s opinions are full or adequate in terms of the information they are based on. In any event, his opinions do not discharge the onus in view of what I have concluded about the unreliability of the evidence generally.
49 It is helpful to look at what was said by doctors who saw the plaintiff for the other claims, that is the work stress and shoulder injury. Mr Dooley, orthopaedic surgeon, in July 2014, reported on the shoulder and recorded that she said “… she has made a good recovery from the leg injury”. The plaintiff was equivocal about this in cross-examination but I accept she probably made that comment to Mr Dooley.[44]
[44]Defendant’s Court Book (“DCB”) 477
50 This “good recovery” cannot be reconciled with her first leg affidavit sworn in February 2014, only five months earlier. The report from Mr Dooley less than 12 months ago illustrates the very different account given about her leg problems when seeing this doctor about her shoulder problems. I accept he was given a history of her health under “Past History” that is extremely defective and inadequate. It could be described as selective.[45]
[45]DCB 477
51 Mr Ian Jones, orthopaedic surgeon, in September 2013, laboured under a similar very defective “Past History” of health issues when seeing her for the shoulder claim.[46] This is a stark contrast to what she swore to in that first leg affidavit only a few months later, in February 2014. As with the affidavit evidence generally, the history these doctors took from the plaintiff was incomplete and selective. In the end, it is unreliable, and that is how I found the plaintiff in the evidence presented in this case generally.
[46]DCB 450
52 In 2007, the psychiatrist who saw the plaintiff for the stress WorkCover claim, Dr Chris Grant, recorded this from the plaintiff in regard to the leg injury: “In December 2001, she was a pedestrian struck by a vehicle and sustained a badly fractured leg requiring surgery, metal and bone grafts. This took about 18 months to recover, but is ‘OK now’.”[47] He was clearly quoting her words specifically.
[47]Exhibit 3
53 Again, this direct quote by Dr Grant of what he took from Ms Conole confirms my view that overall, the evidence about any consequences said to flow from the leg now is both inconsistent and unreliable. It reinforces my finding that when a certain focus is on one injury or one claim, the evidence about other matters is inadequate and can even be dismissive.
54 In July 2014, Dr Gary Davison, specialist occupational physician, saw the plaintiff for an insurer for the shoulder claim, and his reports were tendered by the plaintiff.[48] The history he took of the leg injury is very inadequate. His opinions, which are really directed to the shoulder, do not advance the plaintiff's case.
[48]Exhibit C
55 Mr Richard Page, orthopaedic surgeon, treated the plaintiff for the left shoulder in 2011. He reported her chronic pain issues that seemed to be in a context of her endometriosis and the shoulder injury. He does not comment on the leg problem being part of the pain picture at all.[49]
[49]DCB 16.1
56 It is not necessary to deal in any great detail with Dr Kevin Fraser and Mr Max Esser, who saw the plaintiff for the TAC. The psychiatrist, Dr T Entwisle, also examined her for the TAC. These doctors have not been given proper accurate or full histories of her medical problems. In any event, they do not assist the plaintiff's case in this application. Indeed, they provide opinions that there are no significant, ongoing consequences of the leg injury.
57 Mr Esser did not think there was any significant disability with respect to the leg. He did not think it affected her ability to participate in activities of daily life and domestic leisure activities or work.[50] He was sent further documents and commented further, mostly with respect to knee symptoms and radiology. He agreed there was an alignment difference. It was probably within normal limits.[51] He saw some minor degenerative changes that were unlikely to cause any significant symptoms.
[50]DCB 33
[51]DCB 34.5 – 34.8
58 Dr Fraser reported in May 2014. As to the leg, he concluded it was not causing any significant functional incapacity in regards to employment. He went on to say there was only “a very minor loss of ability in respect of domestic or leisure activities”.[52] He thought the prognosis was good.
[52]DCB 19
59 Dr T Entwisle, consultant psychiatrist, does not assist me in my paragraph (a) task, except to confirm the inadequate histories provided by the plaintiff of other health problems. Also, it reinforces the failure to disentangle. Several examples were given of the effect of her mental condition impacting on family life, housework and day-to-day personal difficulties.[53] He concluded, in the end, that no psychiatric condition impacted on work, domestic or daily living activities.[54]
[53]DCB 22
[54]DCB 26
60 In conclusion, I find Ms Conole has learned to live with the leg, as she has bravely done, with endometriosis, as well as other physical and mental conditions that she still suffers from. It is to her credit. She is not to be penalised for a stoical attitude to health issues. However, she has not proved, now almost 14 years after the transport accident and almost 12 years since last having treatment, that the leg judged now, of itself, causes very considerable consequences.
61 The defendant’s submission as to mitigation requires comment. It was in some ways a curious submission. It came in a case in which failure to seek treatment was at the heart of the defence, and yet it is argued she should pursue some treatment. No such further treatment has been recommended to her by anyone charged with treating her as opposed to some medico-legal opinions. The only note from a treater is Dr Stinson’s brief note which I have already referred to. He seemed to think, as to future treatment, that it was “somewhat speculative”.[55] I reject the submission as to mitigation. It is not relevant on the facts of this case.
[55]PCB 188.1
62 For the reasons mentioned, the application for leave is dismissed. It is not necessary, in view of that, to comment on the s23A application.
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