Couzens v Transport Accident Commission
[2011] VCC 285
•4 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02642
| SHARON COUZENS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 February 2011 |
| DATE OF JUDGMENT: | 4 March 2011 |
| CASE MAY BE CITED AS: | Couzens v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 285 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Transport Accident Act 1986 – whether the consequences to the plaintiff were “serious”: section 93(17)(a).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with | Henry Carus & Associates |
| Mr J Valiotis | ||
| For the Defendant | Mr C Blanden SC with | Solicitor for Transport |
| Ms R Annesley | Accident Commission | |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 15 June 2009 by which the plaintiff applies for leave pursuant to s.93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 20 June 2002.
2 The application is brought pursuant to s.93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under sub-s.(4)(d) unless the Court is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under sub-s.(17):
“(a) serious long term impairment or loss of a body function.”
4 The injury suffered by the plaintiff for which leave is sought is an injury to the cervical spine.
5 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered her Court Book (“PCB”), pages 8a-68 and 87-94: Exhibit A;
• The defendant tendered its Court Book (“DCB”), pages 16-34: Exhibit 1.
The Transport Accident
6 On 5 July 2004, the plaintiff was involved in a transport accident at the intersection of Plantation Road and Princess Highway, Corio. She was driving her car through the intersection when it was struck by a car which ran a red light. The damage to her car was substantial. It was written off.
7 The plaintiff was removed from the scene of the transport accident by ambulance. She was admitted to the Geelong Hospital where she was an inpatient for about four or five days. She suffered multiple injuries, including injuries to her head, teeth, neck, shoulders, back and ribs.
8 Investigations conducted at the hospital cleared the plaintiff of any major injury. Following her discharge from the hospital, the plaintiff saw Dr Jayaweera, general practitioner, and the later, Dr Trainor, general practitioner. No report was obtained from Dr Jayaweera so it is unclear when the plaintiff first saw her. In a report dated 8 November 2004, Dr Trainor said that she first saw the plaintiff on 6 September 2004. It would appear that she probably last saw the plaintiff on 1 October 2004.[1]
[1] DCB 16-17
9 The plaintiff was referred to have physiotherapy treatment, probably by Dr Jayaweera. Dr Trainor referred the plaintiff to Mr Dixon, physiotherapist. In his report dated 13 March 2007, he said that he commenced treating the plaintiff on 9 August 2004. He recorded that the plaintiff had received physiotherapy treatment at a different physiotherapy clinic, and that treatment was unsuccessful in giving her any relief.[2]
[2] PCB 9
10 Mr Dixon treated the plaintiff for what he described as a whiplash style injury to her cervical spine and right shoulder. The treatment he provided enabled the plaintiff to progress to what he described as an independent management program.
11 In his last report dated 9 March 2010, Mr Dixon said that the plaintiff’s symptoms in her cervical spine were severe initially and were causing her headache and neck pain and stiffness. He considered that the she would benefit from further physiotherapy treatment if she suffered exacerbations which he considered she might experience.[3]
[3] PCB 12-13
12 It would appear that the treatment which the plaintiff initially obtained was short-lived. Apart from seeing two general practitioners and having physiotherapy, she was also prescribed some medication. She has been prescribed Panadeine Forte and Cipramil.[4]
[4] Transcript 16
13 Prior to the transport accident, the plaintiff worked for Beaumont’s Pies and J & S Rippon’s Cleaning Service. It would appear that her job with Beaumont’s Pies was a full-time job, and that her job with J & S Rippon’s Cleaning Service was part-time. She had worked between 50 to 55 hours per week in some weeks prior to the occurrence of the transport accident.[5]
[5] PCB 8c
14 Within a few weeks of the occurrence of the transport accident, the plaintiff returned to the job with J & S Rippon’s Cleaning Service. She maintained that job for about four to five months following the occurrence of the transport accident. However, she was unable to lift bins, mop or vacuum. She was restricted to wiping down, dusting and sweeping. Her son, Luke, and his sister-in-law assisted her.
15 The plaintiff also returned to her work with Beaumont’s Pies after about three to four months. She did not return to what she described as the heavier work which she had previously undertaken. She was given a supervisory position.
16 The plaintiff left her employment with Beaumont’s Pies and J & S Rippon’s Cleaning Service and took up work with Clean Event in about March 2006. She worked with that employer for about two years, taking her up to about to August 2009.[6] It was while doing that work at the Chadstone Shopping Centre that she suffered an injury to her lower back. It would appear that the injury was of little consequence to the plaintiff and of no real relevance to this proceeding.
[6] Transcript 19
17 The plaintiff resigned from her employment in order to take up work with a company known as Hurlcon. She was employed as an assembler. She has been in that position for the previous thirteen months. Initially her work was light work. It involved assembling components relevant to the production of pumps and spas. Her expected output was twenty pumps and spas per day. Recently her expected output has increased. She is now required to achieve an increased output of seventy pumps and spas per day.
18 The plaintiff described the nature of the work that she was required to undertake involving occupying the same position daylong which has caused her pain in her back. She said she was assisted in her work; however, the interest on the part of the employer in assisting her has decreased. My understanding of what the plaintiff meant by “assistance” was in the nature of the employer accommodating the plaintiff by giving her work which she was able to cope with.[7]
[7] Transcript 23-24
19 The plaintiff re-married on 19 April 2009. She moved from Corio to Cranbourne with her husband. She is now treated by Dr Pavasaris, general practitioner.
20 The plaintiff’s treatment has consisted of two episodes of physiotherapy. The first I have already referred to above, and the second occurred in April 2007.[8] She has also been prescribed medication. She obtained a prescription for Lyrica about four to six months ago, and a prescription for Panadeine Forte in the week prior to the hearing of this application.[9]
[8] Transcript 13-14
[9] Transcript 16-17
21 The plaintiff conceded that she has been in full-time employment since she first returned to work following the occurrence of the transport accident. I infer that she has not had any time off work due to any of the injuries she suffered in the transport accident.
Consequences
22 Mr Blanden informed me that the defendant conceded that the plaintiff had suffered the consequences referred to in her affidavits.
23 In her first affidavit, the plaintiff described pain in her neck and shoulder most of the time which interferes with her capacity to undertake physical activities. She can no longer sew; undertake heavier aspects of gardening; cook where it involves lifting heavy pots and pans; lift her grandchildren; play social tennis once a month and swim laps once a fortnight.
24 The pain the plaintiff experiences interferes with her ability to get to sleep and to stay asleep. She has used Temazepam to help her get to sleep. She has become emotionally upset and tearful because she believes she is a burden to her family and is no longer a capable and physically strong woman.
25 In her second affidavit, the plaintiff described the extent to which she is struggling with her present job with its increased workload. She said she has a fear that she might physically break down and would have to resign her job. She referred to using Panadeine for pain relief on a daily basis. The plaintiff has also used Panadeine Forte.
The Medical Evidence
26 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 16 October 2007. He was of the opinion that the plaintiff had suffered an acute compression type injury to her neck and right arm. Clinically, he considered that she showed signs of radiculopathy and limited cervical spinal movements. He was uncertain whether the right arm symptoms were due to a carpal tunnel syndrome or were referred symptoms from her cervical spine. Otherwise, he said he was unable to make a positive diagnosis for further treatment or a prognosis.[10]
[10] PCB 24
27 Mr Myers, vascular surgeon, examined the plaintiff on 13 October 2009. He was of the opinion that the plaintiff had suffered an aggravation of pre- existing, but previously asymptomatic degenerative intervertebral disc disease in her cervical spine. He considered that she was barely coping with her employment at that time. However, that is in stark contrast to the evidence of the plaintiff.[11] My strong impression of her evidence is that it is only recently, with an increased workload, that she has struggled with her work.
[11] PCB 33
28 Mr Brearley, orthopaedic surgeon, examined the plaintiff on 2 December 2009 and some time in February 2010. He was of the opinion that the plaintiff suffered a soft-tissue injury to her cervical spine. He obtained a history from the plaintiff that her work was not hard and that she was coping quite well with it. He speculated that if the plaintiff’s work changed in its demands, then she might have difficulty maintaining it, which is consistent with the evidence of the plaintiff that she is now struggling with an increased workload.[12]
[12] PCB 65-66
29 Dr Hjorth, neurologist, examined the plaintiff on 11 February 2010. He was of the opinion that the plaintiff had suffered minor physical injuries, and in that connection he was referring to her cervical spine, among other injuries. He considered that she might have a right carpal tunnel syndrome. He suggested that she have nerve conduction studies.[13]
[13] DCB 26c
30 Mr Baker, occupational physician, examined the plaintiff for the defendant on 19 February 2010. He was of the opinion that the plaintiff had suffered a soft- tissue injury of a muscular ligamentous nature to her cervico-thoracic spine, with referred symptoms into her right scapular. He considered that exercise would improve her level of functioning. He considered that she was fit for her pre-injury duties. He doubted that the injuries she had suffered were permanent, and he saw no reason why she would not make a full recovery.[14]
[14] DCB 22-26
31 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 15 February 2010. He was of the opinion that the plaintiff probably suffered a musculo- ligamentous injury and an aggravation of underlying degenerative disease which was responsible for what he described as her intermittent cervical spinal pain and stiffness. He considered that the constant nature and intensity of the plaintiff’s pain was greater than he would have expected, and that he expected her to have been more active in her everyday life and her leisure and sporting activities. He considered that self-management with low impact exercise and fitness was the only treatment that she required.[15]
[15] DCB 31-32
32 The plaintiff was examined by two psychiatrists on a medico-legal basis. The first was Dr Newlands, psychiatrist, who examined the plaintiff on 10 September 2007. At that time she was of the opinion that the plaintiff had suffered from an Adjustment Disorder with Depressed and Anxious Mood. She did not consider that the symptoms were causing the plaintiff much distress. Her prognosis was that the plaintiff would experience frustration as long as the physical symptoms persisted. However, she noted that the plaintiff had a positive attitude and some determination to work through her problems.[16]
[16] PCB 21-22
33 The second psychiatrist to examine the plaintiff was Dr Kenny, who examined the plaintiff on 5 November 2009, and again on 28 January 2010. He was of the opinion that the plaintiff had suffered a Mild Adjustment Disorder with a minimal degree of primary psychiatric impairment. He did not consider that she would benefit from the treatment.[17]
[17] PCB 54-55
34 Dr Williams, general practitioner, was the plaintiff’s family doctor. He provided a report dated 17 May 2010, which is very general in nature. Although he referred to the plaintiff complaining of neck pain on the right side aggravated by certain movements, the larger part of his medical report is devoted to complaints of pain made by the plaintiff concerning her right shoulder and arm. His prognosis was rather dire, in that he considered the plaintiff was suffering a significant impairment which would remain “steady and consistent”. I assume he meant it would remain at the same level and would be persistent.[18] I assume that Dr Williams is the medical practitioner who recently prescribed the plaintiff Panadeine Forte.
[18] PCB 27-28
35 Dr Williams, according to the plaintiff, has recently retired. She is now treated by Dr Pavasaris, who concurs with the opinions previously expressed, that the plaintiff suffered a soft-tissue injury to her cervical spine.[19]
[19] PCB 28a-28b
36 A number of medical practitioners also described the plaintiff as suffering from a Pain Syndrome.[20] Furthermore, it is clear from the preponderance of the medical evidence that the plaintiff suffered an emotional reaction to her injuries, and that is plain from the opinions of Dr Newlands and Dr Kenny.
[20] Dr Williams at PCB 28; Dr Baker at DCB 24, and Mr Dooley at DCB 32.
37 The relevance of a Pain Syndrome and the diagnosis of a secondary psychiatric injury arises because of Mr Ingram’s reliance on Richards v Wylie,[21] in which Winneke P observed:
“I do not understand Crockett and Southwell JJ, in stating the principle to which I have referred in the preceding paragraph, to have been suggesting that a mental or behavioural disturbance or disorder can never be taken into account in determining the seriousness of an impairment of body function which, in the exercise of the judge's task under subpara(a), he has found to exist (my emphasis). If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ (cf Humphries v Poljak, supra at p140). Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred. I do not see the comments of Charles JA in Cropp v The Transport Accident Commission, supra at p377, and to which I have earlier referred, as going beyond the proposition which I have stated. Thus, the ‘serious injury’ defined by subpara(a) of subs(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”[22]
[21] (2000) 1 VR 79
[22] paragraph 17
38 It would appear from the evidence that the plaintiff suffered a soft-tissue injury to her neck and, subsequently, suffered a secondary psychiatric condition which is clearly a consequence of her primary physical injuries.
Serious Injury
39 Mr Blanden submitted that the consequences to the plaintiff fell well short of meeting the statutory test primarily because the plaintiff had received only modest medical treatment since the occurrence of the transport accident, and after a short period of absence from employment was able to return and maintain full-time employment up to the present time.
40 Furthermore, the fact that he did not challenged the consequences deposed to by the plaintiff in her affidavit could not advance the plaintiff’s case for serious injury very far because the losses which the plaintiff says she has suffered must be put into a context, that being, modest medical treatment, a capacity to work full-time, and an ability to conduct her social, domestic and recreational pursuits save for those which she deposed to in her affidavits.
41 Mr Ingram submitted that I should apply the thinking of Maxwell P in Haden Engineering Pty Ltd v McKinnon[23] in which his Honour created something of a digest of the consequences of pain which a Judge should consider in the context of an application based upon pain and suffering consequences. However, Nettle JA, with whom Buchanan JA agreed, made the following observation:
“As to matters of principle, however, I approach the appeal upon the basis that the assessment of whether pain and suffering consequences are sufficient to qualify an injury as a serious injury is a question of fact, degree and value judgment in the determination of which comparisons with other cases and check lists of relevant considerations are at best of limited utility.” [24]
[23] [2010] VSCA 69 at paragraphs 9-17
[24] paragraph 51
42 It is clear to me that the legislature intended to only permit parties who suffered a serious injury to be entitled to bring a common law claim for damages, undoubtedly recognising that parties who suffered an injury producing a long-term impairment of the function may well have consequences which are insufficient to satisfy the statutory test of “seriousness”.
43 I think that is the very reason why Crockett and Southwell JJ, in creating the guidance in Humphries v Poljak,[25] observed that the impairment or loss must be fairly described as “very considerable”, and certainly more than “significant” or “marked”.[26] I think that an impairment which is significant or marked is likely to be characterised by pain, some medical treatment, some loss of ability to engage in social, domestic and recreational pursuits, and perhaps some pecuniary disadvantage.
[25] [1992] 2 VR 129
[26] at 140
44 I think the impairment suffered by the plaintiff is more in the character of the impairment approaching being “significant” or “marked”, but even falling short of what I consider is meant by those words, and certainly falling short of being “very considerable”, and to that extent, falling short of being “serious”.
45 The fact that the plaintiff has been able to work full-time demonstrates that she has been able to tolerate the pain. I think the pain she experiences is more on the modest side, but at the same time I accept the plaintiff’s evidence that there are occasions when a day’s work will increase the symptoms which she ordinarily experiences in her cervical spine.
46 The fact that the plaintiff has had so little medical treatment since being discharged from the hospital is also of significance. It demonstrates that the pain she has is tolerated well by her. Her use of medication up until very recently is not capable of being described as otherwise than being modest.
47 However, the plaintiff has experienced problems undertaking her increased workload. She has more pain and has recently attended a medical practitioner for a prescription of medication. I do not consider this to be sufficient to raise the consequences experienced by the plaintiff to being serious. She may not be able to tolerate the increased workload all that well, but the fact is that she is doing so, and has otherwise proved that she has a significant capacity for work in jobs which she has undertaken since she was first able to return to full-time work after the transport accident.
48 I have no doubt that the plaintiff valued her social, domestic and recreational pursuits and regrets the loss; however, her ability to engage in a number of activities and her inability to engage in other activities to a full extent do not persuade me that those losses are “serious”.
49 In reaching the foregoing conclusions I have taken into account what was recently said by the Court of Appeal in Sutton v Laminex Group Pty Ltd,[27] and in particular, the observations made by Tate JA relevant to whether a capacity to work necessarily negates the prospect of a worker succeeding in proving that the worker’s pain and suffering consequences meet the statutory test.
[27] [2011] VSCA 52. See, for example, Stijepic v One Force Group Pty Ltd [2009] VSCA, per Ashley JA and Beach AJA, at paragraph 47.
50 I am acutely aware that to reach such a conclusion may amount to an error of law. However, it is the aggregate of the plaintiff's capacity to work; the modesty of the plaintiff's medical treatment, and the impact upon her social, domestic and recreational pursuits which have led me to conclude that the plaintiff's application must fail.
Conclusion
51 It is for the foregoing reasons that the plaintiff’s proceeding must be dismissed.
52 I will now hear the parties on the question of costs.
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