Crook v Transport Accident Commission
[2021] VCC 1159
•20 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02818
| MORGAN ERIC CROOK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2021 | |
DATE OF JUDGMENT: | 20 August 2021 | |
CASE MAY BE CITED AS: | Crook v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1159 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) and (c) of the definition of “serious injury” – pain and suffering consequences – spinal injury – shoulder injury – psychological injury.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Randhawa v Transport Accident Commission [2021] VSCA 135; Transport Accident Commission v Katanas [2017] HCA 32; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Jones v Dunkel [1959] HCA 8; Church v Echuca Regional Health [2008] VSCA 153
Judgment:Leave granted pursuant to paragraph (a) of the definition of “serious injury”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr R Paoletti | Slater and Gordon Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1Morgan Crook seeks leave to commence a proceeding to recover damages for injuries allegedly suffered in a transport accident. His application is brought under s93 of the Transport Accident Act 1986 (“the Act”).
2Mr Crook relies on paragraphs (a) and (c) of the definition of “serious injury”. As to paragraph (a), he alleges an injury to his spine, with emphasis on his lower spine. He also relies on an injury to his left shoulder.
3Mr Crook swore three affidavits and gave oral evidence. He relied on affidavits from his partner, Dakota Minnick, and her mother, Annie L’Estrange.
Circumstances
4Mr Crook is twenty-six. He was born in Albury and grew up in central New South Wales. He has two older siblings. His parents separated when he was an infant. He lived with his mother until he was fourteen and then with his father. His father is a shearer who enjoys good health. His mother does not. He is in a relationship, with a daughter, Charlie-Rose. His partner, Dakota Minnick, is pregnant. He, Ms Minnick and Charlie-Rose live in Forest Hill in Wagga Wagga, New South Wales.
5Mr Crook left school after completing Year 11. He then worked as a dishwasher, farm hand and shearer’s assistant while completing a Certificate III in Shearing. He has restrictions in spelling and writing. He is conversant with basic features of a computer.
6Despite his educational achievements, Mr Crook described his level of literacy:[1]
Q:“And can you tell His Honour how you were at reading in your secondary school years?---
A:I wasn’t very good, I do have difficulty reading a lot of things, I do read things or pronounce things completely different to what they sound. The same as my spelling. Yeah, I did have great difficulty when I was at school writing, reading and spelling.”
[1]Transcript at p 68
7He started full-time shearing in 2011. In 2013, he worked at a mine for about three months. However, most of his working life has been spent in shearing and, at the time of the transport accident, he was shearing in the Castlemaine district.
8On 10 March 2017 at about 5.00pm, Mr Crook was driving his motor vehicle on the Calder Highway, Kangaroo Flat. As he drove towards an intersection, a car travelling in the lane beside his lane, diverted into his lane in front of his vehicle. He braked to avoid a collision. A vehicle behind him and towing a caravan did not brake in time. It collided with the rear of his vehicle. He was thrown forward by the collision and felt pain and stiffness in his neck and left shoulder and suffered a headache. Members of the police attended the accident.
9The collision caused significant damage to the rear and front of Mr Crook’s Ford Ranger. At the rear, the bumper bar was pushed inwards. At the front, it appears there was damage to the chassis, bonnet and bumper bar. His car suffered $16,000 worth of damage.
10After about two hours, Mr Crook left the scene and went to the caravan park where he was living. He then drove himself to the Castlemaine Hospital because Ms Minnick was unlicensed.
11At the hospital, since Mr Crook complained of a sore neck and shoulders, the clinical examination focussed on those areas. Not unnaturally, the diagnosis was cervical spine strain. He was prescribed Panadeine Forte and discharged a short while later.
12The next day, he drove to Young and then to his sister’s home in Wyong and stayed with her for about three weeks. From Castlemaine to Young and then from Young to Wyong involved long drives.
13At Wyong, Mr Crook obtained treatment at a clinic. On 23 March 2017, scans were taken of his cervical spine and left shoulder. He then travelled to Murgon in Queensland with Ms Minnick, to live with her mother, Annie L’Estrange. It was not until 22 June 2017 that scans were taken of his lumbosacral spine. Mr Crook explained:[2]
Q:“When do you say you first experienced pain in your lower back?---
A:Not long ever after the car accident, a few weeks, probably a little bit further on, a couple of months maybe, I’m not quite sure. You know, I think maybe my physical ability at the time – because I was so physically fit, I didn’t really notice the pain in my lower back at the time. I had tail bone pain not long after but yes, as time’s gone my pain in my lower back’s got progressively worse to where it is now.”
[2]Transcript at p 55
Medical treatment
Dr Matthew Allan
14On 4 May 2017, he saw a general practitioner, Dr Matthew Allan, for treatment. Dr Allan arranged scans and x‑rays. He prescribed a range of medicines: Panadeine Forte, Ibuprofen, Tramadol, Targin and Endone. He also prescribed an anti-depressant, Desvenlafaxine.
15On that day, Dr Allan completed a medical certificate for Mr Crook addressed to Centrelink.[3] He described his conditions as middle back pain, neck and left shoulder pain and left hip pain. He described each of those conditions as temporary. As to symptoms, Dr Allan said:
“Sharp stabbing pain after MVA in March: crush # [fracture?] to T9 vertebra.
Sharp stabbing pain after MVA in March: crush # [fracture?] to C5 vertebra and also ongoing/worsening function and pain in left shoulder – likely impingement, but under investigation.”
[3]Exhibit 1
16He certified Mr Crook as unfit for work between 24 April and 24 July 2017.
17The plaintiff’s court book contains an undated letter of referral by Dr Allan to Mark Duffy seeking the latter’s help with Mr Crook’s persistent low mood. Dr Allan does not specify the nature of his physical injuries, only saying they are “several”.
18Also in May 2017, Mr Crook hurt either his lower or middle back while walking across a rural property. He was taken to the Cherbourg Hospital.
19By 27 June 2017, Dr Allan was no longer prescribing this medicine. He gave a certificate for Centrelink.
20Perhaps in about September 2017, Mr Crook attended Central Balance Physiotherapy for about two months. The physiotherapist gave him exercises which he found too painful. She also recommended hydrotherapy which he also stopped because he was too tired after being in the pool.
21At some stage, Mr Crook and Dr Allan disagreed. Later, Dr Allan left that practice. Mr Crook started seeing Dr Thoo, who treated his lower back, neck and left shoulder. It is unclear how long Dr Thoo treated Mr Crook.
22By October 2018, he was taking Panadeine Forte. He was still taking Targin but could not eat because of reflux and indigestion and its impairment of concentration and “cloudiness”.
Dr Angus Forbes
23Dr Allan referred Mr Crook to see an occupational physician, Dr Angus Forbes. It is unclear when Dr Forbes saw Mr Crook, although it was in 2017. Dr Forbes diagnosed a musculoligamentous sprain. He expected full recovery with appropriate physiotherapy and a graduated return to exercise.
Dr Mark Welsh
24Dr Allan referred Mr Crook to an orthopaedic surgeon, Dr Mark Welsh, who saw him on 12 September 2017. By then, Mr Crook had stopped taking Targin, Endone and Tramadol and was taking Panadol, Panadeine Forte, Brufen and anti‑depressants. Some of the movements of cervical spine and left shoulder were restricted, others were not. Other aspects of his examination were normal. MRI scans showed a partial tear of the infraspinatus but no disruption.
25Dr Welsh thought Mr Crook’s symptoms largely related to his cervical spine. He recommended treatment of painkillers, local heat and physiotherapy.
26Not long after seeing Dr Welsh, Mr Crook started physiotherapy.
Dr Des Wiggins
27Dr Des Wiggins is a chiropractor and osteopath. He provided treatment for Mr Crook between 31 January 2018 and 20 November 2020. He treated him on fifty‑two occasions. It appears Mr Crook attended Dr Wiggins after collapsing in his shower at home.
28Dr Wiggins treated him with chiropractic adjustments and musculoskeletal techniques. The latter included ultrasound massage, heat therapy and the use of a TENS machine. Despite the extensive treatment, Dr Wiggins noted:[4]
“Mr Crook reported that he experienced some relief from the treatments, but his symptoms continued to manifest in various degrees.”
[4]Report dated 13 May 2021 at p 4
29To assess the degree of pain suffered by Mr Crook, Dr Wiggins applied four standard tests and a questionnaire. The result of the Oswestry Low Back Pain Disability Questionnaire meant Mr Crook believed his back pain impinged on all aspects of his life. His score on the Quadruple Visual Analogue Scale indicated he had a high intensity disability. Using the Roland-Morris Lower Back Pain and Disability Questionnaire, he scored the maximum, which equated to bed‑bound or exaggerating. Using the Headache Disability Index, his score indicated complete disability. The Neck Disability Index Questionnaire is used at initial assessment. His score indicated “ongoing pain and disability after whiplash”.
30Between 5 February 2018 and 8 April 2019, Dr Wiggins arranged x‑rays and MRI scans of the spine and abdomen. To Dr Wiggins, their results did not fully explain Mr Crook’s current level of pain and disability. His diagnosis was what he described as a chronic widespread Pain Syndrome and a Post-Traumatic Stress Disorder. He based both diagnoses on his reading of certain medical literature. It is unclear whether the widespread Pain Syndrome is an organic disorder or not, for Dr Wiggins recommends future treatment containing physical and psychological elements. The latter may relate to the Post-Traumatic Stress Disorder.
31Dr Wiggins considered Mr Crook had no current work capacity and a limited future which may change with proper treatment.
32Until he moved to New South Wales at the beginning of this year, Mr Crook continued to be treated by Dr Wiggins. In October 2018, Mr Crook explained the benefit of the chiropractic treatment to Dr Leslie Roberts:[5]
“He now sees the chiropractor about every 2 weeks and if he does not do so, he tends to stiffen up and finds that he cannot move his head or neck because of pain.”
[5]Report dated 11 October 2018 at p 5
33Each session with Dr Wiggins gave relief for a few days. Mr Crook saw him frequently: once or twice a week to two or three times a fortnight.
34Dr Allan referred Mr Crook to Mark Duffy Health Nurse Services for psychological assessment. Unfortunately, Mr Crook arrived late for his appointment, argued with a psychiatrist and was not assessed or treated. He has never received any psychological or psychiatric treatment. He has never been admitted to a hospital for psychological reasons.
Current
35Mr Crook has not worked since the accident. He now relies on Centrelink for income, for the defendant stopped paying income benefits on 10 March 2020. Mr Crook is not looking for work. He does not work as a shearer because of the pain in his lower back.
36Mr Crook now lives in Forest Hill, a suburb of Wagga Wagga in New South Wales, with Ms Minnick and Charlie-Rose. He no longer attends his long-term chiropractor because he has moved from Queensland. He is looking for another chiropractor. He has seen another general practitioner, Dr Carlos. His main reason for moving was to receive mental health treatment. In re-examination:[6]
Q:“You told His Honour also that you’re seeking psychiatric treatment now and you have been for some time. How long have you been seeking psychiatric treatment for?---
A:Since – like early November area, I sort of had a manic sort of period where I was – yeah, I wasn’t very good mentally wise, I was struggling and I had been struggling for some time. And I just couldn’t get the help I needed up there. They didn’t have the urgency for it. And that’s why basically I moved from Murgon and then I eventually finally got here and that’s where I’m going, where my main focus is, mental health.”
[6]Transcript at pp 65-66
37Mr Crook does not work and receives payments from Centrelink. He believes he could not return to shearing or any other work reliably, due to the symptoms in his lower back, neck and left shoulder.
Pain
38Mr Crook describes his neck symptoms as pain, stiffness and discomfort. These symptoms are constant. The pain itself can worsen through certain movements of his head; for example, turning, tilting and rotating. Interestingly, using his left shoulder beyond a certain point increases the pain in his neck.
39He also suffers daily pain and stiffness in his lower back. This pain sometimes goes into his left leg. He also experiences numbness in that leg. He needs to move around in order to be comfortable in bed.
40He also suffers almost constant pain in his left shoulder, which spreads across his shoulder blades and into his neck and arm. He experiences both pins and needles and numbness in the left arm including the hand and fingers.
41He experiences lesser levels of pain in his left hip and knee compared with his neck, lower back and shoulder.
42He suffers headaches almost daily. He describes the pain of the headaches as throbbing, and he is sensitive to light. He links his headaches with increased physical activity.
43Ms Minnick and Mr Crook lived apart for some time. In early 2021, they resumed living together. In her second affidavit, apart from corroborating much of what Mr Crook has said, she mentions that she has seen something no one else has mentioned: she sees him limping often.
Sleep
44The pain in his neck and back will often wake him at night.
Domestic activities
45Before the accident, Mr Crook was very independent. He performed his internal (for example washing and cooking) and external (for example mowing and gardening) household tasks.
46The three areas of lower back, neck and left shoulder restrict his participation in domestic tasks: washing clothes, tidying his room, cooking, washing up, vacuuming, mopping and hanging out the washing. He still washes the dishes and does some tidying up around the house. He has acquired a vacuum cleaner which allows him to vacuum, and a clothes dryer and an airer to avoid hanging out clothes.
47Both mowing and using a Whipper-Snipper increases his pain in his lower back, neck and shoulder. He tries to have others do those tasks. If he cannot, he does them slowly and carefully. With his left shoulder, he has difficulty holding and carrying things. He now drops things.
48He experiences difficulties in placing his daughter into her car seat. She has grown heavier and he avoids lifting heavy items. When bathing her, he sits and favours his right arm. He still lifts and carries his daughter but it is painful. These problems in the neck, back and shoulder limit his playing with his daughter.
49Due to his lower back pain, he sits, stands and walks for shorter periods than before the accident. He lies down a lot during the day.
50He has driven long distances since the accident. The trips take much longer than they would for an uninjured person. He needs to stop and stand for a while. The main reasons for stopping are the pain in his lower back and his anxiety while driving. To a lesser extent, another reason is stiffness in his neck and left shoulder.
51He is less active than before the accident and has gained weight. The pain in his lower back, neck and shoulder prevents him from playing any form of cricket except for a gentle version of backyard cricket.
52The three areas of pain limit his ability to play with one of his dogs, a Jack Russell.
53They prevent him from maintaining his car except for small jobs like changing the oil.
54The state of these three areas prevents him fishing. One or other of these areas prevent him from hunting and camping. These activities are particularly important to Mr Crook as an indigenous person. In his second affidavit, he said:[7]
“Fishing and hunting is an important part of my culture, and I feel as though that is now lost to me. It is hard to describe how it feels, but it is as if it has taken away a part of me as a person, a part of my soul, rather than just my physical injuries.”
[7]Sworn 3 August 2020 at paragraph [8]
55He has not gone hunting, fishing or camping since the accident. Although no medical practitioner has told him not to do those things, he assesses his inability to do so:[8]
Q:“When you say - - -?---
A:I have been hunting, camping, fishing my whole life, so I understand what it’s like, I understand the weather and the strenuous – you know, walking and running when chasing – fishing as well you’ve got to stand on riverbanks, floats, things like that. Up – down, riverbanks, putting your back on the cold ground.”
[8]Transcript at p 49
56For years Mr Crook owned a Yamaha motocross bike. He sold it in late 2020. He had not ridden it since the accident because of his expectation of pain in his lower back.
57Long drives to visit his family are restricted because of the increased symptoms in those three areas.
Sporting
58Before the accident, Mr Crook played cricket competitively about once a week. He did not play every season. He is quite self-effacing about his cricket:[9]
Q:“How often would you play cricket?---
A:Well, sometimes I would miss a season or wouldn’t, I was really only like third grade cricket, just sort of with the old fellas, locals in town and played in a local town. So it wasn’t very competitive. So it would be once a weekend.”
[9]Transcript at p 48
59He last played competitive cricket in about 2013. This was when he was shearing in the area where he went to secondary school.
60Rugby was the same as cricket. He played in the third grade, with his last game in about 2013.
Treatment
61For about four years, Mr Crook lived in Murgon. He attended the local clinic. He saw Dr Wiggins. He has recently moved to Wagga Wagga and now attends a local general practitioner. He is still looking for another chiropractor as those he approached are booked up.
Medicines
62He now takes two Panadol Osteo tablets about three times a day, two Indocid tablets daily, and one 25-milligram Agomelatine tablet daily (an anti-depressant). He uses Voltaren Gel on his left shoulder and neck about three or four times a week. Ms Minnick rubs Deep Heat onto his neck and shoulders almost daily.
63He stopped taking stronger pain-relieving medicines (Targin, Endone, Tramadol) because of their side effects, mental and physical. He stopped them finally late in 2020.
Sitting
64Owing to the pain in his lower back, Mr Crook cannot sit for long periods, something he could do before the accident. He needs to change his position or move around to regain a comfortable position.
65Mr Crook gave his evidence from his home by means of an audio-visual link. At the end of the cross-examination, Mr Crook was asked:[10]
Q:“How long is your sitting tolerance?---
A:Well, 20 minutes or so.
Q:You have sat there, I would suggest, this morning for well in excess of 20 minutes?---
A:That’s within pain, isn’t it, I have pain in my lower back right now sitting here even though I have had my tablets, my medication.
Q:I have no further questions.”
THE WITNESS:
A:“I’m not sitting on a solid seat, I’m sitting in a recliner, soft chair.”
[10]Transcript at p 63
66There is some wasting of the left shoulder.
Psychological
67Sometimes his anxiety in being in a car makes him actually sick. He avoids shopping because of the presence of others when he becomes anxious, sweaty and hot. However, he also avoids shopping through his inability to lift shopping bags and the need to favour his right arm.
68He has been forgetful for several years. It is now a regular occurrence. He finds it very frustrating.
Medico-legal evidence
Dr Leslie Roberts
69Dr Leslie Roberts is a consultant neurologist and clinical neurophysiologist of extensive experience. The parties jointly engaged him to undertake an impairment assessment. On about 11 October 2018, he examined Mr Crook.[11]
[11]Report dated 11 October 2018
70Dr Roberts found a mild decrease and a moderate decrease in the range of motions in all directions of the neck and lower back respectively. Mr Crook’s left upper limb showed a mild decrease in pin prick sensation and mild functional weakness of all movements. His shoulder had reduced abduction and flexion, whether actively or passively. Otherwise, the examination was normal.
71Dr Roberts read the reports of x‑rays, CT and MRI scans made between 23 March 2017 and 9 August 2017. Dealing with the lumbosacral spine, x‑rays taken on 22 June 2017 showed some bony hypertrophy at the L5-S1 level. While MRI scans taken on 9 August 2017 showed normal alignment and morphology, there were mild vertebral end plate degenerative changes from L1−L3. With the L5-S1 disc, there was a moderate central and paracentral disc herniation forming a moderate impression on the anterior thecal sac without spinal canal or neuroforaminal stenosis. There were mild facet joint degenerative changes at L4‑5 and L5-S1 bilaterally.
72Referring to the radiological results, Dr Roberts commented:[12]
“The investigations referred to above, have shown some degenerative changes that are unrelated to the accident. These were asymptomatic prior to the injury, and in my clinical opinion, they remain asymptomatic and do not contribute to his current complaints.”
[12]At p 12
73He diagnosed post-traumatic migraine, cervical whiplash with musculoskeletal basis, lumbar pain related to musculoskeletal strain, a partial thickness tear of the infraspinatus tendon, and possible central sensitisation. He mentioned psychological issues but left it to others.
74Dr Roberts thought the post-traumatic migraine was possibly related to the cervical spine injury and may respond to anti-migraine therapy.
75As to the cervical and lumbar injuries, Dr Roberts thought there might be improvement with mobilisation and treatment of symptoms. He declined to comment on the partial thickness tear, leaving it to others. His comment on possible central sensitisation is unhelpful.
76As to prognosis, Dr Roberts was “quite guarded” or “very guarded” given the presence of significant psychological factors.
77Dr Roberts thought it was unlikely Mr Crook could return to his pre-injury duties, and considered he needed retraining in more sedentary work. He assessed Mr Crook as having a zero per cent whole person impairment for his spine (cervical and lumbosacral) and the nervous system.
Professor Peter Teddy
78Professor Peter Teddy is a neurosurgeon of very considerable experience. On 20 April 2021, he examined Mr Crook at the request of his solicitors. He did so face-to-face, while his previous examination on 22 September 2020 was undertaken through an audio-visual link.
79On 20 April 2021, Professor Teddy was able to conduct a physical examination. He found a full range of neck movements “apparently relatively pain-free”. For the lumbar spine, Mr Crook could bend towards his knees with a stiff back, and exhibited no extension. Tilt (lateral flexion) was about 50 per cent on both sides, while rotation was normal on both sides.
80Professor Teddy was given three recent reports, including Associate Professor Bruce Love’s report of 8 December 2020. After taking a detailed history, Professor Teddy said:
(a) as a result of the transport accident, Mr Crook suffered a soft tissue injury to his neck and an exacerbation of his lumbar spondylosis. He did not diagnose either radiculopathy or myelopathy. He left the shoulder injury to others. After the first examination, Professor Teddy mentioned the thoracic spine and a chronic pain condition. He mentioned neither after the second examination;
(b) there was no present indication of surgery. He suggested a review by an experienced expert in rehabilitation/occupational medicine to help formulate a co‑ordinated plan for Mr Crook’s future management;
(c) Mr Crook was likely to experience pain in his neck and back for the foreseeable future. The intensity and duration would vary;
(d) his condition had stabilised;
(e) he could not return to his pre-injury duties as a shearer.
81The reports of Dr Wiggins were not given to Professor Teddy for either examination.
Associate Professor Bruce Love
82Associate Professor Bruce Love is an orthopaedic surgeon. On 20 April 2021, Associate Professor Love re‑examined Mr Crook at the request of his solicitors. He had earlier examined Mr Crook on 23 September 2020.
83At his second examination, Associate Professor Love found moderate restrictions in the movements of the left shoulder and significant restrictions of the movements of the lumbar spine.
84He re-examined the imaging he first saw in December 2020. Although he did not identify the date of the images, they appear to correspond with the reports appearing between pages 166−179 of the plaintiff’s court book. The report of the MRI scans of 7 March 2019 says of the L5-S1 disc:
“There is mild to moderate disc space height loss. There is a centre/right paracentral disc protrusion of 7mm. This indents the thecal sac but does not result in any significant canal stenosis and does not impinge the S1 nerve roots. There is no foraminal compromise of the L5 nerve roots.”
85Associate Professor Love saw the most obvious findings of these images concerned the L5-S1 loss of disc height, desiccation and a “very significant protrusion”.
86It appears Associate Professor Love uses the word “protrusion” interchangeably with “prolapse”, for he describes the disc as prolapsed when discussing future treatment.
87Broadly, he diagnosed lumbar disc pathology and rotator cuff tendonitis of the left shoulder. After Mr Crook suffering symptoms for more than four years, Associate Professor Love was quite pessimistic about the prognosis for the reduction of pain in his back at least in the short term. He thought Mr Crook should consult a spinal surgeon about the possibility for surgery, being excision of the L5‑S1 disc.
88As for treatment, in addition to the possibility of surgery, he foresaw the continuation of medicines and suggested a trial of a lumbar brace.
89As to Mr Crook’s capacity for work, Associate Professor Love effectively excluded his pre-injury duties, saying:[13]
“If he was to obtain employment, it would essentially be employment where he could principally be occupied in a sedentary manner with frequent opportunities to move about in order to relieve the symptoms that result from prolonged sitting. He cannot engage in tasks that involve repeated bending and stooping or heavy lifting.”
[13]Report dated 19 April 2021 at p 4
Associate Professor Richard Williams
90Associate Professor Richard Williams is a consultant orthopaedic surgeon. On 18 March 2020, he examined Mr Crook at the request of the defendant.
91On examination, Associate Professor Williams used digital inclinometry to measure the movements of the cervical spine: flexion (30 degrees), extension (16 degrees), lateral flexion each way (20 degrees), and rotation to the left (37 degrees) and to the right (39 degrees). With the lumbar spine, he did not measure and found:
“He was able to flex with fingers outstretched reaching the knee. He had more pain on extension than flexion.”
92He noted “gross evidence of inorganic influence on pain perception”. He was given the reports of CT and MRI scans from I‑MED Radiology, presumably in March, April and August 2017, and from Gympie Radiology on 8 April 2019. Of the reports from I‑MED Radiology, the last was performed on 9 August 2017. In relation to the lumbosacral spine, the radiologist reported:[14]
“The lumbosacral spine is normal in alignment and morphology. Normal marrow signal is demonstrated. Mild vertebral end plate degenerative changes are noted from L1-L3. At L5/S1, there is a moderate central and right paracentral disc herniation. This forms a moderate impression on the anterior thecal sac but there is no spinal canal or neuroforaminal stenosis. Mild facet joint degenerative changes are noted at L4/5 and L5/S1 bilaterally.”
[14]Plaintiff’s court book at pp 173-174
93The MRI scans taken by Gympie Radiology on 8 April 2019 were mainly aimed at the abdomen. However, to an extent, they did cover the lumbar spine. The radiologist found:
“Right paracentral disc protrusion at L5/S1. This abuts the thecal sac and possibly irritates the emerging right S1 nerve root. No further disc bulge or protrusion throughout the lumbar spine although this was not a dedicated lumbar spine study and several levels were not fully covered.”
94Associate Professor Williams diagnosed:
(a) musculoligamentous strain of the cervical spine;
(b) transient exacerbation of pre-existent mid-thoracic Scheuermann’s disease;
(c) transient exacerbation of degenerative intervertebral disc protrusion at L5‑S1.
95He expected the resolution of the symptoms of each condition over three months in the majority of cases. That is, the symptoms of Mr Crook’s conditions resolved years earlier, within three months of the accident.
96Given his opinion, there was no incapacity for work due to the accident. He expanded by saying:[15]
“I believe his incapacity is grossly overstated and this was evident on examination today. There is relatively minor evidence of structural abnormality of the spine in the thoracic and lumbar regions and no structural abnormality in the cervical spine.”
[15]Report dated 25 March 2020 at p 6
97After being supplied with various documents, including the reports of Professor Teddy dated 22 September 2020 and Associate Professor Love dated 24 September and 8 December 2020, Associate Professor Williams did not alter his earlier opinions.[16]
[16]Report dated 4 February 2021
Dr Nathan Serry
98Dr Nathan Serry is a consultant psychiatrist. On 17 September 2020, he examined Mr Crook at the request of his solicitors. He had assessed Mr Crook in 2018.
99The mental state examination revealed abnormal features:
(a) very prominent underlying depressive themes;
(b) appearing anxious and apprehensive;
(c) description of panic attacks;
(d) described a short temper;
(e) quite prominent features of post-traumatic anxiety features;
(f) complaints of reduced concentration span, forgetfulness and impaired cognitive efficiency;
(g) coloured insight.
100Dr Serry continued to diagnose Mr Crook as suffering from moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood. There were features of panic and features of traumatisation consistent with Post-Traumatic Stress Disorder. I do not understand Dr Serry actually diagnosed Post-Traumatic Stress Disorder.
101Dr Serry assumed the existence of ongoing pain and quite significant limitations. Compared with his earlier assessment, Mr Crook was more depressed, experiencing anxiety with panic attacks, had had uncomfortable morbid and aggressive thoughts, and continued to be traumatised by the accident. His inability to work and provide for his partner and daughter distressed him markedly.
102Dr Serry assessed Mr Crook’s psychological impairment at 25 per cent. This was made up of three components. Dr Serry described the largest, 15 per cent, “is now secondary and reactive to the physical injuries sustained in the accident and the ongoing and significant impact thereof”.
103Dr Serry considered the prognosis somewhat guarded. Mr Crook’s pre-existing vulnerability had been much compounded by his injuries, physical and psychiatric. Dr Serry recommended seeing both a psychologist and psychiatrist.
104In a supplementary report, Dr Serry said:[17]
(a) psychologically, Mr Crook could not return to his full pre-injury hours on a regular and reliable basis;
(b) on psychological and other grounds, he could not perform presently any suitable employment on a regular and reliable basis. This would remain so for the foreseeable future. The other grounds strayed outside his area of expertise since they were Mr Crook’s age, education, skills, work experience and place of residence.
[17]Dated 6 April 2021
Associate Professor Andrew Taylor
105Associate Professor Andrew Taylor is a consultant psychiatrist. On 19 March 2020, he interviewed Mr Crook at the request of the defendant.[18]
[18]Report dated 26 March 2020
106Associate Professor Taylor considered Mr Crook suffered an Adjustment Disorder with elements of trauma due to the accident. There was no evidence of a separate Anxiety and Depressive Disorder or a Post-Traumatic Stress Disorder. As to the former, he was not clinically depressed, melancholic or suicidal. As to the latter, he did not show signs of that disorder. For example he was not hypervigilant or pathologically over-aroused. However, using the “Trauma Screening Questionnaire”, Mr Crook’s score meant he did not justify a full diagnosis of Post-Traumatic Stress Disorder then, “but has some attenuated PTSD like symptoms. Items reported included occasionally getting bodily changes such as sweats, occasional nightmares, occasionally being hypervigilant, and trying to avoid driving if possible”.[19]
[19]At p 13
107Using the Psychiatric Impairment Rating Scale, he assessed Mr Crook as having a whole person impairment of 5 per cent. However, the ingredients of this impairment were due to his loss of role and loss of income. Psychologically, he considered Mr Crook immediately ready to undertake rehabilitation and a return to work program.
108The defendant’s solicitor asked:
“If you are of the view that there are inconsistencies between the radiology, your findings on examination and the client’s current complaints of injury and disability, please let me have your views as to the explanation for those inconsistencies.”
109Dr Taylor answered:[20]
“I note there are various inconsistencies, eg ‘functional’ symptoms not easily explained by obvious demonstrable pathology, although in my experience of dealing with whiplash victims this is not unusual.”
[20]At p 15
110Finally, Associate Professor Taylor lists the documents given to him. He describes one document as “Gympie Radiology” with a date of 8 April 2019. This report appears in the plaintiff’s court book at page 179. The MRI scans were concerned with the abdomen but did examine the lumbosacral spine.
111After being given a number of documents, Associate Professor Taylor provided a supplementary report.[21] None of the documents changed his opinion.
[21]Dated 25 January 2021
Legal considerations
112A person who is injured as a result of a transport accident may recover damages in respect of the injury if the injury is a serious injury.[22] For the purposes of paragraph (a) of the definition of “serious injury”, it is a long-term serious impairment or loss of a body function. For paragraph (c), it is severe long-term mental or severe long-term behavioural disturbance or disorder. The word “severe” is a stronger word than the word “serious” in this context.[23]
[22]Section 93(2)
[23] Mobilio v Balliotis [1998] 3 VR 833 at paragraph [846].
113The meaning of “serious” in s97(17) of the Act was explained in Humphries & Anor v Poljak:[24]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[24][1992] 2 VR 129 at 140 per Crockett and Southwell JJ
114In Richards v Wylie,[25] Winneke P said:
“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’ ... Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(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.”
[25](2000) 1 VR 79 at 87-88. See also Buchanan JA at 90
115The above distinction between paragraphs (a) and (c) was applied recently in Randhawa v Transport Accident Commission:[26]
“Contrary to the applicant’s submissions, the judge did not err in her consideration or application of Richards v Wylie. The nightmares which the applicant gave evidence of suffering following cycling were not relevant to her claim under paragraph (a) of the definition of ‘serious injury’. Based on the applicant’s evidence, her nightmares were not a response to her lower back injury. Rather, they were a response to the traumatic circumstances of the collision.”
[26][2021] VSCA 135 at paragraph [79]
116This is relevant to Dr Serry’s division of his assessed impairment between three factors, one of which is the psychological reaction to the injuries sustained in the accident.
117Mr Crook’s counsel drew my attention to a paragraph in the Court’s reasons in Transport Accident Commission v Katanas:[27]
“The appellant’s contentions should be rejected. Assuming that the majority were correct in their characterisation of the primary judge’s formulation of the ‘possible range’, it is clear that the range, as so formulated, was incomplete because it had regard to only one criterion of the comparative severity of a mental disorder or disturbance: the extent of treatment made necessary by the disorder or disturbance. That precluded consideration of other relevant criteria of comparative severity – for example, in this case, the severity of the respondent’s symptoms; the severity of their consequences for her; and the extent to which the symptoms or consequences inhibited the respondent’s daily activities, family life, social life and educational pursuits. Because the range as formulated was incomplete, it was prone to skew the assessment of severity and cause the assessment to miscarry.”
[27][2017] HCA 32 at paragraph [21]
118Dodds-Stretton JA observed in Kelso v Tatiara Meat Co Pty Ltd:[28]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[28](2007) 17 VR 592 at 629
Discussion
Credit
119The defendant submits Mr Crook exaggerates his evidence. It points to Mr Crook’s assessment of his level of pain and disability. It raises the results of various tests of Dr Wiggins and the responses given to Associate Professor Williams.
120Mr Crook is a credible witness. In my experience, his affidavits are unusual. They are not the tightly drawn documents one usually sees in this area. Mr Crook often states something and then elaborates. His oral evidence was given in much the same vein. The effect was that Mr Crook is a credible witness. The criticisms raised by the defendant are of little moment in light of the way Mr Crook gave his evidence, whether in written form or orally.
121The affidavits of Ms Minnick and her mother simply reinforce many of the matters raised by Mr Crook.
Injury
122Mr Crook was told by practitioners his condition would resolve. It does not matter whether there were two or more practitioners who told him or whether one of them was a medico-legal practitioner. On the evidence presented to me, they were incorrect.
123Professor Teddy diagnosed a soft tissue injury to the cervical spine and an exacerbation of lumbar spondylosis. He did not find evidence of radiculopathy or myelopathy. The absence of sciatica or neurological signs in the lower limbs is interesting only to the extent that the medical experts make it so.
124Associate Professor Love viewed the MRI scans of the lumbosacral spine of 7 March 2019. He saw significant pathology in the upper lumbar spine by way of moderate disc degenerative changes. What stood out was the loss of disc height, desiccation and a very significant protrusion of the L5-S1 disc. He saw the source of Mr Crook’s pain in the lumbosacral spine as “disc pathology”.
125The defendant casts doubt upon the fact of the protrusion where there is a lack of nerve root compromise, sciatica or other neurological signs. Later, in its final submission, it submitted this protrusion is of no significance because, in part, no other doctor places significance upon it.
126First, Associate Professor Love does not alter his finding of protrusion when noting Mr Crook does not have symptoms of sciatica or other neurological signs consistent with a prolapsed disc. I suppose it does not matter what exactly he means by protrusion or prolapse, the pathology remains significant to him without the other signs.
127Second, both Associate Professor Williams and Professor Teddy were aware of Associate Professor Love’s report of 8 December 2020. Associate Professor Williams does not mention its contents, whereas Professor Teddy does:
“... was a review of the radiological imaging provided in which he described it as showing (as a single principal finding) a significant disc protrusion at the L5/S1 level.”
128In the manner of scientists, I suppose Professor Teddy accepted that finding. It is unfortunate that Associate Professor Williams did not discuss this finding in his supplementary report. It is, as Professor Teddy described it, a single principal finding. The failure to discuss it is anomalous.
129I daresay the diagnoses of Professor Teddy and Associate Professor Love are the same. There were degenerative changes in the lumbosacral spine prior to the accident, and the accident exacerbated these changes. Part of the exacerbation of the L5‑S1 disc is its desiccation and protrusion. That part of the spine became painful and has remained so.
130Dr Roberts examined Mr Crook in October 2018. Among other things, he diagnosed cervical whiplash with musculoskeletal basis and lumbar pain related to musculoskeletal strain. On the basis of 2017 radiological reports, he considered the accident had not affected the existing degenerative changes in the back symptomatically. Those changes were asymptomatic before the accident and remained so afterwards.
131Associate Professor Williams considered the injuries to the cervical spine, mid‑thoracic spine and the L5‑S1 disc were short-lived, with their respective effects lasting not more than three months from the accident.
132I consider Dr Roberts underestimated the extent of the degeneration of the L5‑S1 disc in particular. The back was asymptomatic before the accident but has remained symptomatic to a very important extent up to the present. It is a pity Dr Roberts was not shown the report of the March 2019 MRI scans and the scans themselves.
133Since the L5‑S1 disc was not symptomatic before the accident and has remained so afterwards, I cannot accept Associate Professor Williams’ opinion as to the short life of the effect of the accident on the spine. As will be clear later, I do not accept Mr Crook’s complaints of pain are due to a non-organic source. Moreover, he does not discuss the finding of Associate Professor Love following the April 2019 MRI scans. This is a major impediment to accepting his opinion.
134Various whole person impairments of the spine have been given. To an extent, they are informative but do not tell the whole story where the major complaint is pain.
135I will adopt the diagnosis of Associate Professor Love in relation to Mr Crook’s lumbar spine, namely, that the transport accident caused the lumbar pathology including the prolapse of the L5‑S1 disc.
Left shoulder
136Associate Professor Love diagnosed rotator cuff tendonitis of the left shoulder, while Professor Teddy declined to comment on the shoulder, leaving it to an orthopaedic surgeon. I accept that diagnosis.
137I agree the failure of Dr Welsh to mention lower back pain is likely a function of what that practitioner was asked to examine, namely, his left shoulder.
Thoracic spine
138None of Dr Wiggins, Professor Teddy, or Associate Professor Love pay the thoracic spine any real attention.
139For his impairment assessment, Dr Roberts joins the cervical and thoracic spines together and, apart from that, pays the latter no attention.
140Professor Williams paid it attention because Mr Crook complained of persistent mid-thoracic pain. His examination revealed restriction in movement in flexion and, perhaps, extension. In a way, they were similar to findings regarding the lumbar spine. Relying on two CT scans in 2017, he diagnosed a transient exacerbation of the pre-existing mid-thoracic Scheuermann’s Disease. Although the disease is constitutional, its exacerbation is not. Nevertheless, it was considered transient and the effects of the exacerbation over within three months of the accident.
141The thoracic spine plays no part in the state of Mr Crook’s spine for the purposes of this application. Although I reject the opinions of Associate Professor Williams on the other parts of the spine, in this aspect, I accept his opinion.
Body condition
142The defendant is correct to submit that one must look at each body condition individually and without combining the impairment of any body condition with another to determine whether the “injury” is “serious”. Mr Crook relies upon his spine as the principal body condition for these purposes.
Organic
Spine
143Mr Crook received extensive treatment from Dr Wiggins relating to his back. It gave him relief, albeit temporary. Mr Crook has taken an array of pain-relieving medicines. For some time, he took powerful medicines, but their side effects caused him to revert to less powerful medicines. He supplements these medicines with an anti-inflammatory medicine and a gel.
144Mr Crook has had a significant loss of movement in his lumbosacral spine. Recently, Professor Teddy found marked restriction in flexion, no extension and lateral flexion on each side to 50 per cent of normal.
145At the age of twenty-six, Mr Crook has lost forever his occupation as a shearer. His father was a shearer. Mr Crook wanted to be a shearer and studied to be one. He was a full-time shearer from 2013 until the accident. It does not really matter whether he could have earned $50,000 or more if he had not been injured. The fact is he earned reasonable money as a shearer in the years preceding the accident and that is now denied him.
146Mr Crook’s impairment has seen his domestic, sporting and other activities dramatically reduced.
147The prognosis is poor.
Left shoulder
148The effects of the left shoulder injury pale compared with those of the spine.
Long term
149The condition of his spine has remained symptomatic for more than four years. Professor Teddy saw continuing neck and back pain with varying degrees of severity and duration for the foreseeable future. The long-term nature of the impairment is satisfied.
Psychological
150Mr Crook has been prescribed anti-depressant medicines for some time. They have not been prescribed continuously. He is still prescribed such medicines.
151It was his inability to provide for his family by returning to work that made him feel worthless. I do not think he was suicidal, but the level of his despair appears in his evidence. For example:[29]
“... and I just felt worthless in a sense that I didn’t really want to wake up anymore or even be bothered with doing day to day things.”
[29]Transcript at p 67
152The major part of his reason for moving from Queensland to New South Wales late last year was his wish to obtain psychiatric treatment urgently.
153From his perspective, his separation from Ms Minnick and his daughter was due to his emotional state: he was very aggressive and depressed.
154Dr Serry diagnosed Mr Crook suffering from a moderately Severe Adjustment Disorder, which was chronic. Dr Serry did not diagnose a Post-Traumatic Stress Disorder, saying there are features of the disorder present. I do not understand an Adjustment Disorder is a lesser disorder than a Post-Traumatic Stress Disorder. They have different causes. For present purposes, the cause is important, for Dr Serry says three-fifths of Mr Crook’s psychological impairment is secondary to his physical injuries.[30] That is, the remaining two-fifths can be used to support the case under paragraph (c).
[30]15 per cent out of 25 per cent
155Dr Serry identified symptoms which, psychiatrically, precluded Mr Crook from returning to his full pre-injury hours on a regular and reliable basis. Dr Serry went too far with his opinion as to suitable employment, looking at factors beyond his area of expertise. I cannot accept that aspect of his opinion.
156Those aspects of Mr Crook’s mental disorder which are attributable to paragraph (c) are significant, they fall short of satisfying the requirement of “severe”.
Functional overlay
157The defendant referred to a passage from Dr Roberts’ report, submitting he was asserting a non-organic functional overlay to Mr Crook’s condition generally. It also submits Professor Teddy’s diagnosing of a Chronic Pain Syndrome is a diagnosis of a psychological injury rather than an organic injury.
158Mr Crook was examined by two psychiatrists.
159Implicitly, Dr Serry did not find any evidence of a functional overlay. He does not diagnose a chronic pain syndrome.
160Associate Professor Taylor hints at a functional overlay in the passage I quoted above. One cannot help feeling he underrated the extent of Mr Crook’s lower back condition. In particular, the state of the L5-S1 disc was described by Associate Professor Love as involving a loss of height, desiccation and a very significant protrusion. In making that remark originally, Associate Professor Taylor did not possess the more recent reports of Professor Teddy and Associate Professor Love. But when he confirmed his original opinions in January 2021, he possessed those reports, especially that of Associate Professor Love of 8 December 2020.
Spinal movements
161The defendant points to the examination findings of Associate Professor Love regarding the movements of the lumbosacral spine. It submits the marked restrictions found compared with lack of such restrictions found by others. It submits that these are subjective responses in a clinical environment and tend to be exaggerated.
162It is incorrect to say that other practitioners found Mr Crook’s flexion was full. Of those who examined him in the last two years, Associate Professor Williams found he could only reach his knees with outstretched fingers. Professor Teddy found he could bend towards his knees with a stiff back and had no extension. Both findings suggest marked restriction of flexion.
Jones v Dunkel[31]
[31][1959] HCA 8
163The defendant raised the unexplained absence of reports from Dr Licina, Dr Thoo and “Fran”. It also raised the unexplained absence of other, unnamed, practitioners seen by Mr Crook.
164Paul Licina is a specialist in Brisbane. He may specialise in the spine. But Mr Crook saw him once, perhaps in 2017. I would not expect him as a witness on the strength of one visit so long ago.
165Dr Thoo was a general practitioner at the Murgon Clinic. Mr Crook last saw Dr Thoo in November 2020. The evidence does not reveal how long Dr Thoo treated him. I note the defendant had the clinical records of the clinic at least up to 3 May 2018, for it supplied them to Associate Professor Williams.
166Fran is the name by which Mr Crook knows the physiotherapist he saw for about two months in 2017. He does not know her surname. I would not expect her as a witness.
167Although the submission that Mr Crook moved about after that does not deal with the absence of these three practitioners. However, on what little I know of the involvement of each, I would not expect to have reports from them and would draw no adverse inference from their absence.
Surveillance
168There was 48 hours and 55 minutes of surveillance, and video surveillance of 20 seconds. I would adopt the observation of Ashley JA in Church v Echuca Regional Health[32] that this circumstance is in favour of Mr Crook.
[32][2008] VSCA 153 at paragraph [98]
Conclusion
169Even putting aside the psychological effect of his spinal injury properly attributable to paragraph (a), Mr Crook satisfies each aspect of the test required by Humphries & Anor v Poljak. However, he does not satisfy the test for the body condition associated with his left shoulder or the test required by paragraph (c).
170I will hear the parties on the form of the orders and the question of costs.
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