D'Amico v Transport Accident Commission
[2013] VCC 2013
•28 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00762
| SAM D’AMICO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 August 2013 | |
DATE OF JUDGMENT: | 28 August 2013 | |
CASE MAY BE CITED AS: | D’Amico v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1057 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – impairment consequences of injuries to the neck and lower back – whether the combined impairments constitute impairment of spinal function – whether the consequences are “serious” – whether a psychiatric impairment is “severe”
Legislation Cited: Transport Accident Act 1986, s93(4)(b), s17
Cases Cited:Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Richards v Wylie (2000) 1 VR 79
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes with Ms J Frederico | Slater & Gordon |
| For the Defendant | Mr J Ruskin QC with Mr S Martin | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 21 February 2012 by which the plaintiff applies for leave pursuant to s93(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 15 April 2008.
2 Ms J Forbes appeared with Ms J Frederico of Counsel for the plaintiff and Mr J Ruskin, QC, appeared with Mr S Martin of Counsel for the defendant.
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under ss(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definitions of “serious injury” relied upon by the plaintiff are under ss(17):
“(a) serious long term impairment or loss of a body function;
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the plaintiff’s neck and lower back, and a psychiatric injury.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 9 -115: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 1-61: Exhibit 1.
The Plaintiff’s background
7 The plaintiff was born in December 1963. He is now 50 years of age. He is single without any dependents. He last attended the Noble Park Technical College to Year 10, after which he commenced an apprenticeship in carpentry, which he completed over four years.
8 The plaintiff then engaged in work as a carpenter until about 1998, when he committed himself to the care of his father, who was suffering from both dementia and Parkinson’s disease. His father died at the age of 80 years in 1998. The plaintiff then intended to return to work as a carpenter, but his mother suffered deteriorating health, which resulted in him committing himself to her care. She developed Alzheimer’s disease. His mother passed away recently. The plaintiff has not engaged in the gainful employment since 1998.
The transport accident
9 On 12 August 2007, the plaintiff was seated at an alfresco dining area at the Springvale RSL Club with three friends. The driver of a car in the adjacent car park accelerated to such an extent that the car left the car park, ploughed through a railing delineating the car park from the alfresco dining area, colliding into the plaintiff’s left side. He was thrown 2 meters across the alfresco dining area, landing on his back.
The Plaintiff's medical treatment
10 The plaintiff was removed from the scene of the transport accident by ambulance. He was taken to the Monash Medical Centre. He was experiencing pain in his neck, left hip, shoulders and arms. X-rays were taken. He was then discharged.[1]
[1]PCB 40
11 The plaintiff saw Dr Gomes, general practitioner, initially for treatment. He then saw Dr Vu, general practitioner. Dr Vu provided a number of medical reports, the last of which is dated 29 May 2013 and would appear to summarise the treatment he provided the plaintiff.[2] Dr Vu obtained a history from the plaintiff that he had been involved in the transport accident. He recorded that the plaintiff had experience constant pain in his neck, upper back and shoulders bilaterally, which had worsened over time. He also recorded that the plaintiff had complained of paresthesia in his right hand and similar symptoms in his left hand. Dr Vu prescribed the plaintiff strong analgesic medication for pain relief.
[2]PCB 31-36, and in particular, at 31-32
12 Dr Vu referred the plaintiff to have a number of radiological investigations. The first was an ultrasound of the left shoulder and an x-ray of his neck on 29 August 2007,[3] and a CT scan of his neck on 18 September 2007. Dr Vu considered that the radiological investigations demonstrated degeneration and foraminal stenosis at C4-5, C5-6 on the right side and C6-7 on the left side. He considered that the plaintiff had suffered an aggravation of the pre-existing degenerative changes in his neck.
[3]PCB 37
13 Dr Vu referred the plaintiff to Mr Xenos, neurosurgeon. The plaintiff first saw Dr Xenos on 1 November 2007. The plaintiff told Mr Xenos that he had suffered lower back pain, but his major complaint was muscular pain in the left side of his neck and shoulder area, with some radiation of pain into his left arm with weakness and paresthesia in his left hand.
14 Mr Xenos referred the plaintiff to have an MRI scan of his cervical spine. It demonstrated that the plaintiff had multi-level degenerative changes from C4‑5 to C6-7. At C4-5, there was a minor left-sided disc bulge possibly causing some nerve root compression; at C5-6, there was slightly worse right foraminal stenosis causing some C6 nerve compression, and at C6-7, there was disc and bony spur formation present bilaterally, compromising the C7 nerve.
15 Mr Xenos was of the opinion that the plaintiff was suffering from cervical spondylosis with focal C5-6 and C6-7 disc degeneration with nerve root compression. He considered that the plaintiff’s symptoms correlated well, and were consistent with the injuries he sustained in the transport accident. He considered that the plaintiff would continue to have chronic non-specific neck and shoulder pain and fluctuating minor arm symptoms with some potential for worsening, and if that were to occur, the plaintiff might require further MRI scans and surgery as a last resort.[4]
[4]PCB 48-49
16 Dr Vu also referred the plaintiff to have an MDCT scan of his lumbosacral spine on 21 January 2010. The radiologist reported that the scan demonstrated L4-5 central spinal canal stenosis.[5] Dr Vu did not make much comment about the plaintiff’s complaints of pain in his lower back in any of his reports. The major focus of his attention appears to have been the plaintiff’s neck. Similarly, that was the focus of the attention of Mr Xenos.
[5]PCB 60
17 In the plaintiff’s second affidavit sworn 25 June 2013, he referred to the fact that he himself considered that the symptoms in his neck were more significant in terms of disability than his lower back.[6] The impression I am left with after reading both of the plaintiff’s affidavits is that he appears to attribute the impairment consequences of the injury to his spine to both his neck and his lower back, without making much differentiation between one or the other.
[6]PCB 20
18 The plaintiff also referred to Mr Lim, physiotherapist. The plaintiff first saw Mr Lim on 17 April 2012. It is his neck which seems to have been the only complaint which the plaintiff made to Mr Lim. Mr Lim found on examination, that the plaintiff was suffering from a chronic whiplash injury with pain in his shoulder, neck and upper back; that he was sensitive to mechanical stimuli, both localised and widespread, and that there was increased sensitivity to his nervous system, poor control of cervical and scapular muscles and that he was sensitive to the cold.[7]
[7]PCB 56
The medico-legal opinions
19 Mr Brownbill, neurosurgeon, examined the plaintiff on 29 January 2009[8] and 23 October 2012.[9] In his second report, he was of the opinion that the plaintiff had sustained an aggravation of longstanding asymptomatic cervical spine degenerative changes with ongoing symptoms of irritation of the right C7 nerve root. He considered that the plaintiff should avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. He did not find objective signs of radiculopathy, but he considered that the radiological investigations demonstrated degeneration at C6-7 which was probably consistent with nerve root irritation.[10]
[8]PCB 70-74 and 76-77
[9]PCB 79-82
[10]PCB 81-82
20 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 27 November 2012 and in April 2013. Mr Schofield referred the plaintiff to have x-rays, which were taken on 27 November 2012, and an MRI scan of the plaintiff's cervical and lumbar spine, undertaken on 9 April 2013. He made a comparison with the MRI scan of 12 August 2007, which I assume is the MRI scan which Mr Xenos commissioned.
21 After undertaking a comparison of the radiological examinations and the scans, Mr Schofield considered that there was a mild worsening on the later x-rays and scans. In relation to the plaintiff’s neck, he was of the opinion that the x-rays demonstrated three-level degenerative change, with the most severe degeneration noted at C6-7. He considered that the MRI scan (the most recent one) demonstrated degenerative changes at C4-5, C5-6 and C6‑7 causing irritation and some compression on the left side affecting the C5, C6 and C7 nerve roots. He considered that the aggravation of the pre-existing degenerative changes resulting from the transport accident were likely to be responsible for the narrowing evident in the plaintiff’s cervical spine. He considered that the symptoms in the plaintiff’s shoulders were likely to have arisen from the three degenerative discs in his neck.
22 In relation to the plaintiff’s lower back, Mr Schofield considered that the complaints of pain made by the plaintiff of pain in his legs was likely to be consistent with L5 compression from the lumbosacral disc, and he reached that conclusion by comparing an x-ray in extension with the MRI scan (the most recent one). He considered that the L4-5 and L5-S1 discs were contributing to the plaintiff’s chronic lower back pain and referred pain into his legs, and specifically, he considered that there was radiculopathy affecting the plaintiff’s left leg. He also referred to the pathology in the plaintiff’s lower back being responsible for wasting of the plaintiff’s left thigh and reduced sensation over the outer side of the left calf.[11]
[11]PCB 109-112
23 Mr Schofield considered that the plaintiff did not need surgery to his neck, but there was a possibility that he might need surgery in the future if the degenerative changes progressed. He considered that the plaintiff was a likely candidate for surgery to decompress and stabilise his lumbosacral disc.
24 Mr Shannon, orthopaedic surgeon, examined the plaintiff for the defendant on 3 August 2010. On examination, Mr Shannon found a virtually normal range of movement in the plaintiff’s neck with no evidence of spasm or neurological abnormality in the upper limbs. He noted that the plaintiff’s neck was his major problem at one stage, but at the time of his examination, his lower back was more troublesome with pain, restriction of movement and spasm in the back. He found no definite neurological abnormality in the plaintiff’s spine.[12]
[12]PCB 16-20
25 Professor Davis, neurologist, examined the plaintiff on 8 November 2010. He considered that the plaintiff had suffered a significant soft-tissue injury to his neck with precipitation of pre-existing but asymptomatic cervical spondylosis. He considered that the x-rays and scans demonstrated compression of the right C6 and bilateral C7 nerve roots. He did not consider that the plaintiff’s complaints of persistent numbness in his right hand showed much in the way of brachial neuralgia. He considered that plaintiff showed objective evidence of subtle C7 radiculopathy. He considered that the plaintiff’s lower back symptoms were intermittent and that there were no signs of radiculopathy.[13]
[13]DCB 28-29
26 Mr Dooley examined the plaintiff on 23 July 2012. He considered that the plaintiff had suffered soft-tissue injuries to his neck and lower back, comprising muscular ligamentous damage and some aggravation of underlying naturally occurring degenerative disc disease. He considered that accounted for the ongoing intermittent neck and lower back pain from which the plaintiff was suffering. He considered that the plaintiff would continue to note some intermittent neck and lower back pain into the future, but did not consider that would be major, and would not expect the conditions to deteriorate. He also considered that the plaintiff could return to work on a graduated basis and undertake light physical work with a view to perhaps being able to return to the building industry.[14]
[14]DCB 49
The Plaintiff’s evidence
27 The only issue which Mr Ruskin submitted I needed to consider in respect of the plaintiff’s neck and lower back injuries is whether the impairment consequences arising from them are “serious”. Mr Ruskin did not vigorously oppose the proposition I put to him that I could deal with both the neck and lower back injuries as impairing the one body function; that is, the spine.
28 The preponderance of the medical evidence points to the plaintiff having suffered an aggravation of degenerative changes in his neck at C4-5, C5-6 and C6-7 with probable nerve root compression at C7 which is responsible for radicular pain the plaintiff says he experiences. That seems to be consistent with the opinions of Mr Xenos, Mr Brownbill, Mr Schofield and Professor Davis. Mr Shannon’s opinion must be seen in the context in which it was given, which appears to have been an impairment assessment, although, inherent in the discussion on which he engaged is an acceptance that the plaintiff did suffer a soft-tissue injury in the background of significant disc degeneration in the plaintiff’s neck. He did not consider that there was any neurological abnormality in the plaintiff’s upper limbs or lower limbs. Mr Dooley’s opinion is similar, in that he considered that the plaintiff had suffered a muscular ligamentous injury with aggravation of pre-existing degenerative changes in his neck and lower back, but no neurological abnormality in his upper limbs or lower limbs.
29 I accept the evidence of Mr Xenos, Mr Brownbill, Mr Schofield and Professor Davis. They all appear to have considered the relevant radiology and scans in considering that the plaintiff suffered an aggravation of asymptomatic degenerative changes in his neck and lower back and nerve root compression at C7. I do not think Mr Shannon’s opinion is of much probative value, because it is a limited opinion directed to an impairment assessment, and I do not accept Mr Dooley’s opinion that there is no neurological abnormality, because he does not appear to have considered the radiology and scans to the same degree as Mr Xenos, Mr Brownbill, Mr Schofield and Professor Davis.
30 I have carefully read the plaintiff’s affidavits in the context of the cross-examination of him by Mr Ruskin. The plaintiff struck me as being a relatively modestly educated man of modest intelligence who, I think, was being basically truthful in the evidence he gave. Mr Ruskin challenged the plaintiff’s recollection of other medical complaints and his prior psychiatric problems. The plaintiff left me with the impression that he was reluctant to readily admit to some of it, but in the end, I am not satisfied that the plaintiff’s conduct in that respect impinges much on his creditworthiness and reliability.
31 I am fortified in accepting the plaintiff’s evidence, because there are appears to me to be fairly strong medical evidence to support the conclusion that he has suffered an injury to his neck of some real magnitude, with a neurological abnormality verifiable on x-ray and scans, and in the opinions of Mr Xenos, Mr Brownbill, Mr Schofield and Professor Davis.
32 The plaintiff’s evidence, which I accept, is as follows:
· He has constant pain in his neck. It worsens in cold weather and becomes stiff. He has some good days when he is pain free, but he has bad days which leave him to needing to rest.
· The movements of his neck are restricted by pain. He has pain radiating into and down his right arm.
· He has pain in his lower back which impairs his mobility.
· He has resorted to treatment provided to him by Dr Vu and physiotherapy treatment, and is presently taking Tramadol every day or every second day for pain relief.
· His capacity to engage in activities such as playing golf and undertaking woodwork have essentially ceased.
33 Mr Ruskin cross-examined the plaintiff about a number of other medical conditions from which he suffers. Most appear to me to impair the plaintiff’s capacity function in various ways, but none appear to result in similar impairments caused by the injury to his neck which I have set out above.
34 In Aburrow v Network Personnel Pty Ltd,[15] the Court of Appeal observed that the evidentiary basis of the pain assessment will ordinarily comprise the following:
[15][2013] VSCA 46
§ what the plaintiff says about the pain (both in court and to doctors);
§ what the plaintiff does about the pain (for example, medication, rest, seeking medical treatment);
§ what the doctors say about the extent and intensity of the plaintiff’s pain; and
§ what the objective evidence shows about the disabling effect of the pain.[16]
[16]at paragraph 11
35 I have applied that approach, and have concluded that there is an evidentiary basis in concluding that the impairment consequences are “serious”. It is quite evident from the reports of the treating medical practitioners, namely Dr Vu and Mr Xenos, that the plaintiff complained of pain which they considered to be verifiable given their examinations of the plaintiff and Mr Xenos’s consideration of the radiology and scans. His opinion is strongly supported by the opinions of Mr Brownbill, Mr Schofield and Professor Davis, and, to a lesser extent, by Mr Shannon and Mr Dooley.
36 The plaintiff has resorted to medical treatment, physiotherapy treatment, takes medication for pain, and otherwise appears to exercise care in the activities in which he engages. It is quite clear that the opinion of Dr Vu, Mr Xenos, Mr Brownbill, Mr Schofield and Professor Davis is that there is an objective basis for the diagnosis of the injury to the plaintiff’s neck.
37 I consider that it is appropriate to treat the injuries to the plaintiff’s neck and lower back as impairing spinal function. Apart from Mr Schofield, the medical evidence is rather less persuasive that he has suffered an injury to his lower back of any particular significance. A simple comparison between the other medical evidence and the opinion of Mr Schofield bears that out. However, I find that the plaintiff has suffered an impairment of the function of his lower back, and when that is added to the impairment of function of the plaintiff’s neck, the impairment of spinal function is all the more of serious.
38 I propose to deal with the claim for serious injury under paragraph (c) in a very summary manner.
39 I am satisfied that the plaintiff suffered a psychiatric injury and has been treated for it. However, the impairment consequences must be “severe”. The plaintiff has a prior psychiatric history of some substance which was disclosed during Mr Ruskin’s cross examination of the plaintiff. I am not satisfied that the psychiatric impairment contended for by the plaintiff has been caused by the transport accident. In any event, even if it had, I am not satisfied that it satisfies the statutory test. The cross-examination also disclosed that the plaintiff is able to engage in social and domestic tasks at a level which seem to me to fall well short of the impairment consequences being “severe”.
40 Lastly, the psychiatric impairment resulting from the transport accident can be relied upon by the plaintiff as a consequence of the physical injury.[17] Dr Epstein, psychiatrist, examined the plaintiff on 31 March 2009 and 30 October 2012. In his second report based upon his examination of the plaintiff on 30 October 2012, he was of the opinion that the plaintiff developed a Post-Traumatic Stress Disorder as a consequence of the actual incident being hit by the car, and as a combination of the physical and psychological effects of the transport accident, he went on to suffer an Adjustment Disorder with Depressed Mood.[18]
[17]Richards & Anor v Wylie (2000) 1 VR 79 at paragraph 17
[18]PCB 97
41 Dr Mendelson, psychiatrist, examined the plaintiff on 11 and July 2012. He expressed an entirely different view to that of Dr Epstein. He considered there was no basis for diagnosis of Post-Traumatic Stress Disorder or a clinically significant Depressive Disorder. He considered the plaintiff’s hyper irritability to be secondary to the plaintiff’s experience of persistent pain and his current social and domestic situation.[19]
[19]DCB 42
42 I have considered the evidence of the plaintiff, the medical evidence and the submissions of counsel and I have concluded that the nature of the injury to the plaintiff’s neck has resulted in an aggravation of degenerative changes and nerve root compression at C7 causing radiculopathy. I have also concluded that the plaintiff has suffered an aggravation of degenerative changes in his lower back which, together with the impairment consequences of the plaintiff’s neck, contribute to an impairment of spinal function which is responsible for the impairment consequences summarised in paragraph 32 above. I should add that I would have made that finding if I was limited to the impairment consequences of the plaintiff’s neck only.
43 I must add that I am disinclined to accept the opinion of Mr Schofield as to the nature and extent of the plaintiff’s lower back injury. The dominant injury suffered by the plaintiff is to his neck. Until the plaintiff saw Mr Schofield, his complaints of lower back pain were rather more on the modest side.
44 Lastly, I consider that the opinion of Dr Epstein is more compelling than the opinion of Dr Mendelson. It is very clear from the foregoing that the plaintiff has suffered a major injury to his neck. As a matter of commonsense and experience, that is a setting in which secondary psychological-psychiatric symptoms can emerge, which is what I think is at the base of Dr Epstein’s opinion. I accept that the secondary psychological-psychiatric symptoms are a consequence of the physical injury suffered by the plaintiff.
45 In the end, I am satisfied that the plaintiff has suffered a serious long-term impairment of the function of his spine, and of the neck if I exclude consideration of the plaintiff’s lower back.
Conclusion
46 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
47 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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