De Agostino, Valda v Leatch, David and TAC
[2009] VCC 1560
•30 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-03105
| VALDA DE AGOSTINO | Plaintiff |
| v | |
| DAVID LEATCH | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | Judge Howie |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19, 20, 23, 24 November 2009 |
| DATE OF JUDGMENT: | 30 November 2009 |
| CASE MAY BE CITED AS: | De Agostino, Valda v Leatch, David & TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1560 |
REASONS FOR JUDGMENT
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Catchwords: serious injury application; s 93(4)(d) Transport Accident Act 1986
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Ryan | Nowicki Carbone |
| For the Defendant | Mr J Ruskin QC and Mr P Gates | Transport Accident Commission |
| HIS HONOUR: |
1 By originating motion dated 15 August 2007 the plaintiff seeks leave pursuant to section 93(4)(d) of the Transport Accident Act 1986 to bring proceedings for recovery of pain and suffering damages in respect of an injury sustained a
transport accident on 9 March 2003. The body function said to be impaired is
the function of the plaintiff’s cervical spine.2 For an injury to be adjudged to be serious it must be a serious long term impairment or loss of a body function. For the impairment to be serious it must have serious consequences for the plaintiff. In most circumstances the consequences of an impairment of a body function would be understood in terms of the effect of the impairment on a person’s ability to work and earn income, and the interference that the impairment causes to the person’s enjoyment of life. The nature of the consequences and whether they can be fairly considered to be serious is a matter of emphasis or classification in each case. Elements of fact, degree and value judgment are involved. The question to be determined is whether the impairment caused by the injury, when judged by comparison with other cases in the range of possible impairments or losses, can be described as being at least very considerable and certainly more than significant or marked. The impairment must also be long term. The time for making the assessment of the consequences of the impairment of the body function is at the time of the hearing of the application.
3 The plaintiff is 54 years of age, her date of birth being 13 January 1955. On 9 March 2003 she was a passenger in a motor car driven by her husband which collided with another car travelling in the opposite direction. The transport
accident occurred in Keilor Park Drive, Keilor.
4 Following the accident the plaintiff was taken to the Royal Melbourne Hospital where she remained until the following day. She had pain in her neck and in her shoulders and right arm. After being discharged from hospital she was treated by her general practitioner, Dr Demirdjian. She deposed that she had some physiotherapy for “a couple of days” and then had massage therapy “every two to three weeks for a couple of years” from Alda Digois. Following that she had “regular relief every two to three weeks” from another massage therapist, Gemma Castiglia. Towards the end of 2007, as the symptoms in her neck, shoulders and arms got worse, she was referred by her general practitioner to a physiotherapist. Since then she has been having physiotherapy for pain in her neck, shoulders and arms, and also for her left elbow, fortnightly. She has also taken analgesic medication, Panadol, Panamax and Aspro Clear, as needed. She is unable to tolerate stronger medication.
5 The accident on 9 March 2003 was the plaintiff’s fourth transport accident. The three previous accidents occurred on 21 September 1988, 10 August 1992 and 28 November 1993. Following each of these accidents she
experienced symptoms to her neck and shoulders. This case therefore is
concerned with aggravation of a pre-existing cervical spine condition.6 In these circumstances analysis must be made of the extent of the impairment of the plaintiff’s cervical spine before and after the injury sustained on 9 March 2003 in order to determine whether the additional impairment of the cervical
spine which occurred in the accident on 9 March 2009 constitutes a serious long-term impairment of the cervical spine.[1][1] Petkovski v Galletti [1994] 1 VR 436 at 443-4; Spence v Gomez [2006] VSCA 48 at [8][29][31] per Maxwell P, [60] per Chernov JA
7 There is no dispute that the plaintiff has a degenerative condition of the cervical spine or that she has had symptoms of that condition in terms of neck and shoulder pain and restriction of movement since the September 1988 accident. Nor is there dispute that the August 1992 accident in particular significantly aggravated her neck symptoms.
8 In her affidavit sworn on 23 April 2008 the plaintiff deposed that prior to the March 2003 she was receiving physiotherapy treatment approximately once a month, which the Commission ceased in September 2002, a decision which she did not challenge because her neck and shoulder symptoms had significantly improved. She deposed that she was experiencing pain in her shoulders, intermittent pain in her neck, and some pins and needles in her right hand, but that she was able to cope with her work duties without any significant problems and able to do the majority of her housework including cooking, some vacuuming, mopping and sweeping and the laundry. A cleaning lady had been engaged since 1998. The plaintiff deposed that she needed assistance lifting heavy blankets to the clothes line and had some trouble reaching above shoulder height, but was generally able to perform tasks such as washing and drying her hair, and doing the grocery shopping, provided she was careful and moved at her own pace. She walked four to five times a wek for 45 minutes to an hour at a brisk pace.
9 However, in cross examination of the plaintiff it was revealed that the symptoms and restrictions due to her cervical spine condition were more substantial than her affidavit suggested. She agreed that after the accident in August 1992 she had considerable problems with her neck and that this accident was more serious than the September 1988 accident. Following the August 1992 accident she had physiotherapy for her neck regularly, each fortnight or three weeks, for some ten years, until the Commission ceased paying for it in September 2002. She attended her general practitioner Dr Demirdjian and between 1993 and March 2003 he treated her for recurrent cervical spine pain.
10 In October 1996 the plaintiff was reviewed for the Commission by Sally Green, a physiotherapist. She complained to Ms Green of cervical spine pain bilaterally and intermittent regular headache. She also complained of right sided medial scapular pain. Weekly or fortnightly physiotherapy eased her symptoms, but they came back fairly quickly. Overall she reported very little improvement. She took occasional Panadol. Ms Green reported to the Commission that she had obvious signs of neck injury resulting from a motor vehicle accident.
11 The plaintiff agreed that in July 1997 she experienced spontaneous exacerbation of neck pain and that such exacerbations happened from time to time. She agreed that in 1998 she was being treated by the physiotherapist each fortnight or three weeks, she had engaged a cleaning lady one a week to help with vacuuming and mopping, she complained of migraine headaches in February 1998, neck and shoulder pain and headaches in March 1998 and was generally stiff in the neck in the morning, and in May 1998 attended her doctor with pain in her left shoulder and arm. Dr Demirdjian arranged an x-ray of the cervical spine. The report of 13 May 1998 advised of the presence of degenerative changes at the C5/6 level. They were not marked.
12 The plaintiff agreed that in May 1998 her problems were much the same. She had neck stiffness in the morning, neck and shoulder pain, and limitation of movement. The symptoms were the reason for her employer, the Australian Taxation Office, to modify both her work station and her work programme. She was working three days a week. She was given regular rest breaks enabling her to stop each hour for ten or fifteen minutes, and to walk around and do stretches. She was provided with a Therapod chair and neck rest to provide support for her neck and shoulders.
13 The plaintiff’s neck and shoulder symptoms continued in 1999. In July 1999 she had right arm and hand problems, including pins and needles and was referred to Mr Freilich for EMG tests. In August 1999 Dr Demirdjian referred
her to a neurosurgeon, Mr Kavar. He reported to Dr Demirdjian on 17 August 1999 that the plaintiff presented with difficulty with her right hand, including a sense of weakness and pins and needles and numbness. On examination she
had decreased pin prick sensation on her right hand in the distribution of the C7 and C8 nerve roots with minimum weakness of grip. The power in upper limbs and lower limbs was normal. She had neck pain with right shoulder pain
which was mainly an ache.
14 Mr Kavar considered that the plaintiff had significant pain and weakness in her right upper limb suggestive of possible right C7 and right C8 nerve root lesion. He requested that Dr Demirdjian arrange an x-ray of the cervical spine. The x- ray report of 6 September 1999 concluded that the plaintiff had mild cervical
spondylosis. Mr Kavar also arranged an MRI in order to determine the severity
of nerve root entrapment. The MRI report of 10 November 1999 concluded
that the plaintiff had mild degenerative changes from C3/4 to C6/7, mild left
C3/4 and C4/5 foraminal stenosis and minor left C6 lateral recess stenosis.15 Mr Kavar reviewed the plaintiff on 30 November 1999. At that time she felt that her pain was much more manageable, but had not settled completely. Her neck pain appeared to be the main issue with intermittent right hand pain.
Examination revealed mild altered sensation in the distribution of the C7 and C8 nerve roots. Mr Kavar considered that her clinical problem was secondary to her neck pain which “could be accounted for from spasm of her neck
muscle.” He recommended massage, physiotherapy and an exercise
program.16 Mr Kavar reviewed the plaintiff again on 15 February 2000. At that time her neck pain had improved and he found that her cervical pathology had substantially settled.
17 However, although Mr Kavar understood that by February 2000 the plaintiff’s condition had improved significantly and had substantially settled, it was apparent from her evidence, and from documents tendered, that the condition of her cervical spine did not remain in an improved or settled state in the period from February 2000 to March 2003. In cross examination the plaintiff agreed with the record of continued attendances on Dr Demirdjian revealed in his clinical notes. Those notes record attendances upon him with respect to headaches, neck pain, numbness or arm pain on 28 February 2000, 21 March 2000, 21 September 2000, 12 December 2000, 25 January 2002, 29 May 2002, July 2002, 30 October 2002, 4 December 2002 and 4 March 2003.
18 In March 2000 the plaintiff attended Dr Dermidjian with frontal headaches and migraines. In June 2000 Mr Freilich carried out nerve conduction studies. In September 2000 Dr Demirdjian referred the plaintiff to John Fawkner Hospital because of migraine and paraesthesia of her left cheek. In December 2000 the plaintiff told Dr Dermidjian that she had experienced two months of frontal headaches. She continued to attend the physiotherapist during 2001. In November 2001 the plaintiff reported to Dr Dermidjian that she had headaches for the past two months which had been so bad that she went to bed. She was taking Panadol and Panamax to relieve the pain. On 25 January 2002 Dr Dermidjian noted neck pain. On 29 May 2002 he noted chronic neck pain. On 30 October 2002 he noted chronic and right side thoracic pain and acute exacerbation. On 4 December 2002 he noted neck pain and discussed pain management strategies with the plaintiff. On 4 March 2003 he noted exacerbation of neck pain with associated headache.
19 The plaintiff agreed in cross-examination that before the March 2003 accident she was working three days a week and that her work was significantly affected by her neck and shoulders and by headaches. She agreed that she had significant spasm in her neck and a limited range of movement. On 23 January 2002 the plaintiff’s employer, Australian Taxation Office, requested Dr Trifiletti, an occupational physician, to conduct a worksite assessment with respect to the plaintiff. The purpose of the assessment was to seek medical clarity with respect to the plaintiff’s capacity to undertake a range of work tasks. The assessment took place on 12 February 2002 and Dr Trifiletti provided a report dated 19 February 2002.
20 The report noted that the plaintiff was employed in a permanent part-time capacity in a clerical capacity. She worked from 8am to 4pm, Tuesday to Thursday. She had a longstanding history of neck and predominantly right
23 musculoskeletal physician, and Mr Bartram, a musculoskeletal and sports
physiotherapist, on behalf of the Commission. The purpose of the examination
upper limb pain dating back to 1990. In September 2000, when she moved to work entailing more keying, she was able to cope with a combination of daily exercises and alternating tasks. She continued to undertake fortnightly
physiotherapy and was given a specialised ergonomic chair. The symptoms that she reported in February 2002 were aching across the shoulders, neck and right arm, which was not constant, but was present with sustained neck flexion or reaching for a period of about one hour. Postural respite resulted in
significant symptom improvement. She reported headaches when neck pain application in smaller piles within easy reach, to allow regular breaks and walking around each hour, and the breaking down of work tasks over the course of the day.
occurred. Dr Trifiletti found significant spasm of the paracervical muscles and
some limitation of neck movement on flexion, extension and rotation.21 In cross-examination the plaintiff agreed that in 2002 her symptoms and limitations were such that if she had not had a cooperative employer she would probably have had to leave work and would have had trouble keeping a
job.
22 In March 2002 the plaintiff completed a neck disability index. She expressed agreement with statements that her pain was moderate, that she could only lift light weights, that she could not read as much as she wanted because of moderate pain in her neck, that she had headaches all the time and that she had a fair degree of difficulty concentrating.
On 5 March 2002 the plaintiff was examined by Dr Bolzonello, a of her condition as it related to the injuries sustained in the accident on 10 August 1992. Her treatment then was 1-2 treatments per month from a physiotherapist. She had received 319 physiotherapy treatments to 23 January 2002. She was taking Panamax. Dr Bolzonello’s report records the following account of the plaintiff’s condition at that time:
without any stretching component. It appears that she has
not been given any appropriate strengthening exercises.
exercises she performed very simple turns of the neck she walks, but not as far as she used to before the accident.
Mrs De Agostino reported pain about her neck, headaches which are occipital and radiate to the front of her head and pain that radiates from the neck out to both shoulders. At times the occipital pain is 10/10 and she takes Panamax on a regular basis. She also intermittently experiences pins and needles and paraesthesia in the whole of her right hand which wakes her and she has to shake to relieve the symptoms.
Mrs De Agostino is currently only working part time. Her headaches and neck pain have significantly improved since she went to part time work and the Australian Taxation Office has offered her considerable help and support in terms of the structure of her work, hours of work and equipment etc.
Mrs De Agostino reported that she can sit for about ½ an hour but after that she has to get up and do some stretching. She indicated difficulty with driving and similarly with ironing she can do about ½ and hour’s work then she has to stop. She indicated that she is unable to do any other activity for at least a couple of days after doing the ironing. She said that she is unable to stand at the sink and she has a cleaning lady who does the vacuuming and the mopping.
With regard to physiotherapy, Mrs De Agostino said that she attends on a fortnightly basis and funds intervening treatment herself as TAC has indicated they will only fund fortnightly treatment. She described that treatment does decrease her pain for about 2-3 days and on the 3rd day she started to slip back to where she was. She said the treatment modalities include massage, some mobilisation, heat and the use of some sprays which we believe may be anti-inflammatory sprays. With regard to treatment breaks, she has tried to stretch out treatment past 3 weeks over holidays periods but she finds she gets significantly worse if she does this.
Mrs De Agostino said that her self-management strategies include stretches and she has been given a neck book by the physiotherapist. When asked to demonstrate her
The report recommended twelve physiotherapy treatments over the next six months and that then the Commission should cease liability for ongoing physiotherapy treatment.
24 As noted the plaintiff continued physiotherapy until September 2002 and continued to attend Dr Demirdjian in 2002 and early 2003 for her chronic neck pain. On 29 May 2002 he noted chronic neck pain. On 30 October 2002 he noted chronic and right side thoracic pain and acute exacerbation. On 4 December 2002 he noted neck pain and discussed pain management strategies with the plaintiff. On 4 March 2003 he noted exacerbation of neck pain with associated headache and gave a medical certificate for a day.
25 Dr Demirdjian is undoubtedly the medical practitioner who best knows the plaintiff. He has been the plaintiff’s general practitioner for twenty years or more, and has treated her with respect to the injuries arising from each of the
transport accidents, and in particular for her cervical spine condition. His opinion, expressed in his principal report dated 7 July 2008, was that the March 2003 accident caused serious aggravation of the plaintiff’s neck injury
which had significantly worsened her condition. He based this assessment on
his “overall impression of a global reduction in her function.” The matters to
which he referred in his report which no doubt contributed to his overall
impression of reduced function included frequent attendances for neck pain
and attendances on neurosurgeons, deteriorating quality of life, inability to
conduct many activities of daily living, significant limitation in activities of daily
living, the need for help in performing shopping and dealing with personal care
and reduced enjoyment of social activities due to recurrent chronic pain. He
noted that she had recurrent problems with pain in the neck and arm at work
requiring assessments of her capacity to work and requiring arrangements to
be made to accommodate her neck and arm pain. Difficulties at work did not
appear to be a contributing component of his overall impression.26 I do not have difficulty accepting Dr Demirdjian’s opinion, based upon his overall impression of loss of function, that the plaintiff’s condition was aggravated by the March 2003 accident and that her symptoms were exacerbated or made worse by that event. It is the degree or extent of the aggravation and worsened symptoms about which a judgment must be made.
27 Following the 9 March 2003 accident the plaintiff attended Dr Demirdjian. She was subsequently taken to the Royal Melbourne Hospital for observation and treatment. She was discharged the following day on 10 March 2003. She
complained to Dr Demirdjian of persistent pain in the neck and upper borders of the trapezius muscles and in the right arm. His report of 7 July 2008 stated that she continued to complain of neck and right arm pain over the
subsequent months and years. She was treated conservatively with
analgesics and intermittent physiotherapy and massage. The plaintiff’s
evidence was that she had physiotherapy until the end of 2003 and thereafter
attended a massage therapist. She deposed that recommenced
physiotherapy towards the end of 2007.28 There are obvious difficulties for the plaintiff’s application with this history. It presents the condition of the plaintiff’s cervical spine and chronic neck and right arm pain after the March 2003 as being little different from her condition and symptoms before the March 2003 accident. Similarly, there is little difference in the treatment the plaintiff was given. If anything, she may have had less treatment in the three or four years after the March 2003 accident than in the years before it. After the MRI on 10 November 1999 there was no further radiological investigation until 28 June 2006. There appears to have been no apparent deterioration of the plaintiff’s symptoms following the March 2003 accident. The deterioration that has occurred did not commence until three or more years later, in 2006.
29 The later reports of Dr Demirdjian refer to attendances with neck and arm pain on 4 October 2008, 18 December 2008, 19 January 2009, 13 March 2009, 25 March 2009, 3 April 2009, 11 June 2009 and 2 July 2009. The neurosurgeon, Mr Han, who examined the plaintiff on 8 July 2006, and Mr de la Harpe, the
orthopaedic surgeon who examined the plaintiff on 18 December 2006, each
advised Dr Demirdjian that surgery was not appropriate and recommended
conservative management. She also attended Dr Demirdjian on a number of
occasions in 2008 and 2009 with chronic left elbow pain, which he diagnosed
as left lateral epicondylitis unrelated to her neck injury.30 him or upon neurosurgeons, the evidence does not establish a marked
Insofar as Dr Demirdjian’s global impression was based upon attendances on be measured by the level or nature of the treatment given to the plaintiff, the evidence does not establish a marked difference in the treatment that she was having before the March 2003 accident. She had had more than 300 physiotherapy treatments before March 2003. Although the physiotherapy had ceased in September 2002, it is apparent that she continued to have chronic neck and shoulder pain with exacerbations from time to time. The treatment was conservative before March 2003, and continued to be conservative after that date, with mild analgesic medication in the form of Panadol or something similar, and physiotherapy which recommenced towards the end of 2007, more than four years after the accident, although she had massage treatment prior to that.
31 There is no evidence that the frequency of the plaintiff’s attendances upon Dr Demirdjian were greater after March 2003 than they were before. It was not until 5 June 2008, more than five years after the March 2003 accident, that Dr Demirdjian referred the plaintiff back to the neurosurgeon, Mr Kavar. His reason for doing so then, in 2008, was that the plaintiff had pain and distress and was not responding to physical treatments and he wanted an opinion as to whether surgical intervention was required. Mr Kavar’s advice then, as it has been in November 1999, was that surgical intervention was not indicated.
32 In cross examination Dr Demirdjian said that it was his memory that the plaintiff’s overall functioning and ability to do day to day tasks deteriorated after the March 2003 accident. He acknowledged however that the plaintiff had a reduced ability to do various household activities and daily tasks before the March 2003 accident, and that she had had problems at work practically all along. He was not aware of the specific matters at her work. Nor was he aware that before March 2003 she had trouble ironing or standing at the sink for more than half an hour and that when she did so she paid the price.
33 He also acknowledged that the worsening of the plaintiff’s symptoms had come not in the years immediately following the March 2003 accident, that is 2003 to 2006, but in the last two or three years, 2006 to 2009. He agreed that in the three years and three months after the March 2003 accident there were about seven attendances on him and that there had been very little medical treatment from 2003 to 2006.
34 His opinion was that the worsening of the plaintiff’s symptoms in the last few years, 2006 to 2009, are an aggravation caused by the March 2003 accident and that this accident was significantly more detrimental than the earlier one. In his opinion each subsequent accident has a significantly greater impact on the already injured part so that the later trauma had greater effect on the
injured part than the earlier accidents. He acknowledged that the quantum of
increased effect on the existing degenerative disease is very difficult to
quantify.35 Mr Kavar examined the plaintiff next on 5 June 2008 following referral from Dr Demirdjian. He had not seen her since February 2000. He had no knowledge of the ongoing neck pain she had experienced between February 2000 and
March 2003. On 5 June 2008 the plaintiff had ongoing neck pain in the middle of her spine and on either side of the midline structures. The pain radiated towards her shoulders and, more recently, down her arms. She had variable pins and needles with tingling, but no specific weakness. Physiotherapy helped her discomfort. Examination revealed decreased neck movements in all directions with normal sensation and a sense of give-way weakness with shoulder abduction. Mr Kavar noted that the MRI of the cervical spine dated 28 June 2006 revealed mild disc degeneration with facetal degeneration, but no evidence of spinal cord compression. He did not believe surgical intervention needed to be considered.
36 In his report of 1 July 2008 Mr Kavar expressed the opinion that the March 2003 accident had accelerated the plaintiff’s neck injury. He considered that there had been an aggravation of her pain following the March 2003 accident. He also considered that the MRI suggested increased changes in the cervical spine, particularly at C6/7 with mild flattening of the theca.
37 It is not difficult to accept that the March 2003 accident aggravated the plaintiff’s neck injury. It is the extent of the impairment of the function of the cervical spine caused by the aggravation and the consequences of it that are more difficult to determine. It is not a criticism of Mr Kavar to note that his evidence is of limited assistance in addressing that issue as he had not assessed the plaintiff in the three year period between 15 February 2000 and 9 March 2003 and was not aware of the continuation of her chronic neck pain and headaches during that period. On the contrary he understood that by February 2000 her cervical pathology had substantially settled. Also, he had not assessed the plaintiff for the further five years or more after March 2003.
38 In cross examination Mr Kavar agreed that by 1999 the plaintiff had mild to moderate degenerative changes in the spine as a product of her age and accidents and that the process of degeneration was a continuing process. When the evidence concerning the plaintiff’s symptoms in the period between February 2000 and March 2003 were put to him, he agreed that it was a different picture to the one he had previously, and that it was likely that the plaintiff had chronic neck pain at March 2003, that had been worsening over the years due to the combination of the 1988 and 1992 accidents and the ageing process. While he maintained that the March 2003 accident has been a contributor to the worsening of the plaintiff’s neck injury, he agreed that the extent or degree of its contribution is not an easy matter to determine.
41 legal assessment . His opinion was that the plaintiff had a significant further
aggravation of the cervical spine problems in the March 2003 accident with
developing increasing neck pain and left arm pain. While he acknowledged
that the plaintiff had “significant underlying pre-existing disease”, the history
that he obtained concerning the plaintiff’s condition before March 2003 was
also incomplete. He noted the three earlier accidents, but with respect to the
1992 accident he recorded that the plaintiff “had some ongoing neck
symptoms following that and these niggled on.” He summarised the position
after the three accidents as the plaintiff having “ongoing neck symptoms and
some left arm pain, but these became worse after the accident in 2003.” This
was not only incomplete, but inaccurate in that the plaintiff’s complaints had
been of neck, shoulder and arm pain, particularly the right arm. He expressed
39 Mr Kavar was asked to consider the MRI of 28 June 2008. He agreed that the radiology did not show that the March 2003 accident had accelerated the degenerative changes to the plaintiff’s cervical spine in a dramatic way. In re- examination, he confirmed his view that the MRI (of 28 June 2006, not 2008 as was put to him) suggested increased changes, particularly at C6/7, but he also said that it is difficult to answer whether there had been a worsening of the radiological findings as a consequence of the March 2003 accident.
40 When Mr Kavar reviewed the plaintiff on 19 August 2008 he advised Dr Demirdjian that there was no spinal cord compression and no signal change in the spinal cord and assured him that there was no neural compressive pathology that required attention. He recommended that the plaintiff have a regular exercise program with advice from a physiotherapist.
Mr Miller, orthopaedic surgeon, saw the plaintiff on 12 May 2008 for a medico cervical spine problems in the March 2003 accident with developing increasing neck pain and particularly left arm pain. In later reports Mr Miller confirmed an opinion that on the balance of probabilities the left arm pain was referred from the cervical spine, but acknowledged that may be incorrect and it may be tennis elbow.
42 I agree with Mr Ruskin’s submission that as the information available to Mr Miller concerning the condition of the plaintiff’s neck injury before the March 2003 accident was incomplete and inaccurate his opinion concerning the extent or degree of the aggravation caused by that accident is less reliable and should be given less weight.
43 I also agree with his criticism of Professor Myers’ report. He assessed the plaintiff on 15 May 2008. He obtained brief histories of the three earlier accidents and minimal accounts of the plaintiff’s symptoms after those accidents. He simply did not have sufficient information to express a competent opinion on the additional impairment of the plaintiff’s cervical spine caused by the March 2003 accident. His simple adoption of the plaintiff’s apportionment of her disability from the four accidents, with 50% allocated to the last accident, was rightly criticised by Mr Ruskin as demonstrating no reasoning process by which his opinion was reached.[2]
[2] see Makita v Sprowles [2001] NSWCA 305 at [23][87]
44 Dr Kenna, a musculoskeletal pain management consultant, saw the plaintiff on 27 September 2006 to advise the Commission about physiotherapy treatment and again on 8 April 2008 for a medico legal assessment. He considered that the plaintiff’s symptoms and difficulties were the result of the layered affect of progressive degenerative change caused by four transport accidents. He attributed 25% of the plaintiff’s symptomatology at that time to the March 2003 accident, and the majority of her symptomatology to the August 1992 accident.
46 experienced significantly increased pain affecting her neck, with referred pain
to her shoulders, more intense and longer headaches including migraines
requiring medication and rest. In 2006 an exacerbation of neck pain led to a
short amount of time off work, referral for an MRI and treatment from Mr Han,
a neurosurgeon. She attempts household tasks, but has a decreased
capacity, uses a light weight iron for limited periods and needs the assistance
of her husband or the cleaning lady to complete tasks such as vacuuming and
mopping. She has problems with food preparation, difficulty cutting food and
lifting heavy pots, reaching above shoulder height, and she struggles to stand
at the sink for a significant period of time. She finds it difficult to do the
dishes, needs assistance with the laundry and with shopping and with
personal care tasks such as doing her hair and make-up. Her mobility is
reduced and her walking has reduced to once a week at a slower pace. She
is able to drive, but has problems rotating her neck. She goes dancing less
frequently and is unable to dance for prolonged periods, and while she still
hosts dinner parties from time to time her husband and children generally do
the cooking. She is working three days a week, but her capacity to perform all
The plaintiff deposed that since the accident on 9 March 2003 she has up and walk around as her neck is stiff and painful from sitting in one position. She has difficulty getting to sleep due to neck symptoms and her sleep is disrupted. She has physiotherapy once a week and continues to take Panadol or similar medication. 47 There is support for this account of the plaintiff’s symptoms in the affidavits of the plaintiff’s husband Antonio De Agostino, her sister Elizabeth Barbaro, and of Tina Diane Kevich and Angela Mathews. 48 March 2003 the plaintiff had symptomatic degenerative disease of her cervical
I am satisfied that as a consequence of three transport accidents before including migraine headaches, and limitation of movement of her neck, shoulders and arms. Her treatment included many sessions of physiotherapy over a number of years, moderate analgesic medication available without prescription, attendance on her general practitioner from time to time and attendance upon a specialist neurosurgeon. As a consequence of this impairment her ability to carry out her work duties was restricted and it was necessary for her to be provided with a special chair and neck brace and for her work tasks and timetable to be modified. The impairment also affected her personal and domestic life. She had difficulty with driving and with tasks such as ironing, vacuuming and mopping and needed assistance. 49 2003 there was further aggravation of the degenerative condition of the
plaintiff’s cervical spine. Her symptoms were of a similar kind to the
I am satisfied that as a consequence of the transport accident on 9 March similar conservative kind, though with less physiotherapy than she had previously. She continued to work in the same manner and with similar modifications as she was working before the accident. I am satisfied that her symptoms have become worse in recent years from late 2006, more than three years after the accident. 50 While it is difficult to determine what contribution the March 2003 accident made to the worsening of the plaintiff’s condition, in my opinion, as Professor Davis has stated, it is more probable than not that the plaintiff’s present symptoms are caused by the impact of the four accidents on the degenerative process in her cervical spine. While the impact of the March 2003 accident, and of the earlier accidents, is likely to be ongoing, I am not satisfied that the additional impairment of the plaintiff’s cervical spine which occurred in the transport accident on 9 March 2003 can be fairly adjudged to be very considerable. I am not satisfied therefore that the additional impairment resulting from the March 2003 accident is a serious injury. 51 Accordingly, leave to bring proceedings to recover damages with respect to the transport accident on 9 March 2003 is not granted. 45 Professor Davis, a neurologist, assessed the plaintiff for medico legal purposes on 12 February 2008. His opinion was as follows –
In summary, her current symptoms are due to the accumulation of 4 accidents which have involved some soft tissue, jolting-type injuries to the cervical spine and it is very difficult to apportion causality of the current symptoms to any one accident, more than the others. It could be reasonably argued that the last accident aggravated her pre-existing symptoms but does not seem to have constituted a serious injury from the neurological viewpoint.
She is likely to have ongoing, chronic, low grade symptoms which do produce some level of disability and could be attributed to a combination of the consequences of these 4 accidents, together with the age related degenerative process in the cervical spine.
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