Derks v Transport Accident Commission
[2021] VCC 1871
•26 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04613
| JESSICA DERKS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2021 | |
DATE OF JUDGMENT: | 26 November 2021 | |
CASE MAY BE CITED AS: | Derks v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1871 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering consequences – spinal injury – two accidents – consequences of the first accident relied upon.
Legislation Cited: Transport Accident Act 1996
Cases Cited:Humphries v Poljak [1992] 2 VR 129; TAC v Dennis [1998] 1 VR 702; Sabo v George Weston Foods [2009] VSCA 242; TAC v Zepic [2013] VSCA 232; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Thapa v TAC [2021] VSCA 239
Judgment: Leave granted pursuant to paragraph (a) of the definition of Serious Injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendant | Mr R Middleton QC with Ms A Wood | Solicitors for TAC |
HIS HONOUR:
Introduction
1Jessica Derks applies for leave to start a proceeding to recover damages for spinal injuries she allegedly suffered in a transport accident. There were two such accidents separated by a year. She relies upon the consequences of the first. The second temporarily aggravated the effects of the first.
2Ms Derks proceeds under s93 of the Transport Accident Act 1996 (“the Act”). She relies on paragraph (a) of the definition of “serious injury” and, specifically, an injury to her spine.
Circumstances
3Ms Derks is now 24. She lives at home with her parents and two nieces. She has six siblings, five sisters and a brother.
4In 2015, while in Year 11, she first suffered pain in her calves and lower back while carrying her school bag. She saw her general practitioner. Following x-rays, a mild form of spina bifida occulta was diagnosed. The pain ceased when she stopped carrying her school bag. Her parents drove her to school to avoid carrying her school bag, but she did so from classroom to classroom which caused some pain. When the first accident occurred, she had just finished Year 12.
5Her general practitioner referred Ms Derks to a chiropractor, Suzanne Von Soly. Dr von Soly treated the spine generally, but with emphasis on the lower back. By the time of the first accident, Ms Derks was seeing Dr von Soly every three months. Her last appointment with Dr von Soly before the accident was on 16 November 2018. She was given exercises to do at home. Again, at the time of the first accident, she was not doing those exercises because there was no need. She rarely experienced back pain.
First accident
6At the time of this transport accident, Ms Derks had just completed Year 12. Ms Derks described the transport accident and its immediate aftermath as follows[1]:
“On 8 December 2016, my sister was driving and I was in the front passenger seat. We were at a T-intersection. We were hit from behind, and jolted forward. The seat belt didn’t lock and my head and body were thrown forwards. The other car was a write-off. Ours was later fixed.
I felt immediate pain in the top part of my neck. It was a sharp, burning and shooting pain. It was constant.
[1] Affidavit sworn 8 November 2019 at [7] to [9].
I also felt pain in my lower back. It was a type of pain I had not experienced; the pain went down the left leg and was tingly in nature.”
7Ms Derks’ father came to the scene of the accident and drove her to the Frankston Hospital. She was discharged later that day after receiving a spinal collar and prescribed analgesics.
8The accident occurred at about 5.30 pm. Ms Derks maintains the other vehicle was travelling at 70 kilometres per hour at the time of the collision despite the hospital records saying 40 to 50 kilometres per hour. She did not see that vehicle before the collision. She described the impact as “high” with her vehicle being moved from its stationary position.
9The next day, she was sore and sought treatment from her chiropractor and her general practitioner, Dr Wielicki. Within a week of the accident, she developed headaches.
10At the time of the accident, Ms Derks was considering tertiary studies at La Trobe University. Owing to the severity of the pain, she undertook a Diploma of Business and then a Diploma of Business Administration. Both courses were undertaken online and each took a year to complete.
11During early 2017, Ms Derks attended an osteopath on a “couple of occasions”.
Second accident
12Her description of this accident[2]:
“In the second accident, on 10 March 2017, we were waiting to turn right at Frankston-Flinders Road and Marine Parade, Hastings. My father was driving. I was in the front passenger seat. The other car failed to give way and hit us on the right side of the car. This was a relatively low-speed collision. The driver’s side door and pillar was damaged and later replaced.
I felt a flare-up in my neck. I also felt a flare up of pain in my lower back after this incident. My father was worried about me, given my earlier problems, and got an ambulance to take me to Frankston Hospital. I was reviewed and given x-rays, and cleared to go home”.
[2] At [15] to [16].
13Ms Derks started attending a physiotherapist twice weekly and continued seeing her chiropractor weekly and her general practitioner.
14The aggravating effects of this second accident on her neck and back were temporary. The effects wore off and her symptoms returned to the level existing before that accident.
15On 12 April 2018, there was a CT guided injection into the L4/5 disc. It made no difference to the level of her pain.
16In June 2018, she started Pilates at the recommendation of her physiotherapist.
17In September 2018, while undertaking the second diploma course, Ms Derks started casual employment as a customer service officer at the Woolworths store in Mt Eliza.
18In August 2019, Ms Derks started a hydrotherapy and gymnasium program under the supervision of a physiotherapist. The former assisted by reducing her pain levels and increasing her range of movements. The latter had mixed results, sometimes helping, sometimes not.
19Between October 2019 and March 2020, Ms Derks participated in a pain management program. Unfortunately, it yielded little improvement in her symptoms.
20In about July 2020, Ms Derks refused an offer of promotion to an online orders manager because it would involve frequent lifting and prolonged sitting and standing. Shortly after refusing this offer, she was offered the position of second in charge of customer service. She accepted this offer because its duties fitted her limitations.
21In about May 2021, she accepted the position of customer service manager. The position has the features of the second in charge position except there is more responsibility.
Present state
22The neck is the main site of her pain. It is a tight, burning sensation. It is constant but can “flare-up” or intensify. At its worst, it is unbearable, being 10 out of 10. She experiences this high level of pain up to four days a week.
23The neck pain moves into her shoulders. From there, she experiences a different sensation in the arms, burning and tingling. Her hands are affected, mainly the left, where she experiences numbness.
24Ms Derks experiences constant lower back pain. The pain is often severe with a burning and searing quality. She has flare-ups of her pain. This happens three or four times a week. These occur at work and away from work. On average, two to four times a month, this pain radiates into her legs down to the ankles, more on the left than the right. It lasts a few days and causes her to hobble.
25She suffers from headaches. Before the first accident, she was treated for headache in 2016. She did have headaches now and then but nothing like it is now. These headaches happen once or twice a fortnight. They last between 24 hours and a few days.
Treatment
26Ms Derks once took strong pain-relieving medicines, such as Tramal and Panadeine Forte, but stopped because they gave her bad side effects. Presently, she takes Panadol, once or twice a week when the pain is bad. She tries to avoid using Panadol because she does not want to become reliant on it and it is not as effective as it once was for her.
27Every three weeks, Ms Derks attends a physiotherapist. She attends a chiropractor every two or three weeks. She pays the gap after a Medicare rebate. She finds both forms of treatment give her temporary relief.
28She sees her general practitioner when necessary.
29Ms Derks continues with her Pilates classes. Her attendances have been restricted through the lockdowns due to the pandemic. Since Pilates gives her temporary relief, she continues to attend and pays herself.
30Every evening, Ms Derks has a hot shower and then exercises.
Employment
31In early 2020, Ms Derks was promoted by Woolworths to an assistant customer services manager. She now works full-time. In about May 2021, she was promoted to customer services manager. Before accepting the assistant manager’s position, she was offered the position of order manager, but declined because the job was too stationary. Her current position offers the opportunity to move about. Working too long in one position aggravates the pain in her neck and upper and lower back.
Social
32Owing to her pain, Ms Derks limits her social activities. She does not go clubbing.
33Ms Derks’ parents have the permanent care of her sister’s daughters, aged six and eight. She cares for them. She is limited in her playing with them. She cannot walk with them. She will not use the trampoline with them. If they are colouring in, she can only do that with them for 10 to 15 minutes until her neck pain spreads to her shoulders and upper back and becomes severe.
Sleeping
34Ms Derks’ sleep is worse now than before the first accident. She finds it hard to be comfortable in order to sleep. Once asleep, frequently she wakes due to neck pain and remains awake for a few hours. Her disturbed sleep leaves her tired and lethargic the next day. She tried melatonin with little effect.
Dressing
35Ms Derks must be careful dressing for fear of aggravating her neck pain. Even with care, she is not always successful.
Weights
36Ms Derks cannot now lift more than 5 kilograms. To attempt more simply increases her neck and back pain.
Household duties
37Ms Derks lives with her parents. Before the first accident, she performed most of the household work – laundry, mopping floors, cleaning bathrooms, vacuuming and mowing the lawn. Her father cooked. They shared the shopping. Since that accident, her father has assumed more of her duties. He washes the dishes, does most of the cleaning tasks and the shopping. For reasons which are not disclosed, her mother is “not very helpful around the house despite our issues”[3].
[3]. Affidavit sworn 8 April 2019 at [40].
Walking
38Before the first accident, Ms Derks walked her dog every second day. This rarely occurs now. Apart from walking the dog, her ability to walk is limited to 30 minutes due to the pain including sciatic pain in both legs.
Sitting
39Ms Derks’ ability to sit depends on what she is doing while seated. If her activities do not cause pain, then she can sit for as long as she wishes.
Emotional effect
40Since the first accident, Ms Derks becomes snappy quite quickly and it has affected her relations with her family.
Treating practitioners
Wielicki
41Michelle Wielicki is a general practitioner[4]. Her clinic has treated Ms Derks since 2009. She last saw her in November 2020.
[4] Reports dated 1 July 2020, 20 May 2021 and 15 September 2021.
42In 2015, Dr Wielicki noted Ms Derks suffered lower back pain when bending, vacuuming and cleaning. Plain x-rays were taken and showed scoliosis, minimal spina bifida occulta and, possibly, very early degenerative changes to the left sacroiliac joint. Ms Derks was referred to a chiropractor.
43In 2016, Ms Derks suffered shin pain. A bone scan revealed nothing abnormal.
44Dr Wlelicki diagnosed an exacerbation of the pre-existing condition of the neck and back due to the two transport accidents.
45Dr Wielicki considered the exacerbation responded well to treatment by a physiotherapist and a chiropractor. But, owing to Ms Derks’ pre-existing condition, Dr Wielicki expected an “on and off” exacerbation of her pain. She needed to exercise and attend her physiotherapist and chiropractor.
Von Soly
46Suzanne Von Soly is a chiropractor[5]. Ms Derks has been a patient of her clinic since April 2015. As to her pre-accident condition, she diagnosed Ms Derks as suffering from spinal vertebral joint dysfunction syndrome of the lumbosacral spine, causing spinal instability and weakness. Dr Von Soly saw the first accident as aggravating this syndrome and causing Ms Derks’ headaches.
[5]Reports dated 26 August 2019, 15 December 2019, 25 April 2021,13 September 2021, and 16 September 2021.
47Over the past two to three years, Dr Von Soly believes Ms Derks has made a lot of improvement. She does not believe Ms Derks will have a long-term impairment provided she continues her regime of treatment – chiropractic, physiotherapy and clinical Pilates.
Cremer
48Kate Cremer is a physiotherapist[6]. She first treated Ms Derks in June 2017.
[6] Reports dated 25 May 2021, 6 September 2021 and 16 September 2021.
49Over her time treating Ms Derks, Ms Cremer has found limitations in the movements of the cervical and lumbar spines.
50Ms Cremer diagnosed whiplash associated disorder and a muscular strain in the lower back with, perhaps, irritation or inflammation around the lumbar spine.
51She saw Ms Derks unable to perform various activities for extended periods – bending, lifting, twisting or stooping, keeping her head in a flexed or fixed position, repetitive twisting and turning. These restrictions would last into the foreseeable future.
52Ms Cremer continues to treat Ms Derks every three weeks. Her treatment involves soft tissue release, joint mobilisation, dry needling, education and a home exercise program. Despite her regular treatment and Ms Derks’ attention to her exercises at home, Ms Cremer considered Ms Derks would suffer episodes of low back pain, chronic neck pain and headaches for the foreseeable future. At least, it is her treatment which is keeping Ms Derks’ condition in its current state.
Ong
53Olivia Ong is a consultant in rehabilitation and pain medicine[7].
[7] Report dated 21 May 2021.
54When Dr Ong first assessed Ms Derks in October 2019, she diagnosed moderate severity whiplash associated disorder and lumbar spine pain with features of central sensitisation. By the completion of the program, using ICD-11, she diagnosed chronic primary pain (musculoskeletal-cervical-thoracic-lumbar) of moderate severity.
55Based on Ms Derks’ history, Dr Ong attributed her injuries to the cervical and lumbar spines and the ongoing impairment to the first accident. She considered her ongoing symptoms attributable to central sensitisation, with her soft tissue injuries healing. However, the presentation of pain was a mixture of nociceptive (due to tissue damage) and central sensitisation features, with an apparent emphasis on the latter. Without Dr Ong actually saying, these are organically based features.
56Given the extensive treatment and the elapsed period since the first accident, Ms Derks will experience pain and limitations indefinitely. These factors will impact upon her enjoyment of life to, at least, a moderate level.
57Dr Ong emphasised the need for Ms Derks’ to apply the strategies she learnt in the pain management program: graded activity and pacing strategies. These will not rid her of the pain and restrictions in function but will allow “sustainable engagement in activities”. The long-term restrictions would include limiting repetitive heavy lifting, pulling or pushing of objects greater than 10 kilograms and limiting prolonged static postures including sitting.
Medico-legal practitioners
Menz
58Anthony Menz is a consultant orthopaedic surgeon. At the defendant’s request, he examined Ms Derks on 21 April 2021[8].
[8] Report dated 29 April 2021.
59As an overall assessment, she continues to complain of neck pain which she feels has not improved at all in the past four years.
60Ms Derks’ lower back pain, which she had after the first accident, had started to improve and was exacerbated by the second accident. Once again, it has started to settle but is still present, and following the second accident, she feels there is a 25 per cent improvement. Ms Derks rates her both neck and lumbar pain as 7 out of 10.
61Dr Menz believes Ms Derks has never had spina bifida occulta, as asserted by the chiropractor. He rejects the chiropractor’s other diagnosis of “spinal joint dysfunction syndrome” because the bone scan was normal. He has never heard of this syndrome anyway. He notes there is no significant degenerative disease in Ms Derks’ lumbar spine.
62On examination, Dr Menz found Ms Derks had a good range of movement of her cervical and lumbar spines. Neurological examination of her upper and lower limbs was normal.
63Dr Menz considered Ms Derks developed neck pain and aggravated lumber pain after the first accident. The second accident aggravated her recovering neck pain and recovering lumbar pain. He described the injury as “mild to moderate soft tissue injury”. She continues to have discomfort. The prognosis is poor for a full recovery considering the length of time with reported discomfort. Ongoing treatment is not required because of only minor improvements so far.
Rogers
64Myron Rogers is a neurosurgeon. On 25 August 2021, he examined Ms Derks at the request of the defendant.[9]
[9]Report dated 25 August 2021.
65Ms Derks complained of headache in the occipital region, occurring once or twice a fortnight and lasting between two to three days. She does not take medication for these symptoms.
66Ms Derks experiences discomfort which radiates down the lateral aspect of the neck on both sides. These symptoms are constant, and are in the same site and of the same intensity as they were after the first accident. She has interscapular discomfort associated with the neck pain.
67Mr Rogers considered Ms Derks’ past medical history of no relevance and she was in “excellent general health”. She has never played sport. She finds her social life affected by her headaches and neck pain.
68On examination, Mr Rogers found a full range of movement of the cervical spine. There was mild tenderness to palpation along both trapezius muscles. Neurologic examination of the of the upper and lower limbs was entirely normal.
69Mr Rogers diagnosed a soft tissue injury to the neck. The symptoms of chronic pain caused by the injury continue, even though the soft tissue injury would have resolved. She displayed no non-organic symptoms. He expected her symptoms to continue indefinitely. He excluded the existence of spina bifida. He attributed her pre-first accident symptoms to the degenerative condition of her L5/S1, which that accident exacerbated. However, her back symptoms have settled over the last four years and now have no impact on the quality of her life.
70In a supplementary report, Mr Rogers agreed with the conclusions reached by Dr Slesenger and Dr Menz. He adhered to his earlier opinions.
Slesenger
71Joseph Slesenger is an occupational physician. On 16 August 2021, he examined Ms Derks at the defendant’s request[10].
[10] Report dated 1 September 2021.
72Dr Slesenger noted Ms Derks was working up to 38 hours a week as a customer manager, assisting customers in the checkout area. She is not required to lift any heavy items. She is coping with the job and has not had any time off because of the injury.
73Before the accident, she had been seeing a chiropractor and general practitioner for her axial spinal symptoms including neck, mid-back, lower back, as well as calf pain, which were attributed to her use of a heavy backpack walking to and from school. She had seen a gradual improvement of her condition.
74Ms Derks is allergic to Ceclor and other anti-inflammatory analgesic medication. She does not drink or smoke or take illicit drugs.
75On the day of the first accident, Ms Derks developed immediate upper back and neck pain. She was referred for investigations and discharged to the care of her chiropractor.
76Ms Derks advised that her neck and upper back symptoms have persisted and have continued at a mild to moderate level, with pain mainly on the left side of the neck but also radiating into the right side. She has occasional tingling in the left index and middle finger. She has moderate restriction to her range of movements, particularly rotation and elevation. The symptoms continued to be aggravated by activity.
77After the first accident and over two to three months, Ms Derks gradually developed lower back pain. On the day of the second accident, she was taken by ambulance to Frankston Hospital. Ms Derks advised that the second accident caused an aggravation of her neck and lower back pain over and above the symptoms she was suffering just prior to the second accident and settled to their pre-injury level within three to four months.
78Ms Derks’ current complaints were neck pain with some restriction of movement. The pain is mainly on the lower cervical spine and is most noticeable on the left side. There is also associated pins and needles in the left hand. She denied a history of weakness in her upper limbs.
79There is constant lower back pain radiating down both legs. This is aggravated by activity such as walking for more than 40 minutes and lifting more than 5 kilograms. She may spontaneously get these symptoms.
80Ms Derks takes Panadol once a week. She has an EPC program from her general practitioner. She sees a chiropractor and physiotherapist. She attended a pain management program for three months, which she discontinued because she saw no benefit.
81She can perform everyday personal and domestic tasks. She has never participated in sports or hobbies. She can drive a car up to 30 minutes
82On examination, Dr Slesenger found Ms Derks’ cervicothoracic spine, lumbosacral spine, shoulders, elbows and wrists are normal.
83On palpation, he found tenderness over the lower cervical spine, lumbosacral junction and paraspinal musculature, and mild tenderness over the superior aspect of the left shoulder. There was normal hand, upper and lower strength and tone. He commented “The clinical examination was reassuring and I did not identify any significant non-organic features.”
84Dr Slesenger considered Ms Derks’ current impairment was more likely to be related to her occupational activity rather than the motor vehicle accident of 2016. Ms Derks was suffering with lumbar spinal symptoms before the accident and was likely to have continued to suffer with lower back pain regardless of the two accidents. He also noted the well-preserved range of cervical spinal movements and the reassuring nature of the imaging findings, concluding “The incident-related impairment has now resolved.”
Weekes
85Gavin Weekes is a pain specialist. At the request of Ms Derks’ solicitors, he examined her on 16 April 2019 and 6 September 2021[11].
[11] Reports dated 16 April 2019 and 6 September 2021.
86Ms Derks denied any significant neck pain prior to the first motor vehicle accident. About a week after that accident, she attended her general practitioner who sent her for some x-rays. Since this accident, she complained of chronic neck pain, headaches, back pain and lower limb pain. She described how since the second motor vehicle accident her symptoms had been exacerbated, particularly her neck and lower back pain.
87Ms Derks described bilateral headaches, mainly located in the occipital region. The left side is affected more than right side. She described her headaches have a pain score of up to 10 out of 10. They are aggravated by neck movements. She described about eight pain-free days in terms of her headaches on a monthly basis. She denies any other migrainous features, including nausea, vomiting, photophobia or phonophobia.
88Ms Derks described neck pain with some radiation down both upper limbs. On the left side, it travels to her elbow. On the right side, the pain can travel to her fingers, particularly the ulnar two digits can be affected, and neck pain is worse than the arm pain. She described some paraesthesia affecting her upper limbs in a non-dermatomal pattern and some numbness affecting particularly the ulnar two digits of both upper limbs.
89Ms Derks described low back pain radiating down both lower limbs. On the right side, it can travel to her knee. On the left side, it travelled to her foot. The left leg is affected more than right side. Back pain is worse than leg pain. She has an average back pain of approximately 7 out of 10.
90On examination, Dr Weekes found Ms Derks’ heel-toe stance was normal. She had an excellent range of motion of her shoulders. Both flexion and extension of her cervical spine aggravated her pain, flexion more so. She had mildly reduced flexion and extension of her lumbar spine. Extension seemed to aggravate her pain more than flexion. She had no focal neurological deficit of her upper or lower limbs. She was tender over the paraspinal region of her cervical spine, worse on the left side. She was tender over her lower lumbar facet joints, worse on the left side. She was tender over both sacroiliac joints, worse on the left side.
91As to causation, Dr Weekes considered the first accident was causative and the second worsened her overall clinical presentation.
92As to diagnosis, Ms Derk’s spinal injuries including back and neck pain have an organic basis. Her ongoing symptomatology is mainly due to a combination of myofascial pain and central sensitisation.
93As to prognosis, it is poor. She is highly likely to suffer pain and disability for the foreseeable future.
94Following his second examination, Dr Weekes noted Ms Derks’ functional limitations secondary to her pain condition have not changed significantly since his last report. Her current symptoms are basically the same as described in his previous report. Apart from her headaches decreasing in frequency, she now described two to three headaches in a 14 day period, lasting for about 24 hours. She has no migrainous features to her headache and they are more in line with a cervicogenic headache.
95Since Dr Weekes’ 2019 examination, Ms Derks participated in a multidisciplinary cognitive-based pain management program. She described this as not being of benefit to her.
96Dr Weekes considered her back and neck injuries have an organic basis. This is because she was tender over the facet joints of her cervical spine and her lower lumbar facet joints and sacroiliac joints. There is no reason to believe there is a major inorganic component to her presentation.
Teddy
97Peter Teddy is a neurosurgeon. At the request of her solicitors, he examined Ms Derks on 8 November 2018 and 11 March 2021[12].
[12] Reports dated 1 February 2019 and 11 March 2021.
98Professor Teddy noted Ms Derks’ complaints as headaches, bilateral, but more on the left than the right and felt predominantly below the left ear, and low back pain with radiation in to the right thigh as well as the knee, and a little left-sided pain which occurred following her first accident in December 2016. He recorded headaches (worst of her problems), neck pain, low back pain. Neck pain was rated at 7 out of 10 on a bad day and 4 out of 10 on a good day. Her back pain was “temperamental” but was 7 to 8 out of 10.
99His examination revealed:
“…full range of apparently pain free neck movements. She had some tenderness over the left nuchal line…could bend to touch mid-shins and extension, tilt and rotation of her lumbar spine appeared normal…no focal neurological abnormalities with normal cranial nerve function, reflexes that were symmetric and moderately brisk and down going plantar responses. Power and sensation were normal in all four limbs. Straight leg raising was a little reduced on the right.”
100Professor Teddy considered her description of symptoms were “consistent with her injuries as derived from the first motor vehicle accident occurring in December 2016. There was a mild aggravation of her symptoms by virtue of the second accident.”
101No neurological or bony injury sustained.
102Professor Teddy diagnosed musculoskeletal/soft tissue injury to the neck and probably to the lower back as a result of the first accident, with mild aggravation of both following the second accident.
103He accepts the causal relationship between headaches and accidents, but hesitates at describing them as “cervicogenic” headaches.
104He noted the radiology showed a minor degree of S1 spina bifida occulta and commented such minor defects are almost invariably asymptomatic.
105He considered her symptoms of neck and back pain are almost entirely attributable to the first accident.
106As to future treatment:
“There would appear to be no indication for operative treatment or anaesthetic/pain management interventions and, at her age, physical therapies would seem to be the most appropriate way of continuing her treatment. If her symptoms do increase or continue to an unacceptable degree, then she may benefit from assessment by an experienced pain management physician or neurologist. Her headaches are not typical of migraine but, again, if they persist to an unacceptable level then she may benefit from assessment by a neurologist with a view to changing her medications and possibly local anaesthetic and/or Botox injections to the scalp.”
107At his second examination, Professor Teddy found tilt, rotation and extension of her neck appeared normal but she had flexion to less than 50 per cent of normal owing to pain. Her pain was indicated as being maximal on the lower cervical spine with radiation towards the left side of the neck and shoulder. Upper limb power, tone, sensation and reflexes were entirely normal. Ms Derks indicated much of her back pain as being across both sides of the midline at around L5. She could bend to touch her ankles, while tilt, rotation and extension of the lumbar spine were normal. Straight leg raising was unimpaired and sensation of the lower limbs normal, including joint position sense in the feet. Power and tone were also normal, as was her gait. Her reflexes were symmetric and brisk with down-going plantar responses.
108Professor Teddy considered Ms Derks does have a minor degree of pre-existing spina bifida, and while it is possible that her injury may have aggravated any pre-existing lumbar spondylosis, it is most likely her condition has stabilised and is no longer contributing towards, in any significant fashion, the likelihood of accelerated degeneration any more than the natural history of this condition in a woman of her age and morphology.
109As to the future, given her reported incapacities are now of some five years’ standing, it is likely that the impacts and restrictions she suffers will continue for the foreseeable future.
Legal considerations
110The meaning of “serious” in s97(17) of the Act is explained in Humphries v Poljak[13]:
“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’.”
[13] [1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
111The defendant’s senior counsel drew my attention to the adverb “very” in passages in TAC v Dennis[14] and Sabo v George Weston Foods[15].
[14] [1998] 1 VR 702.
[15] [2009] VSCA 242.
112Senior counsel for Ms Derks drew my attention to TAC v Zepic[16] and paragraphs in Haden Engineering Pty Ltd v McKinnon[17] and Thapa v TAC[18].
[16] [2013] VSCA 232.
[17] (2010) 31 VR 1 at [13] to [15].
[18] [2021] VSCA 239 at [92].
Discussion
Credit
113Curiously, Ms Derks’ senior counsel alone raised the issue of her credit as a witness by pointing to the corroboration of her evidence by her father in his affidavit. Although senior counsel for the defendant, in cross-examination, suggested Ms Derks was exaggerating her evidence, he made no submission in that regard. In truth, I have no reason to doubt Ms Derks’ truthfulness and reliability as a witness. In fact, none of the practitioners who treated or examined her seems to doubt her truthfulness or reliability.
First accident
114Ms Derks’ evidence about the speed of the other vehicle at the time of the collision is valueless. She did not see that vehicle prior to the collision. Her estimation is really a supposition based on the impact she felt. All I would take from her evidence on the point is that it was a heavy collision from her perspective.
Injury
115Since this is an unusual case, I will spend some time examining the injuries Ms Derks received.
116There are several views as to the nature of the injury now suffered by Ms Derks. The neurosurgeon, Professor Teddy, diagnoses a musculo-skeletal or soft tissue injury to the neck and probably the lower back, and cervicogenic headaches, all due to the first accident. In his second report, the same diagnosis is expressed as spinal injuries and/or aggravation of injuries to back and neck.
117I have the opinions of two pain specialists, Dr Ong and Dr Weekes. Dr Ong adopted a diagnosis of the International Classification of Diseases, 11th revision of chronic primary pain (musculoskeletal-cervical-thoracic-lumbar), which describes “chronic primary pain”:
“Chronic primary pain is chronic pain in one or more anatomical regions that is characterised by significant emotional distress (anxiety, anger/frustration or depressed mood) or functional disability (interference in daily life activities and reduced participation in social roles). Chronic primary pain is multifactorial: biological, psychological and social factors contribute to the pain syndrome. The diagnosis is appropriate independently of identified biological or psychological contributors unless another diagnosis would better account for the presenting symptoms.”
118Later in her report, Dr Ong said[19]:
“The tissue damage from her 2016 MVA has now most likely resolved, and Ms Derks’ ongoing symptoms and impairments can now be better attributed to central sensitisation which has developed subsequent to her initial injuries.”
[19] Report dated 21 May 2021 at p4.
119Chronic primary pain appears to be a different diagnosis to her original diagnosis of whiplash associated disorder, lumbar spine pain with features of central sensitisation. By referring to central sensitisation, Dr Ong appears to place this pain syndrome within the biological or organic sphere for she recommends physical strategies to enable Ms Derks to function notwithstanding her pain.
120Dr Weekes clearly places Ms Derks’ experience of pain in the organic sphere for he diagnoses a combination of regional myofascial pain and central sensitisation. Myofascia is a layer of tissue covering muscles.
121Dr Menz considered the first accident caused soft tissue injuries to the neck and lumbar spine resulting in neck and lumbar pain or discomfort. He described the soft tissue injury as mild to moderate, coupled with a poor prognosis for full recovery from the pain or discomfort.
122Although the soft tissue injury was mild to moderate, it caused years of pain or discomfort for which the possibility of a full recovery is poor. In excluding non-organic symptoms, Dr Menz is pointing to an organic cause for Ms Derks’ pain due to the first accident, without specifying the mechanism. He can be seen as broadly supporting the views of Dr Ong and Dr Weekes.
123Mr Rogers considered Ms Derks suffered a soft tissue injury to her neck with her symptoms persisting even though the soft tissue injury should have resolved. She has developed chronic pain, which, together with the headache, is expected to last indefinitely. Although the first accident exacerbated the degenerative changes of the L5/S1 disc, the exacerbation had settled significantly and has had no impact on the quality of her life. From the perspective of the future occurrence of a lumbar disc prolapse, the prognosis was very good because Ms Derks had been asymptomatic for several years. Mr Rogers denied the existence of spina bifida. He also considered Ms Derks showed no signs of non-organic symptoms.
124Implicitly and broadly, Mr Rogers lends support to the existence of an organic pain syndrome identified by Dr Ong and Dr Weekes. He identifies the existence of chronic pain and seemingly excludes a non-organic origin.
125Dr Slesenger considered Ms Derks’ current impairment was related to her occupational activity with Woolworths rather than the first accident. In her complaints to Dr Slesenger, apparently Ms Derks did not mention her headaches.
126In conclusion, Ms Derks suffered soft tissue injuries to her neck and lower back. These injuries are painful nearly five years after the first accident. Various views have been expressed as to the cause of her persisting symptoms. The majority of the views accept the ongoing effect of the soft tissue injuries or their evolution into an organic pain syndrome, be it central sensitisation or myofascial pain. It is unnecessary to choose because the injury and impairment are due to the first accident. Everyone agrees the effects of the second accident were temporary and have now ceased, or very largely so.
127On balance, Ms Derks suffers from persistent, and damaging, headaches which have their origin in the area of her neck.
128I agree with Ms Derks’ submission that Dr Slesenger’s view of the cause of her continuing symptoms is anomalous and should be discounted.
129Dr Von Soly diagnosed a syndrome aggravated by the accidents. Although Dr Menz had not heard of the condition, I daresay it is known among chiropractors. My difficulty is I do not know what the chiropractor is describing by the name she gives, except she is describing the effect of an organic injury.
Long term
130Generally, among the practitioners, the prognosis is poor largely because of the longevity of her symptoms. The impairment is long-term.
Consequences
131Ms Derks suffers constant pain and discomfort and regular, long-lasting headaches. Both will persist into the foreseeable future. As she pointed out, she is only 24. No one of that age should expect to suffer persistent pain and discomfort. Such symptoms should be reserved for much older persons, usually in the form of arthritis in the joints. She faces a long and difficult future.
132Whether you would describe her as “stoic”, Ms Derks is certainly a determined person. She describes the reason in her second affidavit[20]:
“I continue to prioritise work, helping where and when I can around the house and minding my nieces because despite the constant pain and restrictions I live with, I see what my dad’s life has become after a work related injury and I don’t want my life to be like that, especially, given my young age, so I am doing my best to make a life for myself and keep my mind off the pain. I often worry about how much I can keep this up.”
[20] Affidavit sworn 17 August 2021 at [11].
133She came across as a matter of fact witness, bordering on bluntness. She has explained her wish to work to her father[21]:
“She has told me that another motivating factor for her to keep trying to work is because she does not want to not be working like me and that she does not want to give in to the injury. As much as that hurts me, I can understand why she has that view given her upbringing.”
[21] Affidavit of Theo Derks sworn 1 September 2021 at [19].
134Ms Derks looks after her nieces and nephews, who live with her.
135She works to support herself. She finds the working day tough, but says she has no choice. She has chosen work over a social life and has lost friends as a result. As to daily living activities, the only real effect is the lessening of her social activities. This was the situation before the pandemic. She chooses work over a social life because she cannot do both because of the pain. She shares the household duties with her father.
Conclusion
136I am satisfied Ms Derks suffered a “serious injury” in terms of s 93(4)(d) of the Act, in that the spinal injury sustained by her as a consequence of the first transport accident has had consequences for her which, when judged by comparison with other cases in the possible range of impairments or losses, must be characterised as at least very considerable.
137I will grant leave Ms Derks to commence a proceeding to recover damages and will hear the parties on the form of my order and the question of costs.
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