Dries v Transport Accident Commission
[2011] VCC 385
•18 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01740
| Jennifer Dries | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
---
| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 & 5 April 2011 |
| DATE OF JUDGMENT: | 18 April 2011 |
| CASE MAY BE CITED AS: | Dries v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 385 |
REASONS FOR JUDGMENT
---
Catchwords: Serious injury application – Transport Accident Act 1986 – s93(17)(a) and s93(17)(c) – serious long-term impairment or loss of a body function – lumbar spine - pelvis – severe long-term mental disturbance or disorder - aggravation of depression - adjustment disorder with depression and anxiety
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Clements with Mr S. | Slater and Gordon |
| Martin | ||
| For the Defendant | Mr P. Jens with Ms D. | Solicitors for the Transport |
| Galbally | Accident Commission | |
| HER HONOUR: |
1 The plaintiff applies under s.93(17) of the Transport Accident Act 1986 (“the Act”) for leave to issue proceedings for pain and suffering only in respect of the physical and psychological injuries she suffered in a transport accident on 7 July 2006, when her companion reversed the car he was driving into the plaintiff in a hotel carpark, pinning her against another car, and causing fractures to the pelvis and pain in the lower back. The plaintiff spent three days in hospital and over three weeks in a rehabilitation facility. She then used a wheelchair at home and from September 2006 she used a walking stick. Her pelvic fractures have healed but she still suffers constant and significant pain in her pelvis and lower back, which significantly affects her daily activities and enjoyment of life, and prevents her from returning to work. She takes Panadeine Forte for these symptoms, approximately two per week, but avoids taking it because of its unpleasant side-effects. In addition, she says she has suffered a psychiatric condition - an adjustment disorder with anxiety and depression, as well as the exacerbation of a pre-existing depression, for which she requires daily anti-depressant medication and fortnightly or monthly sessions with a psychologist.
2 The plaintiff had a prior history of a L5/S1 disc prolapse after a fall in July 1996. She saw two orthopaedic surgeons in relation to her lower back pain and left sided sciatica but by April 1997 the planned surgery was cancelled after her leg pain improved. There was a further referral to the surgeon in June 1997 with severe low back pain and left leg pain, but no further complaints to her treating doctor about these matters for nine years prior to the transport accident.
3 The application under s.93(17)(a) of the Act is put in two alternative ways. Firstly, there is said to be a lower back injury comprising a fracture of the right sacral ala; aggravation of degenerative changes at the L5/S1 and L4/5 discs; aggravation of facet joint degenerative changes in the lumbar spine, most severe at L5/S1. In addition, the plaintiff relies on the ongoing pain which is referred pain from the lumbar spine. The ongoing low back and pelvic pain cause the plaintiff difficulty with bending, lifting, and any long periods of standing, sitting or walking. The plaintiff avoids heavy housework, can no longer tend to her garden, and can no longer use a tennis racquet to hit a ball for her dog to chase. She is limited in what she can do physically with her 11 year-old daughter. In addition, she has been unable to return to work at a Pizza Restaurant which she enjoyed doing four hours per week for some months prior to the transport accident. The evidence of the general practitioner, Dr Weiss, is to the effect that as a result of chronic pain resulting from the transport accident the plaintiff’s pre-existing depression has worsened and she has developed an adjustment disorder. The treating psychologist, Mr Panagiotopoulos, gave evidence to the effect that the plaintiff’s ongoing lower back and pelvic pain are a significant cause of her ongoing need for counselling.[1]
[1] Transcript [T] 74 and plaintiff’s court book [PCB] 792.
4 In the alternative, the plaintiff relies on a frank injury to the pelvis having occurred during the transport accident. The plaintiff agrees that the fractures have healed, but says there is ongoing pelvic pain as well as the development of post-traumatic arthritis.
5 The plaintiff’s case under s.93(17)(c) of the Act is that the weight of psychiatric opinion (from Dr Strauss and Dr Entwistle) is that the plaintiff has an adjustment disorder with depression and anxiety. It is submitted that the plaintiff’s depression has worsened since the accident, requiring continuous as opposed to intermittent use of anti-depressant medication[2] and fortnightly or monthly counselling for the foreseeable future[3]. The plaintiff says that prior to the transport accident, leaving aside the perturbations caused by family issues from time to time, she was able to look after her daughter and get to work.
[2] In this regard the plaintiff relies on the viva voce evidence of Dr Weiss at T71.
[3] See the opinion of Dr Strauss at PCB 655.
6 The defendant says that the pelvic fractures have healed and there is no radiology to support the complaints of ongoing pelvic pain. In relation to the back, the defendant says that there is evidence that any radiculopathy diagnosed on the basis of an absent left ankle jerk pre-dated the transport accident. The defendant concedes that between June 1997 and July 2006 the plaintiff attended Dr Weiss and the Frankston Hospital on many occasions for health problems but there was no complaint about any ongoing lower back or left leg pain. However, the defendant says that there was clear pathology in the lumbar spine prior to 2006 and the symptoms she experienced after 1996 had an ongoing effect on her life in terms of restricting her sporting and recreational activities. On this basis, the defendant says that any aggravation of symptoms after the transport accident is not sufficient to meet the narrative test for serious injury in terms of pain and suffering, particularly as there is very little analgesia being taken for the back pain.
7 The defendant also says that the plaintiff is an unreliable historian. In relation to the application under s.93(17)(c) of the Act, the defendant says that the psychological sequelae of the transport accident do not meet the required threshold. The defendant says that there is a substantial pre-existing history of depression requiring medication and relies on the conclusion of Dr Weiss in 2009 that her depression was in remission with minimal pain. The defendant also says that the predominant cause of her psychiatric presentation is her physical injury, and that there is evidence from the treating psychologist that her psychological state will improve if her problems with chronic pain are resolved.
The hearing
8 At the hearing, evidence was given by the plaintiff, her treating general practitioner (until late 2010), Dr Weiss, and her current treating counselling psychologist, Mr Panagiotopoulos. I have considered all the material tendered by the parties.
9 I found the plaintiff to be a straightforward witness. She conceded that her memory for dates was poor and was very quick to make concessions when her mistakes were pointed out. For example, she was very quick to agree that she gave up netball and indoor cricket after the 1997 injury to the lumbar spine, and did not resume those activities prior to the transport accident. Similarly, she was quick to concede when presented with her taxation return for the year 1999 to 2000 that this was in fact the year she had worked in the chicken shop, and not 2004 or 2005 as she had indicated the previous day in her evidence. I consider that she was doing her best to answer all the questions put to her. I do not consider that there were serious deficiencies in the history she gave to the doctors who treated or examined her for medico- legal purposes.
Legal principles
10 In determining a pain and suffering application under s.93(17)(a) of the Act, the court must be satisfied that the pain and suffering consequences of the physical injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[4]
[4] Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis &Ors [1998] 3 VR 833.
11 In cases involving aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[5] In an aggravation case, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.
[5] Petkovski v Galletti [1994] 1 VR 436 at 444.
12 In an application under s.93(17)(a) of the Act, where a plaintiff who has suffered a significant physical injury has also developed a psychiatric response to that physical injury, it is permissible and appropriate for the court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function meet the narrative test.[6]
The lower back injury
[6]13 The plaintiff relied on the medico-legal opinions of orthopaedic surgeons Mr Schofield and Mr O’Loughlin, who concluded that in the transport accident the plaintiff suffered an injury to her lower back as described in paragraph 3 of this judgment. The defendant relied on the medico-legal opinion of orthopaedic surgeon Mr Fogarty, who concluded that the plaintiff’s lumbo-sacral disc degeneration is not related to the transport accident.7 I note that in this application the plaintiff complains of lower back pain, not left leg or left foot symptoms and that it is therefore unnecessary to make findings about any pre-existing radiculopathy and the impact on the transport accident on it.
14 I prefer the opinions of Mr Schofield and Mr O’Loughlin, with whom Dr Baker8 largely agreed, for a number of reasons. Firstly, I consider that it was likely, as Mr Schofield opined, that the significant force which produced the fractures of the pelvis was sufficient to cause disruption of the surrounding attachments, including the lower lumbar spine. Secondly, I accept the plaintiff’s evidence (supported by the notes of the attending ambulance officers9 and the hospital report10) that she complained of severe pain in the lower back at the time of the transport accident and throughout her hospitalisation and rehabilitation. Thirdly, it was common ground that while the plaintiff had attended Dr Weiss and the Frankston hospital on many occasions after 1997, there was no recorded complaint of lower back pain or left leg pain for 9 years before the transport accident. Finally, the plaintiff’s evidence, which was unchallenged, was that her symptoms improved after 1997 to the extent that she was able to manage her domestic and recreational tasks without restriction and to work in a chicken shop for nearly one year full-time (in 1999 and 2000) and part time for some months prior to the transport accident. She protected her back, and was careful with what she did, but she was able to do the gardening and the full range of domestic duties. She was able to hit a ball for her dog, and participate fully in her daughter’s social activities. Her evidence was that since the transport accident, she has suffered from significant persistent pain and restriction around her lower back and pelvis. She regarded the back pain since the transport accident as worse, and more frequent than any she suffered prior to the transport accident. I consider that this unchallenged history is impossible to reconcile with Mr Fogarty’s opinion. I note that in any event Mr Fogarty concluded[11] that her lumbar disc problems were a cause of ongoing interference with her daily life and activities and of her incapacity for any employment.
[11] DCB 39-42.
15 I also accept the conclusion of Mr Schofield to the effect that the injury to the lower back is not only causing ongoing back pain but is also likely to be one cause of the ongoing pain in her pelvis. Mr Fogarty found that the pelvic fractures had healed[12], but noted her complaint of ongoing pelvic pain. Mr O’Loughlin did not comment on the cause of ongoing pelvic discomfort.
[12] DCB 42.
16 I have already referred to some of the pain and suffering consequences of the injury to the lower back. I note that since the transport accident she has had to avoid heavy household work, can no longer tend to her garden at all, and has been unable to return to work. Whilst I accept that her work history prior to the transport accident was patchy, with many years spent caring for her young daughter, it is clear that the plaintiff enjoyed working at a pizza restaurant on Sundays for some months prior to the transport accident, and I accept her evidence that she liked the work and wanted to increase her hours.
17 I am required to take into account any psychiatric response to the physical injury suffered by the plaintiff.
18 Dr Weiss was the plaintiff’s general practitioner for a number of years until early 2010 when she changed doctors. The plaintiff said she did so because Dr Weiss was too busy and she had to wait hours to see him; she also felt he was not listening to her. Dr Weiss reported in June 2007 that as a result of the transport accident the plaintiff suffered “depression due to chronic pain, prolonged course of illness and decreased functional capacity”[13] but that her prognosis was excellent. In November 2009, Dr Weiss reported that when he last saw the plaintiff in September 2009 she had recovered from her injuries with “well-managed minimal pain and remission of depression” and was fit for full-time light sedentary duties.
[13] PCB 113.
19 At the hearing, however, Dr Weiss said that since the transport accident there had been greater frequency of scripts issued for anti-depressants than before the transport accident. He said that before the transport accident the plaintiff’s depression was episodic, related to family trauma, and that there were extended periods when she was off anti-depressants altogether. He said that since the transport accident there was a greater frequency of scripts for anti- depressants being prescribed for her chronic lumbar and pelvic pain.
20 At the hearing, the plaintiff’s treating psychologist, Mr Panagiotopoulos, said that her physical pain is a major contributor to her psychological symptoms, and that her mood gets quite low if she is unable to walk more than 30 or 40 metres for a few days. He felt that her psychological symptoms were likely to persist. He said that while his focus in counselling sessions was on the plaintiff’s emotional state her main problem was chronic low back pain. He said he did not mention the low back in his clinical notes each time he saw her unless there was a change of status in the symptom.
21 Dr Entwistle examined the plaintiff in 2008 and early 2011. In 2008 he noted a complaint of pelvic pain and restrictions in bending and lifting. He diagnosed an adjustment disorder with anxious and depressed mood and “some mild features of traumatisation.”[14] In his impairment assessment conducted in March 2008 he found that 4% of her 10% psychiatric whole person impairment was secondary to pain and incapacity. In early 2011, Dr Entwistle noted the complaint of ongoing lower back pain but overall felt she had improved in her psychological functioning after a change in her anti- depressant medication. In February 2011 he concluded that the transport accident contributes to her psychological state.
[14] DCB 15.
22 Dr Strauss conducted a psychiatric impairment assessment in April 2008.[15] He noted the complaint of ongoing pain in the perineum and concluded that the plaintiff had a 20% psychiatric whole person impairment of which 8% was secondary to the physical injuries sustained in the transport accident. He felt that from a purely psychiatric point of view she could work but should continue with monthly psychological treatment and anti-depressants. In December 2010[16] Dr Strauss felt that the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood partly due to the transport accident and that she also had post traumatic stress symptoms partly due to the transport accident. In February 2011 Dr Strauss felt that her condition continued as reported previously and that she would need monthly counselling and anti-depressants indefinitely. He felt that the combination of physical and psychiatric factors were causing her permanent incapacity for work.[17]
[15] PCB 28.
[16] PCB 649.
[17] PCB 772.
23 There appears to be consensus among medico-legal psychiatrists that some of the plaintiff’s psychiatric impairment (particularly the adjustment disorder) is secondary to the chronic pain due to the physical injuries to the pelvis and lower back. In reaching their conclusions, each of the specialists took into account the plaintiff’s pre-existing depression and the development of an adjustment disorder. According to the oral evidence of treating psychologist, Mr Panagiotopoulos, the ongoing lower back and pelvic pain are a significant cause of the plaintiff’s ongoing need for counselling.
24 Taking into account all of the evidence before me, I am satisfied that the plaintiff has suffered a long-term impairment of the function of the lumbar spine, resulting from the injury to the lumbar spine constituted by the of aggravation of pre-existing degenerative changes as well as an element of referred pain to the pelvis. I am also satisfied, having regard to the persistence and frequency of her pain, the requirement for medication, the restrictions on her domestic and recreational activities, the physical limitations or any capacity to return to work, the impact on her enjoyment of life, together with the development of an adjustment disorder which is partly secondary to chronic pain, that the pain and suffering consequences of the plaintiff’s physical injury, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.
25 The parties agreed that if the application succeeds under s.93(17)(a) of the Act, it is not necessary for me to consider the application under s.93(17)(c) of the Act.
Conclusion
26 Leave is granted to the plaintiff to issue proceedings in respect of the injury to the lumbar spine (with referred pain to the pelvis) suffered in the transport accident on 7 July 2006. I reserve the question of costs.
Richard v Wylie (2000) 1 VR 79 at 87 and Rodda v TAC [2008] VSCA 276. 7 Defendant’s court book [DCB] 37. 8
Dr Baker found that her pre-existing degenerative changes in the lumbar spine were asymptomatic prior to the transport accident and that the ongoing low back pain was a cause of her ability to return to only part-time light work. See DCB 30.
9 PCB 635. 10 PCB 192.
0
2
0