Drummond v Simmons and TAC
[2009] VCC 493
•11 May 2009 (Reissued 15 May 2009)
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-06-04095
| GLORIA JOAN DRUMMOND | Plaintiff |
| v | |
| RAY SIMMONS & TRANSPORT ACCIDENT | Defendants |
| COMMISSION |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23,24,25,26,27 March 2009 |
| DATE OF JUDGMENT: | 11 May 2009 (Reissued 15 May 2009) |
| CASE MAY BE CITED AS: | Drummond v Simmons & TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0493 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application s.93 Transport Accident Act 1987;alleged injuries under parts (a) and (c) of definition of “serious injury”; whether payments by TAC of medical expenses constitute admission that transport accident a cause of those conditions.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with | Clark Toop & Taylor |
| Ms F. Ryan | ||
| For the Defendants | Ms J Dixon SC with | TAC |
| Ms A Magee | ||
| HER HONOUR: |
1 Gloria Drummond wishes to bring a claim for damages against her former husband, the first defendant, in respect of injuries which she alleges she suffered as a result of being struck by a motor vehicle driven by him on 13 May 2000. To obtain leave to do so she must satisfy the court that she suffered a “serious injury” within the meaning and definitions of s.93 of the Transport Accident Act 1983 (“the Act”).
2 She relies primarily on part (a) of the definition of “serious injury”, claiming to have suffered serious long term impairment of function of her right hip and/or function of her back. In the alternative, (but not with much conviction[1]) her case was put under part (c) of the definition on the basis that if her perception of pain is psychological, then she suffers consequences that amount to severe long-term mental or behavioural disturbance or disorder caused by the transport accident.
[1] T19,lines 2-13; cf T8,lines2-4;
3 On 13 May 2000, during an acrimonious marital break-up from Mr Simmons, Ms Drummond was in the process of moving her belongings out of what had been their matrimonial home pursuant to a court order obtained by him. He was backing a four-wheel-drive vehicle uphill along the long driveway at the semi-rural property, towing from the front of the four-wheel drive his son’s car which had failed to start, and in which his adult son and daughter-in-law were seated. As Ms Drummond was walking across part of the driveway, carrying a box of belongings, she says that she turned and bent down to pick up something she had dropped, and as she straightened found the vehicle almost upon her. She says that she moved and turned towards her left to try to avoid it but was struck on her right hip or upper buttock by the rear left corner of the vehicle, and fell to the ground.
4 The defendants do not concede that she was actually struck by the vehicle, but their counsel concede that there was a “transport accident” in that any injury she suffered (which they allege was minimal) was caused either by contact from the vehicle or by her movements to avoid it[2]. They dispute that there were any long-term consequences to the plaintiff and in particular that any could satisfy the test for “serious” of being “more than significant or marked” and “at least very considerable”[3].
[2] T 20, lines 24-27
[3] Humphries & Anor v Poljak [1992] 2VR 129
5 The issues in this case are:
(i) Whether the plaintiff's evidence is credible and reliable enough to prove her case. The defendants allege motivation to lie due to the acrimonious marriage breakup at the time, claim she presented with selective vagueness and lack of memory, and rely on various discrepancies in her versions over the years including in histories given to doctors as to whether she had suffered prior back problems.
(ii) Whether the consequences of any injury to her low back (or if an aggravation of a pre-existing condition, whether the consequences of just that aggravation[4]) are long-term and sufficient to meet the test of “more than significant or marked" and “at least very considerable"[5].
(iii) Whether subsequently diagnosed conditions or injuries in her right hip and groin were caused by the transport accident, and if so whether they satisfy the definition of serious long-term impairment of function of a body part.
(iv) Whether any loss of earnings or earning capacity resulted from an injury suffered in the transport accident, and in particular whether cessation of her pre-accident full-time job in March 2001, then causal employment in May 2001, was a result of any such injury.
[4] Petkovski v Galletti [1994] 1VR 436
[5] Humphries & Anor v Poljak [1992] 2VR 129
The plaintiff’s credibility and reliability as a witness
6 Ms Drummond obviously has an interest in the outcome of this case, and that must be taken into account as with every plaintiff. The defendants allege that she has been motivated to lie due to the acrimonious marriage breakup with the first defendant. There was obviously ill-will between them at the time of the transport accident, and apparently an investigation by police as to whether he deliberately drove at her. While I take into account that background to how she viewed the whole event, I am satisfied that the essential facts were as related by her.
7 Mr Simmons denies that the vehicle hit her, but his version is that he was variously looking in the rear view and side mirrors of the car, and although having bad hearing he heard a yell and noticed her hand in the vicinity of his left side mirror, and when he got out of the vehicle he saw her lying on the ground on the left side of the vehicle. It is not disputed that she lay on the ground for some time until an ambulance was called, and when it attended she was noted[6] to be hyperventilating, very anxious and distressed. Her version of events as recorded by ambulance personnel and hospital staff on the day is consistent with the version she gave in her statement to police three days later, in her affidavit and in court. To the extent that there are variations it would be remarkable if there were not. The defendants point to variations in her estimate of the speed of the vehicle when it struck her – from 5 to 15 kph. I do not regard this as a sign of unreliability or exaggeration, but as a reflection of an attempt to describe a slow speed.
[6] Exhibit FF
8 As to Ms Drummond's presentation during her evidence in court, and her description of the extent of ongoing symptoms, there did appear at times to be some selective vagueness or loss of memory, in that she seemed to have good recollection of the majority of events despite the long lapse in time since many occurred, but was vague on certain matters. I take into account that she was on medication at the time, and visibly tired during the course of extended cross-examination.
9 She did not tell most doctors of prior problems or back pain. That may mean that some of their opinions may be less reliable, but I am not satisfied that her credit is significantly lessened by this, mainly as I am not satisfied that she had a significant history of back problems to mention. In relation to Mr Shannon reporting a direct denial of any prior workcover claim, I cannot resolve whether that was his misunderstanding or whether she did not as she says tell him that the incident in the early 1980s of the chair being pulled out was at work, but I am inclined to believe her that she told him of the incident and that she recalls he laughed.
10 It did emerge that some of the activities she described in her affidavit as having enjoyed pre-accident were no longer current in the years leading up to the accident. There were times when I found her answers too vague to be reliable. Overall, however, I regard her evidence as generally reliable and not deliberately manufactured or misleading.
Findings as to Plaintiff’s background and pre-accident circumstances
11 Ms Drummond is now aged 67. She was born in England, left school aged about 15, and worked for the PMG as a trainee telephonist and in accounts. She migrated to Australia in the mid-1960s. I have minimal information about when or to what extent she was employed over the next two decades, but she says she had done office/administration work for various businesses and that is not challenged by the defendants. In the early 1990s she obtained a Private Enquiry Agent’s licence, which she still holds, and from about 1998 she conduced her own business part-time as a process server. She had been employed full-time by the Villa Maria Society, as accounts supervisor since October 1999 [7].
[7] Statement of Catherine Johnston – Exhibit 12
12 She had two previous marriages before she married Mr Simmons on 9/5/98. She has adult sons and grandchildren, from all of whom she is currently estranged, but one son collected her from hospital after the transport accident. By May 2000 she was no longer going ball-room dancing because her husband was deaf and couldn’t hear the music, nor playing squash or going rock scrambling as she had with her grandchildren when they were young, but was swimming about once or twice a month, went camping with her husband until they became estranged, with a caravan they had bought for that purpose, and enjoyed extended walks around their semi-rural property. She engaged in various volunteer activities.
13 Immediately before 13 May 2000 she was in generally good health[8]. In the early 1980s she had suffered injuries when a chair on which she was attempting to sit was pulled away and she fell landing on her buttocks on the floor. In that incident she suffered an elbow and shoulder injury, for which she was some months off work, and told Mr Brownbill that she injured her coccyx in this incident.
[8] Plaintiff’s own evidence and that of her GP Dr Burns
14 I am satisfied that whether from the chair incident or other cause, she had no more than short-lived back symptoms, which were at most intermittent and infrequent over the decade or so before May 2000, and had not caused her to seek any sustained medical treatment. I reach that finding from her own evidence, and the evidence of Dr Burns who in 1993 took over the general practice where she had been attending since 1985. He says that not only had she not seen him for any previous back symptoms, but that the records of the clinic[9] do not show any attendance there for any prior back complaint except a presentation on 31/7/87 which seems to have been attributed to a possible urinary tract infection.
[9] Exhibit C
15 The defendants argue that I should doubt the reliability on this issue of Dr Burns’ clinic‘s records, because Dr Burns said that when he bought the practice there was an issue with his predecessor, Dr McGill, not necessarily handing over all patient records, and continuing to see some of the patients elsewhere. Ms Dixon SC for the defendants argues that that should be taken in conjunction with the records of a chiropractor, Doug Osborne, who turns out to be Dr McGill’s husband, in relation to his treatment of the plaintiff[10]. Those records indicate that the plaintiff first attended him in 1987 for her right arm and elbow, from an accident two years earlier with a chair, and there is a note “check back”, which I do not take as an indication that there was actually a complaint of back symptoms from the plaintiff. In different handwriting the name “McGill” appears. The chiropractor’s records indicate that she did have treatment in 1987 for her right elbow, and in July 1987 it is noted “bad in back from long sitting”, two days later “much, much better” and 5 days later had decrease in “lateral loins” and was “off to USA”. There is further attendance 5 years later, in 1993, apparently referable to low back ache that came on after coughing, and there is a reference to Dr Burns and also to see Dr McGill. The file contains a radiology report on the lumbar spine of 10 August 1993 but it does not specify whether of a plain x-ray or CT scan, and as it is addressed to the chiropractor I infer it was more likely to be a plain x-ray. After 1993 there is one further entry, for 9/7/99, for “low back pain working”, and “off to LAngeles”.
[10] Exhibit 1
16 I do not take Mr Osborne’s chiropractic records to indicate an entrenched or chronic low back problem, and certainly not one causing any incapacity such as for travel to the USA. As to the suggestion that there may have been a significant and hidden history of the plaintiff seeing Dr McGill for low back pain behind Dr Burns’ back, I only need be satisfied on the balance of probabilities that there was no such history and I am. To find otherwise would be to infer that the plaintiff had some reason years before she had even married the first defendant to not tell Dr Burns about back pain, but attend him for other intermittent health issues or checks. As for the suggestion that there could be a significant history of back complaints in parts of records not handed over to Dr Burns, there is certainly a gap between 1990 and1992, but the argument postulates that seven years before the transport accident Dr McGill selectively removed parts of this patient’s records. I am satisfied on the balance of probabilities that there were no presentations by the plaintiff to general practitioners for back complaints for more than ten years preceding the transport accident.
17 There is also a file from a Kew chiropractic clinic showing attendance in March 2000. I accept the plaintiff’s evidence that she attended there in response to an offer of a free check during the Kew Festival where she was attending as part of her volunteer work. Although I do have some scepticism about her not mentioning that attendance because it would have been in much more recent memory at the time of the transport accident, I do not believe this indicates any significant previous disability or symptoms from her back, but rather the actions of a person who had previously undergone chiropractic treatment to taking advantage of the offer of a free checkup.
18 I also take into account that she had been working before the transport accident, full-time, without complaint of or time off work for back pain[11]. Finally, I note that the first defendant as her husband was in a position to have known whether she had back problems over the preceding years, was clearly unsympathetic to her interests after the transport accident. Even if as the defendants’ counsel argue, TAC investigators at first asked him only about the circumstances of the accident, in my view it is reasonable to expect that he would have provided information about her previous medical condition if it was of any significance.
[11] Exhibit O
19 I therefore find that as at 13 May 2000, at the age of 58, the plaintiff had no history of significant back pain or other symptoms of what was undoubtedly already existing degenerative change in her lumbar spine.
Findings as to circumstances of the transport accident, and following events
20 I am satisfied on the balance of probabilities that Ms Drummond was, as she claims, struck by the back rear of the reversing vehicle on her right side in her hip or buttock area, and fell to the ground. The vehicle was not travelling fast – probably 10 to 15 kph - but would have connected with some force as it was being reversed uphill pulling another car containing the weight of two adults, so its movement necessitated acceleration. I accept her evidence that she felt immediate pain in her low back, right hip and left wrist, and was unable to get up from the ground due to sharp pain in her low back. When an ambulance arrived she was hyperventilating and very distressed, and then complained of stabbing pain in her lower lumbar region on movement, pain in her right hip and elbow.[12] She was taken to the Austin Hospital where she was recorded[13] as hyperventilating and upset, complaining of lumbar pain and right buttock pain, and bruising on her right buttock was noted. Panadeine forte was given, and her right hip and pelvis X-rayed revealing no bone abnormality, and she was later discharged.
[12] Exhibit FF
[13] Exhibit K – CB163
21 She was taken home by her son, but then stayed in a motel.
22 Two days later, she consulted her GP, Dr Burns, who took a history of her being struck by the reversing slow-moving four-wheel drive in the right “hip” area. He noted tenderness over her right loin and sacroiliac area, and in her right kidney area prompting him to take a urine sample which revealed blood in quantities not visible to the naked eye, so he ordered an ultrasound scan of her kidney which was subsequently reported as within normal limits. He prescribed analgesia.
23 Photographs taken by police on 16 May 2000[14] are consistent with some bruising and abrasions but not clear enough to anything more.
[14] Exhibit 5
24 Ms Drummond returned to work about a week later, still bearing some bruises and abrasions, and complaining of ongoing pain in her low back and hip. She attended Dr Burns on two or three more occasions, before in August attending him with lower lumbar tenderness as well as in the sacroiliac area, so he ordered a CT scan of her lumbar spine. That showed significant facet joint degenerative changes at all levels, a moderate degree of canal stenosis at L3- 4, and narrowing of the exit foramina and lateral recesses at the L4-5 level of which a small para-central disc herniation was part.[15]
[15] Exhibit A
25 In March 2001 she left her full-time employment as an accounts supervisor at the Villa Maria Society, receiving a termination payment which was offered to her to resolve a situation involving personal conflict with other staff attributed to her age (then 62). She promptly obtained casual work of a similar administrative nature through an employment agency – Hallis – and had three placements from 22 March up to 17 May 2001. A letter from the Hallis agency[16] details her placements, and that there were no punctuality issues with her and the agency was not aware of her accident until advised by her in July/August.
[16] Exhibit D – dated August 2001
26 Ms Drummond claims that she had been finding it harder to remain at work because of her symptoms, both at Villa Maria Society and in the casual work, and by mid-2001 was unable to continue to work because of her symptoms. I accept that she had reason to keep working, due to the end of her marriage and her need to support herself, and find on the balance of probabilities that her symptoms were at least a contributing factor to her ceasing work at that stage. Her GP Dr Burns, certified her unfit for work from May 2001 and the TAC made payments for loss of earnings from that time[17].
[17] Exhibit F
27 She continued to attend Dr Burns with complaints of lower back pain and what she described as hip pain but he said was more correctly to be described as right gluteal pain. She was prescribed anti-inflammatory medication and analgesia which by mid 2001 was panadeine forte. She also exhibited signs of a reactive depressive illness which he attributed to the pain and its effect on her day to day functioning, and from early June 2001 prescribed an anti- depressant, Zoloft.
28 In early 2002 Dr Burns referred her to Mr Kavar, neurosurgeon, who did not recommend surgery but considered that the accident had triggered her ongoing pain. In September 2002 she was referred to Mr Neil Bergman, orthopaedic surgeon, “for second opinion” regarding her right back and groin pain. He noted that she presented with an antalgic gait on the right, on examination found tenderness in the lumbar region and right sacroiliac region, and limitation in back but not hip movements. He viewed an MRI taken in May 2002 and performed facet joint injections on 4 September 2002. These gave relief for the low back pain for three days only, she remained on high doses of oral analgesics, and when in November she complained of more hip problems he injected her hip with anaesthetic. He recommended an MRI of the right hip but it was not performed until 2003 by which time Mr Bergman was no longer seeing Ms Drummond having referred her to Dr Stone at Cedar Court for a pain management program[18].
[18] Exhibit Y
29 Dr Stone[19] tried to co-ordinate a multi-disciplinary pain program and a structured analgesic regime. He suspected a labral tear causing the hip pain, and noted that Mr David Bracy had excluded hip bone pathology by a bone scan.
[19] Exhibit R
30 Mr Bracy, orthopaedic surgeon, had seen her on referral by Dr Burns in February 2003. He suspected that her hip pain was a referred back problem, but suggested and MRI of her right hip to exclude a specific hip problem. He found her thoracolumbar spine stiff and painful with only about 50% of flexion and 30% of extension with fairly accurate reproduction of pain[20].
[20] Exhibit O
31 She was next referred to Mr David de la Harpe, orthopaedic and spinal surgeon,[21] who reports in April 2004 that felt that there were a number of issues at play, including that her report of tingling in her arms in the morning was obviously not related to her back and there may be a level of depression and anxiety. However, he felt her symptoms were contributed to by the gross facet joint osteoarthritis in the lower two levels of her lumbar spine[22] shown on MRI, and in June 2003 performed facet joint injections done simultaneously into multiple lower lumbar joints, and manipulation under anaesthetic. These gave some relief but not lasting, and the injections were repeated by Mr de la Harpe at Epworth in November 2003, again giving some relief but with pain in her back persisting.
[21] Exhibit T
[22] Anatomically she is missing one level, leading to varying description of the levels between L3-4 and L5-S1
32 She was referred to Dr Bruce Mitchell by Dr Burns in November 2004, with chronic back, lateral hip, and groin and thigh pain. The leg pain he considered of a somatic referred type. On examination he considered she had signs of hip joint pathology, tenderness over the conjoint tendon and marked tenderness of her facet joints, some sacroiliac joint signs and some tenderness over her central spinous processes. He was aware she had had partial response to facet joint injections in the past. He conducted controlled blocks on her. Medial branch blocks on her lower lumbar facets eased her back pain by some two thirds, and he then performed radiofrequency neurotomy which had a good impact on her back pain and buttock pain, but did not change her leg pain, hip pain or groin pain. Examination under local anaesthetic of her hip revealed an equivocal finding, took away her thigh pain and lateral hip pain totally for some days, but did not change her groin pain. Dr Mitchell then administered two conjoint tendon injections on separate occasions, both of which took her groin pain to zero, so he referred her to Mr Luke Jolly for tendon repair.
33 Mr Jolly, general surgeon, reported in September 2005 that as her pain had responded well to two conjoint tendon blocks, he recommended a formal repair of what he believed was this torn muscle. On 8/12/05 he operated at Linacre Private Hospital and repaired what he found to be a ruptured right conjoint tendon from which she made a good recovery from her right groin pain. However, in 2008 recurring severe pain in that area caused him to re- explore the area surgically, in February 2009. He found a tear to the conjoint tendon lateral to the mesh he had inserted at the site of the previous tear. He repaired the new defect in the muscle[23], and at the time of the hearing had reviewed her and excluded suspected infection in the wound.
[23] Exhibit U
34 Meanwhile, Dr Mitchell continued to review Ms Drummond. As he forecast in his report of 19/10/05[24], the hip injection he had administered did not control her hip pain for long, and when it recurred he referred her to Mr Robert Howells, orthopaedic surgeon, for a hip arthroscopy.
[24] Exhibit W
35 Mr Howells obtained x-rays and an MRI of her hip which revealed a moderate tendonopathy and an area of oedema adjacent which he thought consistent with tronchanteric bursitis. He recommended a steroid injection into the area but that was delayed until after Mr Jolly’s repair operation on her conjoint tendon. As it did not improve her hip pain, and in August 2006 he operated to remove the trochanteric bursa in her right hip, and found oedema and degenerative tearing in the deep portion of the gluteous medius tendon extending into the insertion of the gluteous minimus. He repaired the degenerative areas of tendon. He describes her requiring gentle physiotherapy and time to become weight bearing on the right hip[25]. He believed her pain was multifactorial, and in March 2007 admitted her to hospital again for an arthroscopic examination of her right hip which revealed a degenerate acetabular labral tear, which he resected, noting synovitis in the joint but no evidence of any articular cartilage disease[26]. When last seen by Mr Howells in March 2007 he considered her prognosis in relation to the pathology of her right hip excellent, but referred her back to Dr Mitchell for further follow up as her physician. Ms Drummond said in evidence that the hip pain had largely resolved after Mr Howells surgery, and was not a significant ongoing problem.
[25] Report dated 30/4/07, Exhibit AA
[26] Report dated 30/4/07
36 In March 2006, Dr Mitchell performed a second right L3/4/5 radiofrequency neurotomy[27], which gave considerable extended relief of back pain[28]. He then performed medial branch blocks of upper lumbar facets, in 2007. He considered that further “burns” of radiofrequency neurotomy were likely to be needed, to assist in controlling pain, but noted that they carry high risk of neuropathic pain. Dr Mitchell performed another hip injection on 27 November 2008, but had not seen her since at the time of a last report being requested for the hearing[29]. I infer that the multiple injections and radiofrequency neurotomies performed by him over the period 2005 to late 2008 had been of considerable benefit in controlling Ms Drummond’s pain, but there would be at least the possibility of more being needed in time.
[27] Report dated 31 January 2008, Exhibit W
[28] Plaintiff’s affidavit para 13 Exhibit G
[29] 20/3/09 – Exhibit W
37 Ms Drummond is still taking medication in the way of pain relief for her back.. She is managed by her GP Dr White, since Dr Burns retired from the practice in 2005. He commenced her on oxycodone – which is morphine based– in for her back, in 2007, combined with carbamazepine for neuralgia pain[30]. More recently she has been on norspan patches and panamax. She is also still under the continuing care of Dr Mitchell as her muscular skeletal physician.
[30] Exhibit BB, 3/6/08
Did the plaintiff suffer any and if so what injury to her lower back
38 I find that the plaintiff fell to the ground in a twisting motion in the transport accident. I accept that she felt immediate pain in her low back and it is recorded in ambulance records as a stabbing pain in lower lumbar region increased by movement. Although not mentioned in the report from the Austin hospital[31], hospital records show that she complained of lumbar pain, and the hospital’s patient registration form lists back pain as part of the presenting complaint[32]. Although Dr Burns had no complaint of back pain from her until August 2000, causing him to order a CT scan of the lumbar spine, I accept in light of her descriptions to him in the meantime of hip or gluteal pain and tenderness that she did suffer injury to her back in the transport accident. She has complained of low back pain to varying degrees ever since.
[31] 23 July 2001 – Exhibit K
[32] Exhibit K
39 The CT scan taken 25 August 2000 confirms degenerative changes throughout her spine which all doctors accept would have been pre-existing given her age. They are unable to say whether the small paracentral disc herniation at the L4-5 level was previously present. However the real question is whether as a result of the transport accident the condition of her lumbar spine was rendered symptomatic or any previous symptoms were aggravated to an extent that the consequences have been long term and serious.
40 Dr Burns’ opinion supports that there was further damage to an already degenerative spine, but in particular that the accident rendered symptomatic a spine about which he had heard no complaint from her in the preceding 7 years nor was there any record of previous problems from it in the records dating back to 1985.
41 Mr Bergman’s opinion was that she had sustained a flexion rotation injury to the thoraco-lumbar spine resulting in mechanical low back pain from aggravation or acceleration of pre-existing degenerative changes in her spine.[33]
[33] Exhibit Y
42 Mr Kavar’s opinion was that the incident of being hit by the vehicle tipped the balance in terms of her lumbar spine, in that facetal hypertrophy was responsible for foraminal narrowing and may have been distorting the L5 nerve root. He considered that the accident seemed to have triggered her present pain response and was thus responsible for her ongoing discomfort[34].
[34] Exhibit Z
43 Mr De la Harpe considered she had significant pain from her arthritic facet joints, that there was likely to be ongoing disability due to her back pain, and considered that spinal fusion surgery was a possibility[35].
[35] Exhibit T
44 Dr Mitchell has treated her facet joints with injections and radiofrequency neurotomy repeated at the lower lumbar levels, and then higher. He accepted that the accident – which he calls her being “run over by a 4-wheel drive” without more description – had caused her multiple areas of chronic pain, as there was nothing in her past medical history, family history or social history that would put her at risk for these injuries apart from the accident she describes[36]. Even though he was apparently not aware that she had ever attended a chiropractor for back treatment, for reasons already explained I am satisfied that Ms Drummond had not suffered any significant back symptoms, and certainly none approaching chronicity before the transport accident, so I do not consider that Dr Mitchell’s opinion is undermined in that regard. It is simply impossible from his reports to assess whether he thought she was literally run over by a 4 wheel drive vehicle – which of course she was not – or whether he had a more accurate description. As all other doctors were told she was hit or struck by the vehicle, I infer that he would have been told something similar, especially as he saw her on the referral of Dr Burns.
[36] P 2 of report dated19/10/05, Exhibit W
45 A number of medico-legal opinions have been obtained by each side in this case.
46 Mr Frank Combe in a medico-legal opinion of August 2002[37] considered that she continued to suffer with lumbar back pain, right hip area pain and discogenic right groin pain. He found absent ankle reflexes which he took as evidence of radiculopathy, but noted no description of sciatic symptoms.
[37] Exhibit L
47 Mr David Brownbill, consultant neurosurgeon, saw her for medico-legal opinion[38] in October 2005, and April 2008. On the history given to him, his examination of the radiology and his physical findings on examination, his view was that she had suffered aggravation of asymptomatic lumbar spine degenerative changes in the described incident (albeit that included that she had been “thrown in the air”) giving rise to low back pain and by referral right groin and buttock pain, and that ongoing pain was to be anticipated to continue indefinitely. He felt that she probably would not be able to continue at office work that required prolonged sitting. In April 2008, with the radiofrequency denervations having helped for 13 and 8 months respectively, he found on examination that her thoracolumbar spinal movements were a half of full range in flexion and extension, but what he described as non uniform restriction of thoraco lumbar spinal movements, and no objective neurological abnormality. He had also read reports of Mr Kava, Mr Berman and Dr Mitchell. He said he saw no basis to modify his earlier opinions, and maintained that she had suffered aggravation of asymptomatic lumbar spine degeneration in the incident of 13 May 2000 giving rise to low back pain and by referral right groin and buttock pain. The ongoing pain would restrict her employability and capacity for social and domestic activities in a moderate to marked degree.
[38] Exhibit V
48 Mr Kevin King assessed her in January 2008 and was of the impression that she is chronically disabled to a moderately sever degree by a stiff, painful back as a result of injuries to lumbar discs and associated ligamentous structures occurring in the car accident[39]. He thought she could work on a part-time basis on light office duties.
[39] Exhibit CC
49 Mr Michael Dooley, orthopaedic surgeon, examined her for the defendant in November 2005, and June 2007 and provided a further report in March 2009.[40] His diagnosis was of a soft tissue injury to the lumbar spine region and probably some aggravation of naturally occurring underlying degenerative disc disease which he thought would account for low back pain right buttock, groin and thigh pain, and he did not believe there was a specific injury to the hip joint[41]. He was prepared to defer to Mr Jolly’s opinion about the surgery being warranted to the conjoint tendon area. He expected her low back pain, right buttock and thigh pain to continue intermittently, felt she was unfit to perform heavy physical work but be able to do at least some clerical work, and would have difficulty with prolonged sitting or prolonged standing, would have difficulty with heavy household chores, and with prolonged walking.
[40] Exhibit 18
[41] Report of 10/11/05, p4
50 When Mr Dooley saw her in June 2007 she was not taking any analgesic medication, had undergone the first conjoint tendon repair and the surgery to remove the bursa in her right hip, said that the surgery had improved her pain initially in the hip and showed herself more enthusiastic about her prospects although she still said she was aware of ongoing pain in the groin and lower lumbar and posterior thigh areas. She had recently had radiofrequency denervation in her lumbar spine. Mr Dooley essentially maintained his earlier diagnoses, and despite the various surgeries he maintained that she had sustained a soft tissue injury to the lumbar spine “and no other injuries”, and expected her to continue to note some low back pain, right buttock, right groin and thigh pain from it.
51 In March 2009 he provided further opinion in response to reading a letter from Mr Jolly about the February 2009 surgery. His view was that the tears found and repaired in the conjoint tendon and glenoid labrum, and the trochanteric bursa were degenerative in nature and were not caused by the accident. He acknowledged that pathologies had been found in the recent and earlier hip arthroscopy and surgery. He said these pathologies were degenerative and not traumatic in nature, and had led at times to improvement and short term improvement in her symptoms. His view that was that she had developed a chronic pain syndrome that had been reinforced by ongoing treatments. He said he remained of the view that the majority of her presentation relates to her psychological reaction to the injury and/or pain rather than to ongoing traumatic organic orthopaedic pathology. He expected that she would note some ongoing intermittent low back pain and some right buttock groin and thigh pain, which he would not expect to cause her major functional difficulties.
52 Mr K Brearley examined her in July 2001[42] for the defendants, and took a history that she had suffered low back pain ever since the chair incident 20 years earlier. He diagnosed soft tissue injury of the lumbosacral spine and soft tissue injury of the right hip region, and considered that her symptoms were due to aggravation of pre-existing changes in the lumbar spine which had been present for many years and were related to gae and body buid, but accepted that if the accident had not occurred she would not be having her present symptoms, and felt that that was causing her difficulty maintaining full- time work although her thought she was capable of part-time work as an accounts clerk if not having to sit for prolonged periods.
[42] Exhibit 14
53 Mr Michael Shannon examined her in 2004[43], reports a history of not the slightest trouble with her back or hip in the past and no previous workcare claim. He reports that she denied a fall from a chair as recorded in Mr Brearley’s report. As previously noted I cannot resolve who is wrong about what she told Mr Shannon with hearing from Mr Shannon, but as he clearly had information about that event, albeit to the effect that she had had 20 years of back problems since, he cannot be said to have given an opinion based on a belief of no prior injury at all. His diagnosis was of aggravation of pre- existing degenerative change lumbar spine], possible lumbar disc lesion, spinal canal stenosis and soft tissue injury right hip. He thought the prognosis was for ongoing problems in her back and possibly the hip. He noted a consensus that most of her symptoms are arising in the low back where she had pre-existing multilevel disc degeneration with facet joint arthritis and some degree of canal stenosis.
[43] Exhibit 15
54 So far as psychiatric opinion is concerned, Dr Stephen Stern who assessed her in July 2004[44] considered she was depressed and suffering post traumatic stress disorder. Dr Timothy Entwistle in October 2005[45] found her distressed, agitated evasive as an historian, complaining of lack of sleep deprivation and isolation and pain. He diagnosed an adjustment disorder with depressed mood, with ongoing resentment and bitterness from the breakdown of the marriage, estrangement from her children, and the added component of her pain. On review in 2007 he found her more positive, with intact memory and concentration and believed that her psychiatric condition had completely resolved.
[44] Exhibit 16
[45] Exhibit 17
55 I am satisfied that as a result of the transport accident the plaintiff”s spine was jolted and twisted as she fell to the ground, causing injury which aggravated or exacerbated previously asymptomatic or minimally symptomatic degenerative changes, particularly in facet joints and at the L4/5 level where a disc herniation together with degenerative bone caused narrowing of the canal space. I am satisfied that the accident resulted in the onset of chronic symptoms of pain in her low back[46].
[46] I discount the history of 20 years of back pain following the chair incident as it was recorded only by Mr Brearley and is inconsistent with the overall other evidence as outlined in paragraphs 15-19 above.
Whether injuries to her hip and groin resulted from the transport accident
56 The plaintiff’s case is that I should find that the tear to the conjoint tendon in her right groin area, as diagnosed and repaired by Mr Jolly in 2005, was caused by the transport accident. This is based on her continuing complaints of pain and tenderness in that area from shortly after the accident, and the evidence of Dr Burns[47] as to its anatomical location. Dr Mitchell supports that conclusion. Reliance is also placed on the fact of payment by the TAC for injections into the area by Dr Mitchell, and Mr Jolly’s surgery, as an admission that they were causally related to the transport accident.
[47] T 213.4-16
57 The defendants submit that there is insufficient evidence of the causal connection, especially having regard to the lapse of time between the accident in May 2000 and the eventual diagnosis of torn conjoint tendon in late 2005, and they rely not only on the opinion of Mr Dooley but also on the statement of Mr Jolly in his report of 17/10/05 that it was impossible to say whether the pain in her groin resulted from the transport accident of 13 My 2000[48]. He stated that it was certainly not a pre-existing injury, and must have arisen in the time frame from the accident until his report.
[48] Exhibit U
58 Further, the defendants submit[49] that the fact of payments by the TAC should not be taken as an admission either of causal connection with the transport accident or of the injury or loss. I am not prepared to find the payment of Mr Jolly’s fees as an admission of a causal connection between the transport accident and her right groin tendon tear, because Mr Jolly not only stated in his letter to the TAC of 17/10/05 that it was impossible to say whether the pain resulted from the accident, he also explained why he suspected a tear of the conjoint tendon but that there was no testing which would reveal it and it would only be on surgical exploration that any such tear could be confirmed. In that context I consider that the decision by the TAC to pay for the operation was reasonable in the conduct of its statutory obligations, and as confirmed by Mr Dooley on that basis, but that it was not to be taken as an admission for other purposes of the causal connection with the transport accident.
[49] In a detailed written and oral submission
59 Mr Jolly subsequently confirmed that he found the suspected tear and repaired it, but does not say whether that alters his earlier statement as to it being impossible for him at that stage to say whether it resulted from the accident. Dr Mitchell does support the connection, from the plaintiff’s description of the timing of onset of pain in the area and its continuity until his injections temporarily relieved it. In my view it would be necessary to hear more from Mr Jolly on that issue, before deciding the causation issue one way or the other. For the purposes of the present application I need not decide that question.
60 In relation to the right hip/gluteal area, the opinions of Mr Kavar and Mr Dooley are to the effect that such pain is referred from the back condition. The opinion of Dr Mitchell and Mr Howells support there being a separate injury or injuries to the hip, and that is what Mr Kavar considered possible in 2002, and is supported by Mr King. It may be that the origin of her hip pain is due to both referred pain from the back and a discrete tear in the hip. In any event, the evidence of Ms Drummond – and Dr Mitchell and Mr Howell – is that the last surgery by Mr Howell so significantly relieved the pain that she does not regard it as significant now. Although I accept that she had pain in her hip and gluteal area for some years, I must assess her condition at the time of hearing as to whether the definition “serious long-term impairment of function” applies, and in relation to the hip area alone I could not be satisfied that for the future it could be said to be serious and long-term.
61 I am therefore not satisfied that there be said to be serious long-term impairment of the function of the plaintiff’s hip so as to constitute a discrete “serious injury” to her hip.
Consequences of injuries to the plaintiff
62 I am satisfied that immediately after the transport accident the plaintiff suffered pain and resultant distress. Although she was back at work after about a week, I accept that she had ongoing back pain although it did not stop her working. I note that she is described as complaining of back pain from the accident at work[50], but still able to perform her duties and did so until April 2001 when she took sick leave for two weeks and was persuaded to take a termination payment rather than return to work.
[50] Exhibit 12
63 I accept that her back pain increased and became more disabling some months after the accident, causing her to consult Dr Burns about it to the extent that he obtained a CT scan and then referred her over time to various specialists. She ultimately has undergone a bewildering number of invasive treatments. I note that Mr Dooley regards these ongoing treatments as reinforcing her perception of pain and in this context as a psychological condition of chronic pain syndrome. However, he is the only doctor to proffer that opinion, and it is despite his acceptance that subsequent pathologies have been found in her hip and groin, and that several of the operations and injections have relieved her pain at least for some periods of time.
64 As to whether her ongoing perception of pain is of psychological rather than organic cause, I note that psychiatrists Dr Stern and Dr Entwistle would not support that view, in particular as Dr Enwistle who reassessed her in July 2007 considered that she had completely recovered from the adjustment disorder he had diagnosed two years earlier.
65 I am satisfied that the physical condition of Ms Drummond’s spine, aggravated by the accident and soft tissue injury to it, has continued to cause her pain in her low back, and probably has also been at least a cause of pain in her hip and thigh. I am satisfied that she became very considerably disabled by her pain for some years. Although the hip and groin area have had some sustained relief from surgery, her history indicates that that may not be long- term. Her low back pain has only been relieved by intermittent radiofrequency neurotomies, and ongoing strong analgesia including opiate based medication – most recently norspan patches to supplement panamax – and those are significant consequences.
66 I also take into account that to varying degrees over the intervening years she has suffered some reactive depression from her symptoms of pain and isolation. The evidence of Dr Burns explains this and she is still seeing a psychologist. I am able to take those symptoms into account as adding to her despondency and the impact of the injury on her, but do not regard any psychological condition she suffered as the cause or primary component of her disabilities resulting from the transport accident[51].
[51] Richards v Wylie [2000] 1 VR 79
67 She may not have been living as highly sportive or active a life immediately before the accident as she had years earlier, but I accept that it has been much more limited and isolated since her injury. Video surveillance of her spending many hours at a “pokies venue” did not show her in great distress, but nor in my view taken with all of the other evidence, did it reflect a very active person. She says she has been encouraged to get out of the house and this is what she was doing that day, and has on other occasions for varying periods. It may not be what those giving the advice intended, but I do not regard it as inconsistent with the picture otherwise painted by the evidence of a person whose life has been more than significantly affected by chronic pain from her back injury.
68 I do not need to make a specific finding as to the extent to which her ability to work has been compromised by her injury. Most doctors consider she would be limited by her injury in her ability to sustain prolonged sitting or standing. She is said to have been diligent at her employment with the Villa Maria Society, starting early and finishing late. The change to casual agency placements may have left her less flexible in her tasks so less able to alleviate her pain by varying tasks and moving around at will. She has resumed some activities in her process server business, mainly collecting and delivering documents, but I accept that she is limited to a few hours a week (averaging 8 at present) before her back causes pain. The fact of payments by the TAC for loss of earnings in the period after she first ceased work should be taken as an admission of at least a short term causative link between the transport accident and her incapacity for full-time administrative work.
69 In light of all of the above findings, I am satisfied that the impact on the plaintiff’s life and lifestyle from the injury to her low back suffered in the accident, can fairly be said to be more than significant and very considerable and to be likely to be so long term.
Conclusion
70 I am satisfied that the plaintiff suffered injury to her back in the transport accident of 13 May 2000 which constitutes a “serious injury”. I intend to grant her leave to bring proceedings for damages in respect of that injury.
SCHEDULE OF EXHIBITS
DRUMMOND v. SIMMONS & TAC
Number and
| Identifying Mark | Short Description of Exhibit |
on Exhibit
A Report of CT scan of Plaintiff’s lumbar spine, dated 25/8/00
Reports of Dr K. Burns, dated 20/5/00, 8/8/01, 25/5/02, 17/9/02,B 13/12/02, 6/6/04 & 12/7/05 (CB 19-64) C Progress notes from GP’s file for Plaintiff, 15/6/85 – 11/7/05 D Letter from Hallis to “To Whom it may concern” dated 11/8/01 E Final severance and payslip advice from Villa Maria Society F Letters from TAC to Plaintiff dated 21/6/01 & 3/7/01 G Affidavits of Plaintiff sworn 16/5/01, 24/1/08 & 17/3/09 (CB 6-13) H Affidavit of Elaine Chesterman, sworn 31/1/08 (CB 14-16) J Report of Mr D. MacLeod, undated (CB 17-18)
Reports of Austin Hospital, dated 23/7/01 & 3/9/02 (CB 68, 160-64)K and statement of examination for police, dated 19/9/00 L Report of Mr F. Combe, dated 7/8/02 (CB 65-7) M Reports of Dr A. Kaplan, dated 21/11/02 & 24/10/05 (CB 69-83) N Report of MRI of right hip, dated 6/1/03 (CB 84) O Report of Mr D. Bracy, dated 20/2/03 (CB 85-6)
Report of bone scan of lumbosacral spine and pelvis, dated 5/3/03P (CB 87) Q Radiology report of lumbosacral spine, dated 5/4/08 (CB 88) R Report of Dr W. Stone, dated 27/3/03 (CB 89-92) S Ultrasound report, dated 4/3/04 (CB 93) T Report of Mr D. de la Harpe, dated 30/4/04 (CB 94-5)
Report of Mr L. Jolly, dated 20/9/05, 17/10/05, 1/3/06, 12/12/08,U 11/2/09, 12/2/09 & 20/2/09 (CB 96-105) V Reports of Dr D. Brownbill, dated 21/10/05 & 2/4/08 (CB 106-16)
Reports of Dr B. Mitchell’s practice, dated 19/10/05, 31/1/08, 28/10/08W & 20/3/09 (CB 117-20) FF Copy single page ambulance report, dated 13/5/00 1 Files of Back in Action and Diamond Valley Brain Centre 2 Plan of property at 272 Broadgully Road, Diamond Creek 3 Aerial photograph of the property 4 Four photos of driveway area Four pages of photographs numbered 1-10 taken by police on 5 16/5/00 6 Four photographs of Plaintiff taken by Ms Maugham in May 2000 7 Certificate of Dr Burns, dated 15/5/00 Surveillance report of LKA Group dated 28/9/05 and video tape of 8 surveillance taken 14/9/05
Affidavit of Plaintiff, sworn 16/5/01 in Family Court proceedings9 (CB 254-57) 10 Letter from Plaintiff’s solicitor to Plaintiff’s barrister, dated 26/6/08 11 Letters from Hallis dated 11/4/01 & 10/7/01 12 Affidavit of Catherine Johnston, sworn 26/10/05 (CB 143-47) 13 Affidavit of First Defendant, sworn 303/1/08 (CB 148-53) 14 Report of Mr K. Brearley, dated 10/7/01 (CB 154-59) 15 Report of Mr M. Shannon, dated 1/6/04 (CB 165-70) 16 Report of Dr S. Stern, dated 1/7/04 (CB 171-78) 17 Reports of Dr T. Entwisle, dated 14/10/05 & 12/7/07 (CB 179-88) Reports of Mr M. Dooley, dated 14/11/05, 20/6/07 & 17/3/09 (CB 18 189-203)
X Report of Dr J. Toh, dated 30/11/05 (CB 121-22) Y Report of Mr N. Bergman, dated 4/1/06 (CB 123-24) Z Report of Mr B. Kavar, dated 6/2/06 (CB 125-27)
AA Reports of Mr R. Howells, dated 3/3/06 & 30/4/07 (CB 128-33) BB Reports of Dr A. White, dated 4/12/07 & 3/6/08 (CB 134-36) CC Report of Mr K. King, dated 31/1/08 (CB 137-42) DD Plaintiff’s statement to the police, dated 16/5/00 (CB 216-17) EE Plaintiff’s Claim form to TAC, dated 3/6/00 (CB 218-28)
0
0
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