Durant v Transport Accident Commission
[2016] VCC 1802
•30 November 2016
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-04191
| CATHERINE LOUISE DURANT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 7, 8 and 11 April 2016 | |
DATE OF JUDGMENT: | 30 November 2016 | |
CASE MAY BE CITED AS: | Durant v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1802 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck – pre-existing and supervening injuries – whether transport accident injury is “serious” – “serious injury” paragraph (a) – whether principal cause of plaintiff’s symptoms – a mental disturbance or disorder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P Jens QC with Ms M S Tait | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By way of Originating Motion, the plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (as amended) (“the Act”) to bring common-law proceedings to recover damages for a neck injury (“the injury”) suffered by her arising out of a transport accident on 11 August 2010 (“the transport accident”).
Relevant legal principles
2 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
3 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section¾
…
Serious injury means¾
(a) serious long-term impairment or loss of a body function; or
(b) …
(c) …
(d) … .”
4 In order to succeed in her application, the plaintiff must satisfy the Court that the consequences of her injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by a comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at paragraph [140]
5 The plaintiff alleges that the pain and suffering consequences of her injury satisfy the threshold test as being at least “very considerable”.
6 The defendant denies that this is so and further, that the principal cause of the plaintiff’s symptoms is a mental disturbance or disorder and not the physical impairment suffered as a result of the motor vehicle accident according to the principles laid down in Richards v Wylie.[3]
[3](2000) 1 VR 79
Background
7 The plaintiff was born in August 1969 and is aged forty-seven years. She is married and resides with her husband and three children on a five-acre property at Crossover in the State of Victoria. She is employed by “Scope” (“the employer”) in Warragul, which is an organisation supporting people with disabilities.
8 The plaintiff completed Year 12 at secondary school and then completed a Bachelor of Applied Science degree in occupational therapy at La Trobe University.
9 The plaintiff commenced employment in 1993 at the age of twenty-four and was engaged in assisting patients with disabilities such as cerebral palsy and spina bifida.
10 The plaintiff took maternity leave following the births of her first two children and then, in 2005, commenced employment with the employer in Warragul, assisting people with disabilities. She worked in schools, kindergartens, childcare centres and private homes, and worked mainly with families with pre-school children with special needs.
11 The plaintiff gave birth to her third child in approximately May 2008 and returned to work with the employer in approximately September 2009 for some 18 hours per week. By approximately December 2009, she had reduced her hours to 13 hours per week. She swore in her first affidavit that it was her intention that as her children grew older, she would re-assess her hours that she could perform at work “with a view to increasing them in time”.[4]
[4]Exhibit A, affidavit sworn 14 March 2015, paragraph [6], PCB 9
The injury
12 On 11 August 2010, the plaintiff was attempting to execute a left-hand turn into the driveway of a school when her vehicle was struck from behind. The impact caused her vehicle to spin around in a circular fashion, and when it came to a stop, she was in shock.[5] She had pain in the right side of her neck and a numb right hand. A work associate drove her to the La Trobe Regional Hospital where she was given some painkilling medication and discharged to go home and rest.
[5]Exhibit A, affidavit sworn 14 March 2015, paragraph [7], PCB 9
13 In the first few days after the accident, the pain was intense, such that she “had to hold … [her] head up with one hand while … [she] ate”.[6]
[6]Exhibit A, affidavit sworn 14 March 2015, paragraph [8], PCB 10
14 Thereafter, her neck pain gradually improved and she returned to work after two weeks.
15 Later, she attended her general practitioner at the Warragul Family Medicine Clinic but because of ongoing neck pain, she stopped work in December 2010.
16 The plaintiff was off work for about four weeks and underwent an x-ray of the cervical spine which was reported as “normal”.[7]
[7]Exhibit A, affidavit sworn 14 March 2015, paragraph [10], PCB 10
17 In December 2010, her general practitioner referred her to Ms Helen Lockwood for physiotherapy treatment. The plaintiff also complained that in late 2010 or early 2011, she commenced to suffer from headaches which were “dull, but quite constant, and on … [her] left side mainly”.[8]
[8]Exhibit A, affidavit sworn 14 March 2015, paragraph [10], PCB 10
18 In early 2011, the plaintiff also attended a chiropractor on about six occasions for treatment which resulted in the level of neck pain improving in the short term but soon reverting to its previous level after she stopped having such chiropractic treatment.[9]
[9]Exhibit A, affidavit sworn 14 March 2015, paragraph [11], PCB 10
19 In February 2011, Ms Lockwood referred the plaintiff to Dr Tim Wood, a sports physician, at the Glenferrie Private Hospital.
20 In June 2011, on the basis there had been no improvement in the level of her ongoing neck pain and headaches, Dr Wood referred the plaintiff to Dr Paul Verrills, a specialist in pain management.
21 In October 2011, the plaintiff underwent bilateral third occipital nerve and C3-4 medial branch blocks performed by Dr Verrills. She claims the procedure did not help her condition and “on the contrary, made it flare up immediately after the procedure”.[10]
[10]Exhibit A, affidavit sworn 14 March 2015, paragraph [14], PCB 11
22 Thereafter, the plaintiff underwent a further procedure consisting of a “bilateral C1-2 joint injection of cortisone on 25 January 2012”. Following same, she stated:
“… As was the case with the first procedure, I had a flare up immediately after the injections. After the flare up settled (about 3 weeks) I had some long term benefits of reduced pain and headaches. I have not pursued any further treatment from Dr Verrills.”[11]
[11]Exhibit A, affidavit sworn 14 March 2015, paragraph [14], PCB 12
23 On 26 June 2012, the plaintiff underwent an assessment at the Spinal Management of Victoria Chronic Pain Clinic in Boronia. Following that assessment, she commenced a course of treatment on 24 July 2012, “which included medical, psychological and physiotherapy treatment”.[12]
[12]Exhibit A, affidavit sworn 14 March 2015, paragraph [15], PCB 12
24 The plaintiff attended at the Clinic once a week for an eight-week period and then subsequently, on a monthly basis. At this establishment, she was treated by Dr Aston Wan, physician, Mr Charles Ruddock, psychologist, and Dr Jon Ford, physiotherapist. During this treatment, Dr Wan applied needle therapy to the back of her neck, head and shoulders, which she believed was similar to, or a form of, acupuncture. He also prescribed nortriptyline in a low dosage to assist her with sleeping. The treatment concluded on 21 May 2013 and Dr Ford prescribed a gym program, which she continued to carry out to the time of hearing at the Voyage Gymnasium in Warragul for usually three days per week.[13]
[13]Exhibit A, affidavit sworn 14 March 2015, paragraph [16], PCB 12 and 13
25 After the motor vehicle accident and upon her return to work in January 2011, the plaintiff commenced at 4 hours per week and built the hours up gradually until mid 2013 at 13 hours per week, which was the level at the time of hearing.
26 As at March 2015, the plaintiff attested:
“I no longer suffer from constant headaches and only now get headaches occasionally, usually when they are associated with flare ups of neck pain.”[14]
[14]Exhibit A, affidavit sworn 14 March 2015, paragraph [17], PCB 13
27 At that time, she was taking nortriptyline, one per night. She would take other medication such as Panadol, Nurofen and Panadeine Forte if there was a flare up of neck pain.
28 Further, the plaintiff swore:
“… My flare ups of pain are not regular occurrences but I would estimate that on average I would undergo a small flare up about once a fortnight and a major flare up about once every 6 weeks. … .”[15]
[15]Exhibit A, affidavit sworn 14 March 2015, paragraph [18], PCB 13
29 At that stage, the plaintiff described her pain in the neck as constant –
“… for days but there are other times when I am pain-free for several days at a time. … .”[16]
[16]Exhibit A, affidavit sworn 14 March 2015, paragraph [18], PCB 13 and 14
30 The plaintiff further states that almost every night, she experiences pain, and there are other days when there is intermittent neck pain.[17]
[17]Exhibit A, affidavit sworn 14 March 2015, paragraph [18], PCB 14
31 Apart from the medication as described and her gymnasium program, she is not undergoing any form of medical treatment.[18]
[18]Exhibit A, affidavit sworn 14 March 2015, paragraph [19], PCB 14
Identifying the physical injury
32 The treating general practitioner, Dr Trish Kerbi, in her report dated 12 March 2014, requested an x-ray of the cervical spine in December 2010:
“This was reported as normal.”[19]
[19]Exhibit B, PCB 19
33 Apart from referring the plaintiff to various specialists as set out above, she does not descend to any further detail. She states:
“… I last saw Catherine with respect to her neck pain in August 2013 when she reported that she was attending Gym and doing Dance 3 times weekly. …
…
I would expect that Catherine should return to her pre injury capacity for work with respect to her motor vehicle accident. If Catherine is not experiencing ongoing improvement then further assessment is needed to clarify what is preventing this from happening.
Catherine[’]s condition has not been reviewed since 2012. … .”[20]
[20]Exhibit B, PCB 19 and 20
34 Dr Timothy Wood, sport and exercise medicine physician, in his report dated 21 March 2014, stated he first saw the plaintiff on 8 February 2011.[21] Following the motor vehicle accident:
“… She was aware of some discomfort in her neck, predominantly on the right side and described some numbness in her right hand. …
… Over the next three to four months her neck pain worsened and her head felt heavier. She developed some acute left sided neck pain in mid December and had difficulty in rotating her head to the left. … .”[22]
[21]Exhibit C, PCB 21
[22]Exhibit C, PCB 21
35 Dr Wood repeated that the x-ray of her cervical spine was reported as normal, and on examination on the first occasion, it –
“… revealed an excellent retention of flexion and extension but restricted rotation to the left and lateral flexion with acute tenderness over her left C2/3 facet joint which seemed to reproduce some of her occipital headaches. Neurological testing was within normal limits and there was some minor tenderness through the lower cervical facet joints on both sides.”[23]
[23]Exhibit C, PCB 22
36 Dr Wood’s diagnosis was as follows:
“At the time that I last saw her Ms Durant had ongoing neck pain of unknown origin but possibly due to one or more cervical joints being inflamed and painful.”[24]
[24]Exhibit C, PCB 23
37 It would appear that the last time he consulted the plaintiff was 29 June 2011.
38 Dr Paul Verrills, pain medicine specialist, reported on 12 May 2014.[25] He first saw the plaintiff on 17 October 2011. She gave a history that on most occasions, the pain was in the upper left neck more than the right, but on this particular day, she felt worse on the right. She had no arm pain and no significant head pain.[26]
[25]Exhibit D, PCB 26
[26]Exhibit D, PCB 24
39 Objective testing revealed that the pain was not neuropathic and was indicative of “moderate disability”.[27]
[27]Exhibit D, PCB 24
40 On examination:
“She had a good range of cervical movement with reduced right C1/2 rotation and focal tenderness over the left C2/3 more than C3/4 and over the right C1/2 more than C2/3.”[28]
[28]Exhibit D, PCB 25
41 A C3-4 medial branch block performed on 18 October 2011 was reported as negative and in January 2012, she had a left C1-2 (atlanto-axial) joint injection with sedation. His diagnosis is that the plaintiff “has upper cervical somatic pain that may be discogenic in origin”.[29]
[29]Exhibit D, PCB 26
42 When Dr Verrills last saw the plaintiff two years earlier (2012), she had a reduced capacity for pre-injury duties but he was unsure as to her current work status.[30]
[30]Exhibit D, PCB 26
43 Finally, he considered that if significant pain persisted, the plaintiff may require a surgical opinion or possibly a trial of one of the newer neuromodulation/ stimulation devices.[31]
[31]Exhibit D, PCB 26
44 Dr Jon Ford, musculoskeletal physiotherapist, reported on 11 June 2014.[32] Following initial assessment by him on 26 June 2012, the plaintiff commenced medical, psychological and physiotherapy treatment from 24 July 2012 to 21 May 2013. The treatment was infrequent in nature. Treatment included psychological education, specific exercise, graded activity/exercise progressing to a gym program, medication management and spinal injection.[33]
[32]Exhibit E, PCB 30
[33]Exhibit E, PCB 30
45 Following the initial assessment, the diagnosis was one of:
· “Moderate severity recurrent upper cervical dysfunction complicated by deconditioning, poor motor control and regional stiffness.
· Using the DSM-IV, Ms Durant did not meet the full criteria but demonstrated symptoms associated with an Adjustment Disorder with mixed anxiety and depressed mood. … .”[34]
[34]Exhibit E, PCB 30
46 Although he was not aware whether the plaintiff completed his recommended gym program, he thought it likely that she would continue to experience symptoms long term. However, with a graded and suitably supervised gym program, her capacity and symptoms should slowly improve:
“… Given her adverse response to specific forms of conservative and medical treatments, it is unlikely that more treatment of this nature would be successful.”[35]
[35]Exhibit E, PCB 30
47 Dr Ford does not seem to have reviewed the plaintiff since May 2013.
48 Ms Helen Lockwood, physiotherapist, reported on 16 February 2016.[36] Treatment had commenced on 3 December 2010 and was ongoing until 1 December 2012.[37] At the time of her initial presentation, there was left cervical spine pain but with no reported arm pain and no neurological symptoms. These complaints were followed by right cervical spine pain and headaches. The clinical diagnosis was:
“… the traumatic onset of predominantly (L) O-C1, C1-2 and C2-3 facet joint compression and dysfunction. … .”[38]
[36]Exhibit F, PCB 30a
[37]Exhibit F, PCB 30a
[38]Exhibit F, PCB 30b
49 At her last physiotherapy visit on 1 December 2012, the plaintiff –
“… was still experiencing cervical spine pain and headaches, but was managing them better overall with a combination of the hands on physiotherapy treatment, several rounds [of] cortisone injections, clinical pilates, hydrotherapy and completing the Network Pain Management Program. … .”[39]
[39]Exhibit F, PCB 30b
50 Ms Lockwood stated further:
“I have not formally reviewed Catherine since 01/12/2012, so cannot comment with certainty on her present or future capacity for work. However, the damage to the articular surfaces of these (L) and (R) O-C3 facet joints, as a result of the accident has been significant. Without the cushioning and protection this cartilage provides, these joints are prone to lock and trigger pain responses intermittently, on a long term basis.
… .”[40]
[40]Exhibit F, PCB 30b
51 The prognosis was that the plaintiff would continue to experience intermittent flare-up episodes of cervical pain and headaches on a long-term basis. However, it was noted the plaintiff was –
“… fully aware of the importance of a long term self management program and through her physiotherapy treatment has the necessary tools to continue with a clinical pilates, hydrotherapy or gym program. … .”[41]
[41]Exhibit F, PCB 30b
52 The plaintiff was examined on a medico-legal basis by Mr John F O’Brien, orthopaedic surgeon, who reported on 27 January 2016.[42] He took a relevant history, and noted:
“Physical examination now demonstrates subjective signs with restriction of cervical movement and local tenderness. There is no evidence of nerve root compromise or radiculopathy. I note that no investigations were available for review but it would appear from documentation that investigations have not been of any diagnostic benefit.
Thus, on the available clinical evidence, I would consider this patient now presents with chronic non-specific cervical pain. Indeed, the current signs do not define specific pathology underlying pain generation.”[43]
[42]Exhibit H, PCB 45
[43]Exhibit H, PCB 48
53 Mr O’Brien considered that the prognosis was likely that the current symptoms would persist and the plaintiff describes:
“… moderate disability in relationship to chronic pain, and its affect (sic) on her lifestyle both physical and emotional. The patient does remain physically capable of undertaking current employment which does not involve heavy physical duties. Nevertheless, I think it is unlikely the patient will increase her hours of employment, as currently employment is reported as a potential source of ‘flare-ups’ of chronic pain. … .”[44]
[44]Exhibit H, PCB 48
54 The plaintiff also tendered in evidence a report from the defendant’s surgeon, Mr Jonathan Hooper, dated 16 February 2011.[45] When he saw her on that occasion, she gave a history that her condition was improving –
“… although she continues to complain of headaches, she said her neck feels tired, she said driving is difficult for her, but she is not complaining of any arm pain.”[46]
[45]Exhibit N, Defendant’s Court Book (“DCB”) 1
[46]Exhibit N, DCB 1
55 On examination, he noted that:
“… her cervical movements are nearly full. Lateral flexion to the left is a little bit restricted and are uncomfortable for her. There is no abnormality in her shoulders and no neurological signs are present in her upper limbs.”[47]
[47]Exhibit N, DCB 2
56 His diagnosis was one of –
“… a soft tissue injury to the supporting structures of her neck. This is the classical rear-end type collision symptoms. Her overall prognosis should be expectant and she is improving. Symptoms can persist for months and sometimes years following this type of injury. She should be encouraged to continue with her usual activities, get back to work and continue with her exercise programme. Her management should be symptomatic and by her local doctor.”[48]
[48]Exhibit N, DCB 2
57 The plaintiff also tendered the defendant’s report from Professor Anthony Buzzard, orthopaedic surgeon, dated 5 September 2013.[49] He took a consistent history of neck pain, headaches and taking nortriptyline at night, together with painkillers “when she has flare-ups ‘at least every two months’”.[50]
[49]Exhibit O, DCB 40
[50]Exhibit O, DCB 41
58 On examination, he noted:
“Movement of the cervical spine was measured using a goniometer and found to be in [full] forward flexion and extension[.] [L]ateral flexion in each direction was to 20o and full in rotation in each direction.”[51]
[51]Exhibit O, DCB 43
59 His assessment was as follows:
“I think that … [the plaintiff] did suffer from an injury to her neck as a result of the accident in question. That was a whiplash type injury. I think that she is still suffering from symptoms in relation to that. This is not uncommon in whiplash type injuries. It is appropriate for her to have medications for this (as she is presently having). I don’t think that any other form of treatment is indicated at this stage.”[52]
[52]Exhibit O, DCB 43
60 Further, he stated:
“So far as her employment capacity is concerned, I think that she is now capable of ‘pre-injury’ employment and indeed is performing that.”[53]
[53]Exhibit O, DCB 44
61 Defence counsel tendered the report of Mr Peter Battlay, general surgeon, dated 20 March 2013[54] and the report of Mr Michael J Dooley, orthopaedic surgeon, dated 10 February 2016.[55]
[54]Exhibit 1, DCB 23
[55]Exhibit 2, DCB 58
62 Mr Battlay took a consistent history and noted further:
“… Physiotherapy was commenced and she was advised to swim. She says that she is a reasonable swimmer. She was swimming laps and found excellent improvement from swimming, particularly when her symptoms were severe. She says that she breathes on both sides and used this as a technique of relaxation and mobilisation. However, her physiotherapist was dissatisfied with her progress, she was told that she was ‘not a fish’ and she was, on the advice of Dr Kirby, referred to a multidisciplinary pain management centre at LifeCare Boronia. … .”[56]
[56]Exhibit 1, DCB 24
63 Mr Battlay also reported that she had been given a gym membership and –
“… [s]he is gradually doing free weights now and will graduate onto the machines in the near future. She has just commenced this program. Currently, she takes nortriptyline tablets and rarely needs painkillers such as Brufen or Panadol.”[57]
[57]Exhibit 1, DCB 25
64 On examination, he noted:
“… She performs full pain-free flexion, extension and rotation to either side of the neck, with lateral flexion to either side precipitating some discomfort, which she does not want to push. She therefore performs 30o of lateral flexion to either side. There are no neuro-meningeal tension signs and no neurologic loss in the lower limbs.”[58]
[58]Exhibit 1, DCB 25
65 Mr Battlay’s diagnosis was as follows:
“She had a whiplash injury and has developed a chronic pain syndrome type of problem.”[59]
[59]Exhibit 1, DCB 25
66 Mr Battlay considered that the Chronic Pain Syndrome element in her symptoms may be due to psychosocial factors to do with her busy family life.[60]
[60]Exhibit 1, DCB 26
67 Finally, the plaintiff was going to decide at the end of her current gym program whether she feels better swimming laps or attending the gym.[61]
[61]Exhibit 1, DCB 26
68 Mr Dooley, in his report, took a consistent history and reported:
“Clinical examination today revealed tenderness along the dorsum of the cervical spine and at the base of skull. Overall there is a good range of motion of the cervical spine. There is no evidence of objective neurological deficit affecting the upper limbs.”[62]
[62]Exhibit 2, DCB 61
69 Mr Dooley’s diagnosis was one of –
“… a soft tissue injury to her cervical spine that involved some musculoligamentous damage and may have involved some aggravation of naturally occurring degenerative disc disease. … .”[63]
[63]Exhibit 2, DCB 61
70 Only the physiotherapist, Dr Ford, considers that there is damage to the articular surfaces of the facet joints. The reports of the surgeons seem to point to the presence of a chronic musculoligamentous injury to the cervical spine which is not amenable to diagnosis by x-ray. It seems common ground that the pain emanating from this injury is consistent with the stated cause of the motor vehicle accident.
Consequences
71 In her first affidavit, the plaintiff swore:
“… As my children grew older, it was my intention to reassess the hours that I could perform at work, with a view to increasing them in time.”[64]
[64]Exhibit A, affidavit sworn 14 March 2015, paragraph [6], PCB 9
72 However, the plaintiff tendered in evidence the medical report of the defendant’s psychiatrist, Professor Peter Doherty, dated 9 February 2016.[65] At page 9 of his report, he related:
“I asked the claimant about her capacity for work. She told me it was a lifestyle thing really that she undertakes her current hours. She said that, ‘I could increase hours if I needed to, prefer not to’. She told me that she works one full day and has a flexible five hours which fits in with her activities at home, including home schooling.”[66]
[65]Exhibit P, DCB 46
[66]Exhibit P, DCB 54
73 The plaintiff confirmed that this history was correct in cross-examination.[67]
[67]Transcript 48, Line 17 to Transcript 49, Line 3
74 In her first affidavit, the plaintiff swore:
“Prior to my accident I was an active dancer and enjoyed weekly jazz dancing. Since my accident I have tried other dancing styles, such a lyrical dancing, but unfortunately that particularly (sic) dancing class has been terminated. I am unable to undertake dancing moves which involve moving my head fast, or tilting my head, and I cannot undertake dances which are too fast or high impact.”[68]
[68]Exhibit A, affidavit sworn 14 March 2015, paragraph [21], PCB 15
75 In cross-examination, the plaintiff confirmed that her neck pain stopped her dancing.[69] This assertion is to be contrasted with the history taken by Dr Ford and his assessment on 26 June 2012, wherein he recorded:
“… She had recommenced dancing weekly and continued walking.”[70]
[69]Transcript 53, Lines 23 and 24
[70]Exhibit E, PCB 29
76 Further, the treating general practitioner, Dr Kerbi, in her report dated 12 March 2014, relates:
“… I last saw Catherine with respect to her neck pain in August 2013 when she reported that she was attending Gym and doing dance 3 times weekly. … .”[71]
[71]Exhibit B, PCB 19
77 In any event, it is clear that the plaintiff’s dancing was affected in 2010 by the diagnosis of Morton’s neuroma associated with a Reflex Sympathetic Dystrophy which also affected her dancing at that time. The plaintiff herself was unable to remember exactly when that condition abated and her neck pain influenced her dancing.[72]
[72]Transcript 53, Lines 6 to 22. See also exhibit J and exhibit K.
78 In her second affidavit, the plaintiff states that she sees her general practitioner, Dr Kirby “… for medication every couple of months …”.[73]
[73]Exhibit A, affidavit sworn 14 March 2015, paragraph [8], PCB 18c
79 There is no up-to-date report from Dr Kirby, nor is there any detail as to what medication is prescribed, for what condition, or how often. The plaintiff does state however that she continues to go to the gym three times a week for about 45 minutes on each occasion and she does “some weight, cross training, treadmill and stretches”.[74] In the context of treatment and intermittent pain, the plaintiff does attest:
“I have pain almost every night, which wakes me and results in broken sleep, leading to fatigue.”[75]
[74]Exhibit A, affidavit sworn 14 March 2015, paragraph [8], PCB 18c
[75]Exhibit A, affidavit sworn 14 March 2014, paragraph [2], PCB
80 Once again, there appears to be an absence of detail as to the number of hours lost in sleep and whether it requires consequent medication.
Psychiatric consequences
81 Immediately after the accident, the plaintiff reported:
“… I was in shock. I thought about the fact that my brother’s friend had died in a motor accident years earlier, after it caught fire and exploded, and immediately got out of my car. I saw the male driver of the vehicle which hit me, and his female passenger, runaway from the scene in opposite directions. I remember sitting down at the side of the road and crying, and that I had pain in my right side of my neck and a numb right hand. … .”[76]
[76]Exhibit A, affidavit sworn 14 March 2014, paragraph [7], PCB 9
82 Further on, the plaintiff related:
“… in early 2011 I commenced having thoughts, which kept recurring, about my motor car accident, these thoughts or flashbacks, started about the same time as I received information from police, that the driver of the other vehicle had been jailed for about 2 weeks. During that period I also encountered difficultly with sleeping and became quite depressed and anxious. I even had some suicidal thoughts at that time. In about April 2011 I was referred to Lynette Howell, psychologist, for treatment and I continued to consult with her until about mid-2012.”[77]
[77]Exhibit A, affidavit sworn 14 March 2014, paragraph [11], PCB 11
83 There is no report tendered from Ms Howell.
84 Further, the plaintiff related:
“During 2012 I continued to suffer from depression and in April 2012 I was prescribed Cymbalta by Dr Kerbi as an anti-depressant and anti-anxiety medication. I only took one tablet of that medication as I suffered from arm tingling, dizziness and loss of sleep. During May 2012 I suffered an exacerbation of my neck pain when I was admitted to the West Gippsland Hospital for a suspected kidney problem. … .”[78]
[78]Exhibit A, affidavit sworn 14 March 2014, paragraph [14], PCB 12
85 Further, there is no report from the treating psychologist, Mr Charles Ruddock, from the Spinal Management of Victoria Chronic Pain Clinic.[79]
[79]Exhibit A, affidavit sworn 14 March 2014, paragraph [16], PCB 12
86 Further, flare-ups of neck pain could occur as a result of a number of things, including “… If I feel that someone is tailgating my car, …”.[80]
[80]Exhibit A, affidavit sworn 14 March 2014, paragraph [18], PCB 13
87 Later, the plaintiff relates:
“… For some time following my accident I suffered from nightmares concerning the accident but I no longer have such nightmares. I still have flashback thoughts however, concerning the accident, and these occur on average about a monthly basis. …”.[81]
[81]Exhibit A, affidavit sworn 14 March 2014, paragraph [19], PCB 14
88 Further, the plaintiff relates that being a passenger in a motor vehicle is very stressful. She further states her husband no longer likes driving with her as a passenger and that she finds driving to new places more stressful than she used to:
“… My driving anxieties make it difficult for us to go anywhere as a family or go away on holidays.”[82]
[82]Exhibit A, paragraph [26], PCB 17
89 In her second affidavit, the plaintiff attests:
“… I commonly find myself ruminating about the accident and am reminded of it when I am in pain. I still feel angry and sad about the accident.”[83]
[83]Exhibit A, affidavit sworn 10 March 2015, paragraph [3], PCB 18b
90 Further, the plaintiff swears:
“My psychological state remains much the same. After a full day’s work I find it difficult to concentrate and by the end of it have a sense of being overwhelmed and anxious. I remain very anxious and jumpy, especially in a car. I hate going to Morwell, especially near the accident and I try to avoid that. Sometimes I feel like I am not breathing properly when I am very anxious.”[84]
[84]Exhibit A, affidavit sworn 10 March 2015, paragraph [4], PCB 18b and 18c
91 Further, the plaintiff states:
“I still find driving for periods in excess of an hour to be problematic. That’s difficult as it is part of my job. I continue to be anxious about cars, particularly behind me.”[85]
[85]Exhibit A, affidavit sworn 10 March 2015, paragraph [7], PCB 18c
92 The plaintiff tendered in evidence the report of Dr John Gill, psychiatrist, dated 30 November 2015.[86] On the basis of his information and clinical assessment, he considered the plaintiff had suffered –
“… Post-traumatic Stress Disorder stemming from the accident on 11.08.2010, and she continues to have some residual features of PTSD. She also described having developed significant symptoms of depression subsequent to her injuries and the features which she describes suggest that she probably met the diagnostic criteria for a major depressive episode. However, the depressive symptoms have now abated.”[87]
[86]Exhibit G, PCB 31
[87]Exhibit G, PCB 38
93 In justifying the diagnosis, Dr Gill related, inter alia:
“B.The traumatic events are persistently re-experienced in one (or more) of the following ways:
(1) recurrent and intrusive distressing recollections of the event(s);
(2) recurrent distressing dreams of the event(s);
(3) intense psychological distress and exposure to internal or external cues that symbolize or resemble aspects of the traumatic event(s);
(4) physiological reactivity on exposure to internal or external cues that resemble aspects of the traumatic event(s).”[88]
[88]Exhibit G, PCB 38
94 Further criteria include:
“D.Persistent symptoms of increased arousal as indicated by two (or more) of the following:
(1) difficultly falling or staying asleep;
(2) irritability or outbursts of anger;
(3) difficulty concentrating;
(4) hypervigilance;
(5) exaggerated startle response.
E.Duration of the disturbance is more than 1 month.
F.The disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”[89]
[89]Exhibit G, PCB 39
95 Further, Dr Gill considered:
“It is likely that she will continue to retain the future capacity for her current work from a psychiatric perspective, provided that her work duties do not require her to engage significantly in driving or travelling in motor vehicles or being exposed to stimuli which evoke traumatic memories.”[90]
[90]Exhibit G, PCB 39
96 Further in his report, he relates:
“Apart from the physical impact of … [the plaintiff’s] injury on her social, domestic and recreational activities, I consider that her psychiatric injury has had an adverse impact on her in all these areas, given her significant anxiety, hypervigilance and avoidant behaviour in relation to places and situations which evoke memories of her traumatic injury. Her irritability and anxiety have produced some impairment in the quality of her social and family relationships.”[91]
[91]Exhibit G, PCB 40
97 Interestingly enough, the defendant’s psychiatrist, Professor Peter Doherty, did not think that the psychiatric condition was as severe as that opined by Dr Gill; however, in many respects he has a similar history. For example:
“The claimant told me she had trouble functioning. She told me she was more angry and depressed. She told me it was different and she was angrier and felt depressed.
The claimant told me when she was depressed, she felt the pain and had functional loss and could not do anything.
…
She told me that she attended a psychologist in Warragul, whom she named as Ms Lynette Howell. She told me during 2011 she saw her at least weekly and that was for some twelve months. She told me the frequency of the sessions became less over time.
The claimant told me they talked about the-post traumatic stress, and what happened. She told me she did a lot of writing of stuff. She said she wrote things down to try and better understand what was happening. She told me the sessions were helpful.”[92]
[92]Exhibit P, DCB 50
98 Further in his report, he related:
“The claimant told me in 2013 her mental health improved significantly. She told me she was still very anxious in the car, driving around corners, or if someone was tailgated (sic) her. She told me she felt anxious as a patient and was wary. She told me she would even vomit sometimes when a passenger. She told me that taking a train was easier, but she said that she could drive a vehicle.”[93]
[93]Exhibit P, DCB 51
99 Further, he related:
“With regard to other issues affecting her emotional health, she told me her son has anxiety problems regarding fire. She told me her husband suffers from anxiety/depression. She told me that he has been on medication on and off, and has attended a psychiatrist and psychologist. She told me he has his issues. She told me he works as a case manager at Latrobe Community Health Centre. She told me he has sought psychological help for her son.”[94]
[94]Exhibit P, DCB 51 and 52
100 Later, he related:
“With regard to the quality of her sleep, she told me the early part of her sleep is fine, and she usually wakes up early, usually about 4am or 5am due to problems in her neck. She said she may wake with pain in her neck. She told me she usually has dreams about her neck. … .
…
She told me she wakes up usually at 7am. She told me every day is different and it depends if she stays at home on that day. She said that she home schools the children, and that they get themselves up.
She told me there are chickens to look after, and jobs to do around the house and property. She told me that home schooling has been going on for nine years. She told me it is organised. She told me there is lots of what she called natural learning. She told me the children are out and about. She told me that they have some online activity. She told me that they will try to do some reading of books. She said that it is hard for her, as looking down is difficult. She told me that she takes responsibility for the teaching of the children.
…
She told me she does most of the household chores. She told me what she cannot do are ‘the big things’. She does not do the mopping. She said she does some vacuuming.
With regard to her meals. She said it depends who is at home as to who makes what. She told me that she and her husband both undertake the shopping.
She told me she can drive a motor vehicle. She told me she feels better when she is in control of the car. She told me that if someone is tailgating her, she has to pull over and might shed a tear. She said she is very anxious about it. She told me it still happens. She told me she gets ‘paranoid’ when she turns corners, and does not like driving too much.
She told me when she is a passenger, she is what she called ‘a nervous wreck’. She said she sits in the back seat calling out and screaming and getting very nervous. She said she looks for, and sees, danger.
She told me her interests and hobbies have to do with her children, and spending time on the farm: She told me she has trouble holding her head.
She told me she used to do jazz and contemporary dancing, but that stopped after the transport accident. She told me that she went back to it a few years after the transport accident, but felt it was too difficult for her.”[95]
[95]Exhibit P, DCB 52 and 53
101 In all, Professor Doherty’s diagnosis was:
“… some mild features of traumatisation, some nervousness and some pain symptoms which are not of clinical significance. … .”
102 He considered the current reported symptoms of traumatisation to be very mild in intensity and did not warrant the giving of a diagnosis of Post-Traumatic Stress Disorder.[96]
[96]Exhibit P, DCB 54
Conclusions
103 Senior Counsel for the defendant submits that the principles laid down in Richards v Wylie[97] are relevant in this case as the plaintiff suffers symptoms which are produced by a combination of a physical injury and a consequential psychological injury. He submits the plaintiff has suffered a minor whiplash injury resulting in a psychiatric condition which in turn was responsible for producing Post-Traumatic Stress Disorder Syndrome, or at the very least, similar symptoms. In essence, he submits that the principal cause of the plaintiff’s symptoms is the mental disturbance or disorder and not the physical impairment suffered as a result of the motor vehicle accident and, accordingly, the claim should be considered under paragraph (c).
[97]Supra
104 Senior Counsel for the plaintiff submits that the evidence does not satisfy a claim being brought under paragraph (c) and has abandoned such claim.
105 In his judgment in Richards v Wylie,[98] Winneke P referred to the joint judgment of Crockett and Southwell JJ in Humphries & Anor v Poljak,[99] and stated:
“I do not understand Crockett and Southwell JJ, in stating the principle to which I have referred in the preceding paragraph, to have been suggesting that a mental or behavioural disturbance or disorder can never be taken into account in determining the seriousness of an impairment of body function which, in the exercise of the judge’s task under subpara(a), he has found to exist (my emphasis). If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ (cf Humphries v Poljak, supra at p140). Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred. … Thus, the ‘serious injury’ defined by subpara(a) of subs(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”[100]
[98]Supra
[99]Supra
[100]At paragraph [17]
106 As this case has proceeded on a paragraph (a) basis alone, it is submitted by the defence, and accepted by the plaintiff’s counsel, that the Post-Traumatic Stress Disorder or symptoms are not to be included in the consequences of the physical injury insofar as those symptoms can be the major cause of pain via a stress or hypervigilant mechanism.[101]
[101]See Meadows v Lichmore Pty Ltd [2013] VSCA 201
107 Accordingly, the Court must ascertain whether the consequences referred to in paragraph 4 above are made out to the requisite level by the plaintiff. It follows that “this involves a value judgment, in which matters of fact and degree, and of impression, are operative”.[102]
[102]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
108 Further, it is incumbent to assess where the facts of this particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation.[103]
[103]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [42]
109 The circumstances of this case are such that the physical injury does not, in any significant way, affect the plaintiff’s ability to work and engage in physical activities such as dancing. That is not to say that in the foreseeable future I do not accept that it is likely that she will suffer a continuation of painful symptoms and consequential inhibitions upon her enjoyment of life. However, when weighing up all the evidence referred to above, I consider that those consequences disclose pain and suffering consequences which are both marked and significant but I am not persuaded that those consequences can fairly be described as being “more than significant or marked” or as being “at least very considerable”.
110 Finally, in reaching this conclusion, I take account of “the significance of what has been lost which bears upon the seriousness of consequences, may be informed, to an extent by what is retained”.[104]
[104]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
111 In this case, the plaintiff has retained the ability to perform most of her household chores, maintain her occupation, do her shopping and cooking and home education of her children.
112 Finally, insofar as the plaintiff’s pain is concerned, a burden of the evidence is that recourse to medical treatment is spasmodic at best and medication is limited to low-dose sleeping assistance at night by means of nortriptyline.
113 For the reasons I have given, the claim should be dismissed and I will hear the parties as to any consequential orders.
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