Filbey v Transport Accident Commission
[2013] VCC 1920
•14 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03029
| CAROLYN JOY FILBEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 3, 4, 5 December 2013 | |
DATE OF JUDGMENT: | 14 December 2013 | |
CASE MAY BE CITED AS: | Filbey v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1920 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Leave to bring damages for pain and restrictions in neck and low back – evidence of chronic pain syndrome – whether chronic pain syndrome may be relied on in support of contention that injury serious within the meaning of paragraph (a) of the definition of serious injury – Transport Accident Act 1986, s93(17) – definition of “serious injury” – chronic pain syndrome indicative of non-organic causes of pain and restriction – application dismissed.
Legislation Cited: Transport Accident Act 1986
Cases Cited: Richards v Wylie (2000) 1 VR 79; Phelan v Transport Accident Commission [2013] VSCA 306; Humphries v Poljak [1992] 2 VR 129; Transport Accident Commission v Zepic [2013] VSCA 232; Haden Engineering Pty Ltd v McKinnon [2010] 69; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Bezzina v Phi [2012] VSCA 161
Judgment: Leave to bring a claim for damages is refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr N Bird | Stringer Clark |
| For the Defendant | Mr P Jens | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Background
1 Ms Filbey moved to Jeparit in 1999. She was born in 1949 and previously lived in Goornong. In 1999 she and Mr Sheffield both left Goornong following the acrimonious break-up of previous relationships. They set up house in Jeparit where they have lived since.
2 On 20 February 2005 Mr Sheffield was driving a car with Ms Filbey as a passenger on the Lake Fyans–Pines Road, Halls Gap. Their vehicle was confronted by another on the wrong side of the road which collided with them. Their car then crashed into a gum tree. Ms Filbey was initially trapped in the car. She saw smoke coming from the engine, and eventually managed to escape. She said, “It was a very frightening and traumatic experience.”
3 She was taken to Stawell Hospital where she remained overnight. She says she suffered injuries to her neck, back, shoulders, abdomen and breast. She was discharged to the care of her general practitioner, Dr Mulroy. She also underwent physiotherapy treatment by Mr Shaun Casey which was funded by the Transport Accident Commission which had accepted liability to pay medical and like expenses arising out of the transport accident under the terms of the Transport Accident Act.
4 Later she was referred to the Metro Spinal Clinic under the care of Dr Brian Lovell. In the course of 2007–8 she was treated with medial branch blocks for her neck injury. This involved placing needles in her neck with a view to relieving neck pain and headaches. She said at this time she was suffering daily headaches “which were quite debilitating”. She said she also suffered chronic low-back pain and “ongoing bilateral shoulder pain”.
5 In this proceeding Ms Filbey seeks leave pursuant to s93 of the Transport Accident Act 1986 to bring a claim for damages relative to her injuries in what it is accepted was a transport accident within the meaning of that statute.
6 Since he set up home with Ms Filbey in Jeparit, Mr Sheffield has been in receipt of a Commonwealth Disability Support pension. He told me it was granted originally because he suffered from chronic obstructive pulmonary disorder. In 2009 he was diagnosed with bone cancer, which he says is “terminal”. From 1999 until 2005 Ms Filbey was in receipt of the “Newstart” benefit from the Commonwealth. This is an unemployment benefit. Ms Filbey concedes, however, that to enable her to care for Mr Sheffield she refrained from any serious attempt to seek employment between 1995 and the occurrence of the transport accident.
Plaintiff’s reported pain and restrictions
7 Ms Filbey says that the pain and restrictions which she suffered as a result of the 2005 accident have never resolved. She said that her back pain “continued unabated” and was “the worst of the injuries”. She continued “I am suffering from constant low back [pain], severe at times, especially with activities such as vacuuming, gardening or any prolonged sitting.” She said she also suffered from pins and needles in her shin, and had a loss of feeling in the left side of her left foot. She also suffers pain to the right buttock, thigh and groin.
8 She also says that her neck is stiff, and she cannot “reach above shoulder height or even up to shoulder height without getting increased neck pain”.
9 She says her low-back pain is worsened by activity and her sleep was very poor, leading her to “toss and turn because of back pain”.
10 She said her driving is restricted to “perhaps 30 minutes, certainly only locally”. She said she could not drive an extended distance without getting increased pain. She had previously worked as a gardener for the well-known entertainment personality John Farnham, but now her gardening activities were quite restricted, and she could not do any heavier activities as she had in the past. Another of her hobbies was embroidery, but she said “I’ve had to give up embroidery because the sitting involved in that and the use of my neck is too much.” She said her neck was painful all the time, but was not as bad as her back pain.
11 She used to make cards, but “can’t do much [of that] anymore”. She encounters pain doing the washing and hanging out the washing because of the restrictions in her neck. Vacuuming and bed-making in the house led to increased back and neck pain if she was “not very careful”, and so she avoided these activities if she possibly could. She said she used previously to enjoy cycling as a recreation. She cycled with a friend called Ms Obst. Now, she said, her bicycle is abandoned and gathering dust.
12 At present she requires the use of ongoing Norspan patches for pain relief, which she uses on a weekly basis, and also takes Panadol Osteo, Endep and Nexium daily for neck injury. She takes Lipitor and Perindopril for blood pressure, and is undertaking further physiotherapy at Horsham Hospital.
13 Ms Filbey tries to walk, which is her main exercise, as “the doctors say it is good for me and I try and keep at it”. She said she gets back pain if she hurries and fails to take a rest.
Legal considerations
14 The accident in which Ms Filbey sustained her injuries was a transport accident within the meaning of the Transport Accident Act 1986. Therefore, her ability to recover damages with respect to her injuries in that accident is governed by s93 of the Transport Accident Act.
15 Sub‑s(1) precludes a person recovering damages:
“... in any proceedings in respect of the injury ... of a person as a result of a transport accident ... except in accordance with [the provisions of the] section.”
16 In broad terms, a damages action cannot be brought unless the injury sustained is a “serious injury” (sub‑s(3)). Sub‑s(3) deems an injury to be serious if, in accordance with the regime for assessment of permanent impairment, the permanent impairment resulting from the accident is 30 per cent or more (sub‑s(3)). An aspiring plaintiff may also establish that he or she has suffered a serious injury by what is described as “the narrative test”. “Serious injury” is defined in sub‑s(17) as follows:
“(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
17 The effect of the definition is that the seriousness of the injury is to be judged, not at large, but by reference to four distinct and separately defined categories. In the present case the categories described in paragraphs (b) and (d) may be put aside.
18 The categories of serious injury defined by paragraphs (a) and (c) remain relevant.
19 Analytical issues arise when the injury manifests itself in perceived physical pain or restrictions where the cause of the long-term persistence of the physical pain and restrictions is said to be a psychological or psychiatric reaction to an initial physical injury or to the psychological trauma of the accident itself. In Richards v Wylie (2000) 1 VR 79, 86–7 [16], Winneke P, as presiding judge and giving the principal judgment for a court consisting of himself, Buchanan and Chernov JJA, said:
“... The inquiry which the judge must make under sub-paragraph (a) focuses his attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is ‘serious’ and ‘long term’ ...
If, for example, a person loses the use of his or her limbs as a consequence of injury to the spinal column and cord, that loss is a consequence of the long-term impairment of the function of the spinal process. If, on the other hand, a loss of use of the limbs occurs as an hysterical response to minor trauma, it is the ‘mental or ... behavioural disturbance or disorder’ which is producing the impairment of body function and it is, accordingly, the severity of the mental disorder itself which must fall to be considered under sub-paragraph (c). Between the two extremes to which I have referred [there] will, no doubt, be a range of differing circumstances; but if the body of evidence before the judge demonstrates that the consequences of a mental disturbance or disorder are themselves producing the impairment of body function complained of, it would be ... ‘anomalous’ to regard those consequences as falling to be considered under sub-paragraph (a) of the definition when clearly it is the severity of the disorder or disturbance itself which falls to be judged under sub-paragraph (c).”
20 In a short concurring judgment, Chernov JA said:
“It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition [that is either paragraph (a) or paragraph (c)] could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered.”
21 The Court of Appeal has recently confirmed the appropriateness of the analysis described by their Honours in Richards v Wylie in the determination of serious injury applications under s93: Phelan v Transport Accident Commission [2013] VSCA 306.
22 The provisions of s93 dealing with claims for damages arising out of transport accidents are less elaborate and codifying and in some respects different from the principles now embodied in s134AB of the Accident Compensation Act 1985 governing similar issues relative to injuries sustained at work. The elaboration of the operation of the definitions in s93 therefore still relies on long-established case law going back to the decision of the Full Court of the Supreme Court in Humphries v Poljak [1992] 2 VR 129, 140, where in a joint judgment Crockett and Southwell JJ said:
“... We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go.”
23 In Ms Filbey’s case, reliance is placed solely upon satisfaction of the requirements of paragraph (a) of the definition.
Expert opinion
24 Ms Filbey was observed overnight at the Stawell Hospital and then discharged to the care of her local general practitioner. At this stage she was under the care of Dr Mulroy, who conducted practice at Jeparit and Rainbow. The referral from the hospital mentioned tenderness to the abdomen, to the left side of the neck and the right breast due to the operation of the seat-belt. The records at the hospital do not disclose any complaint of pain in the low back.
25 Later in 2005, Dr Mulroy ceased practice in the area and returned to his native Ireland. He was replaced briefly by a succession of locum practitioners, but then the service in Jeparit ceased entirely. Dr Mulroy’s manuscript notes have been made available in photocopied form. They are brief and difficult to interpret. No report from Dr Mulroy is available.
26 There was then a gap of some months during which it appears Ms Filbey did not attend any regular general practitioner consultations. She then became a patient of a Dr Zhou who conducted a practice at a clinic known as Lister House. She had her first consultation with Dr Zhou on 27 October 2005. Dr Zhou was eventually replaced as the practitioner whom Ms Filbey generally consulted by Dr Kate Graham. A number of documents from Dr Graham were put into evidence. On 9 April 2009 she referred Ms Filbey to Dr John Patrikios of Horsham for opinion and management relative to “ongoing wrist pain with a diagnosis of De Quervain’s tenosynovitis”. Following cortisone injections which gave only limited relief, the referral also observed:
“She also has a chronic pain syndrome following a soft-tissue back injury in a car accident and is awaiting pain clinic review but I would greatly appreciate your opinion as to any other treatment required for the wrist that is likely to be of benefit.”
27 Dr Patrikios eventually conducted surgery to relieve the pain in the left wrist. Dr Graham furnished a report, presumably for medico-legal purposes, on 11 August 2009, describing the following injuries:
“In relation to the accident involving Ms Filbey which occurred on February 20 2005, I have no direct history or results available to me from the date of the accident. Ms Filbey has complained of lower back, pelvis and neck pain since the time of the accident. Initially she stated that she had not had any imaging done since the accident, however a CT scan of the lumbosacral spine performed on October 27, 2006 had revealed a small L5‑S1 disc herniation. I do not have any earlier reports or investigations to suggest other injury or the timeframe of the disc herniation and am unable to comment as to whether this is likely to relate to the initial accident. Plain film x‑rays of the thoracic and cervical spine performed on May 21, 2007 do not show any abnormalities apart from mild degenerative changes and 15% wedging of T12 vertebra. It was commented on the report that the appearances on the thoracic films had not changed since previous films taken on February 20, 2005, however I do not have access to the original report. I defer my opinion on the nature of the injuries sustained and the timing and correlation of the X‑ray changes to the original treating doctors at the time of the injury and to Dr Bruce Mitchell and Dr Brian Lovell of Metro Spinal Clinic, Caulfield South, Melbourne.”
28 She noted that the treatment since the accident included analgesia in the form of Panadeine Forte and Norspan patches, anti-depressants in the form of amitriptyline, C4‑5‑6 medial branch nerve block and trigger-point injections by Metro Spinal Clinic. The prognosis in Dr Graham’s opinion was that Ms Filbey had had an incomplete response to her treatment. She continued:
“Due to a specialist report suggesting the presence of a chronic idiopathic pain-syndrome as the underlying cause for her symptoms, it is difficult to attribute her current symptoms directly to the accident, however I would again defer a definitive opinion on this to the specialists listed above.”
29 Dr Graham said, relative to Ms Filbey’s back and neck conditions, she was:
“... able to manage her symptoms relatively well, and employment of a non-manual nature may be considered in the future.”
30 It appears that in the first eighteen months or so following the accident Ms Filbey received physiotherapy treatment from Mr Shaun Casey of Horsham. Regrettably, no report from Mr Casey was available. The plaintiff put into evidence two documents produced by the Transport Accident Commission in the form of a questionnaire as to the extent of pain and disability relative to her right shoulder. All classes of pain relative to this are disclosed, presumably on the basis of an assessment made by Ms Filbey herself, as at 20 February 2006, as either at the level of 9 or 10, where 10 is “the worst pain imaginable”. There was also a similar questionnaire relative to “the upper extremity” which enquires after pain and restrictions inter alia relative to pain in the neck. There is no document relative to the low back.
31 There was also a report from a Ms Anita Auchettl, a physiotherapist carrying on practice in Ballarat. This letter reported to Dr Graham that Ms Filbey had been assessed as appropriate for treatment as part of a Persistent Pain Management group. It stated that to alleviate the burden of travel, the Transport Accident Commission would fund overnight accommodation for motivation groups run over four consecutive Tuesdays and the persistent pain management group run over seven consecutive Tuesdays. According to the letter, action on these matters was deferred because Ms Filbey told Ms Auchettl that she was “going to Alice Springs where her daughter was waiting for her baby to arrive”. According to Ms Auchettl, on Ms Filbey’s return from Alice Springs she would consider whether to take up the possibility of membership of the Persistent Pain Management group. In cross-examination Ms Filbey denied that any offer or indication that overnight accommodation would be met by the Transport Accident Commission had been made. She said that she did not pursue membership of the persistent pain management group because of the burden of travel.
32 Dr Wimbury is now Ms Filbey’s treating general practitioner. A number of pages from his computerised record-keeping system were put into evidence. These pages tended to be somewhat repetitive, and to bundle up a large number of issues, describing all as “current problems”. There was, however, a report from the doctor dated 29 July 2013 addressed to Ms Filbey’s solicitors which included some narrative. The doctor recorded the history of the transport accident, and opined:
“She suffers PTSD in my opinion and has ongoing pain across lower back, across stomach, complains of bilateral shoulder pain and is chronically aware of pain in both shoulders especially when lifting washing, she ascribes this pain to her accident.
She was initiated to opiate medications by Dr Kate Graham, prior practitioner (Norspan 5).
1. Diagnosis of injuries: soft tissue contusions relating to safety belt affecting left and right shoulders, with abdomen, with possibility of stretching of neck and vertebrae. She received Spinal Nerve Root Blocks at the Metro Spinal Clinic from June 2007.
2. She has restricted spinal flexion only able to get fingertips within 35cm of toes.
She has reduced shoulder abduction.
I am with my current knowledge unable to say whether her restrictions are due to accident injuries or due to general stiffness due to lack of exercise.”
33 Ms Filbey is now once again receiving Transport Accident Commission finance for physiotherapy. A report dated 18 October 2013 addressed “To Whom it May Concern” from physiotherapist, Ms Charlotte King, stated inter alia:
“Her main complaints [on initial presentation 12 August 2013] were neck pain and tightness, leading to frequent headaches. Nonetheless Carolyn also reported lower back pain and pain referring down the front of the left leg. With soft tissue massage, kinesio taping and prescription of stretches and neck range of motion exercises, Carolyn now reports her neck pain is tolerable and that her lower back pain is more of a concern.”
34 Dr Brian Lovell of Metro Spinal Clinic which, according to its letterhead, provides, “Spinal interventional pain management”, provided a letter dated 12 October 2009 to Ms Filbey’s solicitors, reporting on the treatment which the clinic had given to her. After recording a variety of symptoms noted at a post-treatment review in February 2008, the doctor commented:
“At this stage a form of idiopathic chronic pain syndrome commonly referred to as a form of fibromyalgia – was being considered, as a complication of her original injury generated pain.”
35 After describing the treatment furnished by the clinic, he continued:
“After a while the overall pattern of a form of chronic pain syndrome seemed to emerge, somewhat similar to a fibromyalgia effect. Undoubtedly this was related to the persisting ongoing effect of her pain and the physiological changes that can occur in this situation. …There is no doubt that she had no problems before the accident and the car accident and trauma involved was the main precipitating factor of the ongoing pain problem she has experienced since that time.”
36 Ms Filbey was sent by her solicitors for assessment and report by orthopaedic surgeon, Mr John F O’Brien on 25 November 2009. He reported the results of the consultation in a letter to the solicitors dated 16 December 2009. Mr O’Brien referred to a CT scan of the lumbar spine as at 27 October 2006, “demonstrating some very mild disc bulging at the L5/S1 disc”. He also referred to an x-ray of the cervicothoracic spine on 21 May 2007 which demonstrated, “some mild degenerative change in the thoracic area”. He recorded that Ms Filbey had told him that since the accident, “she has experienced constant neck and low back pain, which has not responded to extensive conservative treatment”. He referred to a left De Quervain’s Disease. He said that physical examination demonstrated, “subjective signs involving restriction of movement both in the cervical and lumbar spine, there being no current evidence of any nerve root compromise”. He said it would appear therefore that Ms Filbey, “has a symptomatic cervical and lumbar spondylosis resulting in chronic pain”. He said the suggestion of “some accompanying psychosocial factors, which I would consider does complicate the clinical presentation in defining the presence of true chronic pain syndrome”. He said Ms Filbey’s condition was stable and that she had a poor prognosis. He summarised his conclusions by stating, “This patient does present with a moderate disability associated with chronic pain syndrome”. He said this restricted her general, domestic, social and recreational activities and would continue to do so and would preclude her, “from undertaking any form of gainful employment”.
37 Ms Filbey also saw surgeon, Mr Kenneth Brearley for medico-legal assessment at the request of her solicitors on 22 January 2010. Mr Brearley said that he viewed, “a series of images”. Radiological reports were not available to him. He recorded taking a history that Ms Filbey, “had no symptoms at all with regard to the neck and back prior to the motor vehicle accident and it is presumed that there is a causal relationship [between the accident and the neck and back pain].” Mr Brearley diagnosed, “soft tissue injury of the cervical spine with presumed damage to the interspinous ligamentous structures including the discs.” He said there had been an incomplete resolution of that damage, “with resultant ongoing discomfort and pain”. He also diagnosed a low back injury comprising injury to the lumbosacral disc where a CT had shown “some intradisc damage and bulging or protrusion of the L5/S1 disc”. Mr Brearley judged that Ms Filbey had a poor prognosis.
38 Mr Brearley conducted a follow-up assessment on 22 May 2013. He recorded that as at this assessment, “her major problem is her low back”. Once again, he found injuries to both the neck and the low back. He said, “her symptoms and her disability and impairment remain much the same as when I saw her last”.
39 Solicitors also sent Ms Filbey for assessment by orthopaedic surgeon, Mr Thomas Kossmann, who provided a report on the assessment dated 30 April 2013. Mr Kossmann interpreted the CT scan of the lumbar spine of 2006 as showing that Ms Filbey was:
“Suffering from a mild annular disc bulge at the L4/5 level and a small focal herniation of the disc in the midline and right paramedian position indenting the anterior thecal sac with possible compromise of the descending S1 nerve at the L5/S1 level.”
40 He also noted that an x-ray of the lumbar spine on 30 December 2011 detected a, “pars interarticularis defect at the L5/S1 level on the left side”. He said that an x-ray of the cervical spine in May 2012, “showed some mild osteoarthritic change present at the C6/7 level with no evidence of neural foraminal narrowing”. He said that following treatment by Dr Patrikos and some steroid injections, her De Quervain’s arm and wrist had resolved. He diagnosed discogenic pain of the cervical spine on the basis of aggravation of pre-existing spondylosis at the C6/7 level, discogenic back pain on the basis of a small focal herniation at the L5/S1 level and a healed De Quervain’s right thumb. As to the prognosis, he believed that Ms Filbey would “continue to suffer from pain” and would require treatment in the form of pain medication, anti-inflammatories, physiotherapy, hydrotherapy and acupuncture. He said he did not believe she would ever be a candidate for any operative treatment because there was a very small risk that she would suffer a catastrophic disc prolapse.
41 At the request of the Transport Accident Commission, Ms Filbey attended an assessment by Mr Paul Kierce, orthopaedic medico-legal consultant. Mr Kierce concluded that Ms Filbey sustained an injury of the disc between the 6th and 7th cervical vertebrae in the accident which, “has led to continuing neck pain with limitation of movement but no evidence of radiculopathy in the nerves to the upper limbs”. He said she also aggravated the pre-existing lumbar spondylosis and will always be partially incapacitated for work. Again, he found no evidence of radiculopathy.
42 He found extensive restriction in range of motion but:
“Straight leg raising was free and there were no neurological signs in her lower limbs with equal motor power and sensation and equal and reactive quadriceps, ankle and plantar reflexes”.
43 He also noted a scar on her wrist, “consistent with surgical release of De Quervain’s tenosynovitis”. As to prognosis, he said there was likely to be “continuing progressive degenerative arthritis in the joint between the 6th and 7th cervical vertebrae with hastening degenerative changes in the lumbar spine”. Mr Kierce entertained the possibility that it may be necessary to carry out a discectomy or decompressive surgery to the lumbar spine. Mr Kierce conducted a further assessment of Ms Filbey for the Commission on 29 October 2013. He reported in a letter of the same date. He said:
“She still has objective evidence of ongoing problems with her neck and back as a result of the involvement in the motor vehicle accident, but the physical findings are influenced by her having developed a chronic pain syndrome now without enough evidence to suggest that she needs to be on such strong painkillers as narcotic opioids.”
44 Later he said there was:
“An element of abnormal pain behaviour here as well and she is suffering from a chronic pain syndrome. Her range of movement in her neck and back and more limited than one would expect.”
45 Mr Kierce referred to an MRI examination of the lumbar spine of 9 May 2013 which he said showed a generalised lumbar spondylosis with protrusion particularly at the L4-5 disc with protrusions at L5-S1 and L3-4. He noted narrowing bilaterally of the lumbosacral foraminae more marked on the left than on the right. He said the disc protrusion at L5-S1 was “central”. He said that Ms Filbey was likely to suffer ongoing recurrent neck and low back pain for the rest of her life.
Contentions on behalf of the plaintiff
46 Mr Fehring on behalf of the plaintiff said that his client placed reliance solely on paragraph (a) of the definition of serious injury. Without necessarily denying the existence of some “functional” elements in his client’s presentation, he stressed that all examiners found that there were organic factors driving the pain and restrictions which she reported. He submitted that the spine should be treated as a single “bodily function” for the purposes of the application of the definition. He referred to the judgment of the Court of Appeal in Transport Accident Commission v Zepic [2013] VSCA 232 [118]-[139] per Maxwell P.
47 Mr Fehring invited me to analyse the pain and suffering consequences of his client’s injury by reference to the various headings postulated by Maxwell P in his Judgment in Haden Engineering Pty Ltd v McKinnon [2010] 69. A proper view of those factors, based on the evidence in this case, would, he submitted, lead to the conclusion that the injury was serious.
48 He submitted that the proper analysis as to the interaction between organic causes and functional causes was as stated by the Court of Appeal in Richards v Wylie. He noted the re-endorsement of that approach by the Court of Appeal in Phelan’s case. He submitted that the approach adopted by Maxwell P in Haden Engineering had recently been re-endorsed by the two judge Court of Appeal Osborne and Beach JJA in Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326. He submitted insofar as the defendant was placing reliance on the Judgment of Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46, such reliance was inappropriate as that judgment dealt with s134AB(38)(h) of the Accident Compensation Act, a provision with no counterpart in s93 of the Transport Accident Act and, therefore, this judgment could not and should not be applied in the present proceeding.
49 Mr Fehring submitted that the seriousness of the plaintiff’s injury was testified to by the medication which she was prescribed and took, including the opioid patch, Norspan; Panadol Osteo, an over-the-counter analgesic; and Tramadol, a drug which was not presently prescribed. The strength of these medications was supportive of the reality and intensity of the plaintiff’s pain.
50 Mr Fehring drew attention to the reference in Mr Lovell’s opinion quoted above at [35] to “physiological changes”. Mr Fehring noted that Mr Kierce, the defendant’s expert, had acknowledged the existence of a physical injury and causal connection with the transport accident. Likewise, he said, Mr Kossmann.
Contentions on behalf of the defendant
51 Mr Jens took me on an exhaustive survey of the material, including medical records which pre-dated the transport accident. This survey in final address was along the same lines as the very lengthy cross-examination to which he subjected the plaintiff. At the outset of the hearing he referred me to the decision of the Court of Appeal in Bezzina v Phi [2012] VSCA 161 [23]. He said the Court of Appeal had there approved an analysis by the trial judge which discounted the seriousness of the relevant injury based upon the extent of the pre-existing disabilities and restrictions suffered by the plaintiff independently of the injuries caused in the relevant accident. He noted a referral for assessment and treatment of the right knee to orthopaedic surgeon, Mr Richard G Arnette, in Adelaide in 2002, where the plaintiff had complained of medial sided knee pain radiating down her leg and also into her thigh. He noted a record in the notes of Dr Mulroy as at 19 April 2004 of “chronic back pain”. He submitted that an analysis of the pre-accident records of Dr Mulroy could demonstrate that Ms Filbey attended his practice for a variety of ailments on a monthly basis.
52 Mr Jens obtained an admission on behalf of the plaintiff that the records of Ms Filbey’s treatment in the wake of the accident contained no complaint of low back pain.
53 He cross-examined Ms Filbey on the basis that when Dr Mulroy ceased practice and no further locums attended at the Jeparit surgery, she received no treatment from any general practitioner for a period of seven months. Once she began as a patient of Dr Zhou in Warracknabeal in October 2006, it was a further year, namely, October 2007, before the doctor took the first complaint of spinal problems. This record, on 23 October 2006, described acute back pain with limping which “began 22/10/2006 after gardening”.
54 Mr Jens drew attention to the diagnosis of chronic pain syndrome made by so many examiners. This indicated symptoms which were not organically driven. It precluded reliance upon those symptoms for the purposes of paragraph (a) of the definition of serious injury in accordance with the principles laid down by the Court of Appeal in Richards v Wylie, he submitted.
Conclusions
55 Putting to one side altogether any of the issues as to the interaction between paragraphs (a) and (c) of the statutory definition of serious injury, as explained in Richards v Wylie, it seems to me there are grounds for doubting whether in the circumstances the consequences of Ms Filbey’s injury are to be regarded as “more than marked”, “very considerable” as the concept of seriousness in paragraph (a) of the definition has been interpreted by the majority of the Full Court in Humphries v Poljak.
56 Ultimately, nothing should be made of the lack of reference in hospital notes to low back injury. They are for a person secured in his or her seat by a seatbelt. The neck seems far more obviously vulnerable to injury in a motor impact than does the low back. Within a few days of the accident, Mr Mulroy recorded complaints of back pain. What is more problematic is the lengthy period without any medical complaints of pain to the neck or the back following Dr Mulroy’s departure and the plaintiff becoming a patient of Dr Zhou in Warracknabeal. Mr Sheffield, the plaintiff’s partner, gave me the distances from Jeparit of the major and minor population centres in the immediate area, which include both Warracknabeal and Horsham. There was no suggestion, for instance, that with Dr Mulroy having closed his Jeparit surgery, it was not possible for Ms Filbey to attend a general practice clinic without inordinate difficulty or travel.
57 The inference which one might be tempted to draw is that in light of the fact that Dr Mulroy’s notes record spinal issues before the accident, there was perhaps a significant worsening of the underlying condition of the plaintiff’s spine immediately after the accident as a result of soft tissue injury, with those symptoms settling over a period of months. A re-emergence of spinal issues on 22 October 2006, 20 months after the accident, might be reflective of a new injury sustained while gardening on 22 October 2006, as is suggested by Dr Zhou’s contemporary note.
58 For completeness, it should be recorded that the note continues after the passage quoted and relied on by Mr Jens to say, “PHX [that is past history] of car accident, urine incontinent since”. I pause to note that whilst urinary incontinence can be a consequence of low back pain with a condition such as Cauda Equina Syndrome, there is no suggestion of anything of the sort here, and the evidence of Ms Filbey was that the incontinence was resolved by her undertaking exercises to strengthen her pelvic floor. The urinary incontinence proved to be unconnected with any spinal issues.
59 Just before the close of the hearing on the first day, at the end of a cross-examination which had occupied nearly the whole of the day, I asked the plaintiff how she was feeling. She said, “not too bad” (T111, L28-29). I asked her whether it was a good day, a bad day or an average day and she replied, “I just go with the flow” (T112, L4-5). I asked her how her neck was and she said that she had a headache. Mr Jens said that the plaintiff had, “just demonstrated a movement”, though I was looking down making a note. I then asked he about her low back and she said, “yeah, I can feel it’s kind of hurting” (T112, L15-16). I had observed her throughout the day. She sat in the witness box without apparent discomfort, appearing to demonstrate no marked limitations of movement.
60 Mr Fehring submitted it would be dangerous for me to attach weight to the answers of the observations because his client was being treated with high strength opioids in the form of the Norspan patch and perhaps other pain relief such as Panadol Osteo. Of course, as Mr Fehring conceded, as the plaintiff gave evidence in the form of affidavits and viva voce of her pain and restrictions, that evidence is of the life that she was able to lead with the assistance of the pain relievers, not the life that she might lead without the benefit of them. If her performance in the witness box seems to be inconsistent with the evidence which she has given as to her pain and restrictions, it is a matter of some significance, the significance of which is by no means removed by the thought that the plaintiff was operating with the benefit of pain relief as she sat in the witness box.
61 Again, upon analysis, a number of the disadvantages and restrictions which were complained of in the affidavit proved to be much less significant or perhaps not significant at all.
62 In cross-examination, Ms Filbey conceded that, “she never rode the bike in 05” (T89, L15-16). She used to ride with a friend. In December 2003, according to Mr Mulroy’s medical records, Ms Filbey suffered a fall. When she recovered in 2004 she did not take up cycling again. She took up walking. (T117, L2-5). There was no suggestion that Ms Filbey is restricted in her walking. Mr Jens observed that she told Mr Brearley she walked 40 minutes a day. She has been encouraged to undertake walking as exercise to counteract her spinal problem. She complained of restrictions in her ability to drive but the evidence of Mr Sheffield, her partner, was that he took the wheel, not because of any inability or reluctance on the part of the plaintiff to drive, but merely because he saw it as his appropriate role as the male in the family.
63 Ms Filbey complained that she cannot now carry out embroidery as she once used to. Mr Sheffield, her partner, however, describes her continuing with her embroidery work whenever something is required, for instance, to mark the birth of a grandchild. He says she had additional difficulty in doing this embroidery after the accident. Nevertheless, one might think that the extreme complaints of pain in the right shoulder and the surgical treatment for tenosynovitis in the left arm and the conservative treatment which she underwent for the same disorder in the left arm, would be more obvious explanations for the restrictions which she suffered in her embroidery.
64 I need not pursue these concerns as to the plaintiff’s case any further because there is a much clearer reason why her application for leave must fail.
65 As the analysis of Chernov JA (as he then was) in Richards v Wylie indicates, it is necessary to ascertain whether the pain and restrictions which have been considered as consequences of an allegedly serious injury have a dominant organic or non-organic cause. In my view, upon the evidence, whilst clearly there was a soft tissue injury, the dominant cause of the long-term pain and restrictions reported by the plaintiff here is non-organic. In those circumstances, these pains and restrictions cannot be relied upon in support of an application for leave to bring a damages claim which relies on paragraph (a) – and paragraph (a) alone – of the relevant definition.
66 It is true that Dr Lovell makes a fairly oracular reference to “physiological changes” entailed in the plaintiff’s pain and restrictions. I can speculate that what the doctor is referring to is a postulated alteration in the operation of the nerves which perceive pain in patients who develop functional injury. If this interpretation is accepted, then pain and restrictions which proceed from a cause which is predominantly a chronic pain syndrome could be regarded as having an organic rather than non-organic cause.
67 In a proceeding such as this, the burden lies on the plaintiff to demonstrate that she has what the law regards as a “serious injury”. Some clear and fully explained opinion as to how a chronic pain syndrome either causes physiological changes or derives from physiological changes is called for. The brief mention by Dr Lovell of physiological changes is, at an evidentiary level, simply insufficient to rebut what is the usual and orthodox interpretation of chronic pain syndrome. Such syndromes are regarded as having non-organic causes. See the judgment of Maxwell P in Stamboulakis’ case [2007] VSCA 46 [9].
68 It is true, as Mr Fehring observed, that the court was there dealing with an application under s134AB of the Accident Compensation Act. The relevance of Stamboulakis’ case is, however, not the operation of that statute nor the Transport Accident Act, but for the common understanding of the expression “chronic pain syndrome”. As far as I can see, it is only Mr Brearley who attributes the plaintiff’s reported pain and restrictions solely to organic causes. His reports are notable for a lack of analysis and explanation on this subject and as to why, unlike other examiners, he does not diagnose a chronic pain syndrome.
69 Among the matters which incline me to the view that non-organic causes are predominant here is the absence of any radiological evidence which would explain such serious pain and restrictions as are complained of here. It was not suggested that the various x-rays and scans of the neck are other than unremarkable, indicative of degenerative and arthritic change which one might think would be typical of a lady in her fifties or sixties, as this plaintiff was at the time that these various investigations were carried out. This radiology is therefore unremarkable. The various scans of the low back show only minor matters.
70 Mr Kossmann refers to a finding of pars interarticularis. He is the only expert who makes reference to this. It appears to have emerged for the first time upon scan or x-ray as late as 2011. Mr Kossmann offers no explanation and attaches no significance to the finding. Since it emerged so late, it cannot be regarded as accident-related, whatever its significance more generally might be. I put it to one side.
71 The herniation or minor bulges variously referred to by the experts would not account for the extreme pain and restrictions complained of here.
72 Again, the uncertain and varying nature of the pain and restrictions complained of would suggest a non-organic cause. There seems to have been little complaint for a period of perhaps one year from 2006 to 2007. Then things seemed to get worse.
73 The first sustained therapy provided in the aftermath of the accident after discharge from hospital was apparently physiotherapy. The physiotherapy records from Mr Casey, limited as they are, seem to say nothing about the low back at all, though they do make reference to a shoulder and the neck. The reports of pain from the shoulder are at the most extreme level. Mr Casey apparently suggested surgery for the shoulder, which was not proceeded with.
74 As I understand the theory underlying functional injury (given that no medical practitioner gave evidence before me I have not had the opportunity to seek their guidance on this point), an initial organic injury has it symptoms magnified and prolonged beyond any continuing organic cause as a result of psychosocial factors. Therefore, to say, as examiners do, that the plaintiff has suffered a soft tissue injury, is not to say that the organic injury now drives the symptoms which are persistent.
75 Leave to bring the damages claim must be refused.
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