Gaillard v Transport Accident Commission
[2020] VCC 402
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Unrestricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03806
| SAMANTHA KELLY PASCAL GAILLARD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OFPLEA HEARING: | 2 and 3 April 2020 | |
DATE OF JUDGMENT: | 8 April 2020 | |
CASE MAY BE CITED AS: | Gaillard v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 402 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to cervical spine giving rise to pain, restriction of movement and headaches – injury to other body functions including left knee and lower back, and mental disorder in the nature of depression and anxiety – unrelated trigeminal neuralgia – disentangling consequences of other injuries and conditions from subject neck injury – plaintiff resumed employment on a full-time basis – whether consequences of neck injury at the present time meet the statutory test
Judgment: Leave granted to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms R Dal Pra | Shine Lawyers |
| For the Defendant | Mr P B Jens QC with Ms S Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 9 March 2011, Ms Gaillard was a passenger in a vehicle which was involved in a transport accident. According to her affidavits, she suffered injury to various areas of her body, including her neck, left knee, hips and lower back. She also claims to have suffered a psychological reaction with symptoms of anxiety and depression. Later, she developed a condition, trigeminal neuralgia, affecting the nerves along the sides of her face. She had surgery for this condition in 2014, which she says largely alleviated the symptoms.
2 She claims to have suffered ongoing pain in the neck, for which she has received a range of treatment. She further claims to have developed headaches, including migrainous headaches, which are related to her neck injury.
3 At the time of the accident, she had a cleaning business. She returned to that work a short time after the accident, but was forced to stop in 2013. This, she accepted, was in large part related to the trigeminal neuralgia. She undertook a TAFE course and started her own ironing business involving some of her earlier clients. That was in 2016.
4 In January 2019, she sought and obtained employment working for Aussie Disposals Stores. Within two months she became the manager of the Fountain Gate store. She remains working full time to the present, working forty-four hours per week. It is a job she enjoys and takes pride in.
5 She claims ongoing pain in the neck region and regular, and often debilitating, headaches, including migrainous headaches. She claims these significantly affect her recreational and domestic activities as well as her social life. She says her work is affected. She has an understanding employer, and she can gain assistance in the store when she needs to.
6 Before the commencement of the hearing, the application sought “serious injury certificates” in respect of the neck, Post-Traumatic Headache Syndrome, back, left knee and a psychological disorder, including anxiety and depression; however, in opening, Mr Macnab, counsel for the plaintiff, confined the application to the neck alone. He conceded he could not prove the trigeminal neuralgia was related to the transport accident.
7 This is a serious injury application. The body function said to be lost or impaired is the neck or cervical spine.
8 Mr Jens, counsel for the defendant, identified the issues in the application as:
·There was a disentangling exercise in relation to the symptoms and consequences of the injury to the neck on the one hand, and those arising from the injuries to the various other areas of the body, the Psychological Disorder and the trigeminal neuralgia.
·Looked at alone, the consequences to the plaintiff at the present time of the cervical spine injury did not meet the statutory test.
9 Mr Jens did not contend Ms Gaillard had not suffered a soft-tissue injury to the neck in the transport accident. Nor did he challenge that, as a result of the neck injury, Ms Gaillard suffered headaches, including migrainous headaches. He did, however, note she had suffered neck symptoms and headaches prior to the transport accident. The real challenge was whether the neck injury, including the headaches, when examined alone, produced consequences in relation to Ms Gaillard’s recreational, social, domestic and work activities which met the “very considerable” test.
10 Further, the Psychological Disorder Ms Gaillard claims to have suffered as a result of her various injuries, including symptoms of anxiety and depression, was not the subject of cross-examination, nor featured in counsels’ addresses. I do not find it necessary to analyse the nature and extent of the consequences of that disorder nor to disentangle those consequences from those of the neck injury.
The transport accident and the injuries suffered
Injury to left knee
11 Ms Gaillard suffered pain in the left knee in the accident, although an MRI scan taken in April 2011 showed no significant pathology.[1] She consulted a local doctor and sought physiotherapy treatment. In 2012, she was referred to a sports medicine specialist, Dr Stuart Armstrong. She was referred to the Frankston Pain Management Clinic and treated by Dr John Monagle. He injected the knee on a number of occasions and arranged for a Ketamine infusion. He thought she was suffering from Chronic Regional Pain Syndrome to the leg which, by May 2013, had “completely resolved”.[2] She was prescribed Endep for the left knee.
[1]Court Book (“CB”) 29
[2]CB 50
12 She returned to work in her cleaning business about six weeks after the transport accident, although said she struggled to carry out the work because of her injuries, including left knee pain.
13 In her first affidavit, sworn August 2016, Ms Gaillard described constant daily knee pain, sensitive to touch, and radiating down the left leg into her foot. She said it disturbed her sleep and restricted her capacity to carry out household duties.
14 In her further affidavit, sworn February 2020, she said she continued to experience left knee pain, worse when it was cold. She described the pain as a “stabbing type” pain radiating down to her toe. At other times it was a dull ache. She said she avoided running, although was advised to walk. By that time, she had ceased physiotherapy. She had ceased taking Endep, as it caused weight gain. She was trialled on Lyrica.
15 By 2020, she had commenced work at an Aussie Disposals store, and said her left-knee problem affected her work capacity. She said her knee ached after a long day on her feet. Her mobility was affected and while she said she could tolerate local driving, long road trips aggravated the knee pain.
16 In his report of January 2020, Dr Peter Blombery, pain specialist, noted significant allodynia over the knee, which he thought was part of a Complex Regional Pain Syndrome.
17 In his report of March 2020, Mr Garry Grossbard, orthopaedic surgeon, said the knee pain was of major concern. Ms Gaillard described to that practitioner constant pain of the left knee and sensitivity to touch and temperature. He noted soft-tissue swelling on radiological examination, but no internal derangement. He thought her knee condition would impact various activities, in particular, kneeling.
18 In the course of her evidence, Ms Gaillard said that her knee pain was constant, but manageable. She accepted that her knee condition limited her in certain activities, but her neck pain and headaches were the most significant and affected her more than the other injuries.
Injury to the lower back
19 Ms Gaillard was taken to the Casey Hospital after the incident complaining of pain and restriction in several areas, including her lower back. She received physiotherapy treatment and consulted her local doctor. In her first affidavit, she said, since the accident, she had pain in the lower back. In November 2012, she received an injection into the lumbar spine. She described the back pain as intermittent and aggravated by prolonged sitting, standing or walking. She avoided repetitive and heavy lifting. Her lower-back pain interfered with recreational activities, including bike riding and hiking with her family. It also affected her work as a cleaner.
20 She found tasks associated with her cleaning business difficult, including bending, squatting, scrubbing and cleaning bathrooms. She said that she was unable to mow her lawn, and domestic tasks including vacuuming, laundry, mopping and doing the dishes aggravated her back pain. It affected her capacity to drive and affected her sleep.
21 A CT scan of the lumbar spine of February 2012 showed minor disc bulging at L4-5 and L5-S1. Degenerative changes were noted at the L4-5 facet joint.
22 In his report of March 2020, Ms Gaillard’s treating general practitioner, Dr Karantonis, said she had suffered continual lumbar pain since the accident with referred pain down both legs. Dr Karantonis said the lumbar pain, together with the various other injuries, affected Ms Gaillard’s domestic, social and personal duties and inter-reactions.
23 To Mr Grossbard, she complained of intermittent lower-back pain which occurred several times a week, but which resolved with rest. He noted occasional shooting pain into the left leg to the great toe. He thought Ms Gaillard would be limited in being able to work where there was bending and lifting required.
Trigeminal Neuralgia
24 In around 2013, Ms Gaillard developed pain on the left side of her face. She was referred for treatment to a pain clinic, and a Ketamine infusion was, at least in part, directed to treat that facial pain.
25 In 2014, she was referred to Mr Peter McNeill, neurosurgeon. To him, she described a blocked sensation across her nose and swelling of the face. There was shooting pain radiating into her teeth and around the left side of the face. She had had a dental extraction some short time before, which had made the situation worse.
26 Until April 2013, she had continued her cleaning business, but largely as a result of the neuralgia, was forced to stop it in April 2013. Mr McNeill said there was some uncertainty about the diagnosis. In June 2014, Mr McNeill performed surgery, including a left retrosigmoid craniotomy and microvascular decompression of the trigeminal nerve.
27 Ms Gaillard described the surgery as “very successful”. She said her symptoms, including of severe facial pain, were much better after the surgery.
28 In evidence, Ms Gaillard said that she had flare ups from time to time with the neuralgia, but the burning sensation she experienced before the surgery had gone. She said the neuralgia was much less significant than the problems with her neck pain and related headaches.
29 According to the report of Ms Gaillard’s treating neurologist, Dr Christina Sun-Edelstein, the neuralgia caused significant facial pain, starting near the left ear and spreading across the face; however, she said:
“Samantha underwent decompressive surgery for atypical trigeminal neuralgia in 2014, which resulted in a significant improvement in the severity and frequency of pain. However, as of her initial appointment with me low-grade pain was still persistent, with exacerbations typically triggered by wind or eating hot or cold food.”[3]
[3]CB 71
30 Since October 2016, Dr Sun‑Edelstein has been treating Ms Gaillard with Botox injections every three months or so. While these injections, according to that practitioner’s reports, were directed mainly at her headaches, they were said to have utility in relation to her neuralgia and assisted with those symptoms.[4]
[4]See letters from Dr Sun‑Edelstein to the general practitioner, Dr Karantonis – CB 222-241
Neck injury
31 Before examining the injury to Ms Gaillard’s neck suffered in the transport accident, there is reference in the clinical notes of a general practitioner, to earlier episodes of neck pain and headaches. In August 2008, there was recorded visual blurring, photophobia and dizziness. Headache was diagnosed, and possible migraine.
32 In March 2009, Ms Gaillard was involved in another motor vehicle accident where she complained of severe neck and lower back pain. She was diagnosed as having suffered a whiplash injury. She undertook some physiotherapy over the next month or so. She again attended her general practitioner in December 2010, complaining of a painful neck.
33 However, these complaints and symptoms are isolated, required little treatment, and are not, in my view, of any real significance as a pre-existing issue.
34 After attending the Casey Hospital on the day of the transport accident, Ms Gaillard saw her general practitioner on 13 March 2011. On that occasion she described having a lot of neck pain and getting headaches from the neck. A whiplash injury was diagnosed, with severe neck pain.
35 Ms Gaillard deposed in her affidavits that after she was discharged from the Casey Hospital, she had severe pain in her neck. She received physiotherapy for that and the other injuries. Various medications were prescribed. On 29 March 2011, she complained of dizzy spells and vertigo with nausea. From that time on, there were regular references in the early years to neck pain with headaches.
36 She was off work in her cleaning business for about six weeks, resumed that work, but said that she struggled with ongoing neck pain and knee and back problems.
37 In her affidavits, she deposed to a range of domestic, recreational and social activities which were affected by her neck pain. She said she is restricted in her housework. She claims she can no longer go to the gym as she did before the transport accident. Various activities, including bike riding and hiking, are restricted. Her sleep is affected. It is difficult for her to drive long distances.
38 She says she has tight muscles in her neck area and spasm between the shoulders. She gets regular severe headaches which radiate from her neck to the base of her skull and through the top part of her head and temples. She said these headaches occur each day. Beyond them, she experiences migraine headaches. She suffers an aura for a period before the migraine headache commences. She suffers nausea and is sensitive to light and sound. She sees black lines across her eye. She says her headaches and migraines have been relieved to some extent by the Botox treatment. She has migraine headaches several times a week.
39 Since 2016, she has been treated by Dr Sun-Edelstein, both for her headaches and the trigeminal neuralgia. Since she has been working at Aussie Disposals, she is able to work forty-four hours a week; however, she says she regularly gets headaches. She has an understanding employer and she often has to take a break and “go out the back”. She has a “full time” staff member who can relieve her as necessary.
40 The neck pain and headaches affect her sleep. It is difficult to get comfortable in bed with neck pain.
41 When she is unwell with a migraine, her children help with household chores. She reads and listens to music, but those activities are sometimes affected by her headaches.
42 About three years ago, she formed a relationship and recently moved in with her partner, with her three children, now nineteen, seventeen and fifteen. He helps with the housework and domestic chores. She still is involved in her children’s activities, takes them to sporting and like events, and assists at these events. Her relationship with her partner has been a positive development.
43 Work activities involving lifting, pushing or pulling lead to a tightness in the neck and cause a headache.
44 She was previously prescribed Topamax for headaches; however, she developed kidney stones and ceased that medication. Presently, she takes Nurofen, from several tablets a day up to a packet. She receives the Botox injections every three months and expects these will continue. She is considering undertaking myotherapy treatment. She purchased a TENS machine some years ago and uses it a few times a week.
45 Generally, she copes with the pain, although struggles with its management from day to day.
46 In assessing the nature and extent of the neck injury and the treatment provided, I found the reports of the treating general practitioner, Dr Karantonis, and the treating neurologist, Dr Sun-Edelstein, of most assistance.
47 Dr Karantonis described the neck injury as a whiplash injury, associated with occipital neuralgia and regular severe recurrent occipitofrontal headaches. He said these had been treated with medications, physiotherapy and specialist referrals. He said the Botox treatment had improved the severity and frequency of the headaches and migraines, but had not eradicated them. The treatment lasts two months and is 60 to 70 per cent effective. After two months, the migraines become progressively more frequent and severe, which increased Ms Gaillard’s disability. He said that all her various injuries affected her ability to work and various aspects of her life, including domestic duties and social and personal interactions.
48 In her report of July 2018, Dr Sun-Edelstein noted that at that time, Ms Gaillard was experiencing near daily headaches. They were associated with nausea, photophobia and phonophobia. She said:
“… While treatment with Botox has resulted in significant improvement in Samantha’s headaches and facial pain, their persistence over the past 7 years suggests that they will continue on a long-term basis.”[5]
[5]CB 71
49 Dr Sun-Edelstein noted that Ms Gaillard was able to undertake domestic chores when the pain was mild, but during flare ups, those chores had to be put off until the pain subsided.
50 In her most recent report to Dr Karantonis of December 2019, Dr Sun-Edelstein said:
“I reviewed Samantha today. Botox was again very effective in reducing chronic headaches and trigeminal neuralgia. However, she has had some wearing off in the last few days as characterised by moderate-to-severe headaches.”[6]
[6]CB 9
The disentangling exercise
51 Ms Gaillard suffered injuries to various body functions in the transport accident. While they produce different symptoms, those injuries, together with the trigeminal neuralgia, to varying degrees affect her work capacity and domestic, recreational and social activities and interests.
52 Ms Gaillard gave evidence that, of the various injuries, that which affects her the most is the neck injury with the consequent headaches. In assessing this evidence, it is necessary to reflect upon Ms Gaillard’s credibility. There were no major challenges to her credit in the course of cross-examination. Mr Jens was, however, critical of several matters, which he said were only raised in re-examination and were not disclosed in her affidavits. These included her claim that she needed help with work, that she had taken some days’ sick leave when her headaches became bad, and that on occasion, she received help from her mother in looking after the children. Further, he said there was no reference in the histories given to any of the practitioners of her experiencing difficulties with her work duties at Aussie Disposals stores. He further noted there was some discrepancy in her evidence about the number of Nurofen tablets she took each day. To Mr Grossbard, she said she took Nurofen once or twice a day, but in the course of her evidence, said she took a minimum of four and sometimes up to a packet per day.
53 Mr Jens said there was a discrepancy in her description to Mr Grossbard in the history taken this year that she suffered only intermittent tightness to the neck, which was only occasionally painful.
54 There were some minor discrepancies in her evidence when viewed against the histories to the medical practitioners; however, I did not find those discrepancies significant. In the course of cross-examination, I assessed Ms Gaillard as an honest witness, giving a fair account of her injuries and the consequences. Generally, her description was consistent throughout her affidavits, her history to the medical practitioners and her evidence. Indeed, I accept Mr Macnab’s description of her as a stoic witness, not attempting to make the most of her injuries and the consequences of those injuries. She answered questions responsively in cross-examination and I did not detect evidence of embellishment.
55 Overall, I am satisfied she has given a true account of her neck injury and the consequences of that injury. I accept her evidence of the pain and tightness in the neck, of the headaches and migraines, and of their effect upon her activities and her life.
56 I am satisfied that since the transport accident, she has suffered ongoing pain and restriction in her neck. The headaches which she suffers on an almost daily basis are the worst of the consequences of the neck injury. I accept they are significant, and, at times, when they turn into migraines, particularly debilitating. I accept her description of the tightness, the sensitivity to light, and the distribution of pain around her neck and into her head and temples.
57 These symptoms are related only to the neck injury. They are thus easily disentangled from those of the other injuries and conditions.
58 I further accept the evidence of Dr Sun-Edelstein and Dr Karantonis that the headaches are severe and debilitating.
59 I am satisfied from the evidence that her neck pain, back pain and the ongoing mild symptoms of trigeminal neuralgia, in addition to her neck injury, affect her in being able to carry out her work duties, affect her sleep, her capacity to interreact with her children, her ability to socialise and maintain relationships and generally, her activities of daily living; however, I accept that the consequences of the neck injury played the most significant role in these restrictions. I am satisfied I can disentangle the symptoms and consequences of the neck injury from the other injuries and conditions.
Do the consequences of the neck injury, when considered alone, meet the “very considerable” test?
60 The authorities make it clear that in considering whether the consequences of an injury may be regarded as “serious”, consideration should be given not only to those areas and activities which have been lost or curtailed, but also those which have improved or acquired.
61 Mr Jens points out that at the time of the transport accident, Ms Gaillard was working fifteen to thirty hours per week in her cleaning business. When she returned to work after the accident, she increased those hours to over thirty per week. He noted that, at the time, she was a single parent caring for three young children. He emphasised that in 2013, it was not the neck injury which caused her to relinquish the cleaning business, but the onset of the trigeminal neuralgia. I note the other injuries also played a role.
62 In any event, in early 2019, Ms Gaillard resumed employment, working around forty-four hours a week in an Aussie Disposals store. Within two months she was made the manager and in charge of a number of full and part-time staff. It is work that she enjoys and takes pride in. Until recently, she maintained her ironing business, in addition to the work at the store. He said there was little evidence her neck injury and consequent headaches prevented her from efficiently carrying out her work.
63 Mr Jens noted that Ms Gaillard was receiving very little treatment from her general practitioner. In fact, over the last fourteen or so months she had attended only on two occasions, and there was little mention in the clinical notes of a neck injury; however, I accept the evidence of Ms Gaillard that she relies upon Dr Sun-Edelstein as her principal treater for the administration of the Botox injections. Mr Jens further noted that she was taking no medication, apart from some over-the-counter pain-relieving Nurofen; however, I accept the evidence that she had tried other medication, including Topamax, but suffered adverse side effects.
64 Mr Jens referred to the Neck Disability Index, a questionnaire undertaken by her physiotherapist in January 2012, where it was noted there was little pain, Ms Gaillard was able to look after herself and had only slight headaches. He said that despite her claim in the affidavits that her driving, save for short distances, was affected, she had on one occasion driven for four days to Queensland with her children, and on other occasions lengthy distances. She had enjoyed a holiday in Vanuatu; however, I accept her evidence that she took time to undertake these journeys and suffered ongoing pain in the course of them.
65 Mr Jens submitted Ms Gaillard’s life had improved significantly. She had formed a new relationship and had moved in with her partner. She was living an active life and involved with the children, including with their sports.
66 As stated, I was impressed with Ms Gaillard’s presentation. I accept her evidence that she suffers headaches on an almost daily basis and regularly these become migraines with attendant severe symptoms. I accept the evidence of Dr Karantonis that without the Botox injections she could not work or maintain function.[7]
[7]CB 68
67 Ms Gaillard described in detail the process she underwent every three months for the Botox injections. It is not simply one injection, but a series of injections across the forehead, down each side of the temple, across the back of the head and into the base of the skull. Ms Gaillard described that the procedure as painful and she felt nauseated.[8] It is clearly an invasive and uncomfortable procedure.
[8]T86-87
68 I further accept she takes over-the-counter pain-relieving medication and uses a TENS machine.
69 I assess Ms Gaillard as a stoic person putting up with considerable pain in the neck and regular significant headaches. That ongoing pain and interference is of itself a consequence which is “very considerable”.
70 I further accept that, along with the other injuries, she suffers a marked interference with her work, domestic, recreational and social activities.
71 Viewing the consequences of the neck injury alone and setting aside those arising from the left knee and lower back injuries, and the trigeminal neuralgia, I am satisfied the consequences at the present time meet the test.
72 I shall grant leave to the plaintiff to bring common law proceedings and make consequent orders as to costs.
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