Gardner v TAC
[2011] VCC 2002
•28 April 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. 4590 of 2008
| TREVOR GARDNER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | His Honour Judge Robertson |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 and 23 April 2010 |
| DATE OF JUDGMENT: | 28 April 2010 |
| CASE MAY BE CITED AS: | Gardner v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 2002 |
REASONS FOR JUDGMENT
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Catchwords:
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B.W. Collis QC, with | Arnold Thomas Becker |
| Mr M.J. Stiffe | ||
| For the Defendant | Mr P.D. Elliott QC, with | Solicitor to the Transport |
| Ms D.E. Galbally | Accident Commission | |
| HIS HONOUR: |
1 This is an application made by way of an Originating Motion pursuant to the provisions of s.93 of the Transport Accident Act 1986.
2 The applicant, Trevor Gardner, seeks the leave of this Court to commence proceedings for an action for the recovery of damages in respect of an injury or injuries allegedly suffered by him in a motor vehicle accident which occurred on 11 April 2006 at or near the intersection of Footscray Road and Whitehall Street, Footscray.
3 The applicant claims that such injury or injuries resulted in a serious long term impairment of
(a) his spine or vertebral column and/or alternatively
(b) his lumbar spine and/or alternatively
(c) his cervical spine.
4 The legal principles in respect of these applications are now well established and the Court does not propose to restate them here.
5 The applicant is presently 52 years of age he having been born on 16 August 1957. He is presently employed, it would seem, on a contractual basis travelling around promoting a firm that supplies food to restaurants, hotels and the like. He has been in such employment for only some four weeks and he has earned up to $700 gross per week.
6 On 11 April 2006 he was involved in the subject motor vehicle accident when a container shifted on the trailer being towed by a truck, that he was then driving for his employer Dove Transport, causing the truck and its trailer to tip over.
7 As a result of the accident the applicant was trapped in the cabin of the truck for a period until he was helped out of the truck through the windscreen, he believed, by a bystander.
8 An ambulance attended at the scene with officers treating the applicant's lacerations at the scene. The applicant was not conveyed to a hospital.
9 In addition to lacerations it would seem that the applicant also suffered from extensive bruising, injury to his neck, headaches and a low back injury with referred pain down into his left buttock and his left leg to ankle level.
10 On the day following the happening of the subject motor vehicle accident the applicant attended at the Mill Park Super Clinic where he was seen by his treating general practitioner, Dr Azad Kadom.
11 The relevant portions of the applicant's clinical notes from the Mill Park Super Clinic were tendered at trial (Exhibit 2). The entry in the clinical notes for 12 April 2006 reads as follows:
"had car accident last night. a bid open shallow wound on head. all the exam
was fine. was at work".
The applicant was prescribed Panadeine Forte and Voltaren by his treating doctor, but the notes fail to disclose the reason for such prescriptions.
12 The clinical notes indicate that the applicant had been prescribed Panadeine Forte for medical conditions prior to the happening of the subject motor vehicle accident, namely on 25 April 2004, 12 May 2004, 16 September 2004 and 1 July 2005.
13 The clinical notes indicate that the applicant attended the clinic on 19 May 2005 complaining of right sciatica associated with buttock pain, when it would seem a diagnosis of "viral myalgia" was made.
14 He again attended on 1 July 2005 complaining of lower back pain for which he was prescribed Panadeine Forte tablets and Voltaren.
15 The respondent did not require any medical practitioner from the Mill Park Super Clinic to attend for cross-examination at the hearing of this application. It is for this reason the Court is most reluctant to place much emphasis on the information contained in the regrettably scant clinical notes tendered by the respondent as Exhibit 2.
16 It would seem that Dr Kadom referred the applicant for physiotherapy and a CT scan which was performed on 28 April 2006.
17 This scan was reported on as showing:
"a small, flat, disc protrusion seen at L4-5. The lumbar canal appeared otherwise normal. The neural exit pathways and paraspinal regions appeared clear and the facets remained reasonably well preserved".
18 Dr Kadom certified the applicant as fit to return to work on modified duties. Upon his return to work on modified duties the applicant complained of further aggravation to his neck and his back pain.
19 The applicant underwent a course of physiotherapy and as at 9 May 2006 the applicant reported to Dr Kadom that he was feeling better and improving slowly.
20 The applicant eventually ceased employment with Dove Transport and in turn, it would seem that that firm subsequently ceased to exist.
21 On 22 June 2007 Dr Kadom referred the applicant to Mr Stanley Schofield, orthopaedic surgeon.
22 On examination of the applicant on that day, Mr Schofield reported that the applicant had a normal lumbar lordosis, low lumber tenderness and a good range of spinal movement with normal straight leg raising and neurology.
23 The CT scans of April 2006 and January 2007 confirmed evidence of a central prolapse disc at L4-5. Mr Schofield arranged for an MRI scan to be performed, this MRI scan was reported on as follows:
"Mild, left foraminal disc bulge at L5-S1 combined with mild, facet degeneration to cause moderate left foraminal stenosis with mild compression of the left L5 nerve root. Mild-non compressive central disc protrusion at L4-5."
24 Mr Schofield, in his report dated 29 September 2009, stated that on his last examination of the applicant, it would seem 3 July 2009, the applicant's clinical signs had revealed:
"stiffness in the cervical spine movements, normal neurology, apart from an absent left triceps jerk. His lumbar spine did show mild lumbar stiffness and mild limitation of straight leg raising on the left with normal neurology."
25 An MRI scan of 15 September 2009 of the applicant's cervical spine was reported on as follows:
"mild multi-level cervical spondylosis, mild multi-level left-sided neural foraminal
stenosis but not significant exiting neural compromise.
2. Likely chronic superior end-plate fractures of T2 and T3 vertebral bodies with
mild loss of vertebral body height."
26 An MRI scan of 15 September of the applicant's lumbar spine was reported on as follows:
"minimal grade 1 retrolisthesis of L4 and L5. Vertebral body heights are normal. Marrow signal unremarkable. Disc disiccation with mild reduction of disc space height at L4-5. No conus legion.
Conclusion
(1) Lower two level disc degeneration;
(2) At L4-5 mild, bilateral neural foraminal stenosis and mild, bilateral subarticular
recess canal stenosis without neural compromise;
(3) at L5-S1 compromise of both exiting L5 nerve roots of mild degree on the right and moderate degree on the left. Mild, bilateral facet joint degeneration seen here."
27 Mr Schofield's diagnosis was that the applicant, in the happening of the subject accident, had suffered an aggravation of degenerative change affecting the lower cervical spine and the lower lumber spine. He considered the applicant's long term prognosis to be guarded with the possibility of a fusion at C4-5 and C5-6 and L4-5.
28 Mr Schofield referred the applicant to Mr Peter Ellims, oncologist/clinical haematologist, in October 2007 for the purposes of pain control.
29 Dr Ellims in a report dated 17 July 2009, and addressed to the applicant's solicitors, recorded that the letter of referral he had received from Mr Schofield indicated that since Mr Schofield had been seeing the applicant there had been:
"a good range of spinal movement without any significant neurological
phenomena."
30 Dr Ellims expressed the opinion that the applicant had significant and clear-cut L4-5 pain radiating in the appropriate distribution. He considered the applicant had motor weakness in the distal left lower limb in keeping with an L4-5 nerve root legion.
31 Dr Ellims recommended that the applicant embark upon a rehabilitation program. He has not seen the applicant since November 2007.
32 The applicant's solicitors referred the applicant to Mr Peter Wilde, orthopaedic surgeon, for a medico-legal opinion.
33 Mr Wilde examined the applicant on 15 April 2009. On examination Mr Wilde found a neurological assessment of the applicant's lower and upper limbs to be unremarkable. Mr Wilde made a diagnosis of an aggravation of cervical and lumbar spondylosis without radiculopathy. He considered that the subject motor vehicle accident had directly precipitated symptoms in the applicant's neck and low back.
34 The respondent had the applicant examined by Dr Malcolm Brown, occupational physician, on 14 September 2006. Dr Brown opined that the applicant was then fit to return to his pre-injury duties as a truck driver. He considered that the applicant had suffered from musculoskeletal injuries in the happening of the subject motor vehicle accident. He considered the applicant had made a good recovery with no significant residual incapacity. He further considered that the radiological evidence, as seen on the CT scan, of the applicant's lumbar spine taken on 28 April 2006 demonstrating a small, central disc protrusion, was unlikely to be of particular clinical significance and that even if it was related to the subject motor vehicle accident, it was no longer symptomatic or causing significant impairment.
35 Mr Clive Jones, orthopaedic surgeon, examined the applicant on behalf of the respondent on 16 May 2007.
36 Mr Jones obtained from the applicant a history of a major improvement post accident. According to the applicant, his neck pain and headache had virtually subsided save for a cracking sensation from time to time in his neck with movement. The applicant complained to Mr Jones of variable levels of back pain and occasional numbness and tingling in his left leg which appeared to Mr Jones to be non specific and non radicular.
37 On examination a full range of movement was noted in the applicant's cervical spine without restriction. A full range of movement was noted in the applicant's lumbar spine with a minor degree of mid line upper lumbar tenderness. No wasting was noted by Mr Jones in the applicant's lower limbs. Straight leg raising was unaffected. There were no abnormal neurological signs.
38 Mr Jones reviewed a CT scan of 8 January 2007 which he considered to be normal apart from minor swelling of the L4-5 disc, not involving the adjacent thecal structure or the emerging nerve root. Mr Jones considered that the demonstrated scan changes appeared to be essentially degenerative in nature.
39 Mr Jones considered that the applicant had suffered from soft tissue injuries to his neck and his lumbar spine in the happening of the subject motor vehicle accident. He considered that such injuries had, by the time he examined the applicant, substantially, if not completely, resolved. He considered the applicant had a current work capacity and he noted the applicant was then working full-time as a packer with Metropolitan Foods.
40 Indeed in about November 2007 the applicant commenced work for Metropolitan Foods as a picker and packer of foods in a warehouse and as a van driver making food deliveries to schools. In this employment the applicant apparently earned up to $750 a week gross.
41 The applicant ceased such employment some four weeks prior to the hearing of this application by reason, it would seem, of the death of the firm's proprietor.
42 He is presently working for First Choice Foods seemingly on a contractual basis, driving a car around and, as said earlier, promoting First Choice Foods to hotels, restaurants et cetera.
43 In his evidence the applicant informed the Court that he had extensive experience in hotel management work, particularly relating to hotel gaming venues.
44 An examination of the applicant's earnings, detailed in a schedule in the applicant's court book for the years ending 30 June 2002 to 2009 (both inclusive), revealed a variable pattern of earnings for each of the years therein detailed. The figures, as such, provide little assistance to this Court in its decision-making process.
45 The applicant presented to this Court as a fit, healthy looking man of his stated years. He moved in the courtroom situation with no apparent difficulty to the casual observer. He sat in the witness box for an extended period of time, again with no apparent difficulty.
46 The applicant gave his evidence in a straightforward manner and the Court accepts the applicant to be a reliable witness. There was no sense of exaggeration or embellishment as is so often seen in these applications.
47 The Court has carefully considered all the available evidence and learned counsel's most helpful submissions, and having done so it makes the following findings as to facts.
(1) The applicant is presently 52 years of age he having been born on
16 August 1957.(2) As at 11 April 2006 he was employed by Dove Transport as a truck driver.
(3) On that date a truck, he was then driving, rolled over by reason of the shift
of a container then loaded on the trailer attached to the truck.(4) As a result of such accident the applicant received injuries including lacerations, bruising, neck injury, headaches and a back injury with referred pain down into his left buttock and his left leg. The applicant was not hospitalised.
(5) For the purposes of this application the Court is concerned with the
physical injury to the applicant's(a) spine or vertebral column and/or alternatively to
(b) his lumbar spine and/or alternatively
(c) his cervical spine.
(6) The applicant has had, and continues to have, conservative treatment for
his physical, spinal injuries.(7) In respect of each of the physical injuries detailed in paragraph 5 hereof, the Court is satisfied that the applicant, in the subject motor vehicle accident, suffered an aggravation of degenerative changes in his cervical and lumbar spine, and more particularly at the L4-5, L5-S1 levels.
(8) The Court is satisfied on balance that such degenerative changes in the applicant's spine pre-existed the happening of the subject motor vehicle accident, but that they were essentially asymptomatic. Such degenerative changes were rendered symptomatic by reason of the happening of the subject motor vehicle accident. The applicant has made a reasonably good recovery from his spinal injuries suffered in the subject motor vehicle accident.
(9) Post accident the applicant has a good range of spinal movement in both the cervical and lumbar spine without there being any significant neurological involvement.
(10) On balance it is most unlikely the applicant will require any surgical intervention in the foreseeable future for any of his spinal injuries received in the subject motor vehicle accident.
(11) The applicant has a solid work history.
(12) By reason of the applicant's work history and experience the applicant is presently fit for a wide range of full-time employment, including truck driving, but most probably not in the nature of sustained or continuous driving for lengthy periods as he was doing pre-accident. The applicant, it should be noted, has extensive experience in hotel management.
(13) Post accident the applicant has demonstrated his capacity for employment when he worked for Metropolitan Foods picking and packing food orders and delivering same using a delivery van. He only left such employment when the proprietor of the business died.
(14) The Court accepts by reason of the physical injuries caused to the applicant's spine (lumbar and to a lesser extent cervical) in the subject motor vehicle accident, that the applicant has been left with a small, residual degree of spinal disability in his cervical and, more particularly, his lumbar spine, which affects him, to a limited extent, in all aspects of daily living, whether that be vocational, recreational, domestic or social.
(15) Considering each physical injury in turn, namely the spine as a whole, and/or alternatively the cervical spine and/or alternatively the lumbar spine, this Court is far from satisfied that the injury to the applicant's
(a) spine as a whole or
(b) alternatively to his cervical spine or
(c) alternatively to his lumbar spine,
as was suffered by him in the subject motor vehicle accident of 11 April 2006, can be described as being very considerable and certainly more than significant or marked, bearing in mind the consequences of each such physical injury to this particular applicant.
(16) The Court is not satisfied that in the happening of the subject motor vehicle accident the applicant suffered a serious long-term impairment or loss of a body function to
(a) his spine as a whole or alternatively to
(b) his cervical spine or alternatively to
(c) his lumbar spine.
48 Leave will be refused and the application will be marked dismissed.
49 MS GALBALLY: As Your Honour pleases.
50 HIS HONOUR: Yes, thank you. Ms Galbally.
51 MS GALBALLY: Yes, Your Honour, the defendant seeks no order as to costs in this matter.
52 HIS HONOUR: Yes.
53 MS GALBALLY: We seek liberty to apply in respect of any release from implied undertakings.
54 HIS HONOUR: What does that mean?
55 MS GALBALLY: Your Honour, in the event that the TAC don't win there's a standard order that they seek which is a release from the implied undertakings of confidentiality, which attach to all the documents that are produced for this hearing, so that in the event that there's any further or ongoing action those documents can be used.
56 HIS HONOUR: Yes.
57 MS GALBALLY: In this case, in the event that they win, we just seek liberty to apply that if any of those documents should be required then the parties are free to apply.
58 HIS HONOUR: Yes, I've never made such an order before.
59 MS GALBALLY: It's a standard order, Your Honour, I believe.
60 HIS HONOUR: It's not standard with me. I've done many of these and never been asked before. If you're not seeking any order for costs then the only order I make is that the proceedings be dismissed.
61 MS GALBALLY: As Your Honour pleases.
62 HIS HONOUR: Thank you. Do you have any objection to that, Mr Price?
63 MR PRICE: No, Your Honour.
64 HIS HONOUR: Thank you very much. The proceedings will be marked dismissed; there will be no order as to costs. Thank you both.
ADJOURNED 10.50 AM
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