Gauci v Transport Accident Commission
[2023] VCC 771
•14 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-04068
| RITA GAUCI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 March 2023 | |
DATE OF JUDGMENT: | 14 July 2023 | |
CASE MAY BE CITED AS: | Gauci v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 771 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious long-term impairment or loss of a body function – Function of the spine – causation – two transport accidents – disentangling – range case
Legislation Cited: Transport Accident Act 1986 (Vic), s93(4)(d),s19(17)(a)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Rowe v Transport Accident Commission [2017] VSCA 377; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52
Judgment: Leave is granted to the plaintiff to bring common law proceedings for damages in relation to the transport accident on 4 June 2015 for an aggravated neck injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P D Elliott KC with Mr C A Sidebottom | Zaparas Lawyers |
| For the Defendant | Mr P B Jens KC Mr S Pinkstone | Lander & Rogers |
HER HONOUR:
Introduction
1The plaintiff was in a transport accident on 4 June 2015 when the car she was driving on the Hume Freeway was clipped by a truck and spun around before colliding into a barrier. The plaintiff claims her neck and lower back were injured and makes an application for leave to issue proceedings for the recovery of damages for pain and suffering pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2The plaintiff claims she has a “serious injury” as defined by s93(17)(a) of the Act which is defined as a serious long-term impairment or loss of a body function.
3The loss of body function relied upon in this application is the spine, being the neck and low back, namely aggravation of degenerative changes to both cervical spondylosis and lumbar spondylosis.[1] In the plaintiff’s statement of issues the injuries are identified as:
Injury to the cervical spine involving the production and/or aggravation of intervertebral disc degeneration and spondylosis with severe left C5/6 and C6/7 foraminal stenosis leading to compression of the existing left C6 and C7 nerve roots; and
Injury to the lumbar spine involving the production and/or aggravation of intervertebral disc degeneration and spondylosis with significant broad based disc bulge at L4/5 resulting in probable impingement of the descending L5 nerve root.[2][1]Transcript (“T”) 3
[2] Plaintiff’s Statement of issues 7 March 2023 [5]
4The plaintiff also claims she had a secondary psychological reaction to the injury, namely an Adjustment Disorder. In determining the severity of injury to the spine, it is permissible to consider the psychological consequences of the injury.[3]
[3]Richards & Anor v Wylie (2000) 1 VR 79
Relevant legal principles
5The court must not grant leave unless it is satisfied on the balance of probabilities:
(a) that the injury suffered by the plaintiff was as a result of the transport accident; and,
(b) that the injury is a “serious injury” within the meaning of the definition of serious injury contained in s 93(17) of the Act.
6Section 93(17)(a) of the Act focuses on firstly, whether the injury has produced an organic impairment or loss of body function, and secondly by reference to the consequences of that impairment to determine whether it is serious and long term.
7The onus of proof is on the plaintiff. In Humphries v Poljak,[4] the question whether an injury is a “serious injury” considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”?
[4][1992] 2 VR 129 at 140
The issues
8Causation is in issue; it is disputed that the injury suffered by the plaintiff was a result of the transport accident. The application is complicated by the fact there were two accidents: the first on 27 May 2015 (the first accident) and the second on 4 June 2015 (the second accident). The plaintiff claims the second accident caused the injuries to her neck and low back.
9In addition to the impact of the first accident, the defendant submitted causation is also complicated by the impact of falls at work in 2014 causing pain in her lower back, and a fall in January 2015 requiring MRI scans of both knees. In respect of causation, I need to determine what if any role the prior falls at work and the first accident had in respect of the plaintiff’s claimed injuries.
10The defendant also submitted that subsequent to the second accident, during 2016 the plaintiff made no complaints about her neck or back to her doctor. However in February 2017, following a fall at work, the plaintiff commenced reporting neck and back pain to her doctor. I have considered this material as part of the chain of causation.
11In addition, the defendant raised the plaintiff’s other medical conditions, such as a right shoulder problem that Mr Thomas Kossmann states incapacitates her for work and Dr Phillip Sheard’s opinion that she needs a hip replacement.
12If causation is proven, only those consequences properly referrable to the claimed neck and low back injury caused by the second accident can satisfy the narrative test. I am required to identify the specific injury that arose from the transport accident and identify what are the consequences. In Peak Engineering & Anor v McKenzie,[5] Maxwell P referred to the difficulty that arises when a separate injury also produces pain and suffering consequences for the plaintiff as well as the relevant injury. He stated:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and…at least very considerable.’ For that purpose, it is necessary – so far as the evidence permits - to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[6]
[5] [2014] VSCA 67
[6] Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [2]
13It is also in dispute that the consequences meet the statutory test for serious injury in respect of the spine. Ultimately, I am required to determine whether the consequences fall within the range of the narrative test.
14The plaintiff provided three affidavits in support of her application, dated 24 July 2019 (first affidavit), 8 August 2022 (second affidavit) and 3 March 2023 (third affidavit). Her daughter Joanne Gauci also prepared an affidavit dated 29 August 2022.
15I take into account all the evidence, including the plaintiff’s evidence and the medical reports and all the tendered exhibits.
Background
16The plaintiff arrived in Australia from Malta at aged 18. She is now 71 years old and has two adult daughters and three grandchildren. Her partner passed away in 2018. She had a limited education and worked in factory and cleaning roles. In 1996 she started her own cleaning business, as a self-employed cleaner employing staff.
Medical history
17In her first affidavit the plaintiff stated prior to the second accident she had “suffered from mild neck pain on occasion” however it did not prevent her from being able to work or engage in her activities of daily living.[7]
[7] Plaintiff’s Court Book (“PCB”) 12
18On 30 November 2009, she had surgery on her right shoulder for an injury sustained during employment. She stated she recovered well, and this did not impact on her ability to work or engage in the activities of daily living.
19She also had breast surgery, toe surgery, and suffered from hypertension. She stated she could cope, and these conditions did not prevent her from working or engaging in the activities of daily living.[8]
[8] PCB 12
20In 2010, she had an X-ray of her back and a hip ultrasound. The X-ray showed some disc space narrowing and spondylosis in her back.
2014 and 2015 falls at work
14 March 2014
21In a clinical record dated 14 March 2014, her general practitioner, Dr Edward Oludare, recorded a fall at work and lower back pain. He requested an MRI scan of the plaintiff’s lumbar spine to “Lower back pain with referral to both thighs. Exclude L3 compression.”[9] The MRI report conclusion states:
“1.Multilevel lumbar disc degeneration.
2. Significant degenerative spinal canal stenosis at L4/5, causing indentation of the thecal sac and of bilateral descending LS nerve roots.
3. Moderate left L5/S1 facet joint degeneration also noted.”[10]
[9]Defendant’s Court Book (“DCB”) 55
[10]PCB 34
22The plaintiff was prescribed Atacand, Lexapro, Lyrica and Somac.[11]
[11] DCB 56
23In cross-examination, the plaintiff acknowledged she had lower back pain “for a little bit” before the second accident and stated “but that never stopped me from working or doing what I was doing”.[12]
[12] T 69
14 November 2014
24On 21 October 2014 she attended Dr Oludare for script renewal and reported ongoing lower back pain. Further, she attended on 14 November 2014 and reported having a fall at work and lower back pain.[13] In cross-examination she stated, “Yes, I had [a] few falls but I’ve always ... recovered from them.”[14]
[13]DCB 58
[14]T 25
25On these occasions she was, amongst other things, prescribed Lexapro for depression and anxiety and poor sleep.
16 January 2015
26On 16 January 2015 she reported a fall at work, and she was referred for MRI scans of her knees.[15]
[15]DCB 59
First accident - 27 May 2015
27On 27 May 2015 the plaintiff was in a car accident when she drove into the back of the car in front at a low speed. The airbags were deployed. In her first affidavit she stated she suffered minor injuries and made a good recovery.[16]
[16] PCB 13
28In her second affidavit, the plaintiff noted she had a CT scan of her neck following the first accident which showed some disc degeneration in her neck.[17] She did not believe she suffered any significant injury. Her symptoms were mild and settled down quickly and she returned to normal work duties. When she saw Dr Oludare on 3 June 2015 she did not require medication or referrals for other treatment.[18]
[17]PCB 26
[18] PCB 27
29In cross-examination she stated the first accident was “Not as bad as the second one”,[19] and “It wasn’t bad at all, really.”[20] She stated after the first accident, “I went straight to work and everything and I was fine.”[21] The plaintiff thought she had one day off work following this accident.[22]
[19]T 28-29
[20]T 29
[21]T 31
[22]T 65
Medical treatment
30Following the first accident, Dr Oludare’s examination notes from 27 May 2015 state:
“Cervical Spine:
Tenderness C4/5
Restricted movements
No neurological deficitSeat belt burn on the rt shoulder and neck”.[23]
[23]DCB 62
31In his request for the CT scan he notes: “MVA with neck pain radiating to the left arm. Exclude vertebra fracture”.[24]
[24] DCB 62
32On 3 June 2015, Dr Oludare notes the results of the CT scan:
“1. C3/4 fusion in keeping with Klippel-Feil syndrome.
2. Multilevel disc and facet degeneration.
3. Moderate left C5/6 bony exit neuroforaminal narrowing, present to a lesser extent elsewhere as described.”[25]
[25]DCB 62
33In his report dated 14 September 2022, Dr Oludare noted the plaintiff presented after the first accident with a history of neck pain with referral to the left arm:
“Examination revealed bruises on the neck and right shoulder from a seat belt burn. Neck examination revealed tender around C4/5 vertebrae level with restricted movements but no neurological deficit. CT scan examination of the neck revealed no fracture but showed an incidental finding of a congenital C3/4 fusion in keeping with Klippel-Feil syndrome. There was multilevel discs and facet degeneration as well as a C5/6 exit neuro foraminal stenosis. She was managed with analgesics and physiotherapy was discussed.”[26]
[26]PCB 67
Second accident - 4 June 2015
34On 4 June 2015 at 7am, whilst driving to work on the Hume Highway, the plaintiff’s car was clipped by a truck, causing it to spin and collide with a safety barrier. In evidence she stated the second accident was more severe and horrifying and she was emotional when describing how scary it was.[27]
[27] T 31-32
35She described the car spinning around, and she was:
“going like a rag doll in the car that day, turning from one side to another, and I was saying, ‘I’m dead, I’m dead, I’m dead’ because it was so bad.”[28]
[28]T 32
36Her husband and her daughter attended the scene. In her first affidavit she described injuries to her left arm, right shoulder, right groin, neck, back and hips. She has also developed symptoms of anxiety, depression, and post-traumatic stress disorder. She continues to suffer significant pain in her neck and back. The plaintiff stated she immediately experienced significant pain and restrictions in her neck and double vision following the transport accident.[29] Some reports state she attended Dr Oludare the same day; his records indicate it was on 5 June 2015.
[29] PCB 13
37The plaintiff had a week off work after this accident.[30]
[30]T 65
38Other evidence about the second accident includes the police report incident summary which contains the following description:
“On 04/06/2015, Honda Jazz registration [redacted] was travelling north on Hume Fwy, Lalor when an u/k truck merged into [redacted] lane. The truck collided into the left side of [redacted] causing it to spin 360 degrees and collide into a barrier. The truck continued north and its registration was unable to be obtained. NEP307 attended and vehicle was towed. On 22/02/2017, driver of [redacted] contacted NEP900 requesting a report for tac purposes.”[31]
[31]PCB 163
39Whilst there are no details about the other driver or vehicle recorded, the point of impact on the plaintiff’s vehicle was recorded as “right rear door”, that “airbag fitted – did not deploy”, and level of damage is described as “moderate – unit towed away.” The vehicle’s actual movement is noted as “Going Straight Ahead” and the speed zone is “100 km/hr”.[32]
[32]PCB 164
40In the Transport Accident Commission Claim for Compensation Summary form, the accident details are:
“A truck came into my lane on the freeway and hit me as he merged. I started spinning and hit the barrier in the middle of the freeway.”[33]
[33]PCB 159
41The injury details are recorded as “Back pain” and “Neck pain.”[34]
[34]PCB 160. The TAC claim was lodged on 8 March 2017, delayed because the police were not able to identify the other driver. An email typed by Joanne Gauci on behalf of the plaintiff dated 25 May 2017 (Exhibit P1, PCB 196) explains her efforts at following up the police for a report. An affidavit dated 8 March 2023 (Exhibit P 1, PCB 197) from Zaparas Lawyers confirms they started acting for the plaintiff on 14 November 2018.
Medical treatment
42On 5 June 2015 the plaintiff attended Dr Oludare. His notes record:
“MVA yesterday
2nd accident in 1 week
She was clipped by a semi trailer and did a 360 degrees turn
No LOCComplain of neck pain and pain left arm.”[35]
[35]DCB 63
43He noted:
“Cervical spine
Tenderness C4/5”.[36]
[36]DCB 63
44Dr Oludare referred the plaintiff for an MRI Scan of her cervical spine. In his request for the MRI scan he states: “Motor vehicle accident with cervical spine trauma. Having radiculopathy pain down the left arm. Exclude C6 compression”.[37]
[37] DCB 63
45In his report Dr Oludare stated:
“She presented to me on 5 June 2015 with neck pain radiating to the left arm and examination findings was the same as the first accident and she was further investigated with an MRI of the cervical spine.”[38]
[38]PCB 67
46The MRI cervical spine report dated 6 June 2015 stated:
“1. Bone marrow oedema at the left C7/T1 facet joint, most likely degenerative however subtle facet injury or bone marrow contusion without fracture is possible.
2. Marked degenerative spondylosis and acquired canal stenosis at C4/5, C5/6 and C6/7 causing mild cord impingement without gliosis or myelomalacia due to posterior disc prolapses.
3. Severe left C5/6 and C6/7 foraminal stenosis with compression of exiting left C6 and C7 nerve roots. Mild to moderate bilateral C4/5 foraminal stenosis and slight impingement of exiting C5 nerve roots.”[39]
[39]PCB 37
47Dr Oludare reported:
“MRI examination revealed acquired severe left C4/5,C5/6 and C6/7 stenosis with cord impingement. Severe left C5/6 and C6/7 foraminal stenosis with compression of exiting left C6 and C7 nerve roots, as well as a C4/5 foraminal stenosis with slight impingement of exiting C5 nerve roots.”[40]
[40]PCB 67
48Dr Oludare referred the plaintiff for physiotherapy and she was advised to take analgesics in the form of Paracetamol as required.
49About five weeks after the second accident, on 16 July 2015, the plaintiff reported lower back pain with referral to the right leg to Dr Oludare. In his report, Dr Oludare stated:
“Ms Gauci also complained of aggravation of her lower back pain secondary to the motor vehicle accidents, when she presented to me on 16 July 2015. She has a history of a previous work-related injury to her lower back, when she fell on a wet floor whilst working as a cleaner. The pain is dull and radiates to the right leg. Examination revealed no neurological deficit.”[41]
[41]PCB 67
50On 28 July 2015 the plaintiff attended Dr Oludare reporting right wrist pain, and his request for an X‑ray notes: “Fall with trauma to right wrist …”.[42]
[42]DCB 66
51On 30 July 2015 the plaintiff had a CT guided left L4/5 epidural injection.[43]
[43] DCB 52
Summary of Dr Oludare’s evidence
52In his report Dr Oludare stated after both car accidents, 27 May 2015 and 5 June 2015, the plaintiff complained of “neck pain radiating to the left arm”. He notes after both accidents tenderness of C4/5. He states examination findings for the second accident were “the same as the first accident”.[44] Investigation following the first accident was a CT of her cervical spine. Following the second accident an MRI scan of her cervical spine and his request for the MRI refers to Motor Vehicle accident with cervical spine trauma.
[44] PCB 67
53He recommended the same treatment following the first and second accidents, namely physiotherapy and analgesics.
54The CT scan notes degeneration and a narrowing of the C5/6 exit neural foraminal stenosis. The MRI notes canal stenosis at C4/5, C5/6 and C6/7 and mild cord impingement, as well as severe left C 5/6 and C 6/7 foraminal stenosis with compression of exiting left C6 and C7 nerve roots.
55Dr Oludare notes on 16 July 2015 the plaintiff complained of lower back pain “secondary to the motor vehicle accidents”[45] – (noting the reference to plural). He referenced the plaintiff’s “history of a previous work-related injury to her lower back”. She reported the low back pain as “dull and radiates to the right leg”.
[45]PCB 67
Post second accident medical treatment
Dr Oludare’s records
56The defendant’s counsel cross-examined the plaintiff about Dr Oludare’s clinical records before and after the first and second accidents. From October 2015 through to February 2017, the records make no reference to neck or back pain by the plaintiff.
57The plaintiff attended Dr Oludare thirteen times during 2016, and there is no note of her reporting neck or back pain, nor is there any prescription for painkillers for the same. When asked about the lack of complaints to her doctor about her neck and back during 2016 she stated:
“I had but I’m so stoic and I was trying to live with it.”[46]
“Well, at the beginning, it wasn’t as severe as it’s got now. And I put up with pain a lot, like I told you before. ...Now it’s severe”.[47]
[46]T 37
[47]T 66
58On 15 February 2017 Dr Oludare notes the plaintiff attended and reported a recent fall at work:
“Neck pain/lower back pain
Back pain radiating to knees
Neck pain radiating to left armRecent fall at work”[48]
[48]DCB 75
59Dr Oludare requested an MRI scan of the elbow, noting:
“Neck pain with radiculopathy symptoms to left forearm. Exclude C5 compression”,
and a CT scan of the lumbar spine, noting:
“Lower back pain with referral to both knees. Hx of facet joints degenerative disease for follow up”.[49]
[49]DCB 75
60The plaintiff stated she always attended her doctor when she had a fall at work. The plaintiff noted “the falls I had were nothing like the car accident”;[50] and further, “These falls never stopped me from working. I kept on working”;[51] “That never stopped me from working or doing what I was doing.”[52] In cross-examination she stated, “I had [a] few falls but I always jumped up from them and kept going.”[53]
[50]T 67
[51]T 67-68
[52]T 69
[53]T 38-39
61On 21 February 2017 the plaintiff attended Dr Oludare reporting neck pain/lower back pain. The clinical notes record:
“CT Lumbar spine: multiple canal stenosis”,
and the MRI cervical spine:
“1. Moderate cervical spondylosis with multilevel disc degeneration as described. 2. Multilevel spinal canal and exit foraminal narrowing, with nerve root impingements, as described. 3. Congenital partial fusion of the C3 and C4 vertebral bodies and posterior element.”[54]
[54]DCB 76
62The reason for the visit was recorded as cervical and lumbar stenosis.[55]
[55]DCB 76 and PCB 195
63On 30 March 2017 she attended Dr Oludare, who recorded “lower back pain ongoing. Finding it difficult to cope at work. Needs time off.”[56] The reason for visit was recorded as cervical and lumbar stenosis.
[56]DCB 78
64On 4 May 2017 the plaintiff attended Dr Oludare for “ongoing lower back pain with referral to right leg.”[57] An MRI scan of the lumbar spine was requested, and the reason for visit recorded is lumbar stenosis.
[57]DCB 78
65On 30 May 2017 she attended Dr Oludare, who recorded “fall with trauma to left knee.”[58]
[58] DCB 79
66Her next attendance at Dr Oludare for neck and back pain was on 15 June 2018 when she reported, amongst other things, ongoing neck pain with referral to left arm and lower back pain with referral to right leg. She was referred for MRI scans of the cervical and lumbar spine.[59]
[59] DCB 85
67On 10 July 2018 she attended Dr Oludare and reported ongoing neck pain with referral to the left arm, and lower back pain with referral to the right leg. Dr Oludare noted the MRIs (ordered on 15 June 2018) record “nil changes from previous.”[60]
[60]DCB 86
68On 20 August 2018 she reported ongoing neck pain with referral to the left arm, and lower back pain with referral to the right leg. Dr Oludare referred the plaintiff to spinal surgeon Mr Greg Etherington and Professor Bittar.[61]
[61]DCB 87
Reports
69The plaintiff tendered reports from six treating doctors, namely Dr Oludare, Mr Etherington, Dr McCallum, Dr Awad, Dr Sheard and Professor Bittar; and three medico-legal experts, namely Dr Doig, Dr Altaf, and Dr Hayman.
70The defendant tendered medico-legal reports by Mr Speck, Mr Stockman, Mr Kossmann and Dr Middleton.
Treating doctors
71In his report dated 14 September 2022, Dr Oludare diagnosed the plaintiff with chronic neck pain with referral to left arm. He also diagnosed the plaintiff as having suffered an aggravation of chronic lower back from L 4/5 stenosis with indentation of the bilateral L5 nerve roots secondary to the motor vehicle accident. In his opinion the plaintiff’s prognosis was poor.[62]
[62] PCB 66
72Mr Etherington, spinal surgeon, was the first spinal specialist the plaintiff saw. In his report dated 5 December 2018 (to Dr Oludare), he reviewed the plaintiff “with respect to her right lumbar and right leg pain.” His report states “She said her problems began on 4 April 2015 when she was involved in a car accident.”[63]
[63]PCB 166 ‘April’ appears to be a typographical as the description is of the 4 June 2015 car accident.
73His impression was “Ms Gauci has ongoing right lumbar and right leg pain the cause of which is unclear at the moment.”[64] He notes, given the position of the pain, it is reasonable to look at the sacroiliac joints as well.[65] He noted “she has been recommended to have some physiotherapy but has not started this yet.”[66] He referred her for further investigations.
[64]PCB 167
[65]PCB 167
[66]PCB 166
74In his second report, dated 14 January 2019 (to Dr Symon McCallum), he refers to seeing the plaintiff for right lumbar and right leg pain. He refers to her having degenerative changes in several areas of her spine and being keen to avoid surgery. Mr Etherington referred her to Dr McCallum for treatment.
75Dr Symon McCallum, pain specialist, provided three reports.[67] His first two reports refer to causation. In his report dated 8 November 2018, he refers only to the June car accident and appears to have no history of the plaintiff’s prior back pain, stating: “She tells me she had no problems…before the accident until occasional neck pain.”[68] His impression was she possibly has cervical whiplash with her pre-existing degeneration. With respect to her right-sided lower back and buttock pain, he stated this might be related to the spinal canal stenosis, instability, or right hip pathology.[69]
[67] In addition, Dr McCallum provided 7 letters.
[68]PCB 57
[69]PCB 58
76In his second report, dated 6 December 2018, his impression was “she has possibly got right-sided sacroiliac joint dysfunction.”[70]
[70]PCB 169
77In his third report dated 24 February 2019 he states:
“Yes, I do believe Rita’s condition is related to her motor vehicle accident. I believe she had no problems before. It does … seem that she was relatively asymptomatic before the motor vehicle accident.”[71]
[71]PCB 64
78He was not aware of imaging prior to the car accident.
79Dr Mohammed Awad, treating neurosurgeon and spinal surgeon, assessed the plaintiff, and his report dated 8 April 2021 (to Professor Bittar) notes:
“Problem started back when she had a road traffic accident sometime in 2015, she thinks around the May time. It was a significant enough injury such that her air bags were deployed. She suffered with neck pains and back pain thereafter. Her main issue was her neck pain. Unfortunately eight days later she was clipped by a truck on the motorway and this forced her into a spin and she hit the central reservation a couple of times. This exacerbated her neck pain and her back pain as well. She has been treated for this conservatively over the years but her neck pain and more so her left arm brachialgia has been increasing.”[72]
[72]PCB 53
80Dr Awad does not refer to the plaintiff’s medical history.
81He ultimately recommends a two-level anterior cervical discectomy and fusion at the C5/6 and C6/7 levels. The plaintiff elected not to have surgery as there was no guarantee it would make any difference to her neck pain.
82Dr Oludare referred the plaintiff to see Dr Philip Sheard, orthopaedic and spinal surgeon, and Dr Sheard also prepared a medico-legal report dated 6 February 2023.[73] He noted the plaintiff was first reviewed by Precision Brain, Spine & Pain in November 2018 (by Dr McCallum) where it was documented she was involved in a car accident on 4 June 2015:
“and had no problems before the accident, except occasional neck pain. She had occasional left arm pain at that point and lower back pain and able to walk for more than a km.”[74]
[73] T 94. Counsel for the plaintiff referred to Dr Sheard as a treating doctor.
[74]PCB 189
83In answer to whether her condition has been materially contributed to by the accident on 4 June 2015, Dr Sheard stated:
“From review of the notes, it appears consistent that most of her symptoms including neck, radicular left arm pain, lower back and her right hip pain are consistent with the accident and materially contributed. Although your client did have some pain prior to the accident, documented in the notes, I think it has worsened significantly since the accident.”[75]
[75]PCB 190
84Professor Richard Bittar, neurosurgeon and spinal surgeon, prepared a report dated 16 June 2021.[76] He notes “the onset of her symptoms occurred following a motor vehicle accident in June 2015.”
[76]PCB 54. Although the plaintiff was referred to Professor Bittar by Dr Oludare and Dr McCallum, his report took a medico-legal format. Plaintiff’s counsel submissions refer to the plaintiff consulting Professor Bittar.
85Professor Bittar noted:
“Her past medical history is significant for occasional lower back pain, without any significant leg pain. She did have a fall at work several years ago but does not report any significant ongoing back or neck pain after that.”[77]
[77]PCB 55
86Professor Bittar diagnosed her with aggravation of cervical spondylosis with neck pain and left arm pain and aggravation of lumbar spondylosis with lower back pain and right leg pain. In his opinion, “the subject transport accident in June 2015 has been the significant contributing factor.”[78] He suggests she would require a C4/5 anterior cervical decompression and fusion.
Medico-legal reports
[78]PCB 55
Plaintiff’s medico-legal reports
87Dr Graeme Doig, orthopaedic surgeon, prepared a report dated 24 February 2021. The plaintiff gave a history of being in a car accident on 4 June 2015. Dr Doig recorded:
“Over the course of the following weeks, she developed worsening discomfort in the lower back, neck and dominant right shoulder.
Ms Gauci denied any previous problems or injuries to these anatomical areas.”[79]
[79]PCB 90
88Dr Doig diagnosed the plaintiff with soft tissue injuries to both the neck and lumbosacral spinal regions with probable aggravation of pre-existing degeneration within the neck and lower back.
89When asked about the relationship between the transport accident and diagnosis, Dr Doig stated:
“In the absence of any prior spinal injuries and restrictions, it would appear that the transport accident has predisposed towards the above conditions.”[80]
[80]PCB 91
90When asked about the cause of aggravation of the back condition and the transport accident on 4 June 2015, he stated:
“Ms Gauci appears to have suffered injuries to her neck and lower back in the high-impact, motor-vehicle accident of 04.06.2015 whereby she was the driver of a vehicle that was written-off as a result of the significant collision. Since that time, she has experienced significant neck and lower-back pain with restrictions.”[81]
[81]PCB 92
91Dr Doig prepared a second report dated 19 July 2022. In this report he notes being provided with medical reports, including the clinical records from Emmanuel Medical Centre, which is Dr Oludare’s practice.
92His diagnosis was that the plaintiff had suffered soft tissue injuries to the neck and lower back as a result of the transport accident on 4 June 2015 with aggravation of pre-existing degeneration.[82]
[82]PCB 96
93In his second report, Dr Doig reiterated his opinion that, in the absence of evidence to the contrary, there appears to be a direct relationship between the transport accident and the diagnosed conditions following the high-energy collision. He noted:
“There is a past history of a work-related injury to the back, although Ms Gauci informed me this occurred higher in the lumbar area, within a different anatomical region. This may require clarification.”[83]
[83]PCB 96
94Dr Khayyam Altaf, senior medical advisor in Occupational medicine, prepared a report dated 5 March 2021. With respect to the plaintiff’s history, he stated:
“Your client states that prior to the accident she had no musculoskeletal issues apart from occasional neck pain.”[84]
[84]PCB 116
95As well as noting a history of hypertension, bilateral toe operations, and a right rotator cuff repair, he noted:
“She recalls having a fall around seven years ago which she went to see her GP about but did not suffer any ongoing symptoms following this.”[85]
[85]PCB 116 – this may refer to one of the falls during 2014.
96Dr Altaf referred to the May and June car accidents.
97Dr Altaf reviewed and summarised the medical reports from Dr McCallum (two reports), Mr Chandrasekaran, Dr Hayman, Mr Miller, Dr Middleton and Mr Kossmann, radiology investigations (from 2015 to 2019) and the clinical notes from Dr McCallum and Dr Oludare. From Dr Oludare’s clinical notes, he noted the reference to the plaintiff’s falls at work in March 2014, November 2014 and January 2015. Following the guided nerve-block injections on 30 July 2015, he notes:
“There were further consultations in February of 2017 where your client had reported neck and lower back pain, where the neck pain was radiating to the left arm and back pain was radiating to the knees and there was a comment of a ‘recent fall at work’.”[86]
[86]PCB 122
98He made no observations regarding the gap in the references to neck and back pain in the general practitioner’s clinical notes between August 2015 and February 2017.
99The injuries he diagnosed from the car accident on 4 June 2015 were:
“cervical and lumbar spine dysfunction secondary to an aggravation of a cervical and lumbar spondylosis which occurred on 4 June 2015 as a result of this motor vehicle accident.”[87]
[87]PCB 127
100In his opinion:
“the transport accident was the direct cause of the aggravation of the cervical and lumbar spinal spondylosis and the subsequent cervical and lumbar spine dysfunction.”[88]
[88]PCB 127
101In a second report, dated 12 July 2022, Dr Altaf was provided with further reports from Dr Awad dated 8 April 2021, Professor Bittar dated 16 June 2021, and Mr Speck dated 24 May 2021. He notes Mr Speck’s opinion the plaintiff had soft tissue injuries which would have resolved over 6 to 12 weeks and that restrictions were from degeneration, not the transport accident.
102Dr Altaf confirmed his opinion the transport accident was the direct cause of the aggravation of the cervical and lumbar spondylosis and the subsequent cervical and lumbar spine dysfunction.[89] He also confirmed his opinion the plaintiff had a poor prognosis and given the nature of the degeneration in her cervical and lumbar spine she is at an increased risk of developing arthritis and overall long-term degeneration.
[89] PCB 139
103Dr Brendan Hayman, consultant psychiatrist, prepared a report dated 15 March 2019. Dr Hayman diagnosed the plaintiff with Adjustment Disorder with Depressed Mood consequent to accident on 4 June 2015 and exacerbated following her partner’s death. He noted the plaintiff:
“had to give up her full time cleaning job consequent to [the accident on 4 June 2015] in the setting of the ongoing lower back pain and neck pain. This caused significant financial difficulties for her, which continue to the present day. She premorbidly was a very active woman. She did her own gardening and socialised widely. Her partner passed away last year. ... She is now very involved with her grandchildren and looks after them for a number of hours each day.”[90]
[90]PCB 147
104In his second report, dated 21 June 2022, after assessing the plaintiff, Dr Hayman noted diagnostically her Adjustment Disorder with depressed and anxious mood is partially resolved and her condition has stabilised. He noted her:
“lifestyle has been affected, but this is primarily by virtue of physical factors. She formerly enjoyed gardening. This is now limited by her neck and back pain. She continues her involvement with her children and grandchildren. She is able to self care. She does only very light picking and packing, given her physical issues and pain.”[91]
[91]PCB 155
Defendant’s medico-legal reports
105Mr Gary Speck, orthopaedic surgeon, prepared a medico-legal report dated 24 May 2021.
106Mr Speck had the history of the two car accidents on 27 May 2015 and 4 June 2015. In terms of injury from the June car accident, Mr Speck recorded she already had bruising from an earlier accident from a seatbelt injury and:
“her neck was painful and would send occasional shock pains down to her middle and ring fingers on the left hand. She subsequently had right sided low back and groin pain.”[92]
[92]DCB 15
107He noted she denied any previous problems with her back or neck prior to the transport accident. She said she may have had short-term trouble with her neck but nothing persisting.
108Mr Speck physically examined the plaintiff and considered the radiology reports as well as the report by Dr Awad and Dr Oludare’s clinical notes. He detailed four visits to Dr Oludare during 2014 relating to low back pain and referencing falls at work, as well as 16 January 2015 and 21 January 2015 where the plaintiff reported bilateral knee pain. Following visits for the car accidents and low back pain on 16 July 2015 and 28 July 2015 she attended for wrist pain and on 14 August 2015 for CT-guided left L5 nerve block. Mr Speck noted following the nerve-block injections there is no further note in the general practitioner’s records of back or neck symptoms until February 2017 when she attended following a fall at work.
109In his diagnosis, Mr Speck stated:
“It is not possible from the history given or the information provided in the clinical notes to separate the severity of that [27 May 2015 accident] from the further accident on 4/6/15. However, in either case the expectation of the soft tissue injury of the chest and neck is one of resolution over the 6 to 12 weeks following the transport accident and a return to previous activity.”[93]
[93]DCB 35
110In his synopsis, Mr Speck noted:
“She had back symptoms from 2010 diagnosed as degenerative, sufficiently severe to have investigation and not contemporaneously present at the time of the transport accident and without any vehicle intrusion or interior damage on 4/6/15.”[94]
[94]DCB 35
111In answer to the contribution of the car accident of 4 June 2015 on the plaintiff’s current presentation, Mr Speck stated:
“I believe the soft tissue injuries to the neck and right chest region have resolved. They would have done so within 6 to 12 weeks from the transport accident.”[95]
[95]DCB 36
112His second report was dated 26 July 2022. In respect to the plaintiff’s current condition, he stated:
“Her current condition is a resolved soft tissue injury to the neck and chest arising from the subject transport accident. Her current presentation is consistent with degenerative age-related changes in the neck and low back with muscular ligamentous symptoms around the base of the neck and symptoms in the low back consistent with facet joint arthritis and symptoms relating to age and the degenerative process.”[96]
[96]DCB 49
113He reiterated his opinion the soft tissue injuries to the neck and shoulder region would have resolved within 6-12 weeks of the transport accident:
“There is no evidence of disco ligamentous injury to the neck nor vertebral structural injury. Her current presentation is likely somatic symptom disorder in relation to the neck. There is no evidence of neurologic injury. The low back symptoms are of a degenerative nature and not related to the transport accident.”[97]
[97]DCB 49
114Mr Alex Stockman, rheumatologist, prepared a report dated 20 January 2020. He had Dr Oludare’s clinical records and was aware of the car accidents on 27 May 2015 and 4 June 2015. He noted the absence of entries about neck or back pain in 2016 until the plaintiff had a fall at work and saw Dr Oludare on 15 February 2017. In terms of past history, the plaintiff said she had intermittent mild neck pain prior to the car accident. She also had mild lumbar back pain:
“She stated the lumbar back pain hardly worried her before the accident. Although she had x-rays of the lumbar spine before the car accident, she did not seek any medical treatment for this pain because the pain was very mild; she would take occasional Paracetamol.”[98]
[98]DCB 127
115In terms of whether there is a relationship between the transport accident and the conditions, Mr Stockman stated it is likely the cervical spondylosis, namely neck and arm pain, have been caused by the car accident. This was a pre-existing condition which was asymptomatic prior to the accident. He stated:
“There is no clear relationship between the motor vehicle accident and her low back pain, which is currently her major problem.”[99]
[99]DCB 129
116Mr Thomas Kossmann, orthopaedic surgeon, prepared a report dated 13 March 2020. Mr Kossmann refers to two car accidents, the first at the end of May 2015 and the second on 4 June 2015.
117The first accident was described as a “rear ender”, and her only injuries were seatbelt bruises on her chest and pelvis which resolved with time. The second car accident was described as:
“Ms Gauci told me that a truck struck her car on the driver side. The car spun around several times and then hit a barrier. ... Her daughter and her late partner picked her up ... She went to her GP, Dr Edward Oludare, on the same day.”[100]
[100]PCB 70
118Mr Kossmann included a detailed summary of the plaintiff’s radiology investigations as well as her past history, including referring to the lumbar spine and the MRI from 18 March 2014. He was provided with many of the medical reports as well as the clinical notes of Dr McCallum and Dr Oludare.
119Mr Kossmann diagnosed the plaintiff with aggravation of her pre-existing cervical spondylosis and aggravation of her pre-existing lumbar spondylosis following the second accident on 4 June 2015.
120Mr Kossmann queried if her hips and shoulder problems were related to the transport accidents, and was of the opinion she was incapacitated for work by virtue of her right shoulder condition.
121Dr David Middleton, occupational health and rehabilitation consultant, prepared a report dated 23 September 2019. He refers to both the May and the June 2015 car accidents.[101] In the prior history, he noted the plaintiff was “fit and well, able to do anything she chose to”.[102] The plaintiff referred to the May car accident, described as rear-ended impacting into the car in front, deploying the airbags and the car being written off. He noted:
“In that accident, Ms Gauci states she did not require any medical attention and was able to continue with her normal life, including working as a cleaner.”[103]
[101]Dr Middleton variously refers to the second car accident as being on the 4th, 6th and the 9th of June 2015
[102] PCB 98
[103]PCB 99
122In his diagnosis of the plaintiff’s injury, he distinguished between the May and June car accidents, noting the plaintiff’s description that the June car accident was at freeway speeds, her vehicle lost control, and she was thrown around in the vehicle as it repetitively struck concrete safety barriers before it came to rest:
“It is my opinion that as a result of the motor vehicle accident, Ms Gauci suffered from aggravations to her previously asymptomatic age-related spine, maximal in the lumbar region and subsequently involving the cervical region, the low back pain radiating into the right leg and the neck pain radiating into the left arm.”[104]
[104]PCB 110
123Dr Middleton further opined:
“…it is my opinion that as a result of the transport accident sustained on the 4th of June 2015, Ms Gauci suffered acute high, forceful straining of her spine, in particular her lumbar and cervical spines…In the lumbar spine, the injuries caused the onset of lumbar instability impinging and irritating the right traversing S1 nerve root and the spinal cord at L4/5. In the cervical spine, it aggravated the severe mid-cervical canal stenosis and irritated most likely the left C7 nerve root…”.[105]
[105]PCB 110
124Dr Middleton was provided with the radiology reports, namely CT lumbar spine dated 18 February 2017 and MRI of the cervical and lumbar spine dated 3 July 2018. He was also given reports and clinical notes from Dr McCallum dated 8 November 2018 and 24 February 2019, a report by Dr Brendan Hayman dated 15 March 2019, and the clinical notes from Dr Oludare dated 14 March 2014.
Applicable legal principles
The spine
125The spine is a single body part. In this case, the claimed injuries to the cervical and lumbar spine can be aggregated when assessing whether the plaintiff has a serious impairment or loss of body function involving the spine. However, this is only the case if the second accident caused injury to each of the low back and the neck, then they can be relied on for the loss of function of the spine.
Causation
126A major issue of dispute in this case was whether the plaintiff has established causation. The Court of Appeal said in Rowe v Transport Accident Commission,[106] the task of a judge hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.
[106][2017] VSCA 377
127At paragraph [83] the Court stated:
“That is not to say, however, that earlier or later traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence a proceeding.”
Aggravation
128The plaintiff submits the spinal injury to the neck and low back is an aggravation of degeneration injury.
129As the claimed injury is an aggravation, the Court of Appeal in Petkovski v Galletti [1994] 1 VR 436 stated:
“The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”[107]
[107] Petkovski v Galletti [1994] 1 VR 436 at 444
130In De Agostino v Leatch & Anor,[108] the plaintiff had been involved in three earlier car accidents and there was medical evidence that it was difficult to separate out the contribution of the fourth accident to the plaintiff’s final condition. The Court of Appeal stated at paragraph [60]:
“where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident. This must inevitably involve a question of causation.”
[108][2011] VSCA 249
Defendant’s submissions
131The defendant’s counsel referred to Rowe v Transport Accident Commission,[109] which requires the court to determine the cause and the specific injury that arose from the subject accident to establish the compensable injury. He also referred to Peak Engineering & Anor v McKenzie,[110] for authority that if there is a consequence that arises from another condition, then it cannot be said that is a consequence of the subject compensable injury if another condition has caused the same impairment. The defendant’s counsel in submissions stated:
“Peak v McKenzie makes it clear that if there is a consequence that arises from another condition, another injury, then that is significant in this way: it can’t then be said that that’s a consequence of the subject compensable injury if another condition has caused the same impairment.”[111]
[109] [2017] VSCA 377
[110] [2014] VSCA 67
[111]T 102-103
132Counsel referred to the impact of the first accident for which the general practitioner records the same consequences, and the lower back investigations in 2014 preceding the first accident.
133He relied on the reports of Mr Speck and Mr Stockman as the two medico-legal reports who referred to the plaintiff’s history, and Dr Oludare’s records. Mr Stockman stated there was no clear relationship between the motor vehicle accident and the plaintiff’s low back pain. Counsel submitted the causal link between the accident and the low back pain has not been established on the balance of probabilities.
134Counsel submitted Mr Speck was of the opinion the accidents were no longer playing a role in the plaintiff’s presentation, her pre-existing degeneration was significant, and her symptoms were not connected with the transport accidents.
135The defendant further referred to the plaintiff’s treating orthopaedic surgeon, Mr Etherington, who stated the cause of the right lumbar and leg pain is unclear at the moment, and that as a treating orthopaedic surgeon, his opinion should be given some weight.
136Professor Bittar’s report did not refer to the first accident or medical reports or the general practitioner’s report. There was no path of reasoning in so far as the causation of the low back pain, having regard to the delay in the onset.
137Dr Awad, who referred to both car accidents, noting the first accident was “significant enough that her airbags were deployed”,[112] stated the second accident “exacerbated her neck pain and her back pain as well.”
[112] PCB 53
138Mr Kossmann stated the plaintiff had no capacity to perform her pre-injury duties due to her right shoulder condition, indicating the plaintiff is incapacitated from work for an irrelevant condition aside from her neck and back injuries. Dr Doig’s report was criticised as he refers to one car accident and was unaware of the history of pre-existing lower back pain and is unaware of a prior history of investigation showing extensive degeneration.[113]
[113]T 115
139Counsel submitted:
“In our submission Your Honour has been presented with an impossible task of trying to sort out what the 2015 June accident has caused to the spine and we do say it is a construct.”[114]
[114] T 112
140The defendant’s counsel submitted the cases of Rowev Transport Accident Commission,[115] and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[116] are both relevant regarding causation. The plaintiff had symptoms from time to time before the accident and complaints through 2014 for lower back pain, and then there was a delay in the development of her lower back symptoms. During late 2015 and 2016, although she continued to attend on Dr Oludare for other ailments, the plaintiff does not complain about neck or back pain and she was working during this period. In February 2017, she had a fall at work, attends Dr Oludare reporting neck and back pain, and stops work in May 2017.
[115][2017] VSCA 377
[116] [2012] VSCA 60
141With respect to the history of falls, counsel for the defendant submitted the history shows that in 2014, the period immediately prior to the car accident, there was an extensive history of low back pain and investigations, with extensive degeneration demonstrated and causing pain.[117] On 21 March 2014, she reported lower back pain and was prescribed Lyrica, a powerful pain killing medication. On 14 November 2014, there is reference to another fall, and tenderness of the lower back, L4/5. On 2 December 2014, she had a history of anxiety and depressed mood, with Lexapro not working. She was also having problems with her sleep. On 16 January 2015, the plaintiff had another fall and MRI scans are ordered for her knees.
[117]T 121
142Counsel submitted with respect to the first and second accident, exactly the same history regarding the neck and the arm is given for both accidents. There is no mention of the low back until 16 July 2015. After August 2015, there is no mention to the general practitioner of the back until 15 February 2017 when the plaintiff reports lower back pain and neck pain radiating to her left arm and a recent fall at work.
143Counsel for the defendant also referred to the plaintiff’s medical history of shoulder problems and hip problems and reports that suggest the right-side lumbar pain could be hip-related.
144In terms of consequences, the cessation of employment in 2017 cannot be a consequence of the second accident but rather a consequence of “multifactorial matters in her life” and she happened to be eligible for the age pension when she turned 65 in 2017, when she stopped work. She lost work contracts because they were assigned to other businesses, which are reasons unrelated to the injuries from the second accident.
145She now works five days a week in her daughter’s business, she is living independently, assisting her daughters, domestically and business wise.
146Defendant’s counsel submitted if there is a causal connection, then the consequences are minor and are not even significant or marked, let alone at least very considerable.
Causation
Plaintiff’s credit
147Counsel for the defendant described this case as a “construct” and the plaintiff was robustly cross-examined.
148The plaintiff’s first affidavit states:
“I was an active gardener prior to the transport accident and would tend to it most afternoons when I had finished work. The ongoing pain and restrictions that I continue to experience in my spine prevent me from being able to look after my own garden. The pain in my spine prevents me from being able to bend or maintain the position necessary to pull out the weeds.”[118]
[118] PCB 16
149Surveillance video footage played to the court dated 9 February 2021 shows the plaintiff in her front garden. From 10.25am to 10.35am she is hand-watering her garden with a hose. On multiple occasions she bends down, whilst watering, to pull out weeds.
150It was put in cross-examination, she was “bending over and doing some weeding”, she stated:
“Of course. I still – even in pain, who’s going to do it for me? I have to do it and I didn’t – you know, like pick a few weeds and of course I suffer the pain.”[119]
“Yes, but I still push myself, I did. ... I never said I can’t bend. Of course.”[120]
[119]T 51
[120]T 51
151She acknowledged part of her affidavit was wrong and stated:
“It’s clearly wrong, yeah, what is said, but I force myself to do things. I’m very stoic, very.”[121]
[121]T 51-52
152Plaintiff’s counsel submitted this showed the plaintiff’s candour and whilst she has downsized her house and cannot do much in the garden, she can do what gardening was shown in the footage.
153I accept this submission regarding the plaintiff’s response to the footage.
Finding on credit
154Overall, I took the view as a witness the plaintiff did her best to answer the questions. I was not of the view she was evasive or disingenuous. Whilst she was sincere in her evidence, and a witness of credit, I find she was not completely reliable and could not understandably, recall many of her visits to the doctors. She tended to generalise in her answers and was light on the detail. There were inconsistencies, for example, the medical reports contain medical histories which refer to the plaintiff as having a medical history of “occasional neck pain” only, which is not accurate. When asked why there is no mention of her neck or back pain in Dr Oludare’s clinical notes in 2016, she described herself as stoic and trying to live with the pain. She also stated that the pain then was not as severe as it is now.
First and second accidents
155I turn to consider the evidence regarding the first and second accidents.
156The plaintiff described the first accident as minor, and the second accident as severe and horrifying.[122] The police report of the second accident confirms the plaintiff’s description. Following both accidents, she attended Dr Oludare reporting neck pain radiating to the right arm, which after the first accident was investigated by a cervical CT scan and after the second accident, an MRI scan. There is no prior history in the Dr Oludare’s clinical records of neck pain and radiating arm pain.
[122]T 31-32
157A point of difference in Dr Oludare’s notes of the two accidents is that after the second accident he requests the MRI scan and refers to cervical spine trauma.
158On 16 July 2015, she reported lumbar back pain. This was treated with an injected nerve block.
159In his report, Dr Oludare notes the plaintiff’s prior history of work-related injury to her low back and low back pain radiating to the leg. He refers to the two accidents in the plural, however, in a letter dated 10 March 2017 to the Transport Accident Commission when requesting funding for an MRI scan of the lumbar spine he refers to the 4 June 2015 car accident.[123]
[123]PCB 195
160In submissions, the defendant’s counsel submitted the delay in the emergence of the low back symptoms casts doubt on the causation being the second car accident. He further submitted, taking into account the 2014 extensive history of low back pain with extensive degeneration of the spine and another fall in February 2017, it is impossible to sort out the contribution of the second accident to the spinal injury.
161The plaintiff’s counsel noted there was no prior history involving the neck. He submitted there is no causal connection between her previous falls and her current condition.
162Taking the evidence into account, I accept the second car accident was much more serious than the first car accident in that it was a high-speed, high-impact collision with a truck whereby the plaintiff lost control of her car. She was on her way to work when the second car accident occurred. I accept the plaintiff’s evidence describing the severity of the second accident.
163Given the high-speed nature of the collision, it is logical to infer the physical impact from the second accident on the plaintiff was greater than the first accident. As the Court of Appeal stated Davies v Nilsen and Transport Accident Commission [2014] VSCA 278 at paragraph [84]:
“…as a matter of probability, the more severe the impact, the greater the prospect of more severe injury.”
164This is also borne out when comparing the results of the CT and MRI scans of the plaintiff’s cervical spine taken after each accident. Further, after the second accident the plaintiff had a week off work, as compared to a day or two off following the first accident.
165I accept the plaintiff’s evidence her symptoms from the first accident had resolved by the time she had the second accident.
166I turn to consider the identification of the injury that occurred as a result of the second car accident.
What is the injury caused by the second accident?
167The second car accident was high speed and high impact in nature, I am required to identify “an injury that occurred as a result of the transport accident in question”.[124]
[124]Rowe v Transport Accident Commission [2017] VSCA 377 at paragraph [82]
168Many of the medical reports are unreliable in respect of causation to the extent that they refer to only one accident and do not refer to the plaintiff’s prior medical history of low back pain.
169The immediate and contemporaneous investigation following the second accident was the MRI scan which Dr Oludare reported revealed:
“…acquired severe left C4/5, C5/6 and C6/7 stenosis with cord impingement. Severe left C5/6 and C6/7 foraminal stenosis with compression of exiting left C6 and C7 nerve roots, as well as a C4/5 foraminal stenosis with slight impingement of exiting C5 nerve roots.”[125]
[125] PCB 67
170In my view, this is strong evidence of the plaintiff’s injury from the second accident.
171Mr Etherington was unclear about the cause of the plaintiff’s lumbar pain, and he only refers to one car accident and is not aware of the plaintiff’s history of back pain. Dr McCallum refers to the one car accident and states the plaintiff reported a history of “occasional neck pain”. (I pause to note a number of doctors, for example Dr Sheard and Dr Altaf, refer to the plaintiff giving a history of “occasional neck pain”; however, there is no mention of prior neck pain in Dr Oludare’s clinical notes). Dr McCallum states the plaintiff has probable whiplash exacerbating her degenerative condition but that the low back pain could be related to spinal canal stenosis, joint arthropathy and possibly muscular. He notes she has chronic pain syndrome. Dr Awad refers to both car accidents, stating the second “exacerbated her neck pain and her back pain as well”, and he makes no reference to the plaintiff’s prior history of low back pain. Professor Bittar refers to one car accident. Whilst he refers to the history of back pain, he noted it did not include leg pain, which is contrary to Dr Oludare’s 2014 clinical notes.[126]
[126]DCB 55-56
172Mr Kossmann and Dr Altaf support the plaintiff’s case regarding causation for both neck and back from the June car accident and both were aware of the two accidents as well as the plaintiff’s medical history. Mr Stockman supports causation regarding the neck but not the low back. These doctors refer to both accidents and the plaintiff’s medical history, so I give these opinions greater weight. Mr Middleton supported the cause of her aggravation injury to the neck and lower back by the June accident, but he refers to her as having a previously asymptomatic age-related spine.[127]
[127] PCB 110
173Given my findings about the severity of the second car accident, I disagree with Mr Speck’s opinion that it is not possible to separate the severity of the two accidents. In Mr Speck’s opinion, the plaintiff suffered soft tissue injuries which should have resolved in six to twelve weeks.
174Dr McCallum was of the view the plaintiff probably had cervical whiplash on top of her pre-existing degeneration and Dr Doig diagnosed the plaintiff with soft tissue injuries to both the neck and lumbosacral spinal regions with probable aggravation of pre-existing degeneration within the neck and lower back.
Neck injury
175The defendant’s counsel cross-examined the plaintiff about her prior medical conditions, which are not immaterial to this case. Counsel referred to an impossible task to sort out what injury the June 2015 accident has caused to the spine given the first accident, and the 2014, 2015 and 2017 evidence of work-related falls, as well as the period in 2016 when there are no complaints of neck or back pain to Dr Oludare.
176In my view, the first accident and the 2014 and early 2015 falls at work are relevant to the issue of causation as these pre-date the second accident. Defendant counsel’s submissions regarding the absence of reportage about the neck and back to Dr Oludare during 2016, and the fall at work in February 2017 after which there is reportage of pain in the neck and back pain to Dr Oludare, was relevant to the issue of causation as to whether any injuries caused by the second accident had resolved or the chain of causation had broken.[128]
[128] I note in Defendant Counsel’s submissions, causation was identified as the main issue, he
referred to the “impossible task of trying to sort out what the 2015 June accident caused to the
spine and we do say it is a construct” (T 112) and made no reference to disentanglement.
177Dr Oludare’s clinical notes record the plaintiff reporting low back pain following falls at work on 14 March 2014 and 14 November 2014 and trauma to both knees following a fall at work on 16 January 2015. As the presentations illustrate, she continued to work and the plaintiff’s evidence was that the falls did not curtail her employment or daily activities. Dr Oludare’s records show that during 2014 and early 2015, her low back was symptomatic with low back pain radiating to the leg, for which she was on one occasion, 21 March 2014, prescribed Lyrica and on 14 November 2014 recommended Panamax.[129]
[129] DCB 56 and DCB 58
178At the consultation on 16 July 2015 where the plaintiff reports ‘lower back pain with referral to right leg’,[130] there is no reference in Dr Oludare’s notes to the second accident, although he states in his report she “also complained of aggravation of her lower back pain secondary to the motor vehicle accidents”.[131] He requests the CT guided L4/5 injection which occurs on 30 July 2014. I note Dr Oludare did not request a new MRI scan of the lumbar spine but refers to the results from the earlier MRI scan dated 18 March 2014. This suggests he is treating the low back pain as per its earlier condition, not as a new condition.
[130] DCB 65
[131] PCB 67
179With respect of the plaintiff’s 2014 and 2015 falls at work, I note there is no reference to neck pain.
180In my opinion, taking all the evidence into account I find the second accident caused the plaintiff’s aggravated neck injury, the specific injury being to the cervical spine involving the production and/or aggravation of intervertebral disc degeneration and spondylosis with severe left C5/6 and C6/7 foraminal stenosis leading to compression of the existing left C6 and C7 nerve roots for the following reasons.
181Firstly, the severity of the impact of the second accident supports a finding she sustained a severe injury for which the plaintiff had a week off work. The plaintiff stated she immediately experienced significant pain and restrictions in her neck and double vision following the transport accident.
182Secondly, this injury was identified by the contemporaneous MRI scan conducted on 6 June 2015 immediately after the second accident.
183Thirdly, although the plaintiff reported pain in the neck radiating to the right arm from the first car accident, I accept her evidence the first accident was of a minor nature and her symptoms had resolved and in fact, she was back at work at the time of the second accident.
184Fourthly, there is no prior history of neck pain in the plaintiff’s significant medical history and no other suggested causes of her neck aggravation injury.
185The medical evidence supports her neck injury. The MRI scan of 6 June 2015 reveals pathology which identifies severe left C5/6 and C6/7 foraminal stenosis leading to compression of the left C6 and C7 nerve roots. Further, Dr McCallum states she probably has whiplash aggravating her degenerative condition. Given the high-speed high-impact nature of the June car accident and the immediate onset, this conclusion appears feasible.
186Fifthly, on 10 March 2017 Dr Oludare wrote to the Transport Accident Commission requesting funding for an MRI scan of the plaintiff’s lumbar spine in which he references the cause of the neck and low back injuries from the 4 June 2015 car accident.
187Sixthly, the majority of the medical reports support a finding the plaintiff’s aggravated neck condition was caused by the 4 June 2015 accident, even if not all the opinions were aware of the first accident. Aside from Mr Speck, there are no opinions which cast doubt on this, unlike the position regarding causation of the aggravation of the plaintiff’s low back.
Low back injury
188I do not find the second accident caused the aggravation injury of the plaintiff’s low back for the following reasons.
189The plaintiff had a pre-existing symptomatic low back from work-related falls. Whilst plaintiff’s counsel submitted these falls are not causal to her current condition, I was not directed to evidence to support this. Unlike her neck which was asymptomatic, I have not been able to distinguish her pre-second accident condition. An MRI scan of her lumbar spine was taken in 2014 and the next MRI of the lumbar spine was in 2018.
190When the plaintiff reported low back pain to Dr Oludare on 16 July 2015 he did not investigate. He referred her for a nerve branch block injection relying on an MRI from 2014. There is no reference in Dr Oludare’s contemporaneous record from the 16 July 2015 consultation to the second accident, although in his report, Dr Oludare refers to the “accidents" plural. His treatment appears to be based on what he knows of her earlier low back condition from 2014, not new evidence arising from the second accident.
191The strongest evidence in favour of causation is Dr Ouldare’s report and his letter to the Transport Accident Commission dated 10 March 2017 in which he seeks funding for an MRI scan on the lumbar spine and attributes the cause of the neck and low back injuries from the 4 June 2015 car accident.
192Mr Kossmann and Dr Altaf support the aggravation injury to the plaintiff’s neck and back was caused by the second accident, as do Professor Bittar and Dr Awad and Dr Sheard. Against this, treating doctor, Mr Etherington states the cause of her ongoing right lumbar and right leg pain is “unclear at the moment.” Another treating doctor, Dr McCallum states her central low back pain may be related to the spinal canal stenosis. Mr Stockman states “There is no clear relationship between the motor vehicle accident and her low back pain, which is currently her major problem.”[132] There are three medical opinions expressing doubt about the causation of the plaintiff’s low back pain.
[132] DCB 129
193I also note the plaintiff’s late emergence of low back symptoms to Dr Oludare on 16 July 2015, some five weeks after the second accident.
194I take into account the plaintiff’s history of falls prior to the second accident, her reports of low back pain, her attendances on her general practitioner and her pain medication. Although her evidence was that these falls were minor and she jumped up again and continued to work, it is not possible to distinguish the injury to her low back prior to the first accident with the injury after the second accident.
195The plaintiff bears the onus of proof and whilst there is some evidence in support, I am not satisfied the evidence is of sufficient weight to be satisfied on the balance of probabilities that the second accident caused the plaintiff’s low back aggravation injury.
Did the neck injury resolve?
196My next consideration is whether the neck injury resolved, given the 2016 period of absence of complaint to Dr Oludare, and was causation affected by the 2017 fall at work.
197Defendant’s counsel spent a significant amount of time cross-examining the plaintiff on the contents of Dr Oludare’s clinical records.
198The defendant relied on Dr Speck’s report dated 24 May 2021 that her soft tissue injuries to the neck and right chest region have resolved and would have done so within 6 to 12 weeks from the transport accident.[133] In his report dated 26 July 2022, Mr Speck stated her current condition was consistent with degenerative age-related changes in the neck and low back. His opinion was that her current presentation is likely somatic symptom disorder in relation to the neck.
[133]DCB 36
Absence of complaint to Dr Oludare of neck and low back pain during 2016
199Dr Oludare notes in his report:
“Over the course of two years, between 2015 and 2017, she was having recurrent ongoing neck and lower back pain and she managed with a combination of Lyrica, a medication used for neuropathic pain and physiotherapy.”[134]
[134]PCB 67
200Dr Oludare does not refer to the absence of complaint by the plaintiff regarding her neck or lower back pain during 2016.
201On this point the plaintiff’s evidence was she was “stoic” and that the pain was not as severe as it is now. I accept her evidence that the pain has increased over a period of time; this is not an unusual trajectory.
202Having read Dr Oludare’s clinical notes, the record of his investigations and his report, I have formed the view Dr Oludare is a diligent, attentive, and thorough general practitioner. He had the continual care of the plaintiff over many years and has been assiduous in his record keeping and referral of the plaintiff for investigations and treatment. He has not regarded the gap in his records of complaints during 2016 as inconsistent with his diagnosis of her injuries. The plaintiff presented to him with a slew of other medical complaints during that period. I did not have the benefit of hearing Dr Oludare give evidence. In my view, given the consistency with which the plaintiff attended Dr Oludare for treatment, he was in a good position to assess the genuineness of her presentation. In his report, Dr Oludare tempers his opinion regarding her lower back pain, stating it is secondary to the motor vehicle accidents, also referring to her history of work-related injury to her lower back.
203Further, putting Mr Speck to one side, none of the treating doctors and only Mr Stockman of the medico legal opinions, many of whom had access to Dr Oludare’s notes, have referred to this aspect of the plaintiff’s medical records in their reports.
204The Court of Appeal in Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph [106] stated:
“However, where an injury is having serious adverse health consequences for a patient and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner’s clinical notes not to refer to them over a lengthy continuous period of time.”
205I take that into account, however taking the evidence as a whole, I accept the plaintiff’s explanation that she was still in pain but stoic. I do not form the view that this gap in the records of complaint to Dr Oludare is indicative that the aggravation of the plaintiff’s degenerative neck condition which I find is caused by the second accident had resolved.
2017 fall at work
206On 15 February 2017, the plaintiff attended Dr Oludare and reported neck and lower back pain and there is reference to a ‘recent fall at work.’[135] In cross-examination when put to the plaintiff she stated, “I had few falls but I always jumped up from them and kept going.”[136] She admitted she had this fall and stated she went to the doctor for all falls at work.
[135] DCB 75
[136] T 38-39
207At this consultation, Dr Oludare requested an MRI scan of the elbow noting ‘neck pain with radiculopathy symptoms to the left forearm. Exclude C5 compression’ as well as a CT scan of the lumbar spine ‘lower back pain with referral to both knees. Hx of facet joints degenerative disease for follow up.’ He prescribed Lyrica. The plaintiff stated she did not take much of the Lyrica. She did not know how strong it was.[137]
[137]T 70
208On 10 March 2017, Dr Oludare wrote to the Transport Accident Commission seeking approval of the cost of the MRI lumbar scan which he states is related to the transport accident on 4 June 2015.[138]
[138] PCB 195
209There is no other evidence about the February 2017 fall at work. In the absence of any detail, and the plaintiff’s answer in evidence admitting the fall and that she reported all falls at work to her doctor, and jumped up and kept going, I consider it speculative to consider the import or otherwise of the impact of this fall on her neck injury. Regardless of the reportage of a ‘fall at work,’ Dr Oludare’s letter to the Transport Accident Commission on 10 March 2017, shortly afterwards, reflects his opinion the neck and lower back injuries are as a result of injuries from the second accident.
210I am of the view that the February 2017 fall at work is a chronological coincidence but based on the whole of the evidence it is not an event that either Dr Oludare or the other doctors have attached any weight or significance to in their consideration of causation of the neck injury.
Peak Engineering & Anor v McKenzie
211The plaintiff relied on injuries to the neck and lumbar spine. As I have not found for the plaintiff in respect of causation regarding the lumbar spine, accordingly, the plaintiff must disentangle the consequences of the lumbar spine injury, from the consequences of the neck in accordance with the principles as set out in Peak Engineering & Anor v McKenzie.[139] The Court of Appeal said that in anything other than a clear case, a court confronted with a plaintiff who has two or more injuries to different body parts should start by identifying all the pain and suffering or loss of earning capacity consequences the plaintiff has sustained. The court can then disaggregate the consequences to identify which are attributable to which impairment or body part.[140]
[139] [2014] VSCA 67
[140] Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [24]-[25]
212In this case, the plaintiff gave evidence that some of the restrictions on her activities were attributable to both injuries to her neck and her lower back. It is necessary for me to consider whether the pain and suffering consequences of the neck injury are more than significant or marked and at least very considerable. For that purpose, it is necessary so far as the evidence permits, to identify the consequences properly referable to that injury, being the neck injury, and to exclude the consequences referable to the lower back injury. It follows that I must adopt what was said by the Court of Appeal in Peak Engineering & Anor v McKenzie.[141] The Court of Appeal said:
“… In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.
It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.”
[141] [2014] VSCA 67 at paragraphs [24]-[25]
213The further issue in dispute is whether the consequences of the aggravation injury meet the threshold of being more than significant or marked, or at least very considerable.
Consequences
214In the plaintiff’s affidavits, she described the individual consequences of the neck and low back injuries, and described other consequences that were attributable to both.
215Where the different injuries are concurrently producing pain and suffering consequences, it will ordinarily be necessary to make findings about all the pain and suffering consequences as at the date of hearing.
Pain
216As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[142]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (e.g. medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
[142] [2010] VSCA 69 at paragraph [11]
217In her first affidavit, the plaintiff stated she has significant pain and restrictions in her neck.[143]
[143]PCB 13
218In her second affidavit, the plaintiff stated:
“Presently, I continue to experience fluctuating pain in my neck each day. The pain in my neck is situated mainly around the back and left side of my neck. The pain fluctuates between a dull nagging ache and a rather severe throbbing pain. I find that the pain and discomfort in my neck tends to gradually build up if I keep my neck flexed for extended periods such as when looking down whilst on my laptop.
Most of the time my neck also feels stiff and tight, but this becomes even more pronounced when I suffer a flare up in my neck pain. These flare ups of more severe pain are unpredictable but are typically caused by any moderately physical activity, lifting or sudden twisting movements of my neck.
Some weeks I can get by without a flare up occurring, but other weeks I can experience multiple flare ups. When these occur, I am left in immense discomfort and my neck becomes extremely tender and acutely painful. These symptoms last anywhere between a couple of hours to most of the day and can reduce me to tears.
The pain in my neck also continues to radiate into my left shoulder and upper arm. The pain also extends down my left arm and into the ring and middle fingers of my left hand. The pain in my left arm is more of a nerve type pain and it often feels like electric shocks are being sent from my neck down my arm. In addition, I also experience frequent episodes of altered sensation and pins and needles in my left hand which affects my grip strength.
I also continue to experience frequent migraines and headaches that interfere with my concentration. These occur on average three times per week and cause an unpleasant throbbing sensation in the back of my head.”[144]
[144] PCB 22
219In her third affidavit she stated she experiences persistent pain and stiffness in her neck each day. She stated:
“My symptoms remain largely as set out in my second affidavit. In particular, I continue to experience persistent pain and stiffness in my neck each day. The pain varies in severity from day to day, but most of the time I experience a dull aching pain in the back and left side of my neck. Physical activity seems to aggravate my neck and cause flare ups of more intense, throbbing pain in my neck. The more active I am, the more my neck seems to hurt.
Frustratingly, the pain in my neck often radiates into my left shoulder and upper arm and down into the ring and middle fingers of my left hand. This pain is more of an electric, nerve type pain and is also associated with feelings of altered sensation and pins and needles in my left hand. My left arm feels much weaker nowadays and I lack grip strength in my left hand.
Since my second affidavit, I have also continued to experience regular migraines and headaches. Whenever I experience a significant flare up in my neck pain, this is often associated with the onset of a pounding pain in my head as well.”[145]
[145]PCB 184
220In terms of the impact of pain on her mood, in her second affidavit the plaintiff stated:
“The persistence of my pain and the lack of improvement in my symptoms has impacted heavily on my mood. I have been frustrated and struggled with mood swings that past few years. The pain really gets me down and weighs heavily upon me. I often feel down and depressed. I also worry a lot more these days and struggle with anxiety. I worry about the future and I worry about the possibility of needing to undergo spinal fusion surgery.”[146]
[146] PCB 23
221Dr Oludare noted in his report the plaintiff’s current symptoms are ongoing neck pain with referral to her left arm. She struggles with activities of daily living like cooking, cleaning, and shopping.[147]
[147] PCB 68
222Dr McCallum noted in his most recent letter dated 30 July 2020, the plaintiff had requested a pain management program and was struggling with her neck and lower back pain. He had recommended the plaintiff have radio frequency neurotomy of the cervical spine.[148]
[148] PCB 177
223Dr Awad in his report dated 8 April 2021 noted the plaintiff’s issue was her neck pain and he recommended conservative treatment and failing that, a two level anterior cervical discectomy and fusion at C 5/6 and C 6/7 levels.[149]
[149] PCB 53
224In Professor Bittar’s report dated 16 June 2021 he noted, “When I reviewed her in February 2021, she had ongoing issues with neck pain radiating into her left shoulder and proximal arm, consistent with C5 nerve root distribution.”[150] He suggested she requires a C4/5 anterior cervical decompression and fusion.
[150] PCB 55
225On 30 November 2022, Dr Oludare referred the plaintiff to Dr Sheard who reviewed the plaintiff. In his report dated 12 January 2023 Dr Sheard noted “At the present time, she describes left sided neck pain radiating with occasional shooting pain down her left arm to the C7 distribution which is sever in nature.”[151] He suggested she have a cervical epidural or a left C5/6/7 nerve root injection. In his second report dated 6 February 2023, he foreshadowed possibly anterior cervical decompression and fusion.[152]
[151] PCB 188
[152] PCB 190
226Many of the medical reports refer to the plaintiff’s reportage of neck and low back pain. The medical witnesses accept her evidence of neck pain and radiating pain to her left arm. Three doctors, namely Dr Awad and Professor Bittar (both are neurosurgeon and spinal surgeons), and Dr Sheard, (an orthopaedic and spinal surgeon) recommend neck fusion surgery. The plaintiff’s pain management specialist, Dr McCallum has sought approval for the cervical radio-frequency neurotomy procedures.
227Her daughter Joanne Gauci states in her affidavit “My mother often screams loudly when she suddenly feels an electric shock in her fingers, pain travelling down from her neck. This frightens and saddens me as I do not like seeing my mother in such pain.”[153]
[153] PCB 30
228The evidence in the plaintiff’s affidavits and what she has told medical witnesses is clear and specific to her neck pain. I accept the contents of the plaintiff’s affidavits describing her neck pain and the consequences. I accept the plaintiff suffers from constant neck pain radiating to her left arm which she has reported to the medical witnesses. I accept this is a very significant consequence of her neck injury I can take into account.
Medication
229In her first affidavit, the plaintiff described her medication regime to control the pain and restrictions in her spine. This comprised of two 100mg Norflex tablets every day and Panadol when the pain is particularly severe. She has tried Lyrica, with poor results.[154]
[154]PCB 14
230In her second affidavit, the plaintiff stated she continues to see her general practitioner Dr Oludare and her pain specialist, Dr McCallum. She stated:
“In order to manage my pain I continue to use a variety of medications. The amount of tablets I take fluctuates depending on how my pain and migraines are faring. Some days I get by without any medication, but other days I will take several different tablets. I generally take both Panamax and Mobic several times per week but for more severe flare ups, I also use some Norflex every few weeks, to help try and alleviate my pain. In addition, I regularly use Voltaren Cream to help ease the pain and stiffness in my neck and back. For my mood I currently take Duloxetine 60mg and I take Somac for reflux that is aggravated by my various medications.”[155]
[155]PCB 24
231In her third affidavit she stated:
“I continue to use a combination of Panamax and Mobic several times per week to help in the management of my neck and back pain. For more severe flare ups, I still use some Norflex from time to time. I also still use Voltaren Cream to help ease the pain and stiffness in my neck and back and I take Duloxetine 60mg for my mood. I also still take Somac for reflux that is aggravated by my various medications.”[156]
[156]PCB 186
232Her daughter Joanne Gauci states in her affidavit she sees her mother “move her neck up and down as she tries to ease the pain. I also see her rub her neck to massage and relax it.” She rubs Voltaren gel into her mother’s neck, back and shoulders.[157]
[157] PCB 30
233The plaintiff takes medication for both her neck and back pain. I accept the plaintiff’s evidence she needs to take medication for her neck pain and has sought advice for pain management. I find the pain consequences for her neck are separate and distinct from the pain consequences in her low back despite the fact her medication treats both the pain in the plaintiff’s neck and low back.
234I accept the plaintiff takes regular medication for her neck injury. This is a consequence I can take into account, and it is at the medium point of the scale of consequences.
Treatment
235In submissions, the plaintiff’s counsel noted three doctors have recommended the plaintiff have a double neck fusion.
236In her first affidavit, the plaintiff noted she had been told an operation on her neck may assist her in the future. She decided not to have surgery as she stated there is no guarantee the pain will be relieved and there is a risk her symptoms could become worse.[158]
[158]PCB 14
237She had treatment from pain specialist, Dr McCallum. On 13 September 2019, Dr McCallum performed bilateral cervical medial branch block injections at C5/6 and C6/7. She stated this offered brief improvement in her neck pain, but it wore off over a couple of weeks and her pain returned to its previous level.[159]
[159]PCB 19
238On 2 October 2019, Dr McCallum recommended radiofrequency neurotomy procedures to her neck. However, in August 2020 this was rejected by Transport Accident Commission.
239In October 2019, her general practitioner referred her for some further physiotherapy. She was also referred to a psychiatrist for her declining mental health.[160]
[160]PCB 20
240In November 2020, she was referred to Professor Bittar, whom she saw on 18 January 2021. She had persistent neck pain which radiated to her left arm and hand. He recommended further investigations but foreshadowed she may require surgery in her neck.[161]
[161]PCB 20
241Following investigations which included a nerve conduction study and an X‑ray, on 15 February 2021 Professor Bittar told the plaintiff she may benefit from a neck fusion operation and referred her to Dr Awad, neurosurgeon.[162]
[162]PCB 21
242On 8 April 2021, Dr Awad recommended a double-level neck fusion at C5/6 and C6/7 to manage her left arm pain. Ultimately the plaintiff did not proceed with the operation, as she stated, doctors could not guarantee success and she was fearful of complications leaving her worse off.
243In her third affidavit, dated 3 March 2023, the plaintiff stated there is little change in her condition and she has chronic daily ongoing pain and discomfort in her neck and back.[163]
[163]PCB 184
244Each day she experiences persistent pain and stiffness in her neck. Physical activity aggravates her neck, causing flare ups of intense throbbing pain. She stated, “the more active I am, the more my neck seems to hurt.”[164] The neck pain radiates to her left shoulder and arm. Her left arm feels weaker, and she lacks grip strength in her left hand.
[164]PCB 184
245She continues to have migraines and headaches, and often a flare up of neck pain is associated with a headache.
246On 14 November 2022, she had an MRI scan on her neck and back, and Dr Oludare referred her to Dr Sheard, orthopaedic specialist. On 12 January 2023, Dr Sheard recommended an epidural and further nerve root injections in her neck. She stated:
“I subsequently consulted Mr Sheard on 12 January 2023. On that occasion, he told me that I may require an epidural and further nerve root injections into my neck. He also explained to me that if those injections did not help that I would possibly need to undergo an anterior cervical decompression and fusion operation. I was quite nervous and anxious about the possibility of having further injections into my spine and so I have decided to hold off doing so for the time being.”[165]
[165] PCB 185
247In his report dated 14 September 2022, Dr Oludare noted the plaintiff has ongoing neck pain with referral to the left arm and lower back pain with referral to the right leg. He stated she is managed with analgesics such as Norflex, Mobic and Paracetamol as well as self-managed physiotherapy.[166]
[166]PCB 68
248I accept the plaintiff suffers from persistent and chronic ongoing pain in her neck. I accept her evidence about her pain and the treatment she has had on her neck. She has already had a bilateral cervical medial branch block injections at C5/6 and C6/7. Three doctors have recommended spinal fusions and she is considering further nerve root injections in her neck. I accept this is consequence of her neck injury which is attributable to the neck alone. I take this consequence into account which I assess at the high end of the scale.
Anxiety and depression
249In the plaintiff’s first affidavit, she stated prior to the transport accident she suffered anxiety and depression and required medication.[167]
[167]PCB 14
250Since the second accident these symptoms have become more severe and she has developed post-traumatic stress disorder. Her dose of Effexor has doubled.[168]
[168]PCB 14-15
251In her second affidavit, the plaintiff stated she struggles with chronic pain and low mood.[169] The pain gets her down, and she often feels down and depressed. She struggles with anxiety and worries about the future and needing spinal fusion surgery.[170] She takes Duloxetine at 60mg and Somac.[171]
[169]PCB 20
[170]PCB 23
[171]PCB 24
252Dr Hayman, psychiatrist, diagnosed the plaintiff with Adjustment Disorder with depressed and anxious mood. In his second report, he noted this is partially resolved.[172] She is stoic and benefitting from Cymbalta at 60mg.
[172]PCB 155
253I accept the plaintiff’s anxiety and depression has been affected by the second accident and the consequences of the pain in her neck and back. I note she had a pre-existing condition of anxiety and depression and since the second accident has been diagnosed with an Adjustment Disorder. In his second report, Dr Hayman states her symptoms are resolving. Although this was a pre-existing condition and her symptoms appear to be resolving, I note the anxiety and worry experienced by the plaintiff are directly attributable to her worry about the need for spinal fusion surgery which is specifically related to her neck injury. I find this is a consequence I can take into account. I assess it at the low to medium end of the scale.
Employment
254From about 1995, the plaintiff was manager of G Randa Cleaning Services Pty Ltd. She supervised a team of cleaners and did light cleaning duties herself. She was the sole director, and in 2015, prior to the transport accident, she had about seven people working, including herself and her late husband.[173]
[173]T 89
255In 2016 after the second accident, she was doing light duties “like dusting or wiping certain things ... Very easier work, much easier work.”[174] After the accident when the pain became severe, she delegated heavier cleaning tasks to other staff and she completed lighter work.
[174]T 90
256In cross-examination, the plaintiff estimated in 2015 she was probably cleaning three premises.[175] By the time she stopped work in May 2017 she only had one.[176]
[175]T 48
[176]T 48
257At the time of her first affidavit, she was cleaning one hour a day, five days a week. She tried to keep active but moderated her work schedule if the pain in her neck and back was too severe. She has not been able to increase her hours due to the pain and restrictions of her spine.[177]
[177]PCB 15
258She described her curtailed working hours as a considerable loss, as “working was a major part of my life and I am lost without it.”[178]
[178]PCB 15
259In her second affidavit, she stated she continued to do casual cleaning averaging one hour per day up until approximately March 2020, the time of the COVID-19 outbreak, cleaning at Club Italia. She had taken over this cleaning job from her husband after he died. She was keen to keep it after he died, as it was a small job and she could take her time, and it generally only took one hour. Even though it was light work for a short period, she found it still aggravated her neck and back pain.[179] She briefly returned to this work in June 2020, but since then has not continued with cleaning work.
[179]PCB 27
260In her first affidavit, she stated:
“I would have continued working many more hours if I had not sustained injuries in the transport accident.”[180]
[180]PCB 15
261The plaintiff is receiving the aged pension. Since April 2022, she has been working at her daughter’s business which her daughter runs out of her home, doing light packing, two hours each morning, for $24 per hour.[181] Her daughter lives in Brookfield, five minutes from her house, and she drives there and back every day for work. Both her daughter’s children are at school.[182]
[181]PCB 25
[182]T 73-75
262She was still doing this work at the time her third affidavit was prepared on 3 March 2023.[183]
[183]PCB 184
263In his report dated 24 February 2021, Dr Doig reported:
“At the time of the accident, Ms Gauci was working as a self-employed Cleaner, running her own company. She returned to work performing the lighter, administrative duties. She had five employees performing the heavier tasks. She retired when she was 66 years of age. She was hoping to continue working until she was 70.”[184]
[184]PCB 90
264The plaintiff’s case is that but for the second accident she would have kept working in her cleaning business until the age of 70, but the pain and restrictions of her neck and back injury have prevented this.
265I note Mr Kossmann was of the view the plaintiff’s right shoulder problem completely incapacitates her from cleaning work.[185] Dr Sheard was of the opinion she most likely required a total hip replacement. In re-examination, it was elicited that the reason she stopped working at Club Italia, where she had worked for 13 years, was because a member of the committee had a relative take over the contract.[186]
[185] PCB 82
[186] T 90
266I accept that ceasing her cleaning business was a significant consequence for the plaintiff, but due to the multifarious factors in place which also impacted on her ability to keep working, I am not able to attribute this consequence to the plaintiff’s neck injury.
Gardening
267In her first affidavit, the plaintiff stated prior to the transport accident she was an active gardener, and now the pain and restrictions from her spine prevent her from looking after her garden. In her first affidavit she stated, “The pain in my spine prevents me from being able to bend or maintain the position necessary to pull out the weeds.”[187] She cannot push the lawn mower. With respect to her neck pain she stated:
“…I cannot hold my neck in a static position which prevents me from being able to prune my plants.
I now pay someone to look after my garden. My inability to garden continues to be a significant loss as this was an important part of my life and something that I did most days.”[188]
[187]PCB 16
[188] PCB 16
268This evidence is somewhat tempered by the video surveillance footage, previously mentioned, which showed the plaintiff watering and pulling out weeds. In cross-examination, she admitted her affidavit was wrong and that she can do these tasks, however it causes her pain.
269She has downsized her home and now has a low maintenance front garden with succulents and artificial grass.
270I accept the loss of gardening is the loss of a deep pleasure and a significant consequence for the plaintiff, as most of gardening tasks cause her pain. However, this is a consequence of both the plaintiff’s neck and back injuries, although she specifically attributed the pain caused by pruning to her neck. As the plaintiff’s back injury also has the consequence of limiting this activity, I am required to disentangle the consequences of the back injury from the neck injury. I am not able to do so and do not take into account the plaintiff’s restricted gardening activities as a consequence of her neck injury.
Grandparenting & mobility
271The plaintiff states the pain and restrictions of her neck and back impact on her ability to care for her grandchildren. She cares for three grandchildren during the week, but she cannot care for them all at once. She avoids lifting them and putting them in the car and avoids outings.[189]
[189]PCB 17-18
272She used to take long walks. Now she can only walk one kilometre. She used to walk three kilometres, so this is a significant loss, as walking for fitness was an important part of her life.[190]
[190]PCB 16
273The plaintiff stated she tries hard to maintain her independence and keeps her mind active by doing work for her daughter. This is increasingly difficult due to her pain and restrictions.[191]
[191]PCB 186
274The video surveillance played to the court from 22 February 2021 showed the plaintiff leaving her home to go to her daughter’s house at 9.23am and arriving back home at 7.48pm. She was babysitting her granddaughter and stayed for dinner. She described the babysitting as “sitting down with her and playing with her with toys and that, that’s all.”[192] She looks after her granddaughter once a week whilst her parents worked from home. On the footage she was seen walking whilst pushing her granddaughter on a tricycle for 12 minutes.
[192]T 71
275Whilst the neck and back pain may curtail some of the plaintiff’s grandparenting role, from what she manages to do, such as working for her daughter for two hours five days a week, child minding, being present and part of the household with the grandchildren, she is still actively involved in their life.
276I am not of the view that her loss of grand parenting ability is a consequence that can be attributable solely or specifically to the pain from her neck injury.
277In terms of her reduced ability to walk and mobility, I note other factors may also be contributing, such as the suggestion of her need for a hip replacement by Dr Sheard earlier this year. Dr Altaf also commented on the severity of her hip condition. Professor Bittar also referred to her restricted range of hip movement. I am not of the view this is a consequence that can be attributable to the pain from the neck injury.
Household activities
278In her second affidavit, the plaintiff states she struggles with cooking, cleaning, and gardening due to her neck pain and stiffness.[193]
[193] PCB 24
279Her neck pain is made worse with overhead or reaching activities, and aggravated by pushing, pulling, and lifting. Prolonged periods of sitting or driving aggravate her back pain, as does too much bending or lifting. She has to regularly alternate her posture.
280The plaintiff has delineated between household activities which impact her neck pain such as cooking, cleaning and gardening, as well as the specific movements which increase her pain, such as overhead and reaching actions as well as pushing, pulling and lifting.
281In her third affidavit she stated specifically with respect to back pain:
“The pain in my back is made worse by extended periods of prolonged sitting and standing. Activities that involve lots of bending, twisting and heavy lifting also tend to aggravate the severity of my back pain. The pain in my back also still regularly radiates into my right groin and down the back of my leg into the calf.”[194]
[194] PCB 185
282She also stated her recreational and domestic activities are still heavily restricted. As she lives alone, she has to cook and do chores, but is limited in what she can do. Heavier aspects of housework aggravate her pain. She can still do shopping for groceries but becomes easily fatigued.[195] She does not distinguish in this paragraph the consequences for her neck or her back pain.
[195] PCB 186
283I accept that the plaintiff’s neck and back pain impede her ability and make it harder for her to do household chores and tasks. She specifically referred to flare ups of more severe pain typically caused by moderately physical activity, such as “lifting or sudden twisting movements of my neck.”[196]
[196]PCB 22
284I accept the plaintiff’s evidence and I am of the view her neck pain enhances her difficulty performing certain domestic activities, such cooking and cleaning and household chores that require overhead reaching as well as pushing, pulling and lifting. Disentanglement is required and I am able to ascertain those domestic activities which cause her pain are specifically a consequence of her neck pain, which she states are cooking and cleaning. These tasks are integral activities to running any household and as the plaintiff lives alone the responsibility is hers alone. I take this consequence into account and assess this at the medium end of the range.
Sleep
285In her first affidavit, the plaintiff stated:
“I have also suffered obstructive sleep apnoea after the transport accident.”[197]
[197]PCB 13
286In her second affidavit, the plaintiff stated:
“At night time, the pain in my neck and back interferes with my sleep. It is often difficult to find a comfortable position in which I can rest my head on the pillow when in bed. My neck pain and numbness in my left hand cause me to wake in the middle of the night. It is rare for me to enjoy an uninterrupted night of sleep and I often wake feeling tired and fatigued as a result. I also wake up with stiffness in my neck and need to get my head off the pillow by placing my hand underneath my head and lifting myself up.”[198]
[198]PCB 23
287Whilst I note the plaintiff refers to pain in her neck and back interfering with her sleep, the detail of this evidence focuses on the difficulty she has getting her head in a comfortable position on the pillow, with neck pain waking her up at night and having to cradle her head in her hand to lift it from the pillow. As the detail is specifically referrable to her neck injury, I am of the view this is a consequence I can consider. I assess this consequence at the high end of the range.
Conclusion
288I have identified the consequences that relate to the neck injury suffered by the plaintiff as a result of the second accident and excluded the continuing consequences for the plaintiff arising from her lower back.
289In considering the consequences of the plaintiff’s neck injury, I have not treated each disentangled consequence as equal but have attributed different weight to each where appropriate depending on the evidence. In making this assessment, I have considered the consequences of the neck injury alone.
290Having said that, I have made a collective assessment of the pain and suffering consequences, as the ‘very considerable’ test is to be applied to the pain and suffering consequences of the impairment considered as a whole. As Her Honour Tate JA stated in Sutton v Laminex Group Pty Limited:[199]
“In assessing the ‘consequence’ of an impairment a court must consider globally all of the pain and suffering experienced by a plaintiff to which the compensable injury materially contributes; that is, the actual experience of pain together with the disabling or debilitating effects of the impairment.”
[199] [2011] VSCA 52 at paragraph [114]
291In terms of consequences, as outlined above, I find the plaintiff suffers the consequences of persistent chronic neck pain, with flare ups, and the disabling effects of the pain impact her mood and her sleep and her household activities of cooking and cleaning. She requires medication and serious intrusive surgery is recommended. This is supported by her evidence and the medical evidence. For a woman of her age, at her stage of life, I find the consequences are very considerable and certainly more than significant or marked.
292The second accident was in June 2015 and since then the plaintiff has suffered the consequences over eight years and her prognosis is poor, I am satisfied she is unlikely to improve in the future and the consequences are long term.
293On the balance of probabilities and in light of the evidence as a whole, I find the consequences the plaintiff suffers satisfy the narrative test and I accept the pain and suffering consequences are serious. When judged by comparison with other cases in the range of possible impairments, the consequences of the impairment can be fairly described as being ‘at least very considerable’ and certainly more than significant or marked.
294Taking all the evidence into account, I am satisfied the plaintiff has suffered a long-term serious neck injury which is the result of the second transport accident.
295I grant leave to the plaintiff to commence common law proceedings for her aggravated neck injury suffered in the transport accident on 4 June 2015.
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