George v Morgan
[2016] QDC 52
•11 March 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
George v Morgan & Anor [2016] QDC 52
PARTIES:
MELLISSA CATHERINE GEORGE
(plaintiff)
v
JAMES ALEXANDER MORGAN
(first defendant)
and
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)
FILE NO/S:
2325 of 2011
DIVISION:
Trial
PROCEEDING:
Claim
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
11 March 2016
DELIVERED AT:
District Court at Brisbane
HEARING DATE:
14-16 September 2015
JUDGE:
Clare SC DCJ
ORDER:
Judgment is for the defendants
CATCHWORDS:
TORTS – MOTOR VEHICLE COLLISION –PERSONAL INJURIES – MEASURE OF DAMAGES
Motor vehicle low speed impact - personal injuries- whether injury caused by the first defendant - whether injury temporary or ongoing
COUNSEL:
JP Kimmins for the plaintiff
R Morton for the first and second defendant
SOLICITORS:
Shine Lawyers for the plaintiff
McInnes Wilson for the first and second defendant
On 5 July 2013, Melissa George was parked at a petrol bowser when the car in front reversed into her Toyota Corolla. The driver, the first defendant, and his insurer, admit fault. The statement of claim pleads that Ms George sustained injuries to her cervical spine and headaches and, further, that those injuries are responsible for ongoing pain and permanent disability. The issue at trial was about the nature and extent of personal injury, if any.
Ms George described symptoms consistent with a whiplash type injury. Security footage at the scene recorded a very low speed collision, with limited momentum. There was only one impact. Ms George’s car was pushed backwards a very short distance. The wheels may have turned half a rotation. It is common ground that the velocity on impact was between 2.8 and 6.2 kilometres per hour.
The unlikelihood of substantial and chronic injury was a major hurdle for the plaintiff’s case. But, more fundamentally, the claim has failed for want of credible evidence. There was no objectively observable injury. No abnormality was seen in Ms George’s X-rays, MRI or examination. Her claim relied upon the reliability of Ms George’s assertion of symptoms emerging after the collision. It collapsed under the weight of significant contradictions, inconsistencies and untruths.
The potential for whiplash type injury
The vehicular collision seemed so minor, with so little force involved, the first question was whether it was capable of causing any significant injury. Two specialists offered opposing opinions. The opinion of neurologist, Dr Todman, was that the symptoms could be directly attributed to the motor vehicle accident. He relied upon Ms George’s presentation of symptoms consistent with whiplash and her complaint that those symptoms emerged after the collision and persisted. On the other hand, orthopaedic surgeon, Dr Pincus, formed the view that the force involved in the collision was insufficient to cause an ongoing injury.
It is helpful to begin with that part of the expert evidence which was not controversial. A whiplash injury involves a number of soft tissue structures supporting the cervical spine. Such an injury is caused by the head and body moving at different speeds, through either extension then flexion, or flexion then extension, of the cervical spine.[1] Therefore, a minimum level of velocity is required. Symptoms may be temporary or prolonged. In most cases they resolve. A permanent injury is “most uncommon”.[2] Motor vehicle accidents most likely to cause whiplash symptoms are rear end collisions. Ms George's car had suffered a front end collision. Whiplash injury is a less likely outcome for a front end collision.
[1]Transcript of evidence of Dr Pincus, Day 2, p 4.
[2]Transcript of evidence of Dr Pincus Day 2, p 5, Line 22. His evidence was neither contradicted nor challenged on this point.
Dr Todman’s first reports were written before the range of speed and the security footage had been given to him. Nonetheless, on the understanding that it was a low velocity collision he wrote: “there is a body of literature which suggests that whiplash mechanism injuries can occur with a low velocity collision”.[3] After viewing the recording, he reinforced his support for an ongoing injury by noting that:
[3]Exhibit 4, Report of Dr Todman dated 9 October 2014, p 1.
“The literature on whiplash injuries confirmed that low speed collisions can result in significant and ongoing whiplash symptoms. In some reports there has been a paradoxical finding; that is, low speed impacts result in ongoing symptoms and high speed collisions may cause less residual effects.”[4]
[4]Exhibit 1, Report of Dr Todman dated 9 April 2015, p 2.
Dr Todman was asked to cite the literature. His response reiterated his earlier point:
“Indeed there is some suggestion ( in literature) that lower speed impacts can result in a greater level of symptoms than high velocity collisions…From an epidemiologic point of view there has been cited evidence to suggest that rear end collisions of lower velocity may have a higher incidence of whiplash symptoms.”[5]
He referred to two sources. One was from the text Neurology and Trauma,[6] cited for identifying that the greater incidence of injury in accidents resulted from cars that did not require towing. The reference does not discriminate further in terms of speed or the comparative gravity of injuries.The second authority was a paper from 1997, “Do Whiplash Injuries Occur in Low Speed Rear Impacts?”[7] Dr Todman fairly noted the paper’s conclusion that “stresses of rear end impacts with regard to velocity changes lies between 10 and 15 kilometres per hour”.[8] The paper did not offer any example of injury from a velocity change under 8 kilometres per hour. In fact, the authors concluded that 10 kilometres per hour was insufficient to cause significant injury. From various studies, research and experiments they concluded that “the limit of harmlessness” was a velocity change between 10 an 15 kilometres per hour. Given the nature of the forces involved, one might then reason that a front end collision would require at least the same, but probably greater, velocity change. As the velocity change in Ms George’s collision was actually substantially less than 10 kilometres per hour, the paper would tend to discount her claim. Dr Todman reported that the two sources he had cited did not represent an exhaustive review of the literature, but served to highlight some of the scientific studies relating to low velocity impacts. Nonetheless they were the only two references offered. Under cross examination Dr Todman acknowledged that neither reference had identified permanent injury from lower speeds, or indeed, any injury at all from speeds of less than 8 kilometres per hour. He then appeared to challenge the weight of the authorities he had proffered. He contended they did not involve definitive studies and, therefore, could not definitively determine the threshold level of velocity for injury. Even if that is so, the material did not support the prospect of significant injury at 6.2 kilometres per hour. 8 kilometres per hour was the lowest velocity change for any injury noted in the range of research and with no mention of long term injury. It would seem that Dr Todman would not rule out the possibility of injury at any level of force, no matter how minor, in the absence of what he considered to be a “definitive study”. He had accepted Ms George’s self-report at face value.
[5]Exhibit 6, Report of Dr Todman dated 26 August 2015.
[6]Exhibit 7, Edited Randolph Evans, 1996, WB Saunders and company, Philadelphia, p 440.
[7]Exhibit 8, European Spine Journal 97:6 (6:366-375), Springer – Verlag 1997.
[8]Exhibit 6, Report of Dr Todman dated 26 August 2015.
Dr Pincus accepted that the low speed of impact on Ms George’s car was capable of causing the occupant soft tissue injury to the cervical spine to the extent of neck pain for “some days”.[9] However, he considered a more serious injury was not possible. He was widely read and an examiner for the College of Surgeons. “I can’t imagine that an injury at that low velocity can possibly cause a long term permanent impairment or any long term effects to the cervical spine”.[10] In 22 years of practice he had never seen anyone “who has had an ongoing problem after such a minor motor vehicle accident”.[11]
[9]Transcript of Evidence of Dr Pincus Day 2, p 6.
[10]Transcript of Evidence of Dr Pincus, Day 2, p 6, Line 15.
[11]Transcript of Evidence of Dr Pincus, Day 2, p 14.
It is significant that Dr Todman did not claim to have come across one such case in his 30 years of practice, other than that of Ms George. One might reasonably expect that there have been many more low impact vehicle incidents than high speed ones. Yet two very experienced specialists could not identify even one other case where such low velocity had caused prolonged symptoms. Despite the defence request for literature in support of the plaintiff’s proposition, the authorities cited did not advance it. On the state of the evidence, it is reasonable conclude that, while a force of the kind suffered by Ms George on 5 July 2013 could cause soft tissue injury, the possibility of symptoms persisting beyond a few days was unlikely.
Plaintiff’s statutory declaration
In her statutory declaration for the defendant insurer dated 21 February 2014, Ms George claimed to have suffered a whiplash injury to her right shoulder and neck. She swore that immediately following the incident she felt pain, mostly in her neck and on the right side. She made no mention of headaches.
The Plaintiff’s evidence
Ms George testified that she saw the first defendant’s car coming before she had released the handbrake or seat belt. She beeped the horn but the car did not stop. Her corolla was pushed backwards. She said although the force was “pretty moderate”, it gave her a “bit of a jolt”.[12] It was not apparent at the time but the first defendant’s tow bar had gone through her grill and pierced the radiator. Ms George testified that the impact knocked her head forward and then back into the head rest on her seat. As she alighted from the car, she felt pain down the right side of her neck.[13] Her movements outside of the car can be seen in Exhibit 3. Although filmed downwards on an angle, the footage of her movements seems to be of reasonable quality. There was no suggestion of relevant distortion. The Exhibit shows that, after impact, Ms George got out and walked to the front of her car, where she bent down to view the area of damage. She spoke to the first defendant, before using the petrol pump. Then she leaned through the car window, presumably to get her purse, before walking out of range. Those movements appear fluid and unremarkable. The footage discloses no sign of discomfort, physical difficulty or abnormality.
[12]Transcript of Evidence of Mellissa George Day 1, p 9, Line 5. Transcript Mellissa George Day 1, p 10, Line 35.
[13]Transcript of Evidence of Melissa George Day 1, p 10, Line 45.
In her evidence, Ms George did not expressly describe the level of neck pain immediately felt, but recalled that it “started to die down after a couple of days”.[14] Since then, it has been present most of the time, but fluctuates. There is a “niggly little pain” aggravated by activity such as laundry or other housework and driving a car. When aggravated the pain in the neck gets “really bad”. Changing gears is too hard and she had to replace her manual car with an automatic.
[14]Transcript of Evidence of Melissa George Day 1, p 10.
As for headaches, Ms George testified that they began a couple of days after the collision. They were “pretty severe”. They made her sick. She has experienced them every day, for a couple of hours at a time. A sharp pain travels up her neck, behind her ear and into the back of her head.[15]
[15]Transcript of Evidence of Mellissa George Day 1, p 11.
Medical records - the first four months
The medical records were admitted without challenge.
The day after the collision, on 6 July 2013, Ms George attended at the Morayfield Medical and Dental Centre, complaining of a sore neck from the collision as well as side effects from her contraceptive pill. The note simply records “torticollis”, without further description of the neck complaint.[16] Dr Zaer recommended “exercises and conservative management”, and prescribed Mersyndol Forte for pain, Valium to relax Ms George and a change in contraceptive. Ms George swore that she filled the Mersyndol Forte script straight away, but according to the records of the Pharmaceutical Benefits Scheme the contraceptive was the only script filled at that time. The Valium was not collected for two months. There is no record of the script for Mersyndol Forte being presented at any time.
[16]Exhibit 10, Records of Morayfield Medical & Dental Centre, as at 17/6/15: Torticollis is a pathological condition and it seems both parties accepted the term was misused here. The experts did not place significance on that description.
A week later, on 13 July 2013, Ms George went to her “usual doctor”, Dr Harvey, at Beachmere. It seems she made no mention of the collision or any associated symptoms. The notes refer only to a dental abscess. Two kinds of antibiotics were prescribed. There is no record of any complaint of neck pain or headaches to Dr Harvey until 19 July 2013, two weeks after the accident. The notes for that consultation refer to the collision, the development of neck pain and headaches, the visit to the Morayfield Medical Centre and possible whiplash. There is a specific notation about the Morayfield consultation: “given Mersyndol Forte and Valium”. While it is true those medications had been prescribed by Dr Zaer, Ms George had not yet filled either script according to the PBS records. Dr Harvey did not prescribe any medication on this occasion. His examination indicated “restriction of neck extension and lateral flexion”. Ms George was referred for X-ray of the cervical spine. No abnormality was detected. On 22 July Ms George returned for the X-ray report and the form for insurance. Her first appointment with her solicitors was two days later, on 24 July.
The next notation of relevant symptoms appears in the records of David Seeto, remedial masseuse. Ms George attended his practice on 2 November 2013. Between the 22 July appointment with Dr Harvey and the massage therapy on 2 November, Ms George had visited a general practitioner on nine separate occasions with no complaint of neck or headache pain being recorded.
Massage treatment 2 November 2013
Ms George testified that she underwent the treatment from Mr Seeto for her ongoing neck injury. This is inconsistent with the consultation records. They record the symptoms as: “sore neck – 1 day. LBP and headache said to be the result of M/A 4/ 5 months ago. Also suffers from epilepsy.” In the typed client history form there was only one entry recorded under current complaints: “sore neck. How long 1 day Getting worse Prior history N Are your current complaints due to an injury Y”. Options given were: “Auto, Work, Sports, Other”. None of those were circled but next to “other” is the handwritten “fit”. And then: “Has an injury been reported: N Have you retained an attorney N”. The note section has this: “Melissa complain of sore neck for 1 day and previous h/ache LBP said to be from a M/V accident 4/5 months ago”.
It seems clear from the notes that Mr Seeto understood Ms George to be complaining of a sore neck of one day’s duration only, against a history of lower back pain, as well as headaches, linked to an earlier motor vehicle accident. The present Claim does not extend to lower back pain. Ms George’s lower back problems predated the collision. Under cross examination she said she did not recall complaining of lower back pain to Mr Seeto. But Mr Seeto’s notes were specific: “there is tenderness on palpation to the lumbar between L4 -L5”. Post treatment “LBP eased” and greater range of movement was restored to the neck.
Ms George denied telling Mr Seeto her neck had been sore for only one day. She said she went to Mr Seeto because she could not move her neck at all. Immobility was the symptom that had lasted for one day. The notes however indicated there was in fact movement in the neck, but the range to the left was limited in side bending and rotation. No abnormality was noted on the right side. (3 months later, Ms George made a statutory declaration describing a right sided pain from the collision, and a year after Mr Seeto’s treatment she received physiotherapy for restricted movement on the right side).
The later medical records
After the massage, there were a further 3 visits to the doctor with no record of neck pain or headaches. Then on 4 January 2014, Ms George attended for an iron injection and a physiotherapy referral. The relevant note: “MVA 6 months ago, whip lash, sore neck since then, seeing chiropractor – not helping, saw Dr Harvey in Beachmere, wants to see the physio, neck pain still the same radiates to the back of the head”. It is accepted that the reference to chiropractor meant Mr Seeto, who provided one massage service. Ms George did not pursue physiotherapy at that time.
Over the next five months, she visited the doctor nine times for other matters, with no notation of head or neck pain. Then on 17 June 2014, Ms George spoke to a doctor about migraines. Inderal was prescribed but the script was never filled.
During July and August 2014, Ms George was examined for the medico legal reports. Dr Todman recommended 6 months of physiotherapy. He also recommended Endep and Ms George obtained it through a general practitioner on 23 September. However it seems that she did not follow through on the recommendation for physiotherapy until 26 October 2014, the day before the Compulsory Conference for this claim. Under cross-examination Ms George indicated the timing was just coincidence. She said she could not afford to pay and had to “go through doctors and what not to get free physio” sessions.[17] She kept ringing doctors about how she might get physiotherapy but no one advised her about free access. She indicated that she asked for it on 26 October because she had found out about the GP Health Care Plan. She was treated at the physiotherapy clinic 5 times in the month from 31 October 2014 and twice in March 2015.
[17]Transcript of Evidence of Mellissa George, Day 1, p 30.
Given her long term unemployment, Ms George’s financial constraints were credible. While the number and variety of visits to general practitioners and the hospitals suggest Ms George was a relatively high consumer of free or subsidised health care, there was restraint in relation to other services. For example, she saw doctors many times for recurrent dental abscesses, but was reluctant to see a dentist. It is, however, the frequency of visits to the doctor about other matters which makes the lack of complaint about ongoing whiplash symptoms more notable. While Ms George vaguely suggested she had visited the doctor about headaches and neck pain more frequently, her counsel, Mr Kimmins did not argue that the records were unreliable. It is unlikely that complaints about chronic headache or neck pain would not be recorded in the notes. It is also unlikely that general practitioners would be unaware of the availability of free physiotherapy under the Health Care Plan program.
Mr Kimmins submitted that little weight should be put on Ms George’s limited complaints to doctors prior to the Health Care Plan in 2014. He argued there was no point of complaint when nothing could be done for her. But there is no evidence that Ms George believed her problem was untreatable. She did not make that claim in evidence. She did tell Dr Pincus that Mersyndol Forte had no effect, but she also told him she kept going back for more. This was patently untrue. The PBS records indicate that she never tried the Mersyndol Forte. She had one script but did not use it. If, as Ms George testified, she had substantial symptoms from the beginning, she could not know it was untreatable until she had allowed doctors to consider the chronic nature of her symptoms. The failure to seek more help is at odds with her history of confronting other recurrent health problems.
Pain relief
The complaint of chronic and substantial pain is not supported by the prescription and medical records. They show that Ms George did not fill any prescription for headache or neck pain until 14 months after the collision. She never used the script for Mersyndol Forte which was made out for her the day after the collision. She did not engage with any form of professional treatment until the massage 4 months later. She had promptly obtained X-rays but thereafter did not seek professional assistance for 14 weeks. The failure to fill the script for Mersyndol Forte and the delay in following up any form of treatment for the neck and head symptoms remains unexplained on the plaintiff’s case. Ms George’s evidence was that she took the prescribed Mersyndol Forte but it seems clear that she did not. At various times, she did have access to analgesia prescribed for other conditions. Although not her evidence, presumably if needed, she could have utilised some of that medication for head or neck aches. But even then, the potential access to pain relief would have been sporadic at best.
About 2 weeks before the collision, on 21 June 2013, she had been prescribed & obtained 20 tablets of Panadeine Forte for chest pain. It was not until 9 weeks after the collision, on 6 September 2013, that she obtained another 20 tablets of Panadeine Forte. This was for dental pain. There followed prescriptions for 20 Tramadol tablets 6 and 9 months later, in April and July 2014. Again they were for dental problems. Only 2 prescriptions were expressly made out in response to Ms George’s complaint of pain symptoms from the collision ( 6 July 2013 and 23 September 2014) . In addition there was a prescription for Inderal for “migraine prophalaxis” in June 2014. It was never used. In total, Ms George only filled one script for symptoms of possible relevance and that was on 23 September 2014, more than a year after the collision, and after Dr Todman had recommended Endep during the medico legal examination. Ms George obtained one pack of 50 Endep tablets but did use the repeat scripts. A month later, on 26 October 2014, when seeking a referral to physiotherapy, she was again prescribed Panadeine Forte, 6 to 12 tablets per day. The note records neck pain and tooth abscess. It does not specify for which problem the script issued. In any event, Ms George did not use that script. In January 2015 she obtained 2 scripts for 20 Oxycodone for problems with her teeth and an unrelated hand injury.
The prescription history demonstrates that despite an absence of scripts for neck pain and headaches, Ms George had the capacity to obtain pain medication and she was not averse to doing so for other problems. For example she periodically reported tooth pain and filled those scripts immediately.[18]
[18]The one exception was the script (probably for tooth abscess) on 26 October 2014, where 10 tablets were prescribed but not filled. Notably, this was a month after she had secured the 50 Endep tablets for neck pain.
Dr Pincus made contemporaneous notes of his interview with Ms George. There is no reason to doubt the accuracy of his recall. Ms George told him that she “takes Mersyndol Forte and has to attend her general practitioner every 5 days to get further prescriptions.” [19] Such claim was demonstrably untrue. At the time she said it, there had only been one prescription for pain relief from neck or head pain. It was the script that she did not fill. Moreover, she had not filled a script for Mersyndol Forte for any purpose, at least in the 4 years preceding her report to Dr Pincus.[20] At most, she had seen doctors only 4 times in relation to neck or headaches. She had had appointments for other matters, but the frequency of all visits did not come close to 5 day intervals. Ms George offered no explanation for the untrue account she gave to Dr Pincus. It is not readily explained by confusion or simple mistake. It was a baseless claim, most likely designed to inflame Dr Pincus’s assessment of the injury. Ms George also told Dr Pincus that she could not move her head to drive and effectively required a co-pilot to drive a car. She did not repeat that claim under oath. No examination had observed an inability to turn the head. The misreports to Dr Pincus are another blow to Ms George’s general credibility regarding her symptoms.
[19]Transcript of Evidence of Dr Paul Pincus Day 2, p 3, Line 15.
[20]The PBS records went back as far as 5 July 2010, three years prior to the accident.
Ms George testified that she relied heavily on over the counter pain relief, using 12 to 24 tablets of Nurofen and Pandadol every day. Given her prior statements about Mersyndol Forte, it is difficult to place much weight on that assertion in the absence of any supporting evidence.
Dr Todman’s examination
Based upon his examination of, and interview with, Ms George in July 2014, Dr Todman diagnosed chronic musculo – ligamentous strain to the cervical spine, with muscle tension type headaches (common in cervical spine injuries). Ms George had told him of persistent neck pain and headaches since the collision. Dr Todman noted restricted movement on both side of the neck. “Neck pain is bilateral, but worse on the right. It extends into right shoulder girdle and right upper limb…intermittent pins and needles sensation in both forearms and hands.” While this was the first time Ms George had complained of pins and needles, the description of the dominant pain being on the right side was consistent with the first experience of symptoms after the collision, as described in Ms George’s statutory declaration sworn in February 2014. However, as at the time of the medico legal examination in July 2014, the only treatment Ms George had undertaken was for restricted movement on the left hand side of the neck. This was from Mr Seeto in November 2013. The apparent difference was not explored in evidence. There was no evidence about the significance or otherwise of changing sides of dominant pain.
Physiotherapy
Ms George underwent physiotherapy in October, November 2014 and in March 2015 for a range of restricted cervical movement, particularly with right side flexion and rotation. The presence of injury at this later time could only be relevant if there was a causal link with the 2013 collision. The plaintiff’s case for causation relied upon Ms George’s experience of a continuum of symptoms dating back to the collision.
Conclusion
It is clear that Ms George’s car was subject only to minimal force. The potential for substantial injury was remote. The only evidence of an actual injury came from Ms George. Her account of enduring symptoms was not only implausible, but contrary to the objective evidence. Significant aspects of Ms George’s testimony were contradicted by a variety of sources involving contemporaneous records: the records of the medical centres, the PBS records, Mr Seeto’s notes, and Dr Pincus’s evidence. The 3 month gap in the medical records as to reported symptoms, from 22 July to 3 November 2013, was inconsistent with the claim of ongoing debilitating pain. Moreover Mr Seeto’s notes directly contradicted a chronic neck complaint, indicating that Ms George had developed neck pain as a fresh symptom some 3 months after the collision. If the collision did not cause chronic neck pain, it was unlikely to have caused the muscle tension headaches later diagnosed by Dr Todman.
The collision did have the potential to cause a short term injury and Ms George had promptly complained to the doctor the next day, but it by no means follows that she was injured. Proof of any injury was still dependent upon Ms George’s credibility. She was a poor historian. Her credit was so impaired that little weight could now be placed on her testimony. Furthermore her account of the initial symptoms was inconsistent with the security footage of the scene. She had testified that the pain in her neck was immediate and significant before “dying down” after a couple of days. The security footage of the scene did not record any reaction to pain. If Ms George felt initial pain, it was at a level that did not appear to impede her ability to walk, bend, twist or reach. She did not access the prescribed analgesia. Even if an injury had been caused by the collision it was unlikely to involve more than minor discomfort of short duration, raising only nominal damages. On balance of probabilities however, I am not persuaded that any injury was caused by the collision.
Judgment is for the defendants. I will hear submissions as to costs.
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