Goutzioulis v TAC
[2010] VCC 1731
•22 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-04065
| PANAGIOTA GOUTZIOULIS | Plaintiff |
| v | |
| THE TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 October 2010 |
| DATE OF JUDGMENT: | 22 November 2010 |
| CASE MAY BE CITED AS: | Goutzioulis v TAC |
| MEDIUM NEUTRAL CITATION: | 2010] VCC 1731 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment to the lumbar and cervical spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with | Nowicki Carbone |
| Mr D J Wallis | ||
| For the Defendant | Mr J Ruskin QC with | Solicitor for the Transport |
| Ms A Magee | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 3 January 2002 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the spine.
5 The application was also brought in relation to sub-paragraph (c), claiming a severe permanent behavioural or emotional disturbance.
6 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
7 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
8 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
9 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. The plaintiff also relied on a number of lay affidavits, namely Stephen Goutzioulis, sworn 8 July 2009; Thomas Goutzioulis, sworn 8 July 2009 and Toula Goutzioulis, sworn 10 February 2010.
10 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is aged sixty six, having been born on 24 July 1944. She presently resides with her husband in Prahran. They have three adult children.
12 The plaintiff deposed that prior to the said date, she had suffered from epigastric symptoms which caused her some pain and discomfort. However, that condition had been well controlled with medication for some years.
13 The plaintiff was cross-examined to some extent about gastric problems prior to the accident. It was put to her that Dr Gouras had reported that she had epigastric pain intermittently over the previous twenty years.
14 The plaintiff was not aware she had a problem of this nature but she agreed that she had food poisoning in the past, but that she did not take any medication.
15 The plaintiff agreed that despite telling Dr Paoletti that she had had no past psychiatric history, she saw Dr Gouras in 2001, just before the accident, with symptoms of mild depression, but she did not have to take any medication.
16 On the said date, the plaintiff was involved in a transport accident whilst a seat belted passenger in a car driven by her husband, which, when stationary, was hit by a vehicle involved in another accident on the other side of the road (“the accident”).
17 The plaintiff’s daughter attended the accident scene and took the plaintiff and her husband home. The plaintiff took some painkillers and the following day she attended Dr Gouras.
18 At that time, the plaintiff was experiencing pain in her head, neck, chest, shoulders and arms. Chest and spinal x-rays were taken on 7 January 2002 and the plaintiff was prescribed analgesics and anti-inflammatory medication.
19 In about January 2002, Dr Gouras referred the plaintiff to Paul Kron for ongoing physiotherapy, which she continued until the defendant ceased funding in 2003.
20 The plaintiff’s left shoulder and left knee have also been painful since the accident, but these injuries have caused her less difficulty than her spinal injuries. She has also suffered from anxiety and depression as a result of her accident injuries.
21 The plaintiff underwent physiotherapy treatment with Mark Washington, whom attended as at October 2009 on a weekly basis for manipulation of her back and neck. She found this treatment helpful if she attended regularly.
22 The plaintiff has continued under the care of Dr Gouras, whom she sees on a monthly basis, or more often if her pain is particularly bad. She takes Nurofen tablets two or three times a week.
23 The stronger analgesic medication Dr Gouras previously prescribed, such as Mobic, tended to upset the plaintiff’s stomach, so she has tried to manage her spinal pain with Nurofen Plus tablets and Voltaren cream.
24 Since the accident, the plaintiff has continued to be troubled by ongoing neck and back pain. The pain in her lower back radiates down her left leg. Her neck pain gives her dizzy spells, and also causes headaches.
25 Since the accident, the plaintiff’s sleep has been disturbed. She has found it difficult to get comfortable on her back in bed, as her back is not flat. She tends to be restless and disturbs her husband’s sleep, so they no longer sleep in the same bed. The plaintiff finds it very difficult to climb up and down the stairs to get to bed in her former bedroom so she has set up a bed for herself downstairs.
26 Since being involved in the accident, the plaintiff has had difficulties with domestic tasks. Her husband was able to assist her with some chores, after he recovered from his accident injuries. But then he had another accident in July 2009 when injured his right shoulder and arm. He had trouble even dressing himself since that time. He had not been able to help her with cooking after the second accident like before.
27 In cross examination the plaintiff agreed that she does a lot of the housework but not the heavier tasks. Her daughter generally comes over weekly to do heavier household tasks, such as the washing.
28 Prior to the accident, the plaintiff used to do a lot of cooking for the extended family, particularly on religious and special family days. She cooked special traditional recipes and also organised the events.
29 Since the accident, the plaintiff has had too much difficulty performing this role and the hosting of these events now tends to be rotated throughout the family although some functions are still organised by the plaintiff.
30 The plaintiff finds it difficult to remain standing for long periods in order to do a lot of cooking and she finds she lacks the concentration to organise and prepare for the events properly. This situation has upset her, as she enjoyed being able to care for and entertain her family in this way.
31 The plaintiff does a little bit of shopping, like light shopping for milk and bread. She drives to Chapel Street to shop and also drives to East Bentleigh to see her daughter.
32 The plaintiff agreed with the history taken by Dr Ingram on the most recent examination in 2009 as to her general mental state and her level of activity.
33 The plaintiff agreed that she told Dr Stockman in July 2010 about being more active in the last five and a half years or so, and having forced herself to do more around the house, including some gardening. Also, she had reduced her tablets. She was less tired and her pains had got a bit better, but they were still there. There was still some pain in the left leg, but the numbness had gone away.
34 Since the accident, the plaintiff has tended to be less social. She and her husband still see people at their house on occasion, but the plaintiff tends to go out less often than she used to. This is the case, as she feels like she will be in pain if she has to walk far or remain standing for a long period of time.
35 Since the accident, the plaintiff has become more anxious in and around cars. She is still able to drive, but does so only locally as she is frightened she will have another accident.
Lay Evidence
36 The plaintiff’s son, Stephen Goutzioulis, swore an affidavit on 8 July 2009.
37 He deposed that the plaintiff used to enjoy organising barbecues and get togethers on special days. Those celebrations usually lasted all day and generally involved about twenty people. The plaintiff used to take great delight in planning, organising and doing the cooking, using her own special recipes.
38 Since the accident however, the plaintiff has had difficulty organising these functions. She says even the thought of organising them sometimes gives her a headache.
39 As a result, the responsibility for these functions is now rotated throughout the family and the functions no longer “have the same feel they once did”. It makes the plaintiff sad that she is no longer able to contribute to the family as she used to.
40 Stephen Goutzioulis and his brother and sister have tried to divide responsibilities between themselves so they are able to assist the plaintiff and their father.
41 His sister often goes to their parents’ house and helps the plaintiff with heavier housework, such as washing and ironing. He and his brother help with tasks, such as gardening and cleaning the gutters.
42 His brother and sister also accompany the plaintiff when she needs grocery shopping so they can push the trolley for her.
43 All the children have continued to assist the plaintiff on a regular basis as she often complains that she has too much trouble doing these tasks.
44 Since the accident, the plaintiff is very nervous while travelling in cars. She tends to restrict herself to short car trips when she can, as the longer she travels the more nervous she gets.
45 Since the accident, the plaintiff has become more subdued. Prior thereto, she had a cheeky, playful personality and she loved to spend time with the family caring for them. Since the accident, the plaintiff is more cautious and more easily tired and he believes she now feels like she does not have much to contribute to the family.
46 The plaintiff’s husband, Thomas Goutzioulis, swore an affidavit on 8 July 2009.
47 Mr Goutzioulis Snr. deposed as to the nature of the injuries suffered by him and the plaintiff in the accident, after which he was able to make a gradual recovery over about three years.
48 However, the plaintiff’s difficulties continue and she often complains to him that she is still experiencing neck and lower back pain, and she also complains of dizziness and headaches.
49 He deposed to similar matters raised by his son, Steven, as to the plaintiff’s involvement in and love of organising family functions.
50 Further, since the accident, the plaintiff has had difficulties with housework. Following the accident, he was able to assist her with heavier tasks, but he had another car accident which caused significant difficulties at home.
51 Their daughter now comes over once or twice a week to assist with heavier chores and their two sons assist with outside and heavier work.
52 The plaintiff used to enjoy keeping her house the way she liked it, and she often tells the children she is not happy with the jobs that they have done and she would have done them differently. This situation causes tension in the family.
53 Prior to the accident, he and the plaintiff kept a vegetable garden in the backyard, enjoying using fresh herbs and vegetables in their cooking.
54 Since the accident, the plaintiff has had too much difficulty tending the garden as it requires her to bend or kneel down. If she does some work or tries to do some work in the garden, she complains to him afterwards that she is tired and sore. As they both have difficulty tending the garden, it has become overgrown.
55 He confirmed the plaintiff’s evidence as to problems climbing the stairs and the fact that she tends to sleep in the living room downstairs.
56 Mr Goutzioulis also confirmed the plaintiff’s difficulty travelling in cars and that she tends to avoid getting into a car whenever she can.
57 Further, he deposed as to the plaintiff’s reliance on their children to help with grocery shopping and her complaints when she gets home that she is tired and sore and needs to rest for a while.
58 He feels that the plaintiff’s personality has altered since the accident, and he confirmed that she was no longer happy and busy, and she no longer had a role organising things in the family.
59 Ms Toula Goutzioulis, the plaintiff’s daughter, swore an affidavit on 10 February 2010.
60 Since the accident, she has provided domestic assistance and varied care to the plaintiff. Prior thereto, the plaintiff was very active and robust and very independent and had no problems.
61 Ms Goutzioulis confirmed that prior to the accident the plaintiff was a very social person and would drive herself without any difficulty, which is no longer the case. Further, prior to the accident, the plaintiff preferred to be outside, keeping herself busy and seeing friends.
62 Ms Goutzioulis confirmed the plaintiff had become less physically able since the accident, and very reliant on assistance provided by family members.
63 The plaintiff now spends most of the day inside and around the house. She has ongoing neck and back pain and seems to tire very easily. The plaintiff now often complains of stiffness in her back and neck and sometimes requires assistance if that pain flares up.
64 It is now much more difficult for the plaintiff to travel to places and to be seated for more than thirty minutes at a time, and a lot of the time her injuries are aggravated and she is visibly in pain.
65 The plaintiff still however, tries to be active, but if she has to move around for sustained periods, she will often require assistance, particularly when walking up and down steps and along uneven ground.
66 She and the plaintiff no longer go social shopping together, and if they do so now, it is not for more than for an hour and a half, as any longer tends to aggravate the plaintiff’s neck and back pain. They rarely socialise, save for when Ms Goutzioulis comes over and helps the plaintiff with housework.
67 The plaintiff manages to do much of the cooking and tries to do some of the domestic duties which do not require bending, lifting or standing. However, she does so with pain and is sometimes restricted to the extent where Ms Goutzioulis and her brother, Steve, assist her with anything of a physical nature.
68 She visits the plaintiff’s house to provide assistance every weekend and makes herself available every day of the week to do what is required. On average she does the plaintiff’s laundry for an hour a week, cleaning for two hours, shopping for three hours, and she drives the plaintiff for three hours a week.
69 Ms Goutzioulis has to work during the day and she has bought the plaintiff a mobile phone, so the plaintiff can ring if she needs assistance.
70 Ms Goutzioulis confirmed the plaintiff’s problems with organising family occasions.
71 Ms Goutzioulis has also noticed a change in the plaintiff’s mood since the accident, as confirmed by family members.
The Plaintiff’s Medical Evidence
72 Dr Gouras last reported on 24 February 2010.
73 The plaintiff has been a patient of his since 1976. In 1979, he treated her for abdominal pain, which responded to medication. In 1989, he treated her for relapse of her abdominal symptoms. There was no further report of gastrointestinal symptoms until after the accident.
74 In 2001, the plaintiff presented with various non specific symptoms of mild depression and no treatment was instituted.
75 On 4 January 2002, Dr Gouras examined the plaintiff in relation to her accident injuries, namely neck and chest, injury to her shoulders, lower back, left knee joint injuries. The plaintiff felt dizzy but she did not lose consciousness in the accident.
76 On 7 January 2002, x-rays of the plaintiff’s cervical and lumbar spine were taken.
77 Dr Gouras reported on 24 February 2010 that over the past eight years he had seen and treated the plaintiff on an almost regular basis with her main presenting symptoms being neck pain, pain in the shoulders and arms and occasionally numbness in the hands. She had also been complaining of frequent aggravation of pre-existing peptic ulcer symptoms. Her lower back pain and restricted mobility had persisted and it was one of her most incapacitating symptoms. This pain radiated to both legs, particularly the left. On several occasions she complained of sciatic pain in the left leg and pain in the left knee joint.
78 Apart from her physical symptoms, the plaintiff had been chronically depressed and suffered from episodes of tension headaches.
79 Dr Gouras noted that many times the plaintiff’s sleep had been disturbed and on several occasions she complained of inability to fall asleep, or she woke up at night. The plaintiff had become irritable and her social activities had been restricted and she did not enjoy life as much as before and her motivation and interests were limited and diminished.
80 He noted that the plaintiff’s treatment had remained conservative, mostly being treated with painkillers and, during an aggravation, anti-inflammatories, and always with anti-ulcerants to prevent aggravation of her peptic ulcer symptoms.
81 When her depression was getting worse, she took small doses of antidepressants, and tranquilisers had been prescribed on several occasions for anxiety and tension headaches. Dr Gouras noted the plaintiff’s response to treatment so far had been rather symptomatic and every now and then her symptoms flared up and she needed increased dosages of medication.
82 He had available to him the June 2009 CT scan.
83 When Dr Gouras last saw the plaintiff in February 2010, she told him that her overall condition and symptoms had remained unchanged. She complained of persistent low back pain, neck pain, pain in the shoulders, numbness in her hands and persisting occipital headaches.
84 The plaintiff’s neck and back movements were slightly restricted. She was rather depressed and neurological examination of her upper and lower extremities was unremarkable.
85 In Dr Gouras’ opinion, the plaintiff with a free past history of serious medical conditions, sustained the following injuries in the accident, namely musculoligamentous injury to the cervical spine, aggravation of pre-existing spondylosis in the cervical spine, musculoligamentous injury in the lumbosacral spine, aggravation of pre-existing but symptomless spondylosis in the lumbosacral region, broad based annular disc bulges at several levels of the lumbar spine, possible disc lesions in the lower levels of the lumbar spine, and possible compression of an L-5 nerve root, recurrent aggravation of her pre-existing peptic ulcer and symptoms of post-traumatic anxiety and depression.
86 Dr Gouras concluded the plaintiff would need further treatment and that her symptoms had become chronic. Further he thought aggravations were very possible to occur. He considered the plaintiff’s depression and anxiety had become chronic and her prognosis for full recovery was very guarded.
87 The plaintiff was referred to Paul Kron, physiotherapist, for treatment in January 2002 following the accident. He reported on 27 October 2003, diagnosing a moderately severe soft tissue injury to the whole spine, with a background of degenerative change.
88 The plaintiff first saw Dr Stockman, rheumatologist, on referral from Dr Gouras on 26 May 2003.
89 Dr Stockman noted that since the accident, the plaintiff had been complaining of neck pain, pain in both trapezius muscles and shoulders, and left knee pain. Since several weeks after the accident, she had also been complaining of lower back pain radiating down the left leg to the ankle.
90 On examination, lower back pain and left leg pain were one of the plaintiff’s major problems. That pain seems to be constant. The plaintiff also had some persisting neck pain associated with frequent occipital headaches.
91 Movement of the neck was full range but flexion and extension caused pain. Movement of the lumbar spine was painful and reduced on extension but forward flexion was almost full range.
92 Straight leg raising test was reduced bilaterally to about sixty degrees, but the plaintiff was able to sit on the couch with her knees extended. There were no neurological abnormalities in the lower limbs.
93 The plaintiff was tender over the lower lumbar spines and to the left of the midline and in the upper cervical region.
94 Dr Stockman had available to him cervical spine x-rays performed the day of the accident. At that stage, he thought that the plaintiff’s pain was largely related to facet arthritis, both in the cervical and lumbar regions, the former causing occipital headaches. He suggested facet joint injections in the lumbar spine under x-ray control, but the plaintiff did not wish to undergo this procedure.
95 Dr Stockman recommended the plaintiff continue with her anti-inflammatory medication and he prescribed some Voltaren Rapid, which he did not feel she should mix with non-steroidal anti-inflammatory drugs, but he noted she found that Nurofen helped her headaches.
96 For medico-legal purposes, Dr Stockman reviewed the plaintiff on 20 July 2010, having been provided with a number of medico legal reports.
97 On review, the plaintiff stated her low back and left leg pain commenced a few days after the accident. Dr Stockman noted this history was probably more accurate than what he was told at the first examination because there was an interpreter at the re-examination.
98 The plaintiff told Dr Stockman low back pain and pain in the left leg were one of the major problems. Neck pain continued to worry her and was associated with the occipital headaches. The plaintiff also gave a twelve month history of nocturnal numbness in the left arm and hand.
99 Examination of the cervical and lumbar spine was unchanged since the 2003 visit. Movement of the cervical spine was full but flexion and extension caused pain. The plaintiff was tender over the lower cervical spines and paraspinous muscles. She had limitation of active movement of both shoulders and this produced neck pain. She had limited extension of the lumbar spine associated with pain and forward flexion was almost full range.
100 Straight leg raising test was reduced on the left to about sixty degrees but there were no neurological abnormalities in the lower limbs. The plaintiff was tender over the lower lumbar spines.
101 The plaintiff told Dr Stockman on re-examination that since the accident, she had suffered from a lot of pain in her neck, low lumbar region and left leg and she had taken large doses of medication, which made her feel lethargic.
102 She told Dr Stockman after five and a half years she decided to be more active and forced herself to do more around the house, including some gardening. She also reduced the number of medications she was taking, and she felt less lethargic. Since then she claimed her pain had eased, but was still there. She felt her condition had now stabilised.
103 The plaintiff continued to complain of neck pain associated with frequent occipital headaches, lasting up to three days. She also continued to complain of low back pain, with shooting pain down the back of the left leg to the foot, associated with cramping sensation. She said her back pain was worrying her more being six to eight out of ten.
104 Until recently, there had been paresthesia and numbness in the leg, but that had subsided a few months ago.
105 In Dr Stockman’s view, the plaintiff’s neck and back pain was the result of spondylosis. Disc bulging at L4-5, in his view, was likely to be causing pain in the left leg.
106 Dr Stockman recommended, in future, treatment should be continuation of analgesia and the plaintiff should be encouraged to continue with activities around the house.
107 In his opinion, the injuries sustained in the accident had significantly aggravated or accelerated the plaintiff’s conditions. She no doubt had degenerative changes prior to the accident, consistent with her age, but she was asymptomatic until then.
108 Dr Stockman noted the CT scan of the lumbar spine performed on 24 June 2009.
109 Spondylosis at L4-5, seen on the June 2009 CT scan, was apparently not there shortly after the accident, according to x-rays taken at that time indicating that there had been significant radiological progression in the lumbar region since the accident.
110 Dr Stockman considered the plaintiff’s spinal injuries would restrict her in relation to social, domestic and recreational activities. In his view, these restrictions were likely to be long term and the general prognosis was that her impairment would continue and was unlikely to mend or repair to any significant extent. He disagreed with Mr Dooley that the plaintiff’s prognosis for her physical injuries was good.
Medico-Legal Evidence
111 The plaintiff was first examined by Mr Grossbard, orthopaedic surgeon, on 25 November 2003.
112 On re-examination on 14 April 2010, the plaintiff told Mr Grossbard she had knee pain from the very start, and she continued to have neck and low back pain. The latter was constant and particularly bad if she sat. There was intermittent pain radiating to her left leg with associated numbness in the thigh and heel area.
113 There was ongoing pain in the back of the plaintiff’s neck, which she described as a burning pain associated with stiffness and headache.
114 On examination, cervical flexion was 50 degrees and extension 30 degrees. Lateral flexion to the right was 30 degrees and 20 degrees to the left, whilst rotation was 50 degrees in each direction. This was a little freer when the plaintiff was distracted.
115 There was tenderness at the lumbosacral level, with flexion and extension restricted to 10 degrees. Lateral flexion was 15 degrees to the right and 20 degrees to the left. There was no muscle wasting of either lower limb. Reflexes in the lower limbs were normal and there was normal power.
116 There was full range of motion of the left knee, which was stable. There was no joint effusion but there was patellofemoral tenderness, with some crepitus.
117 Mr Grossbard had available to him the June 2009 CT scan of the lumbar spine.
118 Mr Grossbard thought the plaintiff had soft tissue injuries in the presence of some pre-existing degenerative change, particularly in the lumbar spine.
119 He noted there was intermittent sciatica, which may suggest some nerve root canal stenosis, particularly as it was activity related.
120 He thought the knee injury was suspicious of being post traumatic patellofemoral pain.
121 In summary, he thought the plaintiff had neck and back pain, without evidence of radiculopathy in either region, brought on by the accident. Those symptoms had not subsided from that time and were unlikely to do so in the foreseeable future and he thought that the plaintiff’s condition had stabilised. He thought clearly her ability to walk and stand was affected, as was her ability to undertake many household activities.
122 Mr Grossbard believed the accident had been responsible for the plaintiff’s symptoms and he thought treatment should remain conservative.
123 The plaintiff was examined by orthopaedic surgeon, Mr Miller, on 3 June 2009.
124 The plaintiff complained of neck pain and discomfort radiating into both shoulders and further down her arms. There were frequently associated headaches. Neck pain was the dominant feature and the symptoms fluctuated. There was also sleep disturbance.
125 The plaintiff complained of low back and discomfort radiating into the buttocks but not further down the leg. It was not as bad as the neck pain.
126 On examination, there was diffuse tenderness of the cervical spine and some limitation of movement. There was also diffuse tenderness of the lumbosacral spine and restriction of movement. There was no neurological deficit and power, sensation and reflexes were preserved.
127 Mr Miller had available to him investigations conducted prior to 2009. He diagnosed a musculoligamentous strain to the cervical and lumbar spine, and aggravation of pre-existing but asymptomatic degenerative disease. He thought that the plaintiff’s symptoms were more severe in the cervical spine, the prognosis in relation to which he though was fair. He considered that the prognosis for the lumbar spine was good.
128 Mr Miller thought the plaintiff had had appropriate treatment to date and her current treatment regime was appropriate and would need to continue indefinitely.
129 Mr Miller noted the plaintiff drove locally. She could not walk long distances and had difficulties with stairs. She had received significant assistance with domestic and gardening activities from her daughter. She had not resumed gardening and cooking to her pre accident level, and she stated that she was significantly less socially active now.
130 Mr Miller re-examined the plaintiff on 8 October 2010.
131 The plaintiff told him she had the same complaints as on earlier examination. She continued to have neck pain and discomfort radiating into both shoulders and occasionally down her arms but neck pain remained the dominant feature. Her low back symptoms were worse on review.
132 On re-examination, there was diffuse tenderness but no muscle spasm of the cervical spine. There was the restricted range of movement. There were similar findings in relation to the lumbosacral spine.
133 On this occasion, Mr Miller had been provided with the June 2009 CT scan of the lumbar spine which he noted revealed significant degenerative disc disease, particularly at L4-5, and probable foraminal stenosis at L4-5 and L5-S1.
134 Mr Miller confirmed his earlier diagnosis, noting the plaintiff’s neck symptoms were now not as bad as those in the lumbar spine. He thought the prognosis for the cervical spine was fair.
135 In relation to the lumbosacral spine, Mr Miller thought that there appeared to be a pattern towards deterioration since the plaintiff was last reviewed, and he thought the prognosis was only fair.
136 Mr Miller considered that the plaintiff would benefit from ongoing conservative treatment, including physiotherapy for flare ups of her symptoms. He thought her condition had substantially stabilised as of January 2010.
137 Mr King, orthopaedic surgeon, examined the plaintiff in August 2010.
138 The plaintiff complained to Mr King of constant aching pain and stiffness in the neck that was always present, fluctuating in intensity, usually of moderate severity and associated with intermittent bouts of headache. The plaintiff also had persistent nagging thoracolumbar back pain of moderate severity aggravated by exertion. She could walk for about forty minutes and then had to rest due to flare ups of neck and back pain.
139 On examination, Mr King could find no evidence of exaggeration.
140 There was mild but definite limitation of all neck movements by spasm and discomfort. Approximately three quarters of the normal range of all movements were present.
141 There was mild but definite limitation of all low back movements by some spasm and discomfort and approximately three quarters of the normal range of all movements was present.
142 There was no clinical abnormality and no neurological abnormality involving the lower limbs.
143 Mr King had available to him the June 2009 CT scan.
144 Accepting the plaintiff’s history, Mr King thought damage to cervical, thoracic and lumbar discs and associated ligamentous structures at multiple levels, superimposed upon pre-existing mild but symptomless degenerative changes, consistent with the plaintiff’s age, would more than accurately explain the onset of neck and back pain and the persistence thereof with pain and stiffness since the accident.
145 Mr King’s overall impression was that the plaintiff had been left with a chronic mild, but definite, impairment of neck and back function as a result of the accident injuries.
146 Mr King could find no evidence of any sort of psychological overlay. In his view, the injuries to the plaintiff’s neck and back restricted her to a mild but definite degree in her domestic activities and her capacity to walk for more than forty minutes. He thought her condition had stabilised.
Psychiatric
147 The plaintiff was seen by Dr Ots, consultant psychiatrist, at the request of her solicitor on 27 October 2003.
148 The plaintiff told Dr Ots she had injured her left leg, left knee and low back in the accident.
149 On examination, the plaintiff told Dr Ots that her sleep was disturbed by pain and she could not sleep on her left side. She jumped in her sleep and woke up. She described being very anxious when being driven in a car, and said that she had not driven since the car accident.
150 The plaintiff was then doing her housework extremely slowly or otherwise she would be in considerable pain and she was not as fussy any more. She got frustrated with those problems but did not get angry. She was not irritable with her family. She was a bit unhappy. She had some impaired concentration and memory but considered they were reasonable. She described severe headaches since the accident, during which time she wanted to be on her own until the headache eased off.
151 The plaintiff stated that neck pain was associated with headaches, and she described feeling some chronic tiredness because of lack of sound sleep. She told Dr Ots there was some social withdrawal and that she went out more pre accident. Nevertheless, she and her husband still kept in contact with friends.
152 Dr Ots thought the plaintiff was suffering from a mild to moderate degree of anxiety and depression. He thought her condition had stabilised.
153 The plaintiff was examined for medico legal purposes by Associate Professor Paoletti, psychiatrist, on 10 July 2009.
154 The plaintiff told Professor Paoletti that in the first three years after the accident she took medication for stress and depression and also to help her to sleep. She slowly weaned herself off the medication because it made her feel tired and sleepy and she did not want to talk to people.
155 It was not clear to Professor Paoletti whether the plaintiff had been referred to a psychiatrist or a psychologist.
156 In the first three years after the accident, the plaintiff was having bad nightmares of the accident every night or so. The nightmares now came about once a month and sometimes more often. Also, they were less intense. They still woke her up but she no longer jumped out of bed.
157 The plaintiff told Professor Paoletti she still relived the accident, especially if someone talked about related topics. She then she kept thinking about it and she could not sleep.
158 The plaintiff told Professor Paoletti that she did not drive for five years after the accident and even now she only drives locally to the shops. She is extremely careful, she holds on tight to the steering wheel and keeps a distance from other cars. As a passenger, she tenses up and makes braking movements.
159 The plaintiff told Professor Paoletti that she just does not feel well inside but she does not know if it is depression. She told him that she is home mainly with her husband. She can no longer engage in gardening as much as prior to the accident, but she does it slowly. She does housework bit by bit. The plaintiff and her husband no longer socialise as they used to because she does not feel like going out.
160 On examination, the plaintiff’s affect was somewhat anxious and she reported heightened anxiety in cars. Stream of thinking and form was normal and coherent. The plaintiff reported residual traumatic dreams and some anxious ideation in traffic. She reported flashbacks of the accident.
161 The plaintiff told Professor Paoletti that her concentration was a little reduced and she had difficulty with fine points of memory. Professor Paoletti noted the plaintiff had reasonable insight into her illness.
162 From a psychiatric point of view, Professor Paoletti diagnosed Post-Traumatic Stress Disorder (“PTSD”), noting at the time of the accident, the plaintiff thought she was going to die, and she had retained some symptoms of that disorder, although some had attenuated. He also diagnosed anxiety in traffic situations, which was a different problem to PTSD.
163 Professor Paoletti thought treatment by a psychiatrist or clinical psychologist was not likely to be of any benefit at that stage. Prognostic outlook was guarded, in it was likely, in his view, the plaintiff was to retain the current residual psychiatric symptoms indefinitely, affecting her lifestyle and quality of life.
Investigations
164 An x-ray of the plaintiff’s lumbosacral spine was organised by Dr Gouras on 6 February 2003.
165 The bones appeared osteopenic, but there was no evidence of a compression fracture. There was a minor lower lumbar scoliosis concave to the left. Degenerative changes were seen in the lower facet joints. There was no evidence of degenerative disc disease and the vertebral bodies appeared normal as at the sacroiliac joint.
166 A CT scan of the lumbosacral spine was organised by Dr Gouras on 24 June 2009. It was noted there was a transitional L5 vertebra, partly incorporating the sacrum, degenerative spondylosis at L4-5, with severe facet arthrosis and moderate lateral recess narrowing ? entrapment of the exiting L-5 nerve root in the intervertebral foramen. There were minimal disc bulges at the remaining level.
The Defendant’s Medical Evidence
167 A preliminary examination was carried out on behalf of the defendant on 10 June 2002. Chris Bartram, TAC medical consultant, examined the plaintiff to evaluate the appropriateness of ongoing physiotherapy management.
168 In his opinion, the plaintiff sustained a musculoligamentous strain in the cervico thoracic and thoracolumbar spine and soft tissue injuries to the left knee and chest.
169 He thought that at that stage, there was no clinical justification for ongoing provision of passive physiotherapy.
170 With due consideration to the date of injury, the underlying age-related degenerative changes, reported outcome of treatment and the plaintiff’s current work and lifestyle status, he thought it was hard to justify the provision of ongoing like content passive physiotherapy treatment. He considered the plaintiff would be best served by having a more active independent self management approach.
171 Mr Bartram thought the plaintiff’s prognosis was good. He noted degenerative changes were going to be the likely cause of ongoing reported symptoms, however, the plaintiff’s level of incapacity would be markedly minimised if a more appropriate exercise program was put in place.
172 Mr Brendan Dooley, orthopaedic surgeon, first examined the plaintiff on behalf of the defendant on 27 November 2003.
173 On examination, cervical spine movements were limited to a minor degree. There was no muscle spasm noted and there was slight overreaction.
174 In the lumbosacral spine, the plaintiff had difficulty getting up onto the couch. Flexion was to 50 degrees and extension to 20 degrees. Lateral flexion to either side was to 25 degrees and rotation was normal. Straight leg raising was to 60 degrees on the left but it did not reproduce sciatic pain, but caused lumbar pain. All tests for sciatic nerve irritation were negative.
175 The only x-rays available of the lumbar spine were those of 6 June 2003 which showed moderate degenerative changes in the L4-5 and lumbosacral posterior facet joints with minor spondylosis.
176 Mr Dooley noted there were apparently also x-rays of 7 June 2002 indicating minor age-related degenerative change in both the cervical and lumbar spine.
177 Mr Dooley’s initial diagnosis was of minor injuries to the cervico thoracic and lumbosacral regions of the spine, of a soft tissue nature. He thought there was no sign of radiculopathy affecting the left leg and he considered there was probably a functional element to the plaintiff’s symptomology, noting her husband apparently was complaining of similar injuries.
178 Mr Dooley thought the plaintiff did not require ongoing physiotherapy or hydrotherapy treatment.
179 On re-examination on 18 August 2009, the plaintiff had full movement of the cervico-thoracic spine and there was no muscle spasm.
180 Examination of the lumbosacral spine revealed some difficulty getting up onto the couch and there was a moderate limitation of lumbosacral spine movement. There was mild muscle spasm noted with lateral flexion and rotation. Straight leg raising of both legs was possible to 70 degrees, not reproducing any sciatic pain in the left leg, but straight leg raising caused some lumbar discomfort. Tests for sciatic nerve irritation were negative.
181 Mr Dooley noted that following an exacerbation of left-sided sciatica in June 2009, the plaintiff underwent an MRI scan of her lumbosacral spine on 24 June.
182 Mr Dooley thought this scan showed a transitional fifth lumbar vertebra and degenerative spondylosis at L4-5, with severe facet arthrosis and moderate lateral recess narrowing with possible entrapment of the exiting L5 nerve root in the intervertebral foramen.
183 Mr Dooley noted, however, the only narrowing of the lateral recess was on the right side, probably encroaching upon the right L5 nerve root, with no involvement of the left L5 nerve root on the left side where the plaintiff was complaining of left sciatic pain.
184 Mr Dooley concluded after this re-examination, that the plaintiff sustained minor injuries only to her cervico-thoracic and lumbosacral regions of the spine. In his view, clinically the plaintiff appeared to have recovered from a cervical spine injury as she now had no signs of physical injury with a full painless range of movement, but she did complain of continuing occipitofrontal headaches.
185 Mr Dooley noted the plaintiff’s recurrent problem had been that of back pain with referred pain to her left leg, but she had no signs of radiculopathy affecting her left leg.
186 Mr Dooley thought the prognosis for the plaintiff’s physical injuries was good. He did not believe the defendant was liable for any ongoing physical treatment.
187 Mr Dooley considered the plaintiff’s injury interfered to some degree, but to a relatively minor degree, with her domestic and leisure activities.
188 In October 2010, Mr Dooley was forwarded the most recent reports from Mr King, Dr Stockman and Mr Grossbard.
189 In response to Dr Stockman’s comments that spondylosis at L4-5, as seen on the June 2009 CT scan, was apparently not there shortly after the accident, according to the x-rays taken, indicating that there had been significant radiological progression in the lumbar region since the accident, Mr Dooley repeated his views as to the right sided involvement shown on the CT scan, whereas the plaintiff had been complaining of left sciatic pain.
190 In Mr Dooley’s view, the changes seen in the CT scan represented degenerative changes only. He thought the plaintiff did not sustain traumatic spondylolisthesis of the L5 vertebral body involving the pars interarticularis with fractures. He noted the spondylosis was a so-called pseudo spondylosis and indicative of degenerative changes only, commonly seen in a sixty six year old woman.
191 Mr Dooley noted Mr King agreed that the plaintiff did not sustain traumatic spondylosis at L4-5 and that degenerative changes at that level were more commonly seen in people who already had a transitional fifth lumbar vertebra.
192 In Mr Dooley’s view, the apparent radiological progression presented natural progression due to the degenerative changes only and not due to the trauma sustained in the accident.
Psychiatric
193 Dr Ingram, psychiatrist, first examined the plaintiff for medico legal purposes on 17 February 2004.
194 At that stage, Dr Ingram thought the plaintiff was still having significant psychological symptoms which were having a major impact on her life. He noted up to that date there had been no specific treatment for her depression or for her PTSD apart from one trial of antidepressants, which left significant side effects.
195 In view of that, Dr Ingram thought it would be appropriate to try several other antidepressants until one was found that the plaintiff could tolerate. He noted the plaintiff may also benefit from seeing a psychologist for a few sessions to talk about her preoccupation about the accident, though he thought she would get more out of seeing a psychologist if she were less depressed, and it therefore might be appropriate to leave that referral until she had a trial of a different antidepressant.
196 Dr Ingram noted on that examination, psychologically the plaintiff had become depressed a few months after the accident when she realised her symptoms were not going to improve in the short term. This was associated with the loss of interest and withdrawal, decreased libido, motivation and energy. The plaintiff had become more anxious when out in the car and she had avoided driving herself. She had flashbacks to the accident several times a week, as well as infrequent nightmares.
197 At that stage, Dr Ingram thought that the plaintiff was suffering from two psychiatric conditions. Firstly, she had a Chronic Adjustment Disorder with Depressed Mood, which was a secondary consequence of the accident and the chronic pain. She also had PTSD.
198 When Dr Ingram re-examined the plaintiff on 6 June 2009, she told him there had been an improvement in her psychological symptoms since the earlier examination. Her main present ongoing psychological problem was that she had become frustrated more easily than previously, usually when she had not been able to do things as well as she could in the past, which had mainly been because of her pain. This had led to her becoming a little more irritable on occasions but this had not been a major concern and she denied any other psychiatric problems.
199 On specific questioning, the plaintiff said she had not become depressed, and that most of the time she felt happy with her life and she had been able to enjoy what she had been doing. She had no periods when she became tearful and she had not had any suicidal thoughts and generally she felt content.
200 The plaintiff told Dr Ingram that she had some difficulty with her sleep, though this in part seemed related to her pain and also related to worrying about things in general but not specifically about the accident or her pain.
201 The plaintiff had not had any nightmares and her appetite was good. Her energy levels were also normal. Although her memory had not been as good as it had been when she was younger, this had not been a particular problem. There had been the loss of interest in sex, but this had also been the case with her husband who had diabetes, and this had not been a concern for her.
202 The plaintiff told Dr Ingram she still felt angry on occasions about her involvement in the accident and she had also become frustrated when she could not do as much as previously. She had not thought about the accident particularly and had no flashbacks to it, although she had gone past the accident scene most days, as it had occurred close to her house, and on these occasions she had sometimes thought about what happened, but it had not distressed her or worried her as much as it had in the past.
203 On mental state examination, the plaintiff’s affect was not depressed or anxious and she engaged well with normal reactivity. There was no thought disorder or perceptual abnormality and her memory, concentration and intelligence seemed normal.
204 Dr Ingram did not feel the plaintiff had any significant psychiatric problems. He thought that the plaintiff had minor phobic symptoms in regard to driving but she no longer had any evidence of PTSD. She also had some minor feelings of frustration due to the limitations caused by her chronic pain.
205 Dr Ingram thought that the plaintiff’s psychiatric state was stable and he did not feel she needed any further psychiatric treatment. He did not think that her psychiatric problems interfered in any way with her ability to work, or with her ability to involve herself in domestic and leisure activities.
Gastric
206 Dr G R Rajendra, gastroenterologist, wrote to Dr Gouras on 19 November 2002, thanking him for the referral of the plaintiff.
207 Dr Rajendra noted an upper gastrointestinal endoscopy was carried out to evaluate the plaintiff’s fifteen year history of epigastric pain, heartburn and regurgitation. The findings were of gastritis with the erosive oesophagitis and small hiatal hernia.
208 Associate Professor Metz examined the plaintiff at the request of the defendant on 15 March 2005. The plaintiff told him that ulcer symptoms only started after the accident.
209 When Professor Metz mentioned to the plaintiff that Dr Gouras had advised he had treated her for epigastric pains intermittently over the previous twenty years, the plaintiff recalled an episode of food poisoning many years earlier, after which she attended Queen Victoria Hospital. Since that time, she noted if she ate the wrong food, she felt epigastric discomfort.
210 The plaintiff told Professor Metz that epigastric pains had commenced the moment she started medication after the accident, but she was no longer taking those types of medication, the name of which she could not recall.
211 Professor Metz noted that the plaintiff was referred for gastroscopy in November 2002.
212 At that time the endoscopist found a four centimetre hiatus hernia with erosive ulceration in the lower oesophagus. Professor Metz commented that was consistent with gastro-oesophageal disease, a condition which could not be attributable to the accident.
213 Also found was diffused moderately severe gastritis, which was due to helicobacter pylori infestation, not attributable to the accident.
214 Professor Metz noted that the plaintiff’s problem would be likely to be resolved if she took specific antibiotic therapy, treatment which she had declined to take. He concluded the plaintiff’s gastrointestinal condition was minor, and indeed did not cause any symptoms at all while she took Nexium.
Overview
215 I am satisfied the plaintiff suffered an injury to her lumbar and cervical spine in the transport accident.
216 The plaintiff suffered an aggravation of pre-existing asymptomatic degenerative change at both levels of her spine.
217 The plaintiff’s pre accident health was relatively good. Prior to the transport accident, she had no problems with her neck or back. She had some epigastric problems. There was a presentation to Dr Gouras in 2001 for mild depression following which there was no further complaint or treatment in this regard.
218 Counsel for the defendant conceded this a range case and that there is no issue of any further treatment being available that would effect the long term nature of the plaintiff’s spinal problems, with her condition having very much stabilised.
219 The issue for determination is therefore whether the consequences of the plaintiff’s spinal injuries are serious.
220 Whilst there was some reliance by counsel for the plaintiff on Dr Stockman’s views as to the radiological findings, as Mr Dooley explained the plaintiff’s complaints had been of left sided pain whereas the findings on the 2009 CT scan were right sided in nature.
221 Further, Dr Stockman is not supported by any other medical practitioner in his view that there has been a significant radiological progression in the lumbar region since the accident.
222 In any event, it is the impairment, not the injury, which is the relevant consideration.
223 It seems at the present time that the plaintiff’s lumbar spine is the more significant of her spinal problems, both in terms of her level of complaint and on examination, save for Mr Miller’s findings.
224 In recent times the plaintiff has reported only suffering intermittent left leg symptoms and there is no evidence of radiculopathy.
225 At times the plaintiff has exhibited a full range of cervical movement as found by Mr Dooley in August 2009 and Dr Stockman in July 2010. In February 2010 Dr Gouras found a slight restriction of neck movement.
226 Whilst I accept that the plaintiff was a credible witness who continues to suffer spinal pain and restriction as confirmed by her family members, in my view the consequences thereof do not meet the statutory definition of seriousness.
227 The plaintiff’s general practitioner has not seen the need to refer her to an orthopaedic surgeon. Dr Stockman’s views as to facet joint involvement and the need for injections was not shared by any other medical practitioner.
228 The plaintiff takes only over the counter medication, the intake of which she has reduced in recent times.
229 Although the plaintiff has complained of gastric problems when she took heavier prescription medication after the accident, in Professor Metz’s view, any gastric problems suffered by the plaintiff are not related to the accident – a view supported by investigations in 2002 following the accident.
230 The plaintiff underwent regular physiotherapy treatment in 2002/3 after the accident and apparently required further treatment in 2009 when there was a flare up of her symptoms. However I am unsure of the level of treatment in the absence of any report from a treating physiotherapist after 2003.
231 Whilst the plaintiff cannot do heavier housework because of her spinal condition, she is able to do most duties around the house.
232 She does the normal daily cooking and still organises and cooks for family functions, although to a lesser extent than before the accident with responsibility for such functions now being shared amongst family members.
233 The plaintiff is able to drive locally and also to visit her daughter in East Bentleigh. The plaintiff also continues interaction with her five year old grandchild.
234 The plaintiff continues to do some gardening but does it slowly.
235 Any problems the plaintiff has with walking for more than forty five minutes or so appear to be more related to a knee injury as Mr Grossbard explained rather than from referred pain from the plaintiff’s back.
236 The plaintiff, on her own recent description to Dr Ingram and also Dr Stockman, is leading a relatively happy, stable life, where she continues to participate in and enjoy basically her pre accident activities although not on the same level. She is essentially content with life but a bit frustrated with her pain and restrictions.
237 I accept that the plaintiff’s level of pain and restriction is not of the level described by the successful plaintiff in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
238 Taking into account all the evidence I am not satisfied that the plaintiff has a serious injury in relation to her spine.
239 Considering then the plaintiff’s application pursuant to subsection (c).
240 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
241 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
242 Whilst the plaintiff’s general practitioner prescribed anti depressant medication for the first three years or so after the accident, he did not refer the plaintiff for psychological or psychiatric treatment.
243 In my view, psychiatric problems of which the plaintiff agreed she complained to Dr Ingram in 2009 do not get anywhere near the definition of “severe”.
244 Whilst the plaintiff described a lessening of intrusive thoughts of the accident over time, she was able to drive, she had some minor sleep problems not necessarily related to the accident and she was able to enjoy her life generally.
245 Even the description given by the plaintiff to Associate Professor Paoletti is not one that reaches the test of “severe” when considered together with the lack of treatment and the plaintiff’s presentation on examination and in the witness box. He too was told by the plaintiff of an improvement in her condition in recent years. I do not accept that the plaintiff’s situation is one of “a state of chronic invalidism” as he concluded.
246 Any PTSD found by Professor Paoletti is of a minor degree given the plaintiff’s ability to drive and her lack of intrusive thoughts of the accident.
247 The plaintiff herself, acknowledged a general improvement in her mental state between the initial examination by Dr Ingram in 2005 and the more recent re- examination in 2009.
248 In July 2009 when he examined her, the plaintiff’s main present ongoing psychological problem was that of frustration and a resulting small increase in irritability which was not a major concern. Most of the time the plaintiff felt happy and generally she felt content.
249 Accordingly, I do not consider the plaintiff’s psychiatric condition to be severe.
250 In my view, any psychological problems are more appropriately dealt with in terms of Winneke P’s comments in Richards v Wylie (supra) where he allowed the expected consequences of a physical injury such as frustration and anxiety to be taken into account when considering an application pursuant to subsection (a).
251 However, even when such consequences are taken into account, I do not consider that the plaintiff has a serious injury to her spine pursuant to subsection (a).
252 Accordingly, the plaintiff’s application is dismissed.
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