Granger v Transport Accident Commission

[2013] VCC 140

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-12-00553

TIFFANY JADE GRANGER	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26 and 27 February 2013
DATE OF JUDGMENT:	5 March 2013
CASE MAY BE CITED AS:	Granger v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2013] VCC 140

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT
Catchwords:            Injury to the lumbar spine
Legislation Cited:     Transport Accident Act 1986, s93(4)

Cases Cited:Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Humphries & Anor v Poljak [1992] 2 VR 129; Fleming v Hutchinson (1991) 66 ALJR 211; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249

Judgment:                Leave granted to the plaintiff to commence proceedings for the recovery of damages. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B W Collis QC with Mr J Valiotis	Ellis Palmos & Co
For the Defendant	Mr D Masel SC with Ms B Myers	Solicitor to the Transport Accident Commission

HIS HONOUR:

1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) and reliance is on s93(17)(a); that is, a “serious long term impairment or loss of a body function”.  The impairment or loss of body function that is relied on by the plaintiff is the function of the lumbar spine, and the injury to the lumbar spine is probably best described as degenerative change being rendered symptomatic with discal damage and some nerve irritation.

2       While it is not necessary to go into the details of the transport accident on 8 November 2007, it is worth noting it was a major trauma, in the sense that on the subject date, the plaintiff’s car was hit in the rear while stationary at traffic lights and then, after she alighted from her car, and was in effect a pedestrian, she was struck “causing me to be thrown into the air and then land on the ground with some force”.[1]  From there the plaintiff was taken to the Western General Hospital by ambulance and after being discharged from that hospital, her treatment was taken up by her regular general practitioner, Dr Reid, the day following the accident.

[1]Court Book (“CB”) 9

The Plaintiff’s evidence

3       The plaintiff’s evidence consisted of affidavits sworn by her on 3 March 2011 and 26 November 2012, and an affidavit by her partner, Mark Holman, sworn 26 November 2012.  In addition, the plaintiff gave viva voce evidence before me, as did Mr Holman, and both were cross-examined. 

4       The plaintiff was just short of her twenty-second birthday when this accident occurred, having been born in 1985.  She describes a workplace lower back injury in January 2006 when she was working as a stable hand/polo groom.  However, after some conservative treatment over several months, she found that “my back pain had gone and I was fit to go back to work”.[2]  I find that this earlier injury has played no part of any significance in her current symptomology and that she had recovered from that earlier injury, in the sense of her capacity for work and to enjoy her full and active life, in particular her involvement in riding and working with horses.  A physiotherapist notes on 2 March 2006, that she was resuming normal duties and going riding.[3]

[2]CB 8

[3]CB 144

5       Following the subject transport accident, the plaintiff effectively describes ongoing pain over the last five-and-a-half years and she describes in her affidavits that two months was required off work and she required medication, as well as other forms of conservative treatment.  While there were improvements from time to time, she found her back was “getting really sore by about March 2008” and she resumed medication again and was told that she had a disc tear.[4]  Further conservative treatment followed and there was some improvement, and then, in November 2008, she stumbled at a train station and further aggravated her back.  She was again back at her doctor’s, and prescription medications were required again.  Her back pain required her to attend hospital as an outpatient and medication involved very considerable narcotic-based forms including OxyContin, as well as drugs to assist sleep.  She was referred to an orthopaedic surgeon, Mr David de la Harpe, who gave evidence before me. 

[4]CB 9

6       Dealing with her current position, the plaintiff describes that “I have not been able to return to full-time work and I am in constant pain”.[5]  This is her description of her situation when she swore her first affidavit on 3 March 2011.

[5]CB 10

7       Her descriptions of pain continue through the affidavit material and while it can vary dependent somewhat on activity, she gets numbness and tingling radiating down her left leg if she is sitting for too long, she gets sharp pain on occasions and has to move and change her position and she suffers from spasms quite frequently.  The general picture I find in relation to this very young plaintiff is that she has suffered constant pain with varying degrees of severity since the transport accident. 

8       The plaintiff’s second affidavit describes her giving birth to her daughter, Elizabeth, on 11 April 2012 and difficulties with back pain getting progressively worse while pregnant.  Following the birth of her child, she still takes medication on a daily basis but has limited the intake of that due to concerns about breastfeeding.  She stated:

“This means I have to put up with increased pain, however I prefer to tolerate the pain, rather than cause harm to my baby.”[6]

[6]CB 16

9       In view of the decision of Hawkins v DHL Express (Australia) Pty Ltd[7] in which judgment was delivered on 20 February of this year, there are a number of considerations in relation to determining the pain in an application such as this.[8]  I have already referred to some of the passages that indicated to me what the plaintiff says about the pain, and in her oral evidence there was nothing, in my view, that departed from the picture the affidavit material paints of a young lady who has been in constant pain of various degrees of severity since the transport accident.  The aggravation she suffered at the railway station does not, on the evidence, indicate anything other than the fluctuating levels of low-back pain that she has suffered dependent on the activities that she is undertaking.

[7][2013] VSCA 26

[8]at paragraph [63]

10      I am required further, to look at what the plaintiff does about the pain, and I find that she has had medication of different types on and off over the period of almost five-and-a-half years and is still presently requiring such medication to assist her in daily life.  She has had a number of other medical treatments that are described in the affidavits and has also had the advice of a treating specialist, Mr David de la Harpe. 

11      I am required also to consider what the doctors say about the extent and intensity of pain and what the objective evidence shows about pain, and I will refer to those matters later in this judgment. 

12      In terms of the consequences that the plaintiff describes, certainly to the forefront of this application is the interference with the various jobs and employment opportunities she has followed since the transport accident.  I find she is motivated and dedicated to advancing her work opportunities and she has had to accommodate her back pain with reduced hours, lighter duties and working from home in an attempt to accommodate her back symptoms.  She describes that move in these terms:

“The benefit that I have working from home is that I am able to move around and stretch so that my back soreness can go and the sciatica down my legs eases up.  It’s been very difficult for me working from home and having to justify my continuing employment to management at Deloitte.”[9]

[9]CB 10

13      This reflects a number of changes that she has had to make to her employment circumstances due to the low-back problems.  Since that affidavit, of course, she became pregnant and has the responsibilities of young motherhood at the present time, but she describes difficulties with respect to her work[10] and I find that the plaintiff’s earning capacity from a very young age has been seriously impaired as a result of this lumbar spine injury. I accept as consistent with the medical evidence, the limitations on her earning capacity described in her oral evidence.[11]

[10]CB 14-15

[11]T11, L11-14, T34, L14-20

14      As part of the plaintiff’s case, her partner gave evidence before me, as well as providing an affidavit, and he described in oral evidence that she has complained constantly about pain since the transport accident and she is never free of pain.[12]  In his affidavit, the plaintiff’s partner further refers to the variation in the plaintiff’s pain but the regularity of it remains, and while she does not like taking medication, she has required it regularly.[13]

[12]T47, L16-24

[13]CB 23

15      A major loss outside of the consequences that I have already described has been how her love of horses and involvement in riding and working with horses has been impacted.  I am required to consider whether or not the consequences for the plaintiff in relation to pain and suffering and loss of enjoyment of life are “serious” by reference to the test laid down in Humphries & Anor v Poljak[14] as follows:

“In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”

[14][1992] 2 VR 129, at page 104

16      The plaintiff has lived in rural areas virtually all her life and worked on farms and as a stable hand/polo groom at different times.  She says:

“I loved riding and being involved with horses and I’d grown up with horses all my life and riding was one of the things that I really enjoyed doing.”[15]

[15]CB 8

17 She goes on later to say much the same thing in relation to her love of horses,[16] and the loss to her of her ability to ride is expressed in these terms:

“I haven’t been able to ride horses and this causes me a lot of stress and anger as it was something that I have enjoyed since I was a little girl.”[17]

[16]CB 10 and 11

[17]CB 11

18      She even went to the extent of purchasing a 20-acre property in 2008 with a view to agisting and breeding horses, and starting a riding school.  However, this ambition was thwarted by her injury, and she deposes:

“However it never really got off the ground as a result of my physical incapacity and financial constraints.”[18]

[18]CB 17

19      In re-examination, the plaintiff referred again to these plans and being frustrated.[19]  She further describes the loss to her of being involved with horses as upsetting her a lot and she looked forward to teaching her baby daughter ultimately how to ride, and to enjoy rides with her.  The evidence of the plaintiff’s partner also describes the very considerable significance for the plaintiff of her passion for horses.[20]

[19]T35, L14-21

[20]CB 21

20      The plaintiff describes other aspects of how her low-back injury has affected her and these include the impact on this young woman’s sex life,[21] physical activities around the home, interference with sleep and the impact on her ability to look after her baby.  These were all matters about which there is no contention before me.

[21]CB 12

Medical evidence

21      There are a number of reports from the plaintiff’s general practitioner, Dr Robert Reid, who describes degenerative disc disease that has been aggravated by the transport accident[22] and in dealing with what he says about the extent and intensity of the plaintiff’s pain, as I am required to do by the principles laid out in Hawkins v DHL Express (Australia) Pty Ltd:[23]

“The accident has been a major injury, has altered her work and non-work life dramatically.  The intolerance of potent analgesics has been a major impediment to the management of her injury.” [24]

[22]CB 35 and 37

[23]supra

[24]CB 43

22      Dr Reid’s reports indicate the various forms of medication and conservative treatment that he has organised to deal with the plaintiff’s pain, and in his final report of 21 December 2012, stated:

“The ongoing symptoms will be a permanent feature of her life.  She will have ongoing restrictions in her life:

(1)    reduced ability to earn money:

(a)with reduced hours of work;

(b)restrictions in the type of work she can perform;

(c)significant restrictions in her everyday life.”[25]

[25]CB 45

23      The plaintiff’s treating surgeon, Mr de la Harpe, provided several reports.  He described the plaintiff’s condition as one of degenerative and mechanical low-back pain and the significant symptoms that came about immediately after the transport accident, in his view, indicated the material contribution between the accident and her current disability.  He thought her restrictions would persist into the foreseeable future and she would not be able to undertake full pre-injury duties.  He thought she may be able to work, but only in sedentary duties with possibly restricted hours.[26]  In relation to treatment, he described[27] various conservative approaches in order to deal with her condition and I find that the considerable treatment she has undergone is one indication of the level of the disabling effect of the pain.

[26]CB 53

[27]CB 52

24      Mr de la Harpe saw the plaintiff on several occasions and concluded, when he last saw her, that his diagnosis of her condition is that of “degenerative and mechanical low-back pain”. He thought that the transport accident in November 2007 “is materially responsible for her current disability”.[28]  The restrictions that he placed on her, a young person, included: employment limitations that involved “prolonged walking, standing, sitting, driving, lifting, twisting, running and walking up and down stairs” and she was not, in his view, capable of her full pre-injury earning capacity.  She was now limited to only sedentary duties and possibly restricted hours, even in a sedentary job.  The restrictions, he thought, were going to persist in the foreseeable future.

[28]CB 53

25      Mr de la Harpe was cross-examined at some length and gave evidence that was essentially along the lines of the medical reports that I have referred to.  He described the plaintiff as having pre-existing degenerative change that was a progressive condition in her back.[29] 

[29]T57

26      Mr de la Harpe was taken in some detail through the other incidents that the plaintiff has endured, both before the transport accident and after the transport accident, where there have been lower back symptoms caused by such other events.  They were referred to as episodes of flare-up.[30]  He described the degenerative condition in the plaintiff’s spine in these terms:

“With the degenerative change you will have a decreased tolerance for physical activities.  In other words, as the degeneration progresses, less and less aggravating factors such as bending, lifting, twisting will cause more symptoms.[31]

[30]T53

[31]T62

27      Mr de la Harpe included horse riding in such activities, and went on to say that he is reliant on the plaintiff’s history and the history that he was given that–

“… it became much worse after the accident and she has been less tolerant of physical activities.”[32]

[32]T63

28      Further, Mr de la Harpe stated:

“I can only say on the history that was given to me that she was materially worse with her back after the accident.”[33]

[33]T64

and again:

“I can only say that she became significantly worse with back pain after the motor vehicle accident.”[34]

[34]T64

29      Mr de la Harpe thought if an MRI scan was taken prior to the transport accident, it could well have shown the serious degenerative changes that subsequent MRI scans had shown.  However, the facts I accept include a very significant trauma occurring in a transport accident in which the plaintiff was thrown to the ground, and a hypothesis about what may or may not have been shown on MRI prior to such a violent collision is not helpful.

30      Mr de la Harpe concluded that the transport accident still materially contributes to the plaintiff’s symptoms.[35]  I accept that evidence.

[35]T69

31      In terms of the plaintiff’s treating doctors, both the general practitioner and the treating orthopaedic surgeon give a very gloomy prognosis for a young lady now only twenty-seven years of age.  They speak of restrictions that, in my view, can fairly be described in the range of possible impairments or losses as being “very considerable”.  The limitations on earning capacity alone that the treating doctors place on her suffice, in my opinion, to qualify the impairment of lumbar spine function as “serious” in terms of the legislation.

32      The medico-legal opinions include Mr Peter Kudelka, orthopaedic surgeon, for the plaintiff, who saw her in 2010 and 2012.[36]  He thought she had suffered minor mechanical episodes or flare-ups, such as the trip at the railway station in 2008, and he similarly considered the 2006 work accident as only a “transient episode of mechanical lumbar back pain”.[37]  He thought, as a result of the transport accident, the plaintiff had degenerative changes in the lower lumbar spine that had been significantly aggravated by that trauma.  He thought that the transport accident was still materially contributing to her symptoms or, in other words, the aggravation had not resolved so that a significant component of her permanent problems resulted from the accident.  He described her as being precluded from undertaking full pre-injury duties and this was a permanent restriction.  He also noted that she was permanently limited with respect to activities such as horse riding and similarly demanding recreations of a physical nature.[38]

[36]Reports dated 5 March 2010 and 19 November 2012 at CB 55 and 61

[37]CB 61

[38]CB 63

33      The defendant’s medical evidence consisted of reports from orthopaedic surgeons, Mr Michael Fogarty[39] and Mr Robert Dickens.[40] 

[39]Report dated 2 August 2010, 21 April 2011 and 28 November 2011 at CB 89-103

[40]Reports dated 3 November 2009, 15 March 2010 and 27 November 2012 at CB 104-118

34      Dealing with Mr Fogarty, he thought that the plaintiff had clear evidence of degenerative disc disease with disc protrusions and he thought that, while there were some pre-existing degenerative disc changes, there had been a significant aggravation by the traffic accident, such that her low-back pain was a more persistent problem.  He did not think there was any further injury or disease arising since the accident that influenced the course of her current injury.[41]  He thought her symptoms would persist and that she had a future partial incapacity that was permanent and the office-type work she was doing at the time he last saw her was appropriate.  I accept that his report reflects a diminution of earning capacity for a person who was physically capable not only of sedentary duties or office duties, but was able to work as a stable hand and dealing with horses, which I find is very physical work and beyond her capacity now, as indicated by Mr Fogarty.

[41]CB 101

35      Mr Robert Dickens thought the plaintiff’s injury had an organic basis and that she had some preceding degenerative changes in her lumbosacral area but that the lumbosacral symptoms are attributable to the transport accident.  He dealt with the railway station incident and he thought that it was only a temporary exacerbation of her original problem.[42]  He states also that there were no other injuries or diseases pre-existing the transport accident, nor any other injuries or diseases arising since the accident that he considers relevant to her current situation.[43] 

[42]CB 116

[43]CB 115

36      Mr Dickens found that there was an impairment of the plaintiff’s earning capacity, in that he thought she would have difficulty doing work where she had to sit for a prolonged time but she could go back to IT service desk-type duties, if she were allowed to move around.[44] 

[44]CB 117

37      The plaintiff included two psychiatrists’ report in its tendered documents, but no comment was made as to either Dr Weissman or Dr Ingram by either side in closing submissions.  These reports do not assist me in determining this paragraph (a) application.  However, just so that there is no doubt, I find the impairments of the lumbar spine function and the consequences flowing from that are organically-based.  It perhaps should be noted before leaving these two doctors, that Dr Weissman describes “significant lower back pain with radiation into her lower limbs”[45] and Dr Ingram refers to chronic pain which, on any reading of his report, is physically-based.[46]  These comments support the view that the plaintiff’s impairment arises from organic injury.

[45]CB 86

[46]CB 128

38      The radiology,[47] particularly once the further sophistication of MRI scanning was undertaken on 17 June 2009 and 11 May 2011, gives, in my opinion, objective evidence of injury that supports the plaintiff’s description of pain.

[47]CB 25-31

The Defendant’s evidence

39      Two video surveillance films[48] were tendered by the defendant and shown to me in relation to the plaintiff’s activities on several dates.  These comprise film of the plaintiff going about fairly innocuous tasks such as, inter alia, walking, wheeling a shopping trolley, getting into a car and standing talking to a neighbour.  These videos do not assist me, in that I find them inconclusive in determining the extent of any disability.  The videos did not, in my view, show any strenuous, repetitive, heavy or demanding activities such as bending or any other postural positions that would help lead me to any conclusions one way or the other.

[48]Exhibits 1 and 2

40      The defendant tendered two reports from a Dr Anthony Kam, a consultant radiologist.[49]  These were not the subject of any discussion in submissions by the defendant or the plaintiff, and the comments made about comparisons of the various radiology reports do not assist me.

[49]DCB 1-6

41      A number of Facebook page entries were also tendered which indicate the plaintiff’s interest in photography, attendance at her sister’s wedding and Christmas dinner or lunch at her grandmother’s, as well as some holidays and activities with her newborn.  None of these images are inconsistent with a young, active lady doing her best to enjoy life and, more importantly, they are not inconsistent with the evidence she gave about her symptoms.

42      Some extracts of clinical records were tendered by the defendant,[50] together with a Transport Accident Commission medical certificate.[51] They show a physiotherapy attendance on 30 March 2007 described in very cryptic terms, a handwritten reference to an attendance on 7 April 2008 which included a note “Some horse riding”, a handwritten medical notation on 13 January 2008 noting the trip on stairs at Flinders Street and then the bending down to pick up a laptop, as well as the problems boarding a train.  From Exhibit 6, I conclude that they are really descriptions of a flare-up of pain that commenced with the trip but then manifested itself in a couple of other activities such as boarding the train and picking up the laptop, and are really the one incident with a couple of manifestations of the pain. I find the plaintiff was suffering symptoms on that day that could be described as a flare-up, impacting on each of those activities rather than them being separate incidents or separate flare-ups.  From these relatively minor physical exertions or trauma, when compared to being hit by a car and “thrown into the air and then landing on the ground”,[52] I accept Dr Reid’s analysis that the plaintiff has low-back pain of “fluctuating severity”[53] due to the transport accident.

[50]CB 9, Exhibits 4-6

[51]Exhibit 7

[52]CB 9

[53]CB 37

43      The Transport Accident Commission medical certificate was tendered as indicating the plaintiff was cleared for her usual duties by 5 January 2008.  This is consistent with the plaintiff’s evidence in any event.[54]

[54]CB 9

44      I find that the plaintiff has suffered an impairment of the earning capacity that she enjoyed prior to the transport accident when there were really no limitations, save for about two months in 2006, on her capacity to undertake manual physical work involved in being a stable hand and working with horses, an involvement she enjoyed and a passion.[55]

[55]CB 21

45      I find that the plaintiff is a young lady who, from the time, was injured, and at twenty-one years of age had endured her constant lower back pain and other symptoms sensibly and stoically.  She has altered her activities at work in terms of the jobs that she has undertaken and tried to accommodate her limitations by even working at home, where she had some flexibility in terms of posture, and no doubt her hours.  She has accepted the limitations that she now has on physical work such as on a farm and duties involving horses.  I find that the consequences of these restrictions for one so young are a serious impairment of her earning capacity. 

46      It has been stated on a number of occasions that the question of judging the serious injury test discussed in Humphries & Anor v Poljak[56] where the leave application in Fleming v Hutchinson[57] was referred to, that what is involved is a judgment of the consequences of the impairment and this means “elements of fact, degree and value judgment are involved”.[58]

[56]supra

[57](1991) 66 ALJR 211

[58](supra) at [167]

47      In this application, I find that the pain suffered by the plaintiff from the time of the transport accident to the present time is such that it could fairly be described as a very considerable consequence for her.  I take into account how young she is to have had that situation visited upon her and the prognosis of her treating doctors, that she will be left with such a situation for the foreseeable future.  While long-term is all that is required pursuant to s93, this lady’s treating doctors find her condition to be permanent.

48      In addition, I find that the consequences of the plaintiff’s impaired lower back are very considerable in terms of diminution of earning capacity.  From her very early twenties, she now has a permanently impaired earning capacity which will involve her being selective about the jobs she undertakes, some flexibility with hours and also with the postural requirements of even sedentary or office-type work.  Again, for one so young, this can only be described as a very considerable consequence for her.

49      There are consequences also outside her earning capacity that I find can fairly be described as “very considerable”.  The impact on her love of horses and her involvement with horses which she would have been entitled to have enjoyed for many years including, as she expressed, teaching her infant daughter eventually to enjoy horses as the plaintiff has, is a great loss to the plaintiff.  Sensibly, again, she has basically given up riding, and that is a matter of great regret to her as that was outside her family and work interests, her major recreational enjoyment of life.  Mr de la Harpe’s evidence that the degenerative condition, absent the transport accident, would mean riding led to more symptoms, does not get around the fact that the accident is what has ended her riding days.

50      There are other consequences that I consider not the subject of controversy in this case, but also, for a very young lady, I consider as meeting the serious injury test.  I refer to the impact that she describes on her sex life and the description that it is “usually quite painful for me and I don’t get much enjoyment out of it. Unfortunately this has impacted negatively on my relationship with Mark but he still continues to support me and put up with me and I am grateful for his love and help.”  This is a very poignant description by a young lady of this personal aspect of her life. [59]  This consequence on her intimate life is a serious consequence for the plaintiff.

[59]CB 12

51      There are other aspects of the affidavit material that are not challenged including the impact on her ability to look after her baby and attend to duties around the house.[60]  I accept that evidence.

[60]CB 11, 12, 16 and 17

52      I was referred in argument to the case of De Agostino v Leatch & Transport Accident Commission, [61] and the principles there discussed.  While I find the plaintiff had a pre-existing injury of her lumbar spine at the time of the transport accident, she was suffering no impairment or loss of body function from that.  I find she had recovered fully from the 2006 work accident by the time of the transport accident.  If in view of the accepted pre-existing spinal degeneration, the impairment following the transport accident is more appropriately termed as an “additional impairment”, a description I do not think is apt.  I find the additional impairment and its consequences meet the test of serious.

[61][2011] VSCA 249

53      My conclusion is that when this case is judged by comparison with other cases in the range of possible paragraph (a) applications, the consequences for the plaintiff in terms of the impairment of earning capacity and enjoyment of life can be fairly described as “very considerable”.

54      I grant leave to the plaintiff to commence proceedings for the recovery of damages.

55      I will hear the parties with respect to the formal orders.

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