Grant v Transport Accident Commission
[2016] VCC 1018
•26 July 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-01490
| EVELYN LORRAINE GRANT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 27 November and 8 December 2015 | |
DATE OF JUDGMENT: | 26 July 2016 | |
CASE MAY BE CITED AS: | Grant v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1018 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – aggravation of pre-existing degenerative change in the cervical spine – whether aggravation amounts to “serious injury”
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1999] VR 32; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Transport Accident Commission v Florrimell [2013] VSCA 247; Richards v Wylie (2000) 1 VR 79
Judgment: Leave to the plaintiff to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr N R Bird | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff by originating motion for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings against the defendant to recover damages for injuries suffered by her in a transport accident that occurred on 31 March 2009 in Bridge Road, Richmond (“the accident”).
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 The body function which the plaintiff claims has been lost or impaired is the neck, shoulder and arm.[1]
[1]Transcript (“T”) 2. The application also claimed an ankle injury but was argued only in relation to the aggravation injury to the plaintiff’s neck.
4 There is no dispute between the parties as to the circumstances of the accident. At the time that it occurred the plaintiff was a front seat passenger in a Toyota Rav 4 motor vehicle being driven by her daughter. The vehicle was stationary and was struck heavily from behind by another vehicle.
5 The plaintiff and her daughter were able to leave the scene of the collision in the vehicle, which suffered damage to the rear but was otherwise still driveable. An ambulance had attended the scene of the collision and the plaintiff was advised to consult a doctor.
6 The central issue in this application is whether or not the plaintiff suffered an injury to her neck from which there are serious injury consequences. The plaintiff’s case is that she suffered an aggravation of pre-existing degenerative change in her neck and this has produced consequences for her which the Court should find are more than marked or at least very considerable. For its part, the defendant argues that the plaintiff was not injured in the accident, but if she was, then her injury was in the nature of an aggravation of pre-existing degenerative change in her neck and cervical spine which has not resulted in impairment consequences for the plaintiff which could be described as being more than marked or at least very considerable.
7 Mr I Fehring, together with Mr N Bird of counsel, appeared on behalf of the plaintiff and Mr W R Middleton QC, together with Ms D Manova of counsel, appeared on behalf of the defendant.
8 The following evidence was adduced during the hearing:
· the plaintiff gave evidence and was cross-examined
· the plaintiff tendered the following evidence from the Plaintiff’s Court Book (“PCB”), pages 2-100 inclusive: exhibit A
· the defendant tended the plaintiff’s clinical records from the Warrnambool Medical Clinic: exhibit 1
· The defendant tended five photographs of the plaintiff downloaded from Facebook: exhibit 2
· The defendant tended a report dated 17 June 1986 relating to the plaintiff from Christopher Murray, prosthodontist: exhibit 3
· the defendant tendered the following evidence from the Defendant’s Court Book (“DCB”), pages 1-18.11 inclusive: exhibit 4.
9 The application is brought under the definition of “serious injury” contained in ss(17) of s93 of the Act which requires the plaintiff to prove that she has suffered a “serious long-term impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a)the plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of a transport accident occurring on or after 20 May 1986;[2]
(b)the injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future;
(c)the plaintiff bears the burden of proof to be determined upon the balance of probabilities – ss(6);
(d)to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequence, an injury is 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 as “very considerable” and certainly more than “significant” or “marked”?[3]
[2]Section 93(1)
[3]Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1
11 I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test. I have applied the principles set out above in reaching my conclusions in this application.
12 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
13 For the reasons that follow, I have concluded that the plaintiff’s application must succeed.
14 The plaintiff has sworn four affidavits in support of her application. She was born in 1952 and is now sixty-four years of age. She is dyslexic and struggled with schooling and cannot read. The plaintiff has sworn that the major injury she sustained in the accident was an injury to her neck. She said that she has pain that radiates into her shoulders and arms and pins and needles in both hands. In addition, she said that she experiences aching in her left ankle.[4] Although originally part of the plaintiff’s application, the way the matter was argued before me, the complaint of injury to the left ankle is not part of the application.
[4]Plaintiff’s first affidavit, paragraph [4]
15 In her first affidavit, the plaintiff gave details about her personal background and her years at primary school which she described as being in a “special class” and the difficulties that she has always had with reading. She left school at a young age and was employed doing unskilled work for a number of years but she has always been hampered by her dyslexia and inability to read and write properly.
16 The plaintiff has been twice married and she has four children and six grandchildren, four of whom live in the Warrnambool area and, as grandmothers do, she sees a lot of them. None of this evidence set out in the plaintiff’s first affidavit is in contention. I gained the strong impression that the plaintiff is much loved by her family, towards whom she devotes much of her time and attention.
17 The plaintiff has not worked in constant employment but from time to time she has worked ironing, babysitting and doing household cleaning for some people. She last worked doing this kind of work about six or seven years ago. She is in receipt of a disability pension. No certificate is claimed for loss of future earnings damages.
18 At paragraph 10 and following of her first affidavit, the plaintiff described the collision which resulted in the accident. None of this is in contention either. She said that at the time of impact she was seated in the front seat but had turned in an attempt to get something out of her handbag. She was wearing a seatbelt but the force of the impact projected her forward within the vehicle.
19 The plaintiff deposed that following the collision, she remained seated in the passenger seat. Someone called an ambulance, which arrived at the scene of the accident. She was examined by an ambulance officer and told that she should go to hospital. The ambulance left the scene because it had been called to attend elsewhere. The plaintiff said, and I accept, that she did not wish to hold up the ambulance and told the officers that she would be “okay”.[5]
[5]Plaintiff’s first affidavit, paragraph [16]
20 After the accident, the plaintiff’s daughter had some work-related appointments to attend. The plaintiff attended these with her but sat in the car. The plaintiff stayed in Melbourne that evening. In her first affidavit, she said that by the time the evening arrived, she had “a significant pain in my neck. I felt terrible. I also felt sick in the stomach.”[6] She said, that evening, she went to a chemist to obtain painkilling medication. When she woke up the next morning she did not feel well, the pain in her neck had increased and she had difficulty rotating her neck.[7]
[6]Plaintiff’s first affidavit, paragraph [19]
[7]Plaintiff’s first affidavit, paragraph [20]
21 The plaintiff deposed that she did not do much the day after the accident. She remained in Melbourne for a couple of days and, because she lives in Warrnambool, she did not know any doctors in Melbourne and she did not seek any treatment at that time. She said that while she remained in Melbourne, the pain in her neck continued and she felt nauseous and developed headaches.[8]
[8]Plaintiff’s first affidavit, paragraph [21]
22 The plaintiff said that when she went back to Warrnambool she tried to see her general practitioner, Dr Michael Page, but he was difficult to get an appointment with. She said that she eventually saw him and he referred her to undergo x‑rays, which were taken at the Warrnambool Base Hospital. She said Dr Page then referred her to a doctor at St Vincent’s Hospital in Melbourne for an MRI scan in September 2011.[9]
[9]Plaintiff’s first affidavit, paragraph [22]
23 The defendant tended the clinical notes from Dr Page which record that the plaintiff saw him about five months after the accident on 28 August 2009. Relevantly, the notes record as follows:
“In MCA 5/12 and go and hurt neck and still aching – had awful ear aches – car into back of her as passenger and was looking to R .. both sides post to ears ache.
R arm starting to get pins and needles and aches not as strong – 3/12 – strength gone – For CT Cx spine.
Was on hrt till 4/12 ago and now sweats back and feeling aweful (sic).
Dyslexia and not reading and not right.
Not sleeping at night … .”[10]
(sic)
[10]Exhibit 1
24 The plaintiff was cross-examined as to why it took her five months to go to the doctor. In an answer, which I accept, she said she just put up with the pain. This is the exchange:
Q:Let me put it to you this way, that it was five months before you went to the Warrnambool Medical Clinic at 193A Leibig Street, Warrnambool?‑‑‑
A:Well, as I said, I’ve put up with a lot in my life and when I got home I could just rest at my own – I didn’t have to look after anybody else and I mainly just rested up and – I’ve never been in accidents or had anything like that and I thought I’d just get over it. But it didn’t. It just got worse.
Q:But you weren’t adverse to going to the doctor for other things?‑‑‑
A:Yes but I just thought that you just kind of get shaken up with accidents and sort of have bruising and stuff like that, and I thought it would go away.
Q:But it didn’t go away, did it?‑‑‑
A:No.
Q:You say it got worse?‑‑‑
A:It has.
Q:And it’s continued to get worse ever since?‑‑‑
A:It has. It has.
Q:When you go to the doctor and you see Dr Page, do you remember what you complained about?‑‑‑
A:Probably my ankle and my neck and across my shoulders and that. I don’t know. I just had sort of bad headaches and nauseated, I felt, and I just felt unwell.”[11]
[11]T12-13
25 The plaintiff said in her evidence that it was her left arm that suffered from most of the pain. She was cross-examined about a note recorded by her doctor. He noted a complaint of right arm pain and not the left. She said that she could have got mixed up, which she often does, but she definitely suffers from left arm pain.[12] When pressed, she was adamant she suffered from left arm pain and she said the doctor must have misunderstood her or made an error in his notes.[13]
[12]T13
[13]T14
26 At the time that the plaintiff swore her first affidavit in March 2013, she said that she suffers pain in her neck which radiates into her shoulders and upper back and she experiences pins and needles in her hands. She described the pain as being “like a spike sticking into my neck by late afternoon”. By late in the day, she said she just wants to go to bed to relieve the pain.[14]
[14]Plaintiff’s first affidavit, paragraphs [24] – [25]
27 The plaintiff complains of her sleep being affected and as a consequence, she feels tired. She has been unable to attend to household and gardening tasks at the level that she used to. She finds vacuuming painful and suffers pain the following day after vacuuming. Prior to the accident, the plaintiff regularly walked her pet dogs but she has had difficulty even doing this. She complains that since the accident, because of lack of exercise, she has put on about 15 kilograms in weight. She says that she cannot drive long distances and confines herself to local driving and, she finds that turning her head, even to look in rear vision mirror, is painful. Prior to the accident, she enjoyed craftwork but can no longer do this.[15] She said that she can no longer enjoy dancing which she did partake in prior to the accident.[16]
[15]Plaintiff’s first affidavit, paragraphs [26] – [32]
[16]Plaintiff’s first affidavit, paragraph [35]
28 In her second affidavit sworn in August 2013, the plaintiff deposed that she continues to see her general practitioner “every few weeks” and that she takes Panadol Osteo on a daily basis.[17] She also said that her sleep is very bad and that she wakes up because of pain in her neck. She says that she suffers from pain in her neck “all the time and it spreads across the shoulders and I occasions it can be quite severe”. She also complains of pins and needles in her arms, especially the left hand and elbow region.[18] The plaintiff gives evidence in her affidavit of the ways in which the pain in her neck and shoulders have affected her daily living in terms of household chores and her ability to help her daughter care for her grandson. She has been able to maintain an interest that she has in attending a group known as “Delta” where she and others go to hospitals and chat with patients, which he does about once a week.[19]
[17]Plaintiff’s second affidavit, paragraph [2]
[18]Plaintiff’s second affidavit, paragraph [3]
[19]Plaintiff’s second affidavit, paragraph [4-8]
29 In her second affidavit, the plaintiff gives evidence that she can no longer do swimming for exercise. She said that she did this three to four times per week prior to the accident but she can no longer do so, and she tributes lack of swimming to her weight gain.[20]
[20]Plaintiff’s second affidavit, paragraph [9]
30 Also, in her second affidavit, the plaintiff deposes that her pain is now more severe and more debilitating to her daily activities.[21]
[21]Plaintiff’s second affidavit, paragraph [10]
31 The plaintiff swore a third affidavit in October 2014. By this time, she said that she continued to see her general practitioner “three or four times a week” and, she takes Endep (an anti-depressant) on a daily basis. She said that she had previously been taking Gabapentin but this had recently ceased. She had been referred to specialist at St Vincent’s Hospital in Melbourne in June 2014 and a neurologist at the Warrnambool Hospital.[22]
[22]Plaintiff’s third affidavit, paragraph [1]
32 The plaintiff continued to complain of pain in her neck and sleep disturbance. She further deposed as to how her life has being affected in terms of how she can no longer perform household and gardening duties.[23]
[23]Plaintiff’s third affidavit, paragraphs [2] – [4]
33 The plaintiff’s fourth and final affidavit in support of her application was sworn by her on 16 November 2015. By that time, the plaintiff said that she had continued to see her general practitioner, Dr Slattery, every two weeks and that she was taking Endep on a daily basis and Panadeine Plus three to four times per week. She said her neck and left arm are painful all the time and her left arm is “very weak”. She described a burning sensation in the neck and into the left arm.[24]
[24]Plaintiff’s fourth affidavit, paragraphs [1] – [3]
34 Also, in her fourth affidavit, the plaintiff continued to complain of disturbed sleep, the fact that she could no longer perform her household chores, and headaches from time to time, which he described as being caused by tension in her neck and shoulders. She said that tasks as menial as washing her hair were difficult and, she again described difficulties dealing with and handling her young grandchildren because of her neck and left arm pain, which she described as being “very severe” on occasions.[25]
[25]Plaintiff’s fourth affidavit, paragraphs [4] – [5]
35 The plaintiff’s evidence as to the circumstances of the collision and the effect of her claimed injuries upon her in the days and weeks immediately following the collision were corroborated by affidavits from her daughter, Naomi Ann Davey. Ms Davey also supports her mother in terms of the change upon her since the accident in the way she goes about her daily living and performing general household tasks. Ms Davey was not called for cross-examination.[26]
[26]Exhibit “A”, pages 19 – 25
36 In cross-examination, there was an attack on the plaintiff’s credit. One of the bases for attacking her credit was that she told doctors that had seen her for medico-legal purposes that she had not had problems with her neck prior to the collision. The premise of this attack was that the plaintiff’s prior medical history does in fact reveal prior complaints of neck pain.[27]
[27]The evidence showed that the plaintiff had consulted a prosthodontist, Mr C Murray, on 13 June 1986. She had been having problems with her dentures which caused headaches and neck pain recorded in Exhibit 3. On 2 November 1981, the plaintiff had attended upon her general practitioner, Dr Waldron, complaining of headaches and a tender neck: Exhibit 1, page 11. On 12 July 1982, the plaintiff attended upon Dr Ogilvie complaining of neck pain, jaw and ear pain: Exhibit 1, page 10. She was sent for x-ray. It was reported that she had degenerative disc disease which was well established at C6-7 level: PCB 64. On 9 December 2002, the plaintiff’s general practitioner, Dr Ogilvie, recorded “neck still a problem, probably muscular/degen”: Exhibit 1 page 10. On 26 November 2003, Dr Shirzada recorded “Neck pain longstanding responding to Diclofenac”: Exhibit 1, page 9. On 8 April 2004, Dr Rounsevell recorded “neck pain”: Exhibit 1 page 9.
37 When confronted with this evidence, the plaintiff said that perhaps she had mentioned a stiff neck to doctors from time to time but the neck was never a major issue:
Q:“On 9 October 2014, he records that he saw you, and in the middle of p.16, he said, ‘She said there had never been any trouble with her neck in the past’?‑‑‑
A:No, there hadn’t been.
Q:‘I told her that her doctor’s notes did suggest some previous problems with her neck, and she said that perhaps she had mentioned to the doctor a stiff neck from time to time, but it was never a major issue.’?‑‑‑
A:No, it hasn’t been. I’ve never had any problem with my neck. I had problems with my jaw, creating a pain going down there, but that was in the side of my neck, not in the back, where it is now.
Q:I suggest to you that – I’ll take you to the dates – that you were prescribed Voltaren for your neck on one occasion, and you had another occasion where you had physiotherapy for your neck?‑‑‑
A:Yeah, because, at first, I don’t think they realised that it was my teeth that were doing that. Once – if you check the doctor’s things, it should show that once I had the new teeth done properly and they built them up and everything, it went away and I never ever had to go back again.”[28]
[28]T15-16
38 It can be seen from this that the plaintiff maintained that her complainants of neck pain resolved when the problem with her dentures was fixed and she had no problems after that. It is important to note that after the reference to Dr Rounsevell on 8 April 2004,[29] there is no further reference in the medical records of the treating doctors of complaint by the plaintiff of ongoing neck pain between that date and the time of the accident in March 2009. In my opinion, this tends to confirm the plaintiff’s evidence.
[29]Exhibit 1, page 9
39 In his submissions, Mr Middleton submitted that there is a sparsity of “treating opinion – valuable treating opinion” from the plaintiff’s treating doctors.[30] He also submitted that it is significant that the plaintiff did not complain to her general practitioner of neck pain until 28 August 2009 when she told Dr Page. That was five months after the accident.[31] In addition, Mr Middleton pointed to the fact that the plaintiff changed her general practitioner on 26 October 2010 when she commenced to go to the Cambourne Clinic in Warrnambool. Dr Quinn has reported that that he was not aware of her accident and, subsequent injury, until the plaintiff told him on 3 June 2011, when she reported ongoing symptoms of neck stiffness.
[30]T43
[31]T44
40 Mr Middleton was also critical of the quality of the medical report from the plaintiff’s latest general practitioner, Dr Slattery,[32] which he said offered little assistance in deciding the issues in the case.[33]
[32]PCB 31
[33]T46
41 I have seen and heard the plaintiff give her evidence and I accept her as a witness of truth and as a reliable witness. I accept there has been a measure of disconnect between the plaintiff and her doctors. The doctors, in my view, have recorded what now appear to be a number of inaccuracies in the patient’s history. Much of this may have been caused by the plaintiff’s inability to communicate fully and her disposition which seemed to be one of not wishing to assert herself. She can neither read nor write and she struck me as a perfectly honest person who does not wish to be a burden on anyone. She does not impose herself on the conversation and she understates, rather than overstates, her complaints. I found the plaintiff’s evidence that her complaint has always been that of left arm pain as being very convincing despite what some doctors may have recorded.
42 The defendant submits that the plaintiff’s neck condition is pre-existing and was not caused by the transport accident. Alternatively, it argues the plaintiff has not discharged the onus of proof which she bears of demonstrating that any aggravation of any pre-existing cervical spine degeneration has produced pain and suffering consequences for her that may fairly be described as being more than significant or marked and as being at least very considerable. The defendant relies upon the principles enunciated in Petkovski v Galletti;[34] Stijepic v One Force Group Aust Pty Ltd[35] and Transport Accident Commission v Florrimell.[36] The defendant also submits that the evidence shows there is a significant aspect of functional overlay in the plaintiff’s presentation to doctors which has not been explained.
[34] [1994] 1 VR 436
[35][2009] VSCA 181
[36][2013] VSCA 247 at paragraph [48]
43 Both parties agree that the evidence shows the plaintiff suffered from pre-existing degenerative disease at the time of the accident as recorded by doctors when the plaintiff complained of neck pain. I have set out a reference to this evidence in an earlier footnote.[37]
[37]See also Exhibit 1 pages 225, 228, 229, 230. Opinion of Mr Kierce at DCB 8 to 10
44 The defendant submits the plaintiff’s reliability is affected by the fact that she did not disclose her pre-existing symptoms to doctors who had seen her for the defendant, particularly Mr Kierce and Associate Professor Stark. The plaintiff told these doctors that she may have complained to her doctors from time to time of a stiff neck but it was never a major issue. That is consistent with her evidence before me, and I accept that to have been the position. The plaintiff attributes much of her earlier complaints to problems with her dentures and when they were resolved she had no ongoing problems from neck pain. I do not accept the basis of the attack upon the plaintiff’s reliability as a witness. I do not accept the plaintiff understated to examining doctors her past history of complaint of neck pain. On the evidence of the plaintiff, any complaints of neck pain that she had reported some years prior to the accident resolved with resolution of her dentures problems. There is no reason not to accept that evidence.
45 The defendant, in written submissions, also sought to attack the plaintiff as a witness of truth. When pressed, Mr Middleton withdrew that submission. That was the proper course to take.[38]
[38]T56 and T58
46 I am satisfied from all of the evidence that from as long ago as 1986, the plaintiff did complain to her general practitioners of neck pain and I am satisfied that the plaintiff, at the time of the accident, had pre-existing degenerative disease in her cervical spine. However, at the time of the accident and for several years leading up to it, I am satisfied the plaintiff was not suffering from neck pain or any adverse consequences from ongoing neck pain. I find that at the time of the accident, the pre-existing degenerative change to the plaintiff’s cervical spine was asymptomatic.
47 Mr Middleton submitted the fact that the plaintiff did not seek medical attention soon after the collision suggests no injury as a result of the accident. I do not accept that to be the case. I accept the plaintiff’s evidence that she was suffering from pain in the days and weeks after the accident but she put up with the pain and did nothing about it, because she is stoic and did not want to cause trouble or inconvenience to anyone.
48 Mr Paul Kierce, an orthopaedic surgeon and medico-legal consultant, has seen the plaintiff on three occasions for the defendant. It is his opinion the plaintiff is suffering from cervical spondylosis, particularly with a right-sided protrusion of C5-C6 disc which he believes is constitutional degenerative change. It is also his opinion that because the plaintiff did not attend upon her general practitioner until 28 August 2009, is an indication that the accident is unlikely to have aggravated her pre-existing cervical spondylosis.[39] He repeated his opinion in later reports.[40]
[39]DCB 9
[40]DCB 18.1 and 18.9
49 Neurologist, Associate Professor Richard Stark, also saw the plaintiff on behalf of the defendant. He was of the opinion the plaintiff had sustained a “jolting injury to the neck” but he was not convinced it was related to the accident. In his opinion, there was no clinically apparent neurological damage.[41]
[41]DCB 17
50 In his further report following a second examination of the plaintiff on 25 September 2015, Associate Professor Richard Stark gave, inter alia, this opinion, which he set out in paragraphs numbered 1 to 10. I have set out some parts of it which I consider the most relevant here:
“1.I accept that this lady suffered a jolting injury to the neck, based on the history she provides. There is a radiological abnormality as outlined above. It is possible that the abnormality arose from the transport accident although if it did one would have expected there to be substantial neurological dysfunction soon after the motor accident and it is surprising that no medical consultation was apparently sought at that time.
2.There is evidence of radiological damage in the cervical spine. It is possible that the accident contributed to this.
3.This lady has evidence of degenerative changes in the discs of the cervical spine and this may well have been a pre-existing condition. It is plausible that the accident could have aggravated cervical spondylosis and as indicated above, it is plausible that it may have contributed to the radiological appearance.
4.There are certainly inconsistencies in this lady’s performance on examination and her variable use of the left upper limb with collapsing weakness suggests that there is a significant non-organic component. It would be of interest to know whether her left upper limb function is consistently as limited as she demonstrated to-day. You will note that there is no objective evidence of radiculopathy and there is no clear-cut evidence of upper motor neurone disturbance in the lower limbs to suggest myelopathy involving the motor system.
…
9.… This lady does have degenerative problems in the cervical spine but these may have been aggravated by the accident. Thus, I am not able to define a particular unrelated condition which is contributing to her limitations.
… .”[42]
[42]DCB 18.7
51 Mr Fehring did not concede that there was no organic basis for the plaintiff’s complaints but if such complaints were functionally based, then the Court is permitted to take that into account in assessing an application for a serious injury certificate related to injuries sustained in a transport accident. He relied upon Richards v Wylie,[43] especially the judgment of the President at paragraphs 16 and 17.
[43](2000) 1 VR 79
52 Mr Fehring submitted the plaintiff suffered from an aggravation to the existing degenerative disease in the accident. He submitted the evidence shows that for some five years at least prior to the accident, the plaintiff had not had treatment and had not had symptoms from that underlying condition. Her evidence supports that submission, as do the medical records from the general practitioners. I accept that submission.
53 Mr Fehring relied upon the findings of a CT scan taken of the plaintiff’s cervical spine on 10 September 2009 where the radiologist concluded as follows:
“Conclusion
Right postero-lateral osteophytic lipping and apophyseal joint degeneration at C4-5 and C5-6, causing significant compression of exit nerve roots at these levels.”[44]
[44]PCB 98
54 Mr Fehring submitted this finding provides a proper basis for opinions found in the medical reports of a diagnosis of myelomalacia, a condition of the spinal cord which arises from compression inside the cord.[45] He submitted that, based on the findings in medical reports provided to the plaintiff,[46] the plaintiff likely has suffered from myelomalacia as a distinct condition as a result of the accident, which takes time to develop, and her complaints are a consequence of this.
[45]T71
[46]See for example PCB 79, report of Thomas Kossman
55 On 14 December 2010, an MRI scan was taken of the plaintiff’s cervical spine. The radiologist report included:
“Myelomalacia in the right hemicord adjacent the ventral medial sulcus at C5/C6 probably relates to previous compression.
Disc protrusion at C5/6 producing a moderate to severe right foraminal stenosis”.[47]
[47]Referred to in report of Mr Henderson at PCB 59
56 A follow-up MRI scan carried out on 8 September 2011 relevantly concluded:
“Stable appearances. Small to moderate broad based right paracentral disc protrusion at C5/6 with bright signal anteriorly in the cord suggestive of oedema or myelomalacia, and moderate to severe compressive right foraminal narrowing. Moderate right foraminal narrowing at the C4/5 level is associated with less marked deformity of the exiting C5 nerve root. Minor cord compression as the result of a small central disc protrusion at T5/6 and T6/7.”[48]
[48]Referred to in report of Mr Henderson at PCB 59
57 Mr David Brownbill, consultant neurosurgeon, saw the plaintiff for medico-legal purposes on 20 June 2011.[49] He gave an opinion after referring to the MRI scans, inter alia, as follows:
“Noting the radiological investigation demonstration of longstanding cervical spine degenerative changes and the onset of neck pain and later bilateral arm pain following the rear end collision, I consider this lady sustained aggravation of pre existing asymptomatic cervical spine degenerative changes in the described accident but without neurological damage.”[50]
[49]PCB 46
[50]PCB 49
58 Mr John Henderson, orthopaedic and general surgeon, saw the plaintiff for medico-legal purposes first on 23 September 2011.[51] After referring to the earlier MRI scans, Mr Henderson gave this opinion in his first report:
“Unfortunately, when this accident happened, your client sitting in the passenger seat, was twisting around to her right side to reach back to get something off the back seat. Her head and neck were twisted right around to her right side at the very moment that this rear-end collision accident, associated with such mechanical violence, occurred. This is possibly the reason that your client sustained such a severe right sided whiplash neck type injury.
The CT scan [of the] cervical spine [that] was done on the 10th September 2009, nearly 5½ months after the accident, confirmed: ‘moderately severe disc degeneration with narrowing at C4-5 and C5-6, more marked at C5‑6 where there are significant posterior osteophytes’, and also noted a ‘very slight posterior slip of C4 on C3’ as much as ‘approximately 2mm’, which actually represents a significant retrolisthesis (?); although the usual description would be of C3 on C4? In any case, because of the ‘postero-lateral disc bulging and apophyseal joint degeneration’ on the right side, at the C4-5 level, there is ‘foraminal narrowing and compression’ of the exiting 5th cervical nerve. Presumably the ‘apophyseal joint degeneration’ was a pre-existing condition, but almost certainly, the ‘postero- lateral disc bulging’, was a direct result of your client’s very severe whiplash neck injury, in this accident. Certainly, that CT cervical spine confirmed ‘compression’ of the 5th cervical nerve on the right side.”[52]
[51]PCB 51
[52]PCB 59
59 Mr Henderson examined the plaintiff again on 23 September 2011. He confirmed his opinion that the plaintiff had suffered a severe whiplash neck injury, resulting in severe neck stiffness, quite severe neck pain and significant paraesthetic symptoms affecting her left upper limb; and headaches.[53]
[53]PCB 71
60 Mr Thomas Kossman, orthopaedic surgeon, first saw the plaintiff for medico-legal purposes in October 2013. He thought the plaintiff to be suffering from myelomalacia:[54]
“Ms Grant was involved in a motor vehicle accident as a restrained passenger on 14 June 2009 (sic) when the car she was travelling was rear-ended. She suffered an injury to her cervical spine and her left ankle. Ms Grant still suffers from the effects of the injuries, which she suffered in this motor vehicle accident in the form of pain, which is radiating into both of her arms and is of a burning quality. This indicates that Ms Grant has, at least, a clinical radiculopathy and I had the impression that she had very active reflexes, which may indicate that she is suffering from radiculopathy as a result of the multiple disc prolapses, which are compressing her nerve roots at the C4/5 and C5/6 levels; to notice that the MRI from 8 September 2011 described and affection of the spinal cord in the form of oedema or myelomalacia.”[55]
[54]PCB 76-77
[55]PCB 76-77
61 In his second report dated 29 October 2014, Mr Kossman said:
“In my opinion Ms Grant’s prognosis is poor. She seems to have developed a myelomalacia of her survival spine and I remain of the opinion that her injuries are not stable. Furthermore, I am of the opinion that she may have had some degenerative changes prior to the car accident of 14 June 2009 (sic), however she has most likely injured her survival cord in this accident and since then has suffered a deterioration of the anatomical integrity of her cervical spinal cord.”[56]
[56]PCB 83
62 Mr Peter Dohrmann is a neurologist who has also seen the plaintiff for medico-legal purposes. He first saw her on 9 April 2015, at which time he said, inter alia:
“This is a difficult case to evaluate. The absence of the imaging makes it difficult for me to comment conclusively on a number of aspects.
It appears that Ms Grant had no significant symptoms prior to the motor vehicle accident in 2009 and has had persisting symptoms, particularly involving the neck and left arm, since that time.
The appearance of myelomalacia involving the right side of the spinal cord at C5-C6 could be due to many causes, including causes other than trauma, but I would agree with other experts in assuming that the likelihood is that this change in the spinal cord is the consequence of the motor vehicle accident. In general terms, it fits with the description of Ms Grant of left-sided symptoms and even of the altered sensation affecting the entire left half of the body.”[57]
[57]PCB 91
63 Even though Mr Dohrmann was of the opinion that many of the complaints of the plaintiff had no organic basis and were functional in nature, his report, confirming as it does, the opinions of Mr Henderson and Mr Kossman, gives me the comfort to accept the submissions advanced by counsel for the plaintiff. In two further reports, Mr Dohrmann did not change his opinion.[58]
[58]PCB 94 and PCB 96
64 On this application, I prefer the opinions of the medical witnesses whose reports were relied upon by the plaintiff to the opinions of Mr Kierce and Associate Professor Stark. In my view, the evidence shows there is a strong probability the plaintiff suffered development of myelomalacia in the cervical spine and an aggravation of pre-existing degenerative change in the accident. Mr Kierce and Associate Professor Stark spent a lot of time questioning the reliability of the plaintiff as an historian and both may have missed the central plank in the plaintiff’s case.
65 I accept the submissions made on behalf the plaintiff that at the time of the occurrence of the accident, the plaintiff aggravated a pre-existing degenerative change of longstanding in her cervical spine. I find that the plaintiff had complained of neck pain in one form or another from about 1986 until around April 2004. The plaintiff received appropriate treatment at those times but was greatly assisted and relieved by changes to her dentures. In the period of five years leading up to the accident, she had neither symptoms nor complaints of neck pain. At the time of the accident, the pre-existing degenerative changes to her cervical spine and neck area were asymptomatic.
66 The accident resulted in an aggravation of the pre-existing degenerative change to the plaintiff’s cervical spine and has probably caused the onset of myelomalacia involving the right side of the spinal cord at C5-C6, resulting in left-sided symptoms and altered sensation affecting the plaintiff’s left half of her body, especially the left arm. I accept the evidence given by the plaintiff, both in her affidavits and before me, that she has suffered many consequences affecting her daily life as a result of these injuries.
67 I find that she suffers from ongoing pain in her neck radiating into her shoulders and left arm and that she experiences pins and needles from time to time in her hands. I find her sleep is affected to an extent that she finds it difficult to have a good night’s sleep. She is unable to attend to her household and gardening tasks as she once did. I find that she is unable to walk her dog at the same level that she was able to in the past. Because she is unable to exercise fully, I find she has gained weight and this is in both embarrassing for her and affects her energy, which is lacking. I find she has difficulty driving and she is no longer able to do her craftwork. In my judgment, taken together, the consequences for the plaintiff from the aggravation injury to her neck as a result of the motor vehicle accident are serious, that is to say, in my opinion, the consequences may be described as being “very considerable” and “more than marked” when compared with similar cases. The injury and its consequences are permanent.
68 For these reasons, the plaintiff succeeds on her application and she will have leave to commence a proceeding to recover damages for pain and suffering and loss of enjoyment of life.
69 I will hear the parties on the question of costs.
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