Gray v Transport Accident Commission
[2017] VCC 876
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05552
| SIMONE MARIE GRAY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 13 June 2017 | |
DATE OF JUDGMENT: | 30 June 2017 | |
CASE MAY BE CITED AS: | Gray v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 876 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to the neck – consequences – whether the plaintiff suffered a serious injury resulting from the transport accident – credit
Legislation Cited: Transport Accident Act 1986
Cases Cited:Woolworths Ltd v Warfe [2013] VSCA 22; Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Philippiadis v Transport Accident Commission [2016] VSCA 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr C Sidebottom | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr P D Elliot QC with Ms G Cooper | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff is a forty-five-year-old married woman with two children who came to have spinal surgery on 5 May 2015 involving a two-level discectomy and fusion at C5-6 and C6-7.
2 The plaintiff suffered an injury to her neck in a transport accident on 9 May 2011. Subsequently, she was either bumped or tackled by her son on 1 July 2011, after which she experienced substantially worsening symptoms of pain in her neck and right arm.
3 The issue which arose out of those facts is whether the plaintiff suffered a serious injury resulting from the transport accident or from the bump or tackle, or from both.
4 Mr T Tobin QC appeared with Mr C Sidebottom of counsel for the plaintiff, and Mr P Elliott QC appeared with Ms G Cooper of Counsel for the defendant.
The transport accident
5 The starting point is to analyse the plaintiff’s description of the transport accident and its consequences.
6 In the plaintiff’s first affidavit sworn 18 May 2016, she described the transport accident as follows:
“On 9 May 2011, I was driving my car along Mt Dandenong Tourist Road when another car attempted to perform a U-turn directly in front of me near the general store in Kalorama. I had no choice to avoid that car and a heavy collision occurred. As a result of this collision my car was a write-off and had to be towed away.”[1]
[1]Plaintiff’s Court Book (“PCB”) 9
7 The plaintiff was removed from the scene of the transport accident by ambulance. The ambulance crew prepared a two-page patient care report which describes what they observed at the scene of the collision and what they were told by the plaintiff. On the first page, they recorded the following:
“39 YR OLD FEMALE NORMALLY FIT AND WELL. INVOLVED IN LOW - MED SPEED ACCIDENT THIS MORNING. PT WAS SOLE OCCUPANT OF SEDAN ROUNDING A BEND AT APPROX 40KPH WHEN A CAR PULLED OUT IN FRONT OF HER. PTS FRONT LEFT OF VEHICLE STRUCK FRONT OF OTHER VEHICLE WITH MODERATE DAMAGE. NIL CABIN INTRUSION, SEAT BELT WORN. NIL AIR BAG FITTED TO PTS CAR. NIL INJURY TO OTHER DRIVER. PT C/O PAIN TO TOP OF HEAD, ++ SHAKY. AV CALLED.”[2]
(sic).
[2]PCB 149
8 On the second page of the report, they recorded the following:
“headache >> TOP OF HEAD RADIATING DOWN TO OCCIPITUL REGION; … N.A.D >> NECK …
Denied neck stiffness; Neck (Generalised) pain >> EN ROUTE PT REPORTS FEELS SOME MUSCLE SORENESS TO SIDES OF NECK. DENIES BONY NECK PAIN.”[3]
[3]PCB 150
9 The plaintiff was admitted to the Maroondah Hospital at 10.15am on 9 May 2011. She was referred to have x-rays of her neck and chest and a CT scan of her head and brain.[4]
[4]PCB 50
10 She attended in triage at 10.19am. The attending nurse made the following triage assessment:
“ASV 10318 Driver MCA impact front L.seatbelt worn. hit head on roof c/o headache. No LOC no central neck pain, some lateral ache with photophobia. … .”[5]
[5]PCB 51
11 The plaintiff was attended by Dr Cosser, general practitioner at the hospital. Under the heading of Presenting Complaint, Dr Cosser recorded the following:
“Driver of MCA today. Wearing seatbelt. Someone pulled out in front … [of] her as she rounded corner travelling at approx 40-50KPH. Hit head ? on roof. Airbags present but not deployed. Pain over top of neck/base of skull from time o[f] accident. Headache frontally since. Exacerbated by light. No visual disturbance. No vomiting. No LOC. No amnesia. Intermittent pins and needles in hands and left foot. Walking around at scene.”[6]
[6]PCB 52
12 Under the heading of Examination, Dr Cosser recorded the following:
“A - Maintaining own. C - spine immobilised.
…
Tender superior c-spine around C1. No tenderness elsewhere … [in] c-spine or thoracic or lumbar spine.”[7]
[7]PCB 52
13 In the nursing notes, there are a number of references to the plaintiff’s neck injury. The first is by Ms Green at 10.27am:
“headache post MCA ? possible head strike to roof of car, ? 40KM moderate damage to cars, seatbelt insitui (sic), self extracated (sic), R) patella pain, central sternal pain, nil neck pain at 1st, now muscular neck pain, … .”[8]
[8]PCB 53
14 At 11.41am, the following note was made:
“pt collared by Ed Dr at 1050HRs, … .”[9]
[9]PCB 53
15 At 12.17pm, the following note was made:
“pt has had xray collar remains insitu.”[10]
[10]PCB 53
16 At 1.56pm, the following note was made:
“pt has had collar removed pt was to be going home, … .”[11]
[11]PCB 53
17 The plaintiff was discharged from the hospital at 5.42pm. The discharge diagnosis was:
“Injury to muscle/tendon involving > 1body region.”[12]
[12]PCB 50
18 I do not understand what the discharge diagnosis means. I think a meaning can be derived from the clinical notes that the plaintiff was complaining mostly of headache, with pain over her neck at the base of her skull. As a precautionary measure, a cervical collar was fitted. Apart from the treatment provided to the plaintiff which is evident from the clinical notes, she was given paracetamol and Endone at 11.00am, no doubt for pain relief.[13]
[13]PCB 55
19 Before the plaintiff saw Mr Dixon, chiropractor, on 15 May 2011, she described the neck and right arm problem she was experiencing in the intervening period between the transport accident and seeing him in her first affidavit as follows:
“After my discharge I spent several days resting at home. I was unable to work during this period due to ongoing headaches and persisting pain and stiffness in my neck. I also continued to suffer some intermittent tingling and altered sensation into my right arm.
After a few days off I returned to work once more. I probably returned sooner than I should of, but being self-employed I felt an obligation to get back and help out as soon as I could. After my return to work, I was restricted to performing light duties. I avoided any heavy lifting or repetitive work. I found that piping duties and spending long periods of my neck flexed and looking down at the table preparing pastries aggravated my neck.
As a result of my ongoing symptoms I began attending a chiropractor for my ongoing neck pain and discomfort. On 22 June 2011, I lodged a TAC claim for my neck and head injuries. That claim was subsequently accepted.
By July 2011, my arm pain was becoming an increasing problem. I found that the tingling in my right arm and hand was made worse with repetitive use of my arm and hand at work. Innocuous activities and tasks seemed to stir up my neck and arm pain. … .”[14]
[14]PCB 10
20 On the first occasion the plaintiff saw Mr Dixon on 15 May 2011, he recorded the following history:
“… Following the accident on the 9 May, she attended my clinic on 15 May 11. She complained of left shoulder and neck pain. As imaging had cleared any structural damage she was diagnosed with whiplash and shoulder strain. Simone returned on 31 May indicating her neck felt better but her shoulder was still sore. On the following visit of 21 June she complained of lower back pain. This is what had brought her to be many times before. Neck and shoulder were noted on this occasion to be good.”[15]
[15]PCB 41
21 The plaintiff said that her neck pain was improving after the transport accident.[16] She was off work for a day or two before returning to her work as a pastry chef in two bakeries, which she runs with her husband.[17] She did not return to the same level of work. She did return to her pastry cooking duties.[18] The plaintiff said that when she walked out onto the football field on 1 July 2011, she had pain in her neck and right arm.[19]
[16]Transcript 43 and 49
[17]Transcript 56
[18]Transcript 43-44
[19]Transcript 41
22 The next occasion on which the plaintiff sought any treatment was 6 July 2011, when she saw Mr Dixon after she was bumped or tackled by her son on 1 July. She had not sought any treatment between 1 July and 6 July 2011. Although, the plaintiff admitted that the pain in her neck, right shoulder and arm were much worse after she was bumped or tackled by her son, she was asked when the worsening pain occurred:
Q:“You don’t go and see anyone for five days?---
A:No.
Q:What occurred in that five days, if anything, in the change of the pain that you were having so as to cause you to see the chiropractor?---
A:Straight after the football incident there wasn’t any immediate worse pain. It was - I can’t remember the days after it, then it was starting to get worse.
Q.Did you take any time off work from the football incident before seeing - - -?---
A.No, I did not.”[20]
[20]Transcript 54
What is the Plaintiff’s case at its highest before the bump or tackle on 1 July?
23 She suffered an injury to her neck which resulted in her suffering pain in her neck and right shoulder. The nature and extent of the injury at that time resulted in her taking some time off work, and then modifying her work duties. The pain she was experiencing improved, but persisted. It persisted to the extent that when she entered onto the football field she was still experiencing pain in her neck and right arm.[21]
[21]I have also paid due regard to the lay evidence relied on by the plaintiff at PCB 22-34
24 The plaintiff attended a father-son football game in which her thirteen-year-old son was playing. She went onto the field to make up numbers, intending to stand on the field and not involve herself in the play. There is very little evidence of what actually happened between herself and her son except for the following.
25 In the plaintiff’s first affidavit, she described the bump or tackle in the following way:
“… Innocuous activities and tasks seem to stir up my neck and arm pain. For instance, in early July 2011, my son bumped into me lightly whilst having a kick a football and this led to a noticeable increase in my right shoulder and arm pain.”[22]
[22]PCB 10
26 Under cross-examination, the plaintiff was asked:
Q: “Well, he didn’t bump into you lightly at all, did he?---
A: Yes, he did.
Q:You’ve described it to Mr Dixon as a tackle and that he came up to you and what did he do?
A:He came up to my - right side of me and he bumped into my right arm.”[23]
[23]Transcript 27
With the addition of this evidence, what is the Plaintiff’s case at its highest?
27 The bump or tackle was innocuous. It was slight, in the sense of the force that was applied by her son to her right shoulder. She was not aware of immediate pain after that incident, but in the intervening period between 1 July 2011 and when she next saw Mr Dixon on 6 July 2011, the pain in her neck and right shoulder had increased significantly.
28 The defendant submitted that there are a number of reasons why I should reject the plaintiff’s evidence, and among them are:
29 the transport accident did not result in an injury to the plaintiff’s neck at the level where the surgery was undertaken, but at a much higher level, and therefore, it must follow that it was the bump or tackle which was the incident which led to her suffering more acute pain and is responsible for the damage requiring surgical amelioration.
30 Additionally, the clinical notes, which I will refer to shortly, and histories recorded by a number of examining medical practitioners, demonstrate that the plaintiff placed a great deal of emphasis on the bump or tackle as being responsible for the more significant symptoms which followed.
31 When the plaintiff saw Mr Dixon on 6 and 7 July 2011, after the bump or tackle occurred, she told him on 6 July 2011 that she had upper dorsal pain on the right side after a “tackle playing footy with the kids”. She told him on 7 July 2011 that her right arm “felt dead”. Mr Dixon advised the plaintiff to undergo a CT scan because he suspected that she had suffered a disc protrusion.[24]
[24]PCB 42
32 The plaintiff saw Dr Maloney, general practitioner, on 8 July 2011. Dr Maloney’s clinical note of that day is as follows:
“Tackled on Friday by son at footy
Left shoulder sore
Now excruciating pain right shoulder
Started between shoulder blades
Now down right arm
? pinched nerve
Pain++, examination extremely difficult as patient crying in pain before I even touch her
Pain worse with movement
Not worse with palpation.”[25]
[25]DCB 51
33 The plaintiff went to the Maroondah Hospital on 8 July 2011. She saw Dr Quinn, general practitioner. His clinical note of that day is as follows:
“Sore shoulder for 3 days, played football with kids
no obvious injury to right shoulder
awoke the next day with bad pain in shoulder … .”[26]
[26]DCB 59
34 The plaintiff saw Dr Ambrose, general practitioner, on 10 August 2011 at the same clinic as Dr Maloney. The clinical of note of that day is as follows:
“-chiropractor said to see gp for ct scan. has seen other dr in Croydon and physio
Tackled 5 weeks ago by son at football-grabbed and pushed on left, didn’t fall, that is when the pain started … .”[27]
[27]DCB 52
35 Dr Maloney prescribed the plaintiff Panadeine Forte and Valium, and Dr Ambrose prescribed the plaintiff Panadeine Forte, for pain relief.
36 The clinical notes from the medical clinic where Dr Maloney and Dr Ambrose practice were reproduced in the Defendant’s Court book up to a consultation on 1 February 2012. My reading of them discloses that the plaintiff attended on a number of other occasions complaining of neck pain and was provided with prescriptions for medication.[28] The plaintiff referred to attending that medical clinic on those occasions in her first affidavit.[29]
[28]DCB 52-55
[29]PCB 12
37 By late August 2011, the plaintiff’s neck pain was worsening to the point where she was admitted to the Maroondah Hospital on 27 August 2011. The defendant referred the plaintiff to a number of entries in the clinical notes of the hospital to demonstrate that the plaintiff focused her attention on the bump or tackle as being important in at least having a temporal connection with the onset of increasing neck pain.
38 The relevant part of the triage assessment at the hospital dated 27 August 2011 at 6.10pm is as follows:
“… ongoing back pain 6/52 ago post football match … .”[30]
[30]DCB 65
39 The relevant part of the clinical notes of Dr Dhillon, general practitioner, dated 27 August 2011 at 7.30pm is as follows:
“11 weeks ago sustained injury to mid back whilst playing football … .”[31]
[31]DCB 66
40 The relevant parts of the progress notes dated 27 August 2011 at 10.00pm are as follows:
“… persistent and worsening ® interscapular pain associated with paraesthesia + pain in ® arm following an impact injury on opposite side 8/51 ago.
…
8 weeks ago, whilst playing football [with] son, she was tackled from left side. … .”[32]
[32]DCB 68
41 The relevant parts of the progress notes apparently made by Dr Asthana, medical registrar, on 28 August 2011 at 10.50am are as follows:
“Preceding event → … Prior to symp her son tackled her from the side but she did not fall over.”[33]
[33]DCB 71
42 The relevant parts of the progress notes dated 1 September 2011 at 10.20am are as follows:
“® sided thoracic pain + ® UL symptoms - ? since tackled by son.”[34]
[34]DCB 74
43 The relevant parts of the progress notes apparently made by Dr Kiriakova, a medical intern, on 2 September 2011 are lengthy, containing an analysis of the radiology and a diagnosis of the plaintiff’s medical problem, and also the following reasonably lengthy account of the transport accident and its consequences:
“- Pt has also told me that she had a car accident (low speed) about 1-2 wks before the football injury with her son.
- She was travelling at about 40 km/hr and hit the side of another car.
- air bags did not inflate
- Pt had no neck pain following only residual headache - believes she hit her head on the roof of the car
- was cleared by GP.”[35]
[35]DCB 78
44 Dr Kiriakova referred the plaintiff to Mr Davis, neurosurgeon. Her referral to Mr Davis comprises the discharge summary of the Maroondah Hospital, and it is as follows:
“Thank you for seeing this 39yo lady with C6-C7 protrusion most likely compressing the right C7 nerve.
She had a low speed car accident 9-10 weeks ago. Travelling at about 40km/hr she hit the side of another car.
The airbag did not inflate. She had no neck pain following this, only a residual headache believed to be caused by hitting her head on the roof of the car on impact.
She went to her GP, and was medically cleared.
1-2 wks following this accident she was playing football with her son, was tackled from the left side and developed pain in her left back. This pain moved to her right interscapular region a few days later.
A few days following this she developed intermittent paraesthesia, pain and weakness in her right arm … .”[36]
[36]DCB 61
45 The plaintiff first saw Mr Davis on 6 September 2011. He provided two reports dated 30 July 2016,[37] and 4 October 2016.[38] The plaintiff told him that she was involved in a transport accident and:
“… did not report any symptoms as a result of the accident with the exception of mild headache.”[39]
[37]DCB 43-45
[38]DCB 46
[39]PCB 43
46 According to Mr Davis, the plaintiff implicated the bump or tackle for pain which she experienced in her interscapular region and paraesthesia and a sharp pain radiating from her right shoulder into her right upper limb down into her right hand. Additionally, she told him that the severity of the pain was such that it necessitated her ceasing work for two weeks prior to the time he saw her. According to Mr Davis, the plaintiff described the bump or tackle as follows:
“Approximately two weeks following the motor vehicle accident the plaintiff was playing football with her son and was injured when tackled during the game. This resulted in the onset of left sided pain. Subsequently the pain migrated to the right side particularly the right upper limb. … .”[40]
[40]PCB 43
47 The plaintiff saw a physiotherapist at a clinic known as the Bounce Medical Clinic on 13 September 2011. The clinical note of the physiotherapist commenced with a reference to the plaintiff’s neck injury and right arm pain, after which there is the following note:
“… Had MVA 10 weeks ago, not neck pain just had pain as hit head …[on] the top of the roof. Hospital did CT scan and said …[it] was okay. Then son … [tackled] her in football 3 weeks after that and tackled …. her [from] the left side and felt pain in the neck on the LHS … .”[41]
[41]DCB 56
The transport accident
48 The first question that arises for consideration is whether the plaintiff suffered a neck injury in the transport accident, and, more importantly, at the levels of her neck on which Mr D’Urso operated.
49 The impact between the plaintiff’s motor vehicle and the other motor vehicle was significant. It is the sort of impact that would cause the plaintiff’s body to be moved significantly within the cabin of her motor vehicle, even though restrained by a seatbelt. The fact that the airbags did not deploy is equivocal evidence of the significance of the impact. There may be many reasons why they did not deploy; for example they were ineffective. The fact that the plaintiff’s motor vehicle was written off is also equivocal evidence of the significance of the impact. It may have been an old vehicle of little value.
50 I am not persuaded that whatever the plaintiff said to the ambulance officers, and hospital staff at the Maroondah hospital excludes the probability that she suffered an neck injury at the relevant portion of her neck. It is a common human experience that the immediate aftermath of trauma does not necessarily demonstrate the true identity of an injury because injuries tend to evolve. I think that is made evident from the report of Mr Dixon, who later diagnosed the plaintiff as having suffered a whiplash injury and a shoulder strain on 15 May 2011.
51 The plaintiff’s evidence, both in her affidavits and her oral evidence, demonstrate that the injury evolved. I accept the plaintiff’s evidence that she did suffer an injury to her neck. I accept the plaintiff’s evidence that when she entered onto the football field, she was suffering from pain in her neck and right arm.
52 I debated the issue of reliance on clinical notes with counsel. In Woolworths Ltd v Warfe,[42] Kaye AJA (as he then was) referred to the limitations which attend reliance on clinical notes and the purpose of clinical notes.[43]
[42][2013] VSCA 22
[43]at [112]
53 In Davies v Nilsen & Transport Accident Commission,[44] the Chief Justice emphasised, that in a setting such as the one I am dealing with here, it is necessary to take a “whole of evidence approach”[45] and not just consider what is contained in clinical notes rather than the evidence of the plaintiff, lay witnesses and histories given to examining medical practitioners.
[44][2014] VSCA 278
[45]at [93]-[95]
54 The issue of reliance on clinical notes was later considered in Philippiadis v Transport Accident Commission[46] in which the Court of Appeal observed that if an injury is having serious adverse health consequences for a patient, that it would be very unusual for the patient not to mention those consequences and for the medical practitioners’ clinical notes not to refer to them over a lengthy continuous period of time.[47]
[46][2016] VSCA 1
[47]at [106]-[107]
55 What I take from the authorities is that before reaching any conclusions, I must look at the whole of the evidence which in this case comprises the clinical notes and the plaintiff’s evidence. I should recognise the limitations which attend reliance on clinical notes, but at the same time consider whether the circumstances suggest that the plaintiff would be expected to mention an injury at the time when she was asked by medical staff at the Maroondah Hospital and by Mr Dixon.
56 In the end, whether the clinical notes should be preferred to the evidence of the plaintiff is determined by understanding the circumstances in which the clinical notes were made. Here, the plaintiff was admitted to the Maroondah Hospital after the occurrence of the transport accident. The medical practitioners who treated her were probably more concerned to identify the injuries which required immediate attention.
57 I think the same probably occurred when she was admitted to the Maroondah Hospital after the occurrence of the bump or tackle. It may be that the plaintiff was asked for an account of an event which she associated temporally with the onset of more acute pain in her neck and right arm. The fact that it was repeated as often as it appears through the clinical notes may be explicable by it simply being repeated routinely rather than it being an account necessarily given directly by the plaintiff to the person recording something of importance in the clinical notes.
58 It is for this reason that I am not prepared to discount the plaintiff’s evidence that she did suffer an injury to her neck before the occurrence of the bump or tackle.
Was it a bump or a tackle?
59 The next question that arises for consideration is whether the plaintiff was bumped or tackled.
60 The only direct evidence of the force applied by the plaintiff’s son to the plaintiff’s right shoulder came from two sources – the plaintiff’s first affidavit and the cross-examination of the plaintiff. Whether the force applied amounts to a bump or a tackle is a distraction. The fact is that contact was made to the plaintiff’s body with some degree of force.
The medical evidence
61 There are only three medical practitioners who obtained an adequate history of the transport accident and its consequences, and the bump or tackle and its consequences.
62 The single medical practitioner who was provided with all of the material which I have summarised was Dr Brazenor, neurosurgeon, who examined the plaintiff on 16 May 2017 and provided a report bearing that date.[48] He summarised the content of the transport accident Claim Form, radiology, medical reports, physiotherapy clinical notes and the Maroondah Hospital clinical notes in 13 pages of that report. A comparison between my understanding of the content of all that material and the summary made by Dr Brazenor points to his summary being accurate and complete.
[48]DCB 27-43
63 In addition to reviewing that medical material, Dr Brazenor obtained a history from the plaintiff relevant to the transport accident and its consequences:
“I asked Ms Gray how long after the impact it was when she realised that she was injured, and she said that the effect was almost immediate, with neck and right arm pain and an inability to open her eyes. I felt this was curious and asked why she could not open her eyes, and she said that the light hurt her eyes. I confirmed that she remembers that she hit her head on the roof of the car above the windscreen in the impact. This is curious, insofar as she said that she was wearing a seatbelt.
Ms Gray was conveyed by ambulance to the emergency department at the Maroondah Hospital where she spent, she thinks, about four hours. I asked how she was the next morning and she replied ‘battered and bruised’. She cannot remember seeing a doctor soon after the accident but returned to work as a pastry cook in the family business ‘within two weeks’. The business was run in the interim by her husband and shop managers.”[49]
[49]DCB 40
64 In relation to the bump or tackle, Dr Brazenor obtained the following history from the plaintiff:
“… She said that they did not have enough players for the parents’ side, so she volunteered ‘to stand in the middle of the ground’, perhaps implying that she was not going to do much in the way of vigorous play. She said she was standing there when her 13-year-old bumped her hard on the right upper arm, in fact so hard that it did hurt. She did not feel that it was an injurious collision but she admitted to me that the next morning her neck pain and right arm pain were worse. She added that they had been getting worse in the era leading up to the football match. She said that ‘about a week’ after the tackle at football her husband ‘picked me up off the floor, I was in such severe pain’ and they went to an emergency department once more … .”[50]
[50]DCB 40
65 Based upon the medical material and this history he obtained from the plaintiff, Dr Brazenor offered the following opinion on causation:
“Ms Gray and practically all of the doctors who have examined her in the documentation that I have read seem to lost sight of the fact that the gap between the motor vehicle accident and the football tackle was actually two months, not two weeks. During this period there is no evidence whatsoever of Ms Gray having complained to anybody of neck and right arm pain. Further, there is excellent documentary evidence from the clinical notes of the Hills Medical clinic, Eastern Health Hospital Emergency Department and chiropractic records that severe pain began with the spinal tackle. The initial emergency department record from Maroondah Hospital on the day of the motor vehicle accident mentions only headache from impact with the car roof.
Accordingly I have formed the view that on the balance of probabilities Ms Gray’s cervical injury or injuries occurred in the football tackle of 8 July 2011 rather than the motor vehicle accident of two months before, from which she had not been symptomatic. It is a mark of all cervical injuries that they are most painful within 24 or 48 hours of injury, and if the injury is significant the pain continues at least for some days or weeks.”[51]
[51]DCB 42
66 Dr Brazenor provided two subsequent reports dated 30 May 2017[52] and 1 June 2017.[53] It would appear that he was asked to review some of the medical material to determine whether the transport accident resulted in the plaintiff suffering a soft tissue injury to her neck. He considered that the prospects of that having occurred were slim, and he repeated his earlier stated opinion that responsibility for her neck injury lay with the bump or tackle.
[52]DCB 44-47
[53]DCB 48-49
67 In his last report dated 1 June 2017, Dr Brazenor was asked to comment on the presenting complaint of “intermittent pins and needles in hands and left foot” and “slight tingling to the L) Leg” referred to in the clinical records of the Maroondah Hospital. He considered that they were of no consequence, and he repeated that his opinion remained unaltered.[54]
[54]DCB 48-49
68 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 1 May 2017 and provided a report dated 12 May 2017.[55] In the course of obtaining a history from her, the plaintiff incorrectly told Mr Dooley that she was told that she had sustained a whiplash injury to her neck when she was treated at the Maroondah Hospital. He obtained a brief history that she had received a bump from her son to her right side and shoulder region at her son’s football training. At the time he examined the plaintiff he had medical material referred to in an attachment to that report.[56]
[55]DCB 15-21
[56]DCB 22-23
69 Based upon the medical material and the history he obtained from the plaintiff, Mr Dooley offered the following opinion on causation:
“The mechanism of the motor vehicle accident would be consistent with Mrs Gray sustaining a soft tissue injury to the cervical spine region. I believe that this injury will have involved some musculoligamentous damage and probably some aggravation of underlying degenerative disc disease. It is clear from the subsequent radiological investigation that at the time of the motor vehicle accident Mrs Gray had established degenerative disc disease at the C5/6 and C6/7 levels. As far as I can tell, she was asymptomatic from this condition prior to the motor vehicle accident. Mrs Gray reported noting headache and neck pain after the accident … Around two months after the accident, her pain became worse and was associated with right sided brachial neuralgia. Around this time, she was participating in a parent/son football game. She received a shoulder to shoulder bump from her son against her right side and shoulder region. It is around this time that Mrs Gray noted increased pain, interscapular pain and right sided brachial neuralgia.”[57]
[57]DCB 18
70 After analysing the history he obtained from her, and no doubt the medical material referred to in the attachment to his report and the radiology, he offered the following opinion on the proportion of responsibility for neck injury:
“In terms of proportionment, I would therefore make the following comment. I remain of the view that Mrs Gray sustained an injury to the cervical spine and the motor vehicle accident. In essence, this was a cervical strain injury that involved some musculoligamentous damage and some aggravation of underlying degenerative disease. In my view the subsequent football episode was most likely associated with the development of a right-sided C6/7 disc prolapse and a worsening of pain and the development of radicular symptoms in the right upper limb. Ultimately in terms of the need for surgery, both the motor vehicle accident and the subsequent episode have contributed to this. One cannot be dogmatic but overall I would estimate the contribution as being one third motor vehicle accident related and two thirds football bump etc related.”[58]
[58]DCB 19
71 Mr Dooley provided two subsequent handwritten reports dated 23 May 2017[59] and 5 June 2017.[60] He was provided with further radiology, but most importantly the reports of Dr Brazenor. Neither the further radiology nor Dr Brazenor’s opinion caused him to alter his previously expressed opinion.[61]
[59]DCB 25
[60]DCB 26
[61]DCB 26
72 Mr Brownbill, neurosurgeon, examined the plaintiff on 1 September 2015 and provided a report bearing the same date.[62] He re-examined her on 5 April 2017 and provided a report bearing the same date.[63] On the first occasion he examined the plaintiff, he did not obtain a history from her of the bump or tackle. Of importance is that he did obtain a history from her that as a result of the transport accident, she noted very severe pain in the back of her neck which is not correct.
[62]PCB 58-63
[63]PCB 66-71
73 Mr Brownbill was given a history of the bump or tackle when he re-examined the plaintiff. The history he obtained from the plaintiff was not of severe pain in the back of her neck after the transport accident, but immediate neck pain which never completely went away.[64] Additionally, he obtained the following history from her about the bump or tackle:
“To direct questioning regarding any neck injury sustained whilst playing football with her son (aged 13) about July 2011 (referred to by Mr. Simm in his report of the 9th March 2017) she stated ‘I went on to the ground because they were short of adults in the father/son match and I was just standing there. My son bumped me, it was a very insignificant bump. My neck pain did not increase at that time.
I noted my neck pain gradually increasing over the next few days but it had been gradually increasing from the time of the accident until then.
To further direct questioning she stated ‘following the accident there was pain in the neck, I think at the back but it was there from the time of the accident and never went away completely afterwards.”[65]
[64]PCB 66
[65]PCB 66-67
74 In the course of expressing an opinion on causation, Mr Brownbill appears to have been influenced by an opinion expressed by Mr Simm, orthopaedic surgeon, who obtained a history from the plaintiff that the plaintiff had “quite severe cervical pain and left shoulder pain after this accident”, being the transport accident.[66] Mr Brownbill appears to have been asked to determine the contribution of the transport accident to the necessity for surgery, but not the contribution of the bump or tackle:
“On the information provided this lady had pre existing asymptomatic cervical spine degenerative changes with the onset of neck pain and later radiating right arm pain following the described motor accident of the 9th May 2011 (in which she struck the top of her head on the car roof) and following which neck pain right arm pain continued with fluctuations in gradual increase and without resolution.
On the information provided I consider that on probability this lady in that motor accident sustained aggravation of the pre existing asymptomatic cervical spine degenerative changes and as a result of that aggravation with her ongoing pain, underwent the cervical spine fusion surgery.”[67]
[66]PCB 100, and Mr Brownbill's reference to it at PCB 68
[67]PCB 69, and repeated at PCB 70
75 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 5 November 2015 and provided a report bearing the same date.[68] He re-examined the plaintiff on 9 March 2017 and provided a report bearing the same date.[69] Like Mr Brownbill, he was not aware of the bump or tackle until the occasion when he re-examined the plaintiff.[70] On the assumption that the plaintiff had quite severe cervical pain and left shoulder pain after the transport accident, he offered the following opinion on causation:
“… On the basis of this history and the subsequent MRI scan findings I concluded that, as a result of the additional jarring trauma to the neck in the father/son football game, the compromised and recently injured degenerate C6/7 cervical intervertebral disc protruded, causing right C7 nerve root compression. From then on she had relapsing and at times severe symptoms, which culminated in her having cervical fusion procedure in 2015.”[71]
[68]PCB 86-93
[69]PCB 96-101
[70]PCB 97
[71]PCB 100
76 And additionally:
“It would be reasonable to conclude that the transport accident on 9 May 2011 had the potential to modify the clinical course of the C6/7 cervical disc degeneration. The accident had the potential to cause an injury with disruption to the degenerative annulus of the disc, which would predispose the district to protrusion with further minor trauma, which occurred when she was bumped playing football on 1 July 2011.”[72]
[72]PCB 100
77 The other reports are of no value in the determination of whether the injury suffered by the plaintiff in the transport accident is serious, because of a lack of the full history provided to those medical practitioners consistently with what was provided to Dr Brazenor and Mr Dooley
78 Dr Brazenor gave evidence. He did not alter his opinion as stated in his principal report. One matter which was put to him which is of some significance is the history he obtained from the plaintiff was that the pain in her neck and right arm were worse the next morning, that is, the morning after the day on which the bump or tackle occurred. The plaintiff’s evidence was that it was in the intervening period between the bump or tackle and when she saw Mr Dixon on 6 July 2011, that her neck and right shoulder pain increased significantly. Dr Brazenor considered that even on that basis, that the bump or tackle was likely to be involved in the production of the disc prolapse.[73]
[73]Transcript 83
Conclusion
79 I accept the plaintiff’s evidence that in the intervening period between the transport accident, being discharged from the Maroondah Hospital, and the occurrence of the bump or tackle, that she was experiencing neck pain and some right arm pain which was evident when she entered onto the football field prior to the occurrence of the bump or tackle.
80 However, what the plaintiff was suffering has to be seen in the context of her unequivocal evidence that the injury to her neck was improving, and although she was limited to some relatively modest degree in the work which she was undertaking running two bakeries with her husband and in her domestic activities, she was functioning at a reasonable level.
81 I prefer the opinions of Dr Brazenor and Mr Dooley because they were provided with all of the relevant medical material and they obtained accurate histories from the plaintiff of the consequences of the transport accident and the bump or tackle. There is, of course, some difference of opinion between them, because Dr Brazenor would discount any material contribution by the transport accident whereas Mr Dooley considered that it had materially contributed. The difference of opinion may well be represented by Mr Dooley being more prepared to accept that the plaintiff probably suffered a musculoligamentous injury, together with aggravation of noted underlying degenerative disc disease in her neck in the transport accident. Dr Brazenor was perhaps more dogmatic in accepting the clinical notes of the Maroondah Hospital at face value, that the plaintiff suffered neck pain at a much higher level, and not at the same level at which surgery was performed.
82 I do not accept the opinions of Mr Brownbill and Mr Simm. Mr Brownbill limited his consideration to the contribution of the transport accident without giving any consideration to the contribution of the bump or tackle. Mr Simm obtained a history of severe pain after the transport accident which is simply not correct. The premise upon which he then provided an opinion was, therefore, flawed.
83 In the end, I am satisfied that the plaintiff suffered a relatively modest neck injury described by Mr Dooley for which the transport accident is responsible. I am not satisfied that it was responsible for the production of the disc prolapse and the necessity for surgery. I am satisfied that the bump or tackle was responsible for the production of the disc prolapse and the necessity for surgery.
84 To make my reasoning abundantly clear, whilst I have found that the injury suffered by the plaintiff in the transport accident is a cause of the consequences for which she contends, the inevitable conclusion from the evidence I have reviewed is that if the bump or tackle had not occurred, then it is highly unlikely that she would have come to surgery. What the plaintiff would have been left with is a musculoligamentous injury and aggravation of underlying degenerative disc disease from which she was improving, with an expectation that the improvement would continue.
85 In these circumstances, the plaintiff’s Originating Motion must be dismissed with costs.
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