Healey v Transport Accident Commission
[2024] VCC 766
•6 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-03295
| RACHEL HEALEY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 April 2024 | |
DATE OF JUDGMENT: | 6 June 2024 | |
CASE MAY BE CITED AS: | Healey v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 766 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the cervical spine
Legislation Cited: Transport Accident Act 1986 (Vic), s93(17)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Richards v Wylie (2000) 1 VR 79; Kidman v Sefa (1996) 1 VR 86; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Sabo v George Weston Foods [2009] VSCA 242; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Hooley v Transport Accident Commission [2019] VSCA 263; Abbas v Transport Accident Commission [2015] VSCA 217; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti KC with Mr L Howe | Maurice Blackburn |
| For the Defendant | Mr W R Middleton KC with Mr E Makowski | Russell Kennedy |
HER HONOUR:
Introduction
1The plaintiff, Ms Rachel Healey, is a twenty-six-year-old Registered Nurse. She was injured in a transport accident on 17 October 2018, when her stationary vehicle was hit from behind by a four-wheel-drive, propelling her into the vehicle in front of her (“the transport accident”).
2Ms Healey seeks leave to issue a common law proceeding for damages pursuant to s93(17) of the Transport Accident Act 1986 (Vic) (“the Act”). Her claim is that she has suffered a “serious injury” of her cervical spine.
3To succeed in this claim, Ms Healey must establish that the long-term impairment consequences of her transport accident-related cervical spine injury are “more than ‘significant’ or ‘marked’”, and “at least as ‘very considerable’”.[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
4The relevant legal principles are well known and were not in dispute.
5The Transport Accident Commission (“the TAC”), the defendant, accepted that the plaintiff suffered an injury to her cervical spine in the transport accident, but contested the proceeding primarily on the basis that it was a soft-tissue injury which had since resolved. The TAC submitted that Ms Healey did not currently have long-term impairment consequences that satisfied the relevant threshold.
6Senior Counsel for Ms Healey sought leave to cross-examine Dr Francis Ghan, orthopaedic surgeon. Leave was granted and Dr Ghan attended on the second day of the proceeding.
7The issues for determination are:
(a) Was Ms Healey a reliable witness?
(b) What is the injury and what are the long-term impairment consequences?
(c) Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
8For the following reasons, I find that Ms Healey has satisfied her onus to establish that she has a “serious injury” to her cervical spine.
Background
9The following matters of background were, I believe, uncontroversial. Where they were contested, these represent my findings save where otherwise indicated.
10Ms Healey was born and raised in Perth. Her family moved to Victoria when she was fifteen years old. She completed Year 10 at Box Hill Secondary College.
11After leaving school, Ms Healey worked as a childcare assistant. She obtained a Certificate III in Children’s Services from Box Hill TAFE.
12In 2016, Ms Healey began studying a three-year Bachelor of Nursing degree at Deakin University. Alongside her studies, Ms Healey worked approximately two days a week as a childcare assistant. She was nearing the end of the final year of that degree when the transport accident happened on 17 October 2018.
13In the transport accident, the force of the collision caused the airbags in Ms Healey’s vehicle to deploy. Her vehicle was significantly damaged,[2] and was subsequently “written off” by the insurer.
[2]Plaintiff’s Amended Court Book (”PCB”) 171-174
14Following the transport accident, Ms Healey felt pain in her left wrist, neck and left shoulder. An ambulance and the police attended the scene. Paramedics attended to Ms Healey. Subsequently, her partner, who was nearby, picked Ms Healey up from the scene of the accident and took her to the Emergency Department of Maroondah Hospital.
15At the hospital, Ms Healey’s left wrist was x-rayed and placed in a back slab. She was discharged home with Panadeine Forte and Nurofen.
16On 20 October 2018, Ms Healey attended the Lilydale Medical Clinic and saw Dr Binay Kumar, general practitioner (“GP”). She complained of left forearm, back and neck pain. She consulted Dr Kumar again on 24 October 2018 complaining of a stiff and sore neck.
17Ms Healey’s injuries have been treated conservatively. Her left wrist was not fractured, and the symptoms resolved within a few weeks.[3] Ms Healey said that she has continued to experience neck pain and restriction of motion.
[3] PCB 15
18Ms Healey began consulting Mr Nathan Rickard, physiotherapist, in December 2018. As part of that treatment, Ms Healey undertook Pilates. Whilst completing Pilates in June 2019, Ms Healey said she experienced an exacerbation of neck pain, as well as the onset of left arm and jaw pain.
19In addition to physiotherapy treatment, Ms Healey has consulted pain physicians, and undertaken a multi-disciplinary pain management course.
20As far as employment is concerned, Ms Healey completed her nursing degree at the end of 2018.
21During 2019, she completed her graduate year which comprised two hospital rotations – a six-month surgical ward rotation and a six-month neuro-stroke ward rotation. Ms Healey tendered return to work plans implemented by her employer, Eastern Health, during September and October 2019 limiting her work activities in line with medical restrictions.[4]
[4]PCB 143-150
22After completing her graduate year, Ms Healey remained working for Eastern Health. She also performed some work through a nursing agency that outsourced to other hospitals. Ms Healey said she did this to try work at another hospital, and only completed a few shifts.[5]
[5] Transcript (“T”) 41
23In 2021, Ms Healey decided to undertake a two-year course to become a midwife. She completed part of that qualification, but towards the end of 2021, she deferred as she was pregnant.
24In April 2022, Ms Healey gave birth to her daughter. Following her daughter’s birth, she had approximately ten months off paid work.
25In early 2023, Ms Healey began working as a casual Nurse on Call for two days a week, working from home. She continues to perform this work, generally on Tuesdays and Thursdays when her daughter is at childcare.
26In mid-2023, Ms Healey started a small business providing childcare at weddings. This business has been successful. Ms Healey is assisted in this work by four casual staff, one of whom is her mother. This work is predominantly performed at weekends.
27Ms Healey lives with her partner and daughter in suburban Melbourne.
Was Ms Healey a reliable witness?
28To understand the way in which the TAC put its submissions on this issue it is necessary to say something about Ms Healey’s employment circumstances and career intentions at the time of the transport accident.
29As I have said, the transport accident occurred just before Ms Healey finished her nursing degree. At that time, Ms Healey said her long-term intention was to pursue midwifery after a period working as a nurse in a hospital setting.
30During her graduate year, Ms Healey said that she found the work on the neuro-stroke ward very rewarding; however, she said it was heavy work which was difficult for her because of her neck injury.
31Ms Healey deposed that she would have likely remained on the neuro-stroke ward but for her transport accident injuries. Ms Healey deposed that she would likely have gone on to obtain a post-graduate qualification in neuroscience and become a clinical support nurse.
32The TAC submitted that Ms Healey’s claim that her neck injury had impacted upon her intended nursing career prospects was a construct that was put forward only in her third affidavit. The TAC submitted that Ms Healey did not mention anything about such intentions in her previous affidavits. It was submitted that the Court ought to look upon that evidence with a degree of caution or scepticism.[6]
[6] Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8
33The TAC submitted that Ms Healey’s long-term intentions had been to pursue midwifery and she was still able to do so. She had confirmed this intention in her first affidavit sworn on 17 March 2022 and stood by the contention in her oral evidence.
34The TAC submitted that in any event, objectively, Ms Healey was able to perform the work that was required in the neuro-stroke ward with a level of competence that saw her invited to continue.
35I found Ms Healey to be a straightforward witness. She made numerous concessions against interest. My impression of her was that she did not seek to exaggerate her symptoms. That accords with the way she presented to both treating doctors and medico-legal examiners.
36I find that Ms Healey gave credible and reliable evidence, which I broadly accept.
37Accordingly, I do not accept the submission that Ms Healey’s evidence regarding her desire to work on the neuro-stroke ward was a construct. I bear in mind that Ms Healey was just twenty-one years of age when the transport accident happened. She had not completed her nursing degree. I accept that she had an idea about the direction that her career would take, but until she started practising as a nurse, she had limited understanding of what she would find fulfilling in practice.
38I accept that Ms Healey was unable to undertake all the duties required of her on the neuro-stroke ward by reason of her neck injury and required various accommodations to be made by her employer.[7]
[7] PCB 18
What is the injury and what are the long-term impairment consequences of the injury?
39Ms Healey relied upon four affidavits: an affidavit sworn by her on 17 March 2022, and three affidavits affirmed by her on 19 December 2023, 18 April 2024 and 29 April 2024.
40Ms Healey also relied upon affidavits from:
(a) her partner, Jayden Cotterrill, affirmed on 26 March 2024;
(b) her mother, Susan Healey, affirmed on 25 March 2024; and
(c) her father, Martin Healey, affirmed on 30 April 2024.
41No application was made to cross-examine Ms Healey’s partner, mother or father. Those affidavits broadly corroborated Ms Healey’s account of her impairment consequences.
42Ms Healey deposed that by reason of her cervical spine injury, she experiences:
(a) constant variable pain in her neck and left arm;
(b) muscle spasm;
(c) pins and needles in her left hand;
(d) difficulty holding her neck in a flexed position;
(e) increased pain with prolonged sitting, heavy lifting, pushing and pulling;
(f) sleep disturbance;
(g) reduced intimacy with her partner;
(h) difficulty performing heavier domestic chores and gardening;
(i) an inability to run, and undertake high impact fitness classes;
(j) interference with her ability to socialise;
(k) restrictions in the type of nursing work she can perform;
(l) consequential frustration and upset because of her limitations.[8]
[8]Richards v Wylie (2000) 1 VR 79
43This is a convenient point at which to consider the medical evidence tendered by the parties.
MRI scan of the cervical spine dated 11 June 2019
44This was reported to reveal minor disc desiccation at C2-3, C3-4, and C5-6 but “no significant degenerative disc disease, sequalae of recent trauma or neural impingement to account for the patient’s symptoms”.[9]
Treater material
[9]PCB 64
Dr Luke Tomyn, GP
45Ms Healey tendered a report from Dr Tomyn dated 24 August 2019. She also tendered two Certificates of Capacity provided by Dr Tomyn dated 30 August 2019 and 2 October 2019, a management plan dated 2 October 2019 outlining work restrictions, and a referral letter from Dr Tomyn to Professor Gavin Davis, neurosurgeon, dated 14 July 2020 which reproduced attendance notes between 4 January 2019 and 2 July 2020.
46In his report dated 24 August 2019, Dr Tomyn diagnosed “musculoskeletal pain, with central sensitisation”.[10] He opined that the symptoms were a direct consequence of the transport accident and were consistent with the stated cause.
[10] PCB 60
47Dr Tomyn noted that he had first seen Ms Healey in relation to her transport accident injuries on 13 June 2019, and on one subsequent occasion. He said that he was “still in the process of instituting an appropriate treatment plan”.[11] Dr Tomyn noted that he had prescribed Endep, and referred Ms Healey to Dr David Vivian, pain specialist.
[11] PCB 60
48Dr Tomyn’s clinical note dated 13 June 2019 recorded that Ms Healey had been consulting Nathan Rickard weekly but had experienced an increase in symptoms after her treatment transitioned to Pilates. She was suffering from faint, constant left-sided neck/interscapular pain. Her left wrist and left shin were uncomfortable at times. When her pain flared up, she had anterior neck muscle pain and spasm, left-sided arm pain, and paraesthesia in her left arm and hand.
Dr David Vivian, pain physician
49Ms Healey tendered a report from Dr Vivian dated 28 August 2019. Dr Vivian examined Ms Healey that day upon referral from her GP, Dr Tomyn.
50Dr Vivian noted that Ms Healey had trialled amitriptyline, Lyrica and ibuprofen. He noted that Ms Healey was working as a nurse but struggling, and not going out as much as before.
51Dr Vivian said that Ms Healey reported:[12]
“Her major pain is left-sided neck pain that spreads down to the shoulder and into the left scapula. This seems to connect in some way to left generalised thoracolumbar pain, spreading down to the iliac crest. When the neck gets worse, she has a spasm or tight feeling spreading down the back to the low back, and then through the left leg. She has quite a lot of discomfort in the left anterior tibial region, and left leg cramps. …
She has a sensation of pain and weakness in the left wrist with a weird shooting pain in the arm and leg at times. The neck pain is always present.
She has daily headaches. It is variable. It is frontal and parietal and on the left side she can have pain into the maxilla and jaw. … .”
[12] PCB 49
52On examination, Dr Vivian found as follows:[13]
“She flexed to 80° and extended to 25° with mild left back pain. Left side bending and left rotation movements were tight. Right side bending and both rotations were restrictive with left sided neck pain. The left hip FADE, FADIR and FABER tests produced tightness in the left groin. Tenderness was mild to moderate. … .”
[13] PCB 50
53Dr Vivian diagnosed a “whiplash associated disorder” and opined that Ms Healey may have injured her facet joints.[14] He was of the view that her headaches were unlikely to be referred from the neck.
[14] PCB 50
54Dr Vivian prescribed Jontia and referred Ms Healey to Dr Vishal Bhasin, pain physician. It is not clear on the evidence whether Ms Healey ever consulted Dr Bhasin.
Nathan Rickard, physiotherapist
55Ms Healey tendered a report from Mr Rickard dated 18 October 2019.
56Mr Rickard diagnosed whiplash-associated disorder. He opined that Ms Healey’s injuries were consistent with the stated cause.
57Mr Rickard noted that Ms Healey was working only eight shifts a fortnight as a graduate nurse, rather than nine. She was not doing early or late shifts in order to manage fatigue and lack of physical capacity. She was on the neurological ward, which was physically demanding, and Ms Healey always ensured there was another nurse to help her. Mr Rickard described Ms Healey’s work capacity as “moderately limited”. He opined that she had a capacity for full-time unrestricted work in some fields, such as midwifery.
58Mr Rickard anticipated that Ms Healey should experience a full recovery but would require twelve months of “active and intentional intervention”.[15]
[15] PCB 55
Dr Meena Mittal, pain physician
59Ms Healey tendered a report for Dr Mittal dated 28 March 2020. Dr Mittal examined Ms Healey on 1 October 2019.
60Dr Mittal noted that Ms Healey complained of left-sided neck pain radiating towards the left jaw and left shoulder, with intermittent pins and needles in the left hand; left-sided thoracic pain, mainly in the mid and lower thoracic region; lower back pain localised to the left side; and intermittent pain in the left lateral calf, left medial forearm, left wrist and left foot. Ms Healey reported that she took anti-inflammatory medication and Paracetamol as needed.
61Ms Healey reported that she was working full time, 64 hours a fortnight, performing normal duties as a nurse on the neurosurgical ward at the Box Hill Hospital. She noted that her neck and lower back pain was exacerbated by repetitive lifting, pushing and pulling activities. Her pain could be exacerbated by prolonged sitting and lying down. Her pain impacted her sleep, capacity to drive for prolonged periods, and her intimacy with her partner.
62Dr Mittal noted that an MRI scan of Ms Healey’s cervical spine on 11 June 2019 “revealed evidence of minor disc desiccation at C2/3 and C3/4 and C5/6. Apart from that, there were no major abnormalities to explain her neck pain.”[16]
[16] PCB 46
63On examination, Dr Mittal found:[17]
“Cervical spine examination revealed restricted left and right lateral rotation as well as extension. There was some element of fear avoidance behaviour. There was no obvious paravertebral spasm. There was increased tenderness on the left hand side throughout the cervical spine in the paravertebral spaces. Facet joint loading in the left hand was positive. There was increased tenderness over the region of the trapezius muscle with increased tender points on the left hand side.
…
… there was increased tenderness in the mid thoracic spine between T4 to T8 in the left paravertebral spaces.
[17] PCB 47
… In the lower lumbar spine, there was also evidence of left sacroiliac joint tenderness. Facet joint loading on the left hand side was positive. … .”
64Dr Mittal diagnosed myofascial pain. She said there may be an element of myofascial sensitisation. She also diagnosed “possible underlying facet joint pain in the cervical, thoracic and lumbar spine”.[18] She opined that the injuries were consistent with the stated cause.
[18] PCB 47
65Dr Mittal offered Ms Healey a trial of Norflex and/or gabapentin, and interventional pain management. Ms Healey declined those treatment options, preferring to pursue conservative management.
Professor Gavin Davis, neurosurgeon
66Ms Healey tendered a report from Professor Davis dated 16 November 2020. Professor Davis examined Ms Healey on 8 September 2020.
67Professor Davis outlined the course of Ms Healey’s symptomatology since the transport accident, including the worsening of her symptoms in June 2019.
68On examination, Professor Davis noted Ms Healey was wearing a shoulder brace, which she said assisted with her symptoms somewhat. He found as follows:[19]
“… Examination of the back and neck regions demonstrated tenderness at multiple trigger points along the left side. It was also noted that the patient was markedly tender over the anterior aspect of the neck and chest including the clavicle and chest wall …
[19] PCB 69
… Sensory examination demonstrated left hemibody sensory loss involving the trunk, upper and lower limbs. The patient demonstrated a positive Tinel’s sign at the left elbow and the left wrist which was reported as reproducing the “ropey” feeling from the left neck to the left upper limb.”
69Professor Davis noted that nerve conduction studies performed on 13 August 2020 were normal.
70Professor Davis diagnosed a case of chronic pain due to central sensitisation. He referred Ms Healey to Dr Lim for an intensive multidisciplinary pain management program.
71Professor Davis opined that Ms Healey’s prognosis would depend upon the outcome of the pain management program.
72Professor Davis noted that Ms Healey had not mentioned her transport accident injuries to her GP, Dr Tomyn, when she consulted him on 4 January 2019, 9 January 2019, 20 March 2019 and 22 March 2019 in relation to unrelated matters. Professor Davis concluded that “based on this information, it is somewhat difficult to reconcile the patient’s current symptoms with the reported accident from 2018”.[20] Professor Davis noted that “the cause of the acute flare up and new symptoms in June 2019 is not readily apparent”.[21]
[20] PCB 71
[21] PCB 71
73I pause to note that in this proceeding, the TAC conceded that if it was accepted that Ms Healey’s cervical spine symptoms worsened as a result of the treatment given during physiotherapy/Pilates sessions for her transport accident-related injuries, that aggravation was consequential to the transport accident.[22] I make that finding.
[22]Kidman v Sefa [1996] 1 VR 86
Dr Terence Lim, pain physician
74Ms Healey tendered two reports from Dr Lim dated 30 October 2020 and 11 December 2020. Ms Healey was referred to Dr Lim by Professor Davis. Dr Lim examined her on 30 October 2020.
75In his first report to Professor Davis, Dr Lim noted that he was asked to assess and manage the following symptoms:[23]
“· persistent left-sided lateral neck pain radiating toward her left shoulder and associated with a ‘pulling’ sensation from her elbow to her fingers;
·anterior left-sided neck pain radiating to her pectoral region, her non-dominant side;
·left lateral buttock discomfort associated with left lateral leg pain radiating toward her ankle and associated at times, with cramps affecting the sole of her foot.”
[23] PCB 43
76Dr Lim noted that Ms Healey was working her “full hours (0.8)” as a Registered Nurse at the Box Hill Hospital in the orthopaedic ward and “coping”. He noted that in her graduate year, Ms Healey had “coped” on a surgical ward, but had found the neurology/stroke ward was extremely heavy, and the work had caused an exacerbation of her symptoms.
77Dr Lim opined that Ms Healey was suffering from:[24]
“… a combination of persistently irritable muscles associated with some muscular trigger points … impinging on her comfort levels. The more significant trigger points are the left sternomastoid/upper trapezius/pectoralis major/common extensor origin/peroneus muscles of the lateral leg … muscular trigger points can generate local pain/discomfort and ‘trigger’ or refer pain/neuropathic-like symptoms and physically reflect the development of central sensitisation, an organic change in the CNS pain pathways resulting in ongoing pain/discomfort generation a la the phantom limb pain after amputation model (spontaneous pain), pain amplification and perpetuation. Once established there is no cure and thus, no cure for chronic pain. However, there are self-help techniques and strategies to gain and maintain improved pain/discomfort control as well as restore a more appropriate level of functioning.”
[24] PCB 44
78Dr Lim opined that Ms Healey had a good prognosis. He referred her to the “NERC pain rehabilitation program”.
79Dr Lim’s second report, dated 11 December 2020, was addressed to Ms Healey’s solicitors.
80Dr Lim noted that when he assessed Ms Healey on 30 October 2020, she:
(a) was not taking any medication for pain;
(b) was fully independent in personal care;
(c) was able to perform some of the home duties but experienced associated pain exacerbation;
(d) experienced fluctuating quality of sleep.
81Dr Lim essentially repeated the findings he had reported to Professor Davis in his earlier report and provided an expanded explanation of the nature of central sensitisation. Dr Lim also explained that the “NERC” program to which he had referred Ms Healey was different to standard pain management programs. It was “… individualised and designed to address, the medical, physical and psychological components contributing to the persistence of pain” (emphasis in original).[25]
[25] PCB 41
Andrew Farrelly, physiotherapist
82Ms Healey tendered two reports from Mr Farrelly dated 15 February 2021 and 18 May 2021.
83In his first report, Mr Farrelly said that he initially diagnosed thoracic outlet syndrome but revised the diagnosis to central sensitisation. He noted that Ms Healey required specialist input and was on the waiting list for a pain management clinic.
84In his second report, Mr Farrelly noted that Ms Healey was still on the waiting list for a pain management program, and her condition was “worsening without treatment”.[26]
[26] PCB 52
85He noted she was suffering from:[27]
“· Significant muscle pain in the lower back, neck and shoulders.
·Nerve pain along the left side of her body, including her left buttock, leg and arm.
·Shooting pain along her left jaw, leg and neck.
·Catching sensations in her left neck and lower back.
·Pins and needles in the left hand.
·Ongoing headaches and neck pain (currently very severe)
·Feelings of weakness in the left side and feels that it is difficult to support body weight.”
[27] PCB 52
86Mr Farrelly recommended ongoing physiotherapy.
Dr Babak Farr, pain physician
87Ms Healey tendered a report from Dr Farr to Dr Tomyn dated 8 September 2021. His examination of Ms Healey appears to have been pursuant to a referral for a multidisciplinary pain management program at the Victorian Rehabilitation Centre.
88Dr Farr noted that Ms Healey presented with “chronic pain in the setting of central sensitisation and nociplastic pain”.[28]
[28] PCB 66
89Dr Farr reported that Ms Healey had been assessed by the allied health team at the Victorian Rehabilitation Centre and was engaging well with the pain management team. He encouraged her to complete the program over the next six weeks. Dr Farr noted that Ms Healey was not using any regular analgesia, and he said, “I have reassured her that it is best to manage her pain with nonpharmacological strategies as long as she can function without pain medications”.[29]
Medico-legal material
[29] PCB 67
Dr Ales Aliashkevich, neurosurgeon
90Ms Healey tendered three reports from Dr Aliashkevich dated 24 March 2020, 4 March 2024 and 23 April 2024. Dr Aliashkevich examined Ms Healey on 24 March 2020 and 4 March 2024.
91In his first report, Dr Aliashkevich noted the plaintiff complained of pain in the left side of her neck with an intensity of “4/10” on an average day and “8/10” during a flare up, with associated pain, spasms and tightness in her left shoulder on some occasions; pain in the left side of her head and face, down to the jaw, with a shooting sensation, approximately once a week with an intensity of “8/10”; pain in the left lower back with an intensity of “8/10”; left arm and hand spasms with an intensity of “5/10”, and left lower leg and foot spasms with an intensity of “7/10” occurring mostly after a long day at work.
92On examination, Dr Aliashkevich noted:[30]
“… Altered (‘more detailed’) sensation was reported in the right hand and arm. Increased pinprick sensation was reported also on the left side of the face. The range of active voluntary cervical spine movements was uniformly restricted with flexion possible to 45°, extension possible to 30° and lateral rotation possible to 60° to both sides … Paravertebral tenderness was noted on palpation in the cervical and thoracic regions on the left side with trigger points.”
[30] PCB 81-82
93Noting that he was not a qualified pain specialist or rheumatologist, Dr Aliashkevich said that his impression was that[31] –
“… the whiplash injury has started a cascade of chronic pain syndrome, typical for central sensitisation and likely subsequent evolution of a myofascial pain syndrome. In my opinion, your client is experiencing the pain amplification/distortion from the development of central sensitisation on a background of maladaptive nociceptive response which is outside of my neurosurgical expertise. … .”
[31] PCB 84
94Dr Aliashkevich was of the view that Ms Healey’s injuries were consistent with the stated cause. He opined that she had a reduced capacity for suitable part-time employment as a nurse as she had a reduced “capacity to obtain and maintain physical or repetitive employment which may put stress on her neck and back”.[32] He was of the view that Ms Healey’s symptoms had stabilised.
[32] PCB 85
95In his second report, Dr Aliashkevich noted that Ms Healey reported that her left neck and arm pain were unchanged since his previous assessment in 2020. She reported pain in her head, three days a week on average.
96On examination, Dr Aliashkevich noted a reduced grip strength on the left, an altered sensation was reported in the left hand, cervical spine movement was slightly uniformly restricted, and there was paravertebral tenderness on palpation in the left cervicothoracic and trapezius regions with trigger points.
97Dr Aliashkevich said it was “very difficult to assess the events from more than 5 years ago and make reliable conclusions about their contribution to your client’s chronic pain”.[33] Notwithstanding this, Dr Aliashkevich reached a similar diagnosis as in his previous report, once again noting that he was not a pain specialist or rheumatologist. He again placed limitations upon the activities Ms Healey could perform at work, leading to a reduced capacity for suitable part-time employment. He concurred with the conclusions reached by Dr Thomas.
[33] PCB 105
98In April 2024, Dr Aliashkevich was provided with further documents and asked to provide a supplementary report. He did not re-examine Ms Healey.
99In his supplementary report dated 23 April 2024, Dr Aliashkevich said that the report of Dr Ghan dated 5 April 2024 did not cause him to change his opinion.
100As to Ms Healey’s work capacity, Dr Aliashkevich agreed with Associate Professor Romas’ view that “the scope of nursing work is wide and reasonable restrictions include a lifting restriction of 5 kg and freedom to sit and stand or move about on a regular basis”.[34]
[34]PCB 107
Dr Clayton Thomas, pain physician
101Ms Healey tendered a report from Dr Thomas dated 7 December 2023. Dr Thomas examined Ms Healey on 4 December 2023.
102Dr Thomas noted that Ms Healey reported that she had[35] –
“… continual pain. She describes a tightness like a constant tug like a rope from her neck into the left arm and forearm. She indicates pain in the left trapezius region. She reports a weird tingling sensation of the left hand intermittently.
She indicates certain positions of her left shoulder can aggravate the pain and certain positions can ease the pain.
…
She also reports intermittent headaches. Approximately three times per week, a tension-type headache. These are particularly bad when her neck is stiffer.
Medication is primarily ibuprofen.”
[35] PCB 116
103On examination, Dr Thomas observed that Ms Healey was “very appropriate and cooperative”.[36] He noted mild neck tenderness on the left side of the cervical spine; she was mildly hyperalgesia at the left side, and neck movements were minimally restricted in all areas non-specifically.
[36] PCB 116
104Dr Thomas diagnosed whiplash-associated disorder. He said this was an organic Chronic Pain Syndrome with central sensitisation. He noted the injuries were consistent with the stated cause, namely a significant impact and airbag inflation.
105Dr Thomas opined that Ms Healey’s condition “does limit her ability to lift in particular. The use of the outstretched arm under load aggravates the nature of her condition.”[37] He noted that Ms Healey had adjusted the way she functioned, breaking down her activities and avoiding repetitive activities. Accordingly, she had been able to cope with and manage her symptoms. He noted that “the residual symptoms will continue into the foreseeable future”.[38]
[37]PCB 110
[38]PCB 110
106Dr Thomas stated that Ms Healey had adjusted her work duties to working as a “nurse on call”.[39] He said she did this from home given her childcare requirements. He commented that Ms Healey’s capacity to work had been affected “only to a minor extent”. Notwithstanding that comment, Dr Thomas stated:[40]
[39] PCB 110
[40] PCB 98-99
“She should avoid working in heavy patient loads. She should avoid aged care. She should avoid orthopaedic wards, and neurological and neurosurgical wards.
She cannot return to unrestricted preinjury duties into the foreseeable future.
The primary restriction is to avoid the use of the left upper limb under load. Any repetitive activities at or above chest height would be problematic to her.
These restrictions will be indefinite.
…
… No further improvement can be expected.”
Associate Professor Romas, rheumatologist
107Ms Healey tendered a report from Associate Professor Romas dated 1 March 2024. Associate Professor Romas examined Ms Healey that day.
108Associate Professor Romas noted that:[41]
“It’s evident from the plaintiff’s current narrative compared to previous reports that her symptoms have become more localised to the head, neck, and left upper quadrant rather than being entirely left-sided or generalised to all four quadrants of her body.
Currently, the plaintiff experiences fluctuating but consistently present headaches, left-sided neck pain, and tightness, describing it as feeling ‘like a rope,’ with soreness particularly noticeable in the sternomastoid muscle. Certain neck movements provoke a pulling sensation, with radiation felt through the left shoulder girdle area. Additionally, she occasionally experiences paraesthesia in her left hand, particularly in the mornings. Symptoms tend to worsen towards the end of the day, and are exacerbated by physical activity, stress, and poor sleep. However, she did not volunteer low back or generalised body pain today. Although she manages activities of daily living independently, many tasks are challenging for her. She paces herself with household chores and relies on a robotic vacuum. Large grocery shopping trips are avoided. …
Currently, the plaintiff successfully works from home two days per week for the state government ‘Nurse on Call’ service and also provides weekend ad hoc services as a wedding party nanny. However, she has discontinued activities she used to enjoy, such as running, yoga, and gym workouts, as they exacerbate her chronic neck pain.”
[41] Defendant’s Court Book (“DCB”) 6
109On examination, Associate Professor Romas found:[42]
“The plaintiff presents in a totally organic way.
… She exhibits slight tenderness and resting muscle tension throughout the left side of her neck and the entire left upper quadrant of her body. Although there is slight nonuniform limitation of motion with dysmetria noted in lateral neck flexion and extension, overall, she demonstrates good neck flexion with no visible muscle spasm. … .”
[42] DCB 6
110Associate Professor Romas noted that Ms Healey’s presentation indicated “objective signs of neck dysfunction with facet joint dysfunction or disease”.[43] He concluded that Ms Healey was suffering from an unresolved neck injury with central pain sensitisation caused by the transport accident. The prognosis was for the neck condition to persist for the foreseeable future.
[43] DCB 7
111As to work capacity, Associate Professor Romas opined that Ms Healey was:[44]
“… demonstrably capable of performing childcare work at least on a part time basis.
The scope of nursing work is wide and I believe that, having regard to the relevant considerations, she is demonstrably capable of performing work as a registered nurse (i.e.: a triaging and counselling role as a nurse on call), at least on a part-time basis.
She is demonstrably capable of returning to suitable employment and has already done so. Reasonable restrictions include a lifting restriction of 5 kg and freedom to sit and stand or move about on a regular basis.”
[44] DCB 8
Dr Francis Ghan, orthopaedic surgeon
112The TAC tendered a report from Dr Ghan dated 5 April 2024. Additionally, Dr Ghan gave evidence and was cross-examined.
113Dr Ghan examined Ms Healey on 19 March 2024. Although the covering letter to his report noted that his assessment started at 10.25am and finished at 10.55am, Dr Ghan accepted that part of that time included a period after Ms Healey had left the assessment, during which he was tidying up his notes and considering the assessment. On the evidence, I accept that the assessment likely took no more than 15 to 20 minutes, and the clinical examination of Ms Healey was completed in 2 minutes.[45]
[45]T105
114Dr Ghan recorded that Ms Healey reported:[46]
“… her neck is still stiff and she feels as if there is a rope around her neck. She does not have any numbness or pins and needles in the arms but she also feels the same tightness in the left upper arm. She takes Nurofen intermittently about three times a week. She also gets quite frequent headaches about three times a week.
…
She had been having physiotherapy all along and ceased about a year ago and she is now recommencing physiotherapy. She reported that her neck ache is about 3-4/10.
She stated she is able to do simple housework but no vacuuming or doing any heavy lifting. She used to be able to run and go to the gym but she does not do this anymore. She can walk up to an hour. She is able to drive one hour. …
…
She stated she cannot wear high heel shoes.”
[46] DCB 14
115On examination, Dr Ghan found a full range of movement, no muscular spasm, no evidence of radiculopathy in the upper limbs, grade 5 power in the upper limbs, and equal and symmetrical reflexes. He opined that the degree of Ms Healey’s alleged symptoms did not correlate with his findings on examination.
116Dr Ghan opined that based on his examination findings, “the severity of symptoms can be considered mild and I anticipate a good prognosis long-term”.[47] He recommended Ms Healey undertake a swimming program to improve her neck muscular strength.
[47] DCB 16
117Dr Ghan stated:[48]
“The diagnosis was soft tissue neck sprain from the accident and in my opinion, she has intermittent ongoing soft tissue myalgia and certainly no radiculopathy. The natural course of this condition is usually towards natural resolution. It is now six years following the accident and in my opinion initial injury has resolved. Therefore I opine that the accident is no longer a materially contributing factor to her current condition.”
[48] DCB 19
118In response to the question: “What symptoms currently exhibited by the Plaintiff are due to the Plaintiff’s non-organic/psychologically based condition?”, Dr Ghan said: “Ongoing neck ache and referred pain left upper arm.”[49]
[49]DCB 19
119Dr Ghan opined that Ms Healey’s work capacity was not affected by injuries sustained in the transport accident.
Earnings material
120Ms Healey tendered a Flexi Personnel report prepared by Ms Mary Oliver, human resources consultant, which set out the current gross hourly pay rates and allowances for second and third-year Registered Nurses and Clinical Support Nurses. Based on the figures in that report, Senior Counsel for Ms Healey submitted that but for her injury, Ms Healey would be earning between $103,500 and $123,000 as a Clinical Support Nurse with a post graduate certificate.[50]
[50]The different figures were dependent upon whether weekend work was undertaken
Findings
121Senior Counsel for Ms Healey submitted that various diagnoses were proffered including Whiplash Syndrome, Myofascial Pain Syndrome, Chronic Pain Disorder, and central sensitisation. Each of those conditions was an organic condition. It was submitted the Court ought to find that Ms Healey suffers from central sensitisation.
122Senior Counsel for the TAC submitted that imaging of Ms Healey’s cervical spine did not reveal any pathology. Examinations found little in the way of objective evidence of injury. The plaintiff made subjective complaints of pain, and repeated complaints of pain did not establish their veracity.[51] Ms Healey suffered a soft-tissue injury in the transport accident which, from an orthopaedic perspective, had healed. It was alternatively submitted that Ms Healey’s claimed impairment consequences could not be described as “at least very considerable”.[52]
[51]Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, at paragraphs [46]-[47]
[52]Sabo v George Weston Foods [2009] VSCA 242, at paragraphs [73]-[74]
123I do not accept Dr Ghan’s opinion that Ms Healey suffered a soft-tissue neck sprain in the transport accident which has resolved. I do not accept his opinion that Ms Healey’s ongoing symptoms are non-organic.
124First, those opinions are against the weight of the evidence.
125Second, Dr Ghan did not explain the path of reasoning for his conclusion that Ms Healey’s ongoing symptoms were non-organic.
126Third, Dr Ghan did not adequately explain the path of reasoning for his opinion that the initial injury had resolved in circumstances where Ms Healey’s symptoms have been ongoing since the transport accident.
127Fourth, Dr Ghan did not discuss or explain why he disagreed with the diagnoses made by the numerous pain physicians of central sensitisation.
128I prefer the opinions of Associate Professor Romas and Dr Thomas regarding Ms Healey’s diagnosis. I do so because their medical specialities qualify them to diagnose the condition of central sensitisation. Further, their current opinions as to diagnosis are supported by the opinions of Dr Tomyn, Dr Vivian, Dr Mittal, Professor Davis, Dr Lim, Dr Farr, Nathan Rickard and Andrew Farrelly. Dr Aliashkevich also supported a diagnosis of central sensitisation but acknowledged such a diagnosis was outside his field of expertise and deferred to the opinion of a qualified pain specialist or rheumatologist.
129I find that Ms Healey continues to suffer from central sensitisation in her cervical spine due to the transport accident and as a consequence of the Pilates program in June 2019 for treatment of her transport accident injuries.
130I accept Ms Healey’s account of her ongoing impairment consequences. I find that she continues to suffer from constant pain of variable severity in her neck and left arm; muscle spasm; pins and needles in her left hand; frequent headaches and difficulty sleeping. She suffers from increased pain with prolonged sitting, heavy lifting, pushing, pulling and performing heavier domestic activities. Ms Healey takes Nurofen three to four times a week, comprising two to four tablets a day. She has recently recommenced physiotherapy treatment.
131Ms Healey has suffered from the impairment consequences of her central sensitisation condition for five-and-a-half years. I accept the opinions of Associate Professor Romas and Dr Thomas that the impairment consequences will be long term.
132Senior Counsel for the TAC submitted, based on Giankos v SPC Ardmona Operations Ltd,[53] that the Flexi Personnel report did not do anything to develop Ms Healey’s loss of earning capacity argument. Senior Counsel submitted that in order to properly determine the capacity of a plaintiff in a serious injury situation, an occupational physician’s report was needed.[54]
[53](2011) 34 VR 120 (“Giankos”), at paragraphs [96]-[97]
[54]T133
133In Giankos, the Court of Appeal noted that expert opinion evidence must relate to matters wholly or substantially within the expert’s field of expertise:
“… Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to work which an injured worker can perform may fall outside the doctor’s area of expertise. ... .”[55]
[55]Giankos at paragraph [96]
134I find that the Flexi Personnel report provides the current earnings figures relevant to calculate Ms Healey’s “without injury” earnings. It is within Ms Oliver’s qualifications and expertise in human resources and training to provide that information based on the relevant enterprise agreement. The remaining issues relevant to determining Ms Healey’s “with injury” and “without injury” employment capacity fall to be determined on the medical and other evidence.
135I find that Ms Healey can perform full-time work as a nurse. She is, however, restricted in the type of nursing work she can undertake by reason of her central sensitisation condition. I accept that she is unable to perform heavier nursing roles such as on an orthopaedic ward, on a neuro/stroke ward, and in aged care. That conclusion is supported by the medical opinions of Dr Thomas and Associate Professor Romas. In the particular circumstances of this case, I am satisfied that Dr Thomas and Associate Professor Romas’ opinions on that issue are within their expertise, given their opinions are in relation to medical roles.
136The TAC submitted, based on the October 2019 report of Mr Rickard, that Ms Healey remains capable of pursuing midwifery,[56] which had been her ultimate career ambition.
[56]PCB 53
137I accept Ms Healey’s evidence that midwifery involves manual handling at a level which is beyond her physical ability by reason of her cervical spine condition. That also accords with the restrictions outlined by Dr Thomas and Associate Professor Romas in their recent reports, although they did not address midwifery expressly.
138I also accept Ms Healey’s evidence that but for her injury, she would likely have undertaken further study and would have been able to qualify as a Clinical Support Nurse. But for her injury, I find that Ms Healey would now be earning $103,000 to $123,000 per year as a Clinical Support Nurse with a post graduate certificate in a hospital environment.
139Ms Healey is currently earning $47 gross per hour on a casual basis working eight hours a day, two days a week as a Nurse on Call. If she worked 48 weeks a year, her gross earnings would be approximately $36,000.
140In addition to her Nurse on Call income, Ms Healey earns an income from her Nuptial Nanny business.
141Ms Healey relied upon an affidavit affirmed by her father, Martin Healey, who assisted her with the accounting requirements of her business. Mr Healey Teaches Certificate IV in Accounting and Bookkeeping and the Diploma of Accounting at Swinburne University. I accept his evidence as to the income Ms Healey has received from that source.
142I find that the profit after operating expenses from the Nuptial Nanny business for the current financial year stands at approximately $44,000. That figure includes approximately $10,000 of accrued fees for weddings after 30 June 2024 which will be received in the next financial year.[57]
[57]PCB 167 and 171
Are the pain and suffering and/or pecuniary disadvantage consequences “serious”?
143I am required to determine whether the consequences of Ms Healey’s injury relating to pecuniary disadvantage and/or pain and suffering are “serious” to her.[58]
[58]Humphries and Anor v Poljak (supra) at 140
144I bear in mind the comments of the Court of Appeal in Hooley v Transport Accident Commission:[59]
“49.Additionally, to the extent that the respondent submitted at first instance, or in this Court, that the applicant’s return to work and pre-accident interests, and his commitment to getting on with his life, told against him on the issue of seriousness, it is as well to remember the words of Nettle JA in Dwyer, that ‘it would be unfortunate and in my view wrong-headed, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.’
50.The pecuniary disadvantage of having one’s chosen field of employment permanently limited from a very young age is, as we have said, a very significant consequence. It includes but goes well beyond being a pain and suffering or loss of enjoyment of life consequence.
51.As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v one Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced. Here, the applicant will endure a restriction on the range of work he can perform for, perhaps, 45 years and this long-term loss of earning capacity must be recognised as a loss in significant dollar terms. All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
(emphasis added)
[59][2019] VSCA 263, at paragraphs [49], [50] and [51] [footnotes omitted]
145In Abbas v Transport Accident Commission,[60] the Court of Appeal relevantly stated:
“… a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over an applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. ...”
(emphasis added)
[60][2015] VSCA 217, at paragraphs [37]
146Ms Healey was just twenty-one years of age at the time of the transport accident, and at the start of her nursing career. She is now almost twenty-seven years of age. She will likely experience the impairment consequences of her central sensitisation condition for many decades to come.
147I acknowledge that it is necessary to consider what is lost in the context of what is retained.[61] Ms Healey has retained the capacity to perform her personal care, undertake lighter domestic activities, work full time in some forms of nursing work, travel overseas, and care for her daughter.
[61]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
148I find that Ms Healey’s pain, whilst constant and variable, could not be described as regular severe pain. That finding is supported by reference to the activities Ms Healey is able to engage in, and the nature of the medication and treatment required.
149I accept that there are lighter nursing opportunities available to Ms Healey which she can perform despite her cervical spine injury.
150However, Ms Healey is now restricted in the nursing roles she can perform by reason of her cervical spine injury. That is a very significant pain and suffering and pecuniary disadvantage consequence, particularly in a young person at the outset of their career.
151In performing the value judgement required of me, I find that Ms Healey’s pain and suffering and pecuniary disadvantage consequences are fairly described as being “more than significant or marked” and as being “at least very considerable”.
Conclusion
152Ms Healey is granted leave to bring a common law proceeding in respect of the injuries suffered in the transport accident on 17 October 2018.
153I will hear the parties on the issue of costs.
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