Hilton v Transport Accident Commission
[2014] VCC 1602
•26 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00024
| KATHERINE HILTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 and 24 September 2014 | |
DATE OF JUDGMENT: | 26 September 2014 | |
CASE MAY BE CITED AS: | Hilton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1602 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the cervical spine
Legislation Cited: Transport Accident Act 1983
Cases Cited:De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Woolworths Ltd vWarfe [2013] VSCA 22
Judgment: Leave granted to issue proceedings to recover damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M Fogarty | Slater & Gordon Ltd |
| For the Defendant | Ms R Annesley QC with Ms B Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This application for leave pursuant to s93 of the Transport Accident Act 1986 (“the Act”) involves really a single discrete issue. The plaintiff has undergone a C6-7 cervical spinal fusion involving anterior cervical discectomy, partial vertebrectomy rhizolysis and insertion of a Solis cage. It is admitted the fused neck constitutes a “serious injury”. It is admitted the transport accident on 8 August 2009 caused a soft tissue neck injury but not the disc injury.[1] The defendant says, in effect, it did not cause the current condition and it came about because of a longstanding neck injury and an earlier December 2008 work injury, or arose in May 2010.[2]
[1]Transcript (“T”) 36-37, 148
[2]T37-39
2 The issue thus is whether or not the plaintiff discharged the onus of proving that the transport accident suffered by the plaintiff on 8 August 2009 caused her current condition, the admitted “serious” neck impairment. The “serious injury” has to be proved by the plaintiff to be as a result of the transport accident.[3]
[3]T150-151; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraph 61
3 The plaintiff had an earlier work injury on 30 December 2008 (“the work injury”). She lifted heavy boxes and she suffered wrist and arm symptoms following this. Whether neck symptoms accompanied this trauma is part of the debate in this application. A WorkCover claim for hospital, medical and like expenses was accepted by the WorkCover insurer. That insurer paid for the fusion surgery that took place on 20 April 2011. Subsequently, a s98C claim for permanent impairment was accepted by the WorkCover insurer but only in regard to the wrist and arm symptoms. The insurer at this stage rejected liability for the neck and back claim.[4]
[4]Plaintiff’s Court Book (“PCB”) 99
4 There were two serious injury applications before the Court on the first day of hearing. One was against WorkCover for the 2008 work injury and the other was the current application against the Transport Accident Commission (“TAC”) for the 2009 transport accident. I was informed before any hearing commenced that the serious injury application against WorkCover had been settled on a pain and suffering only basis and the application against the TAC alone proceeded.
5 All of the evidence needs to be evaluated but it is clear there have been different histories given by the plaintiff in affidavits, oral evidence and to different doctors at various times. When the work injury has been the subject in focus, the histories given tend to follow a certain path. This is partly understandable when a number of injuries have been causing symptoms and also because the plaintiff is a witness who is very easily confused and whose comprehension is extremely limited at best.
6 Perhaps the most compelling evidence comes from the original clinical records of the two local clinics that the plaintiff attended in the years of 2008 through to 2011. Her first port of call after the work injury was The Primary Healthcare Medical & Dental Centre in Hoppers Crossing. Dr C Freyer and Dr K Parboo practised there. Dr Parboo later practised from a clinic in Brunswick. From 27 May 2010, her local clinic became the Westgate Medical Centre in Werribee where Dr F Al-Jabbari practised. All the records have been tendered and her treatment journey over the years requires comment.
7 The starting point is the clinical records from a Werribee practice, ‘The Clinic’, which commence twenty one years ago in 1993.[5] Through nine years of notes from 1993 to 2002, only two specific references to neck appear. Both are in 1998.[6] A very old transport accident on 19 November 1998 is recorded, with some neck and back stiffness noted.[7] The back is referred to on a few other occasions but not the neck. There were a couple of WorkCover claims for her back in the 1990’s but not for the neck.[8]
[5]DCB 158-163
[6]DCB 159-160
[7]DCB 160
[8]Defendant’s Court Book (“DCB”) 44-49
8 The next stage is found in the clinical notes from The Primary Healthcare Medical & Dental Centre. These ran from 2005 to 2011. An attendance on 30 December 2008 for the work injury is recorded. Only arm and wrist symptoms were noted. Treatment was directed to those areas of injury.[9] Following the notes through into 2009, there is a consistent mention in January, February and even further of problems with the left wrist and arm. No reference at all appeared in the records at this time of any neck symptoms.[10] Her WorkCover Claim Form dated 22 January 2009 claimed for only wrist and arm injuries. No neck injury was mentioned.[11]
[9]PCB V93
[10]PCB V90-93
[11]PCB 89
9 The plaintiff was cleared for normal duties according to a note on 23 July 2009. Only two weeks later, on 8 August 2009, there is then the reference to the transport accident. Pain in her neck and right upper chest was the first notation. Significantly, the doctor recorded a “whiplash type injury”. She had bruising to her chest wall and there were other injuries to a knee and lower leg.[12] From that time onwards, the notes clearly indicated the focus of attention was on her spine. On 10 August 2009, two days later, x-rays of her cervical spine and ribs were ordered. Ten days later, neck pains were still persisting. Within five weeks or so of the accident, physiotherapy is noted to have commenced.[13] In October 2009, “sore right side of her neck” was recorded, and by then the doctor described a “wry neck”.[14]
[12]PCB V90
[13]PCB V89-90
[14]PCB V89
10 There is a clear indication from the notes that the neck symptoms became a major focus of her general practitioners’ attention after the transport accident. This was both in regard to treatment and investigations. She last attended that clinic on 10 March 2010 and that was for menstrual problems. Panadeine Forte was still being prescribed on 16 February 2010 and prescriptions for that had commenced on 10 August 2009, just two days after the transport accident.[15] Interestingly, the “Past History” summary at the front of the computer notes from this practice record “Asthma” and then:
[15]PCB V90
“RTA – with Back and neck injury and L knee – 8/8/08.”[16]
Clearly whoever was summarising the patient’s records over her six years of attendances at this clinic thought the neck injury and transport accident warranted that prominent note.
[16]PCB V88
11 The plaintiff then commenced being treated at the Westgate Medical Centre from 27 May 2010 onwards. The notes in 2010 record attendances for left arm and neck pain and tenderness over C7-T1 and their facet joints. By 23 June 2010, she was referred off to a neurosurgeon for neck treatment.[17] Prescriptions were given by way of medication for these symptoms.[18] There is a consistency between the two clinics that indicate her neck was an ongoing problem from 8 August 2009 onwards and into 2010. The plaintiff had neck surgery early in 2011.
[17]DCB 181
[18]PCB 101
12 The notes from all the clinics record there is very little in the way of any neck references prior to the work injury. The material goes back many years. The plaintiff readily conceded she had some neck pain on and off since she started her job with the Victoria Police in about 1989. As indicated, she has attended various local medical clinics over the last twenty years or so. There are 1999 physiotherapy reports for example that recorded some neck symptoms as beginning in 1993.[19] Central lumbar and central cervical spinal pain was recorded there. On the probabilities, I accept the plaintiff’s evidence that she had some neck pain over many years but it was only intermittent. It required virtually no treatment to speak of, such as regular prescriptions, sophisticated scanning or specialist referral. I accept her evidence that it did not impede her work or her general life.
[19]PCB 17D-F
13 Prior to 8 August 2008, I find any neck symptoms played no impact at all on the plaintiff’s normal life and they have no relevance to the requirement for her to undergo major cervical spine surgery in April 2011.
14 Radiological investigations are also consistent with the focus of attention on the neck coming after the transport accident. A general x-ray of the whole spine was performed in 1999.[20] It was effectively all clear when it came to the neck:
“No significant scoliosis identified nor is there any evident congenital anomaly.”[21]
[20]PCB 65
[21]PCB 65
15 No new neck radiology was ordered by any doctor, according to the records from the various clinics, between the 2008 work injury and the 2009 transport injury. The radiological investigation started two days after the transport accident, on 10 August 2009. There are various scans from then onwards.[22] The MRI scanning in 2010 showed clear pathology involving the spinal cord.[23] Not surprisingly, major surgery followed in 2011.
[22]PCB 68, 70 – 72
[23]PCB 72
16 A series of WorkCover Certificates were tendered, commencing on 30 December 2008 and running right through effectively until the transport accident. The last certificate is dated 23 July 2009.[24] These certificates all record arm and wrist symptoms and there is no mention of any neck condition. I accept that the old minor neck symptoms she described as troubling her on and off prior to the work injury probably just went on at the same low level and did not even rate a mention in the series of certificates. That level changed as a result of the transport accident.
[24]DCB V11 – V23
17 I accept what the plaintiff said about pain when she described it as really no more than “a little bit of neck pain” from December 2008 to August 2009.[25] She did not require any active neck treatment in that period. This is in contrast to what her treatment history became after the transport injury.
[25]T45 – 48
18 A great deal of cross-examination over the course of two days focussed on old medical records. It needs to be said that the computer notes and handwritten records are at times very brief and only a few words are recorded. On any view, they cannot be a complete record of a consultation with a doctor. The unsatisfactory evidentiary nature of this type of material has been commented on.[26]
[26]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraph 4
19 Some notes do assist. They clearly show the neck featuring as the major complaint from the day of the transport accident and barely featuring at all over many years prior to the transport accident. In the end, the records show that, on the probabilities, the transport accident has aggravated her neck condition and caused discal injury due to the violent forces involved that resulted in the objective evidence of bruising to her upper body.
20 In these applications it is almost always of great advantage to be able to see and hear the plaintiff. The opportunity to hear and observe this plaintiff was very informative. The importance of being able to observe her demeanour, tone of voice and manner of speech at close quarters over two full days was vital in this case.[27]
[27]Woolworths Ltd vWarfe [2013] VSCA 22 at paragraph 114
21 The plaintiff is a very simple, unsophisticated witness. She was continuously confused in the witness box, as the transcript indicates.[28] She could not follow documents, even when they were placed in front of her. She had to be assisted by Court staff repeatedly with the aid of coloured stickers on documents because she was so easily lost when being asked to comment on what was in plain English in papers before her in the witness box.[29] She was as poor an historian as one would see sitting daily in this jurisdiction. The bare reading of the transcript does not record the hesitation, intellectual difficulty and the obvious confusion at times shown even in facial expressions. Nor does the transcript show the amount of time she took to try and comprehend questions. She was unfortunately a Ward of the State who was only given an education that completed Year 9 and was then asked to leave school very early in Year 10. When she admitted her “memory was not the best” on that topic, she was extremely accurate.[30]
[28]T44,45,47-48, 50-51, 53-56, 60-62, 64, 74-75, 77-78, 80, 84, 86, 88, 90-94, 101, 103, 106-107, 110-111, 114, 116, 117, 123-124, 126-128 and 133
[29]T74, 75, 77
[30]T86-87
22 When the plaintiff’s handwritten note that was tendered about attendances on various doctors is examined, it shows usage of capital letters mixed in with lowercase letters and spelling that could only be fairly described as virtually primary school standard.[31]
[31]DCB 42
23 I found the plaintiff was nevertheless an honest witness, trying hard to tell the truth and recall things accurately. She was a particularly poor historian when it came to dates and remembering when various symptoms commenced. She was mixed up at times and gave many different answers about what time she had to take off work after the work injury and the transport injury. She had extreme problems in trying to recollect doctors, let alone what she had said to doctors and the sequence of events generally. But one example among many was the evidence about seeing Mr M Shannon.[32] Her confusion ranged over many topics.
[32]T114-118
24 A number of inconsistencies in her affidavits were pointed out in cross-examination. I did not find her deceptive nor did she prevaricate. I accept on the probabilities she has been confused about particular dates when certain symptoms started. Added to her very poor memory, she also thought at various stages that it was “going to get really messy” with respect to whether WorkCover or the TAC was the responsible authority to pay for her medical treatment. She said she did not “want it to get complicated”.[33] I do not find that there was anything wilfully deceptive in what she was saying. It was a profound confusion about who or what should be paying for the various medical treatments that she had for her various injuries as a result of her work and the transport accident.
[33]T88, 95, 97, 104
25 As vague an historian as she was, there is no suggestion across any of the medical reports that she is anything other than a genuine woman when it came to her descriptions of symptoms. I accept her as reliable and genuine in her describing that her neck pain has been aggravated in the transport accident and that it has become much worse as a result of that trauma. I accept her description of symptoms. Whatever her poor memory may well be in relation to other events, she is the best judge of the pain she suffers. I accept her reliability in that regard. She has constant pain that is at times severe, although it does vary.[34] She suffers from a numbness and burning sensation in her neck and requires the narcotic, Panadeine Forte, to assist with it even post surgery.[35] I accept her evidence that while there has been some assistance with respect to arm symptoms from the surgery, her neck pain that has been severely aggravated by the transport accident has not really been helped.
[34]T137-138
[35]PCB 8
26 An example of how confused she can be about fairly basic events is that the plaintiff recorded being injured lifting boxes in September 2009 to the surgeon, Mr P Smith.[36] From the description of this event, Mr Smith concluded the C6‑7 disc protrusion had occurred. On any view of the evidence, in 2009, in August, the transport accident occurred. Lifting of boxes is the work injury that occurred in the year before. In a TAC Claim Form in which the whiplash injury is described in language that is clearly too technical to be hers,[37] she stated in her own handwriting that she was having surgery on 24 September 2009.[38] This is in a Claim Form that is dated 16 September 2010. The plaintiff, who was apparently contemplating major surgery at that time, could not even get the year correct as to when she was to be operated on. She had seen Mr P Smith, the neurosurgeon, in July 2010 and an inference can be drawn from her Claim Form in her own handwriting that surgery was contemplated perhaps in September 2010, but it could not have been in September 2009.
[36]PCB 21
[37]PCB 78
[38]PCB 80
27 Mr Clive Jones, orthopaedic surgeon, who saw the plaintiff for WorkCover in March 2011, recorded the plaintiff describing to him the transport accident taking place in 1999. Clearly, this should be 2009. It is just one other example of the litany of incorrect dates and events, symptoms and other matters erroneously recorded by the plaintiff. These errors appear throughout her affidavits, what she said to doctors and recorded in claim forms.
28 In the end, the plaintiff was a cooperative witness, as indeed doctors on both sides recorded, but she was continuously getting mixed up and confused when asked to relate histories.
29 I accept the plaintiff’s evidence that she probably had some intermittent neck symptoms that were off and on over the years but never disabling. They never required any major treatment and did not warrant any finding on the only radiology prior to the transport accident that her various doctors thought appropriate. The single x-ray taken in 1999 speaks for itself. The radiology that followed the transport accident indicated major pathology that required very serious invasive surgery. That surgery has been required because of the transport accident causing very serious damage to the disc at C6-7 and surrounding structures. Whether or not this is truly an aggravation case or is a fresh discal injury, the consequences of that transport accident on all the evidence have led to a “serious injury” that has required her neck to be fused. In spite of that fusion operation assisting arm symptoms, she is left with constant pain that is a permanent situation for her.
30 The circumstances of the transport accident are also relevant to probable causation. It was a very violent collision that wrote off the plaintiff’s vehicle. She was t-boned and thrown around with considerable force. There were no airbags to protect her upper body.[39] There was bruising around her chest and rib areas, as recorded in the medical records. It is no surprise that her neck has been significantly injured in this type of violent trauma. I accept that is the probable situation. The clinical records, the radiological investigations and the trauma involved in this collision all tend to this being a major insult to her cervical spine that has led to a condition that is now an admitted “serious injury” that required major surgery by 2011.
[39]PCB 1, Exhibit A
31 Turning from the notes to the actual medical reports, it is worth mentioning that the TAC did not see fit to even have the plaintiff seen by a doctor. The medical reports that were tendered suffer to various extents from the difficulties of the plaintiff Hilton as a poor and vague historian. In spite of those limitations, the medical opinions must be analysed and, in particular, the more up-to-date reports.
32 An examination by a Dr J Silver related to some WorkCover claim in the 1990s. He reported on 1 November 1999 about some spinal symptoms but it was interscapular and low back pain that he was concerned with and the neck is not even mentioned in the course of his report. It is only the dorsal and lumbar spines that were the subject of a posture-related mechanical low back pain that he thought may be associated with Scheuermann’s Disease.[40]
[40]DCB 17-18
33 The plaintiff could not recall this doctor at all and indeed she had difficulties with recollection generally in relation to some of these very old notes. Dr Silver does not even appear to have examined the plaintiff’s neck.[41]
[41]DCB 17
34 I have already referred to problems of history in the report of Mr C Jones, orthopaedic surgeon, who saw the plaintiff for the WorkCover insurer in 2011. He has the seriously defective history of a motor vehicle accident in August “1999”. Perhaps it is just a typing error but that is really guesswork. If he did mean 2009 it is curious he did not enquire about any injuries or symptoms. Not surprisingly, he did not offer any further comment about the relevance of any transport accident. His view on causation, limited by a very inadequate history, is expressed in the curiously reticent statement:
“The alleged injury is said to be associated with lifting heavy boxes of police files”.[42]
[42]DCB 21
35 For the reasons mentioned, he is not fully apprised of the dimension of the 2009 collision and the bruising caused to her upper body. He just recorded nothing about injuries, if there were any, the “1999” accident caused. His report is of little assistance.
36 Mr Shannon, who saw the plaintiff for WorkCover, took a brief history of the transport accident. He thought it aggravated her pre-existing neck problem. She suffered severe bruising and her neck was worse than prior to the accident.[43] It was an AMA assessment for the WorkCover insurer. Apart from mentioning again that she had the transport accident in the context of a “complex claim” about neck symptoms, he did not take the matter further.[44]
[43]DCB 27
[44]DCB 28
37 As mentioned some 1999 physiotherapy reports that were tendered described pain in the spine but it was really only a postural problem related to her work station it seemed. Mostly lumbar spine stiffness was recorded and some thoracic degeneration. A strengthening and stretching program was considered all that was required to enable her to work without pain.[45]
[45]PCB 17D-F
38 An undated report of Dr C Freyer is addressed to TAC and has a TAC claim number 09/02604 so it must have come after the plaintiff’s TAC Claim Form of 16 September 2010.[46] He included in the injuries sustained, pain and muscular spasm in the neck, and noted the x-ray of the neck.[47] Dr Freyer was from The Primary Health Medical & Dental Centre where Dr Parboo had seen the plaintiff and ordered the neck x-ray two days after the transport accident. It is not a lengthy report and is not dated. It does not assist greatly, but it does document the cervical spine symptoms and the objective evidence by way of spasm.
[46]PCB 85
[47]DCB 156-157
39 Not all the deficiencies in the histories can be laid at the plaintiff’s feet. Dealing with the treaters, the Westgate Medical Centre report of Dr F Al‑Jabbari of November 2013 described neck pain as caused by the 2008 work injury lifting heavy boxes. He said he had no record of the 2009 transport accident.[48] However, he had not read or taken into account the clear records at his own practice. “Road accident injury knee, back and neck” is recorded in the notes under her Past Medical History.[49] The reference in the clinical notes to “accident a year ago” in 2010 is also probably a reference to the transport accident.[50] His opinion was that she had chronic pain and stiffness in her neck as a result of disc disease. The pain was at a high level and the stiffness was significant. There was a significant chance these would be long term.[51] I accept his opinion about her “serious injury” but as to causation, his reports are erroneously based and do not help.
[48]PCB 28-30
[49]PCB V108
[50]PCBV 130
[51]PCB 28-29
40 Caution has to be exercised in reliance on the notes and indeed the absence of references in medical reports when attacking credit. For example the plaintiff was cross-examined about not mentioning the transport accident to certain doctors and the report of Dr Al-Jabbari was relied on. I have already alluded to her difficulties as an historian but she was not helped by patent inaccuracies and deficiencies in her treaters’ reports. The plaintiff was clearly correct when she said she had reported the transport accident at this clinic in spite of Dr Al‑Jabbari reporting to the contrary.[52]
[52]T96
41 Another example of sloppy reporting is in regard to the Westgate Medical Centre referral letter to the neurosurgeon in June 2010, the month after she first attended at the clinic. It referred to “27 May 2010 – Road Accident”.[53] That date is the very first date she attended the Westgate Medical Centre. It is not the date of the road accident. It is a fair inference that from the very start at the Westgate Medical Centre, the road accident was mentioned to doctors. In 2011, 2013 and 2014, when Dr Al-Jabbari wrote his reports, he obviously did not read his colleague’s referral letter in amongst the clinical records. That referral letter was to a Mr T Han, neurosurgeon, but for whatever reasons the plaintiff did not see him.
[53]DCB 181
42 Mr P Smith was the specialist neurosurgeon she in fact saw. He operated in April 2011. It seems he was also never told about the transport accident. His letter of referral is not amongst the materials so what Westgate Medical Centre relayed to him is not in evidence. The only referral letter in evidence is to Mr Han and it mentioned the transport accident. Mr Smith saw her in July 2010 and took a history of “6-7 months” of shoulder pain that suggested to him a C6-7 radiculopathy. The notes show the history of injury in the context of data entry work he took from the plaintiff was clearly wrong. He did not have any information about the 2008 work injury nor the 2009 transport accident.[54] When he was asked for a formal report by her lawyers, he noted some detail then about moving of boxes in September 2009. Even this is incorrect. The box incident on any view was in December 2008. It was the transport accident that was in 2009, but in August, not September.[55] Mr Smith has nothing like a complete history of the work injury, let alone anything about the transport accident in spite of seeing her at the referral of the same Dr Shirzada, who wrote the referral to Dr Han mentioning the transport accident.[56]
[54]PCB 18
[55]PCB 21
[56]PCB 18, DCB 181
43 A report from Ms A Robinson, physiotherapist, in 2011 described a course of physiotherapy required post surgery.[57] A sports medicine doctor Dr P Braun also saw Ms Hilton in 2011 at the request of the physiotherapist. He prescribed Lyrica. Neither of these two treating practitioners had a history of the transport accident. So they do not assist in evaluating what the admitted soft tissue injury to the neck resulted in with respect to the issue in this application.[58]
[57]PCB 25
[58]T36, T147-149
44 Really the only doctors to have anything like a full and proper history are the medico-legal specialists, Mr P Dohrmann, Mr P D’Urso and Mr K King for the plaintiff and Mr M Dooley for WorkCover. Their reports are largely self-explanatory.[59] As indicated, the TAC did not even have the plaintiff examined. Mr Dohrmann, neurosurgeon, reported in 2012. He had a long list of documents to assist him on history. As to causation, he considered the transport accident increased the neck and arm pain but he would not –
“… attribute the left C6-C7 disc prolapse entirely upon the motor car accident … .”[60]
[59]PCB 37-64, DCB 169
[60]PCB 43
45 Without hearing from the doctor, I read his report as causatively linking the disc injury to the transport accident but not solely to it. The rest of his report simply confirmed the “serious” nature of the neck impairment that he thought was permanent.
46 Mr D’Urso, neurosurgeon, provided one report in 2013 and two in 2014. He also had a lot of attachments to assist him with history and giving an opinion.[61] His view on causation was that the transport accident exacerbated her cervical spine condition and the C6-7 disc prolapse.[62] He revisited the topic and clearly stated:
“Subsequently, a motor vehicle accident appears to have aggravated the condition and led to a worsening of left upper limb and neck pain and paraesthesia which cumulated in a cervical discectomy and fusion procedure at C6-7 level”.[63]
[61]PCB 48-49
[62]PCB 51
[63]PCB 52
47 The plaintiff was left with chronic neck pain. In spite of major surgery, Mr D’Urso said she faced the future requirement of prescription analgesics and anti-inflammatories, physiotherapy, acupuncture and massage therapy. She may need surgery at the next level up, C5-6.[64] This is a dramatic contrast to the lack of treatment for her neck up to the time of the transport accident.
[64]PCB 56c
48 In 2013, Mr King, orthopaedic surgeon, took a detailed history of her neck problems over the years before and after the transport accident.[65] He took a detailed account of the violent forces in the collision.[66] His opinion was:
[65]PCB 58-59
[66]PCB 59
“When she was involved in a motor vehicle accident on 08.08.09 it is a reasonable assumption that she then sustained a further significant injury to cervical discs and associated ligamentous structures and almost certainly aggravated pre-existing disc injury at the C6-7 level producing significant radiculopathy and severe neck pain.”[67]
[67]PCB 62
He repeated in effect the same opinion:
“Her residual symptoms in the neck seem to be the result of the injuries she sustained on 08.08.09 … .”[68]
[68]PCB 63
49 I accept the opinions of Messrs Dohrmann, D’Urso and King as well reasoned and based on solid factual foundation in spite of the plaintiff’s limitations as an historian.
50 I accept on the probabilities that their evidence discharges the onus on the plaintiff of proving her “serious injury” neck impairment is as a result of the transport accident.
51 Mr M Dooley, orthopaedic surgeon, saw the plaintiff for WorkCover in 2014. There is no record of whether he was sent any documents. The history he took is not as detailed as the three surgeons just mentioned. Nevertheless, while he was seeing her for WorkCover, he detailed the force of the impact in the transport accident. He noted bruising to her chest and shoulder regions.[69] His view was that both the 2008 work injury and the transport accident both contributed to her ongoing cervical spine problem.[70]
[69]DCB 170
[70]DCB 172
52 It was speculative, he thought, to apportion the contribution and it is not necessary for the Court to do so. It is sufficient, and I accept his opinion, that the neck impairment is as a result of the transport accident. He also saw it as a result of the work injury. As I read it his report said the impairment had two causes.
53 On all the evidence in this case, I accept the plaintiff has discharged the onus on causation in regard to her “serious injury” to the neck.
54 I grant leave to issue proceedings for the recovery of damages.
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