House v Transport Accident Commission
[2021] VCC 1708
•8 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-04415
| BRODEN HOUSE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2021 | |
DATE OF JUDGMENT: | 8 November 2021 | |
CASE MAY BE CITED AS: | House v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1708 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – causation – whether pain suffered since accident – where pain not referred to in clinical notes – whether impairment of spine serious and long-term
Judgment: Leave is granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Broadfoot QC with Mr L Allen | Robinson Gill |
| For the Defendant | Mr A Moulds QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1Back in January 2010, fifteen-year-old Broden House was a passenger in the rear seat of a car that skidded out of control and rolled a number of times, before hitting a tree. Mr House managed to get out of the car through the window and the driver ran for help. Ultimately, the police and ambulance arrived at the scene. Mr House complained of pain in his mid-thoracic spine, sternum and abdomen. He was taken to hospital by ambulance.
2An x-ray of Mr House’s thoracic spine did not detect any fractures. Mr House was then discharged with painkillers.
3After the accident, Mr House returned to school for a time. Then at the end of year 11 he left school and worked for many years in manual or semi-manual jobs in the food processing industry.
4In November 2016 – over six years after the accident – Mr House attended his general practitioner (“GP”) complaining of back pain. He was sent for an x-ray of his lumbar spine. It was essentially normal.
5In March 2018 – over eight years after the accident – Mr House was sent for an MRI scan of his lumbar spine. The MRI scan revealed that Mr House had anterior wedging of the T11 and T12 vertebrae (lower thoracic spine) with a reduction of anterior height of nearly 25 per cent.
6There are two possible explanations for this anterior wedging which are open on the medical evidence. The first is that the anterior wedging resulted from fractures at T11-T12 suffered by Mr House in the 2010 accident, but not detected in the x-ray taken at the time. The second is that Mr House is suffering from Scheuermann’s disease (a developmental condition) and the anterior wedging is unrelated to the accident.
7The critical issue in this case is which of these possible explanations is more probable. As I will explain in more detail below, this issue turns principally on whether I accept Mr Broden’s evidence that he has experienced ongoing and consistent pain in his lower thoracic spine since the accident.
8A secondary issue is whether, if I do accept that Mr House suffered fractures at T11-T12 vertebrae in the 2010 accident, it has resulted in an impairment of his spine which is serious and long term in the sense required by the definition of serious injury in s93(17) of the Transport Accident Act 1986 (Vic).
The medical evidence
9Four medico-legal experts gave evidence in relation to causation.
10Mr Thomas Kossmann is an orthopaedic surgeon called by Mr House. He examined Mr House on one occasion in June 2018 and prepared one report. Mr Kossmann states that he believes that Mr House suffered from T11 and T12 fractures in the accident and that over time a loss of height at the T11 and T12 bodies occurred. Mr Kossman’s conclusion is based on his acceptance that Mr House had “complained of pain issues in his thoracolumbar spine since the first accident”.[1] He notes that Mr House’s prognosis was guarded, he would continue to suffer from pain in his thoracolumbar spine and he was at risk of developing further osteoarthritic changes.
[1] Plaintiff’s Court Book (“PCB”) 108
11Professor Richard Bittar is a consultant neurosurgeon called by Mr House. He assessed Mr House on one occasion, via Telehealth in August 2021, and prepared two reports. In his first report, Professor Bittar notes that:
“It was impossible to carry out a meaningful examination today due to the Telehealth nature of his consultation and his audio visual set up. He was able to point to the location of his pain and most of his pain was located in the lower thoracic and upper lumbar region, in the area correlating with T11 and T12 vertebrae.”[2]
[2] PCB 122
12Professor Bittar also notes that Mr House reported a band of pain across the lower thoracic and upper lumbar region, with pain radiating towards the lumbosacral region, which had been present since the accident in 2010.[3] He concludes:
“Based on the mechanism of injury (high speed rollover motor vehicle accident), his persistent pain in the thoracolumbar spine since then, and the subsequent demonstration of changes in the T11 and T12 vertebral bodies consistent with vertebral body fractures, it is my opinion that he most likely sustained fractures of the T11 and T12 vertebral bodies at the time of the transport accident in 2010. Whilst the plain x-rays performed shortly after the transport accident reportedly did not demonstrate any fractures, it is possible that fractures were present and were simply not seen. It is also possible, and in my opinion, more likely, that he sustained minor fractures of the T11 and T12 vertebral bodies, and these have subsequently collapsed with activity and weight bearing.” [4] [emphasis added]
[3] PCB 120
[4]PCB 122
13He further explains:
“…The most likely explanation is that he had very minor fractures with no loss of vertebral body weight. X-rays would only show a loss of vertebral body height and may not demonstrate a subtle fracture. Such subtle fractures can lose height with the passage of time, weight-bearing and activity, which would explain the pathology that is shown on subsequent imaging in 2016.”[5]
[5]PCB 124
14Dr Anthony Kam was a radiologist called by the defendant who prepared three reports. In his first report he reviewed two CDs of radiological images, including a CT scan taken on 18 November 2016 and an MRI scan dated 2 March 2018. He concludes that the radiological findings were compatible with fractures to the T11-T12 vertebrae in the accident.[6]
[6]Defendant’s Amended Court Book (“DACB”) 4. Dr Kam also said the radiological findings were compatible with fractures occurring in a later accident on 16 June 2016, but neither party contended at the hearing that this later accident was a possible cause – see Transcript (“T”) 107, Lines (“L”) 4-8.
15Dr Kam was asked to provide a second report stating “specifically” whether the anterior wedge collapse shown in the MRI report of 1 March 2018 was acute and could be related to the transport accident (it is not entirely clear why this second report was deemed necessary in view of his previously expressed opinion that the radiology was compatible with fractures in the accident). In his second report dated 4 December 2019, Dr Kam states that he believes “the anterior wedge deformity of T11 and T12 show … imaging … can be related to a prior traumatic event, including the transport accident/s”.[7]
[7] DACB 6
16Dr Kam was then asked to provide a third report. He was asked to comment on the x-ray of the thoracic spine in 2010 which stated no abnormality. He notes that he was only provided with the report, not the images, but accepted that the report indicated no abnormality was shown. He was provided with what was described as a CT scan of the thoracic spine in 2016 which stated “no abnormality”. As he points out, in fact, it was a CT scan of the lumbar spine and it was not possible to see from the images if there was wedging of the T12 vertebral body “although the images do incomplete (sic) show a T12 upper endplate Schmorl’s node that appears longstanding”.[8] He was asked to “Please comment on the onset of the changes seen in the MRI i.e. why have the changes been seen in 2018 when prior imaging post both transport accident were normal”.[9]
[8] DACB 9
[9]DACB 10
17He states:
“I believe the anterior wedge deformities of T11 and T12 shown on imaging in 2018 can be related to a prior traumatic event prior to the 2 March 2018, including the transport accident on 16 June 2016. As the report of the X-ray thoracic spine dated 8 January 2010 documents no abnormality at T11 or T12, I believe it is likely that the T11 T12 deformities occurred subsequent to 8 January 2010 … There is no evidence documented in the forwarded Tristar Medical Group medical records (which cover the period 10 October 2013 to 18 May 2018) to indicate the claimant exhibited any symptoms or signs at the time of the subject accidents that is consistent with a significant lower thoracic spine injury … I therefore believe it is unlikely that the deformities show at T11 and T12 vertebral bodies are related to the subject 8 January 2010 or 16 June 2016 accidents … .” [10] (sic)
[10] DACB10
18Mr Gary Speck is a consultant neurosurgeon called by the defendant. He examined Mr House once in person on 28 April 2021 and prepared three reports. He conducted a very thorough review of the clinical notes and other reports.
19Mr Speck notes that Mr House reported that he was told he was suffering “severe whiplash”[11] and that “[f]rom the time of presentation in November 2016 tenderness was recorded in the lower lumbar spine rather than the area of tenderness at the time of the accident”.[12] He states that “the described changes in someone of Mr. House’s build and physical activity as an adolescent and teenager may well arise from Scheuermann’s disease”.[13] He diagnoses Mr House as having suffered soft-tissue injuries to the mid back and neck in the accident and concludes:
“On the information provided, it is likely that a soft tissue injury to the lower thoracic spine (i.e. mid back) has been sustained, with expected resolution. The lack of symptoms, attendance for treatment or restriction in work or social activities subsequently being identified is consistent with that resolution.”[14]
[11] DACB 14
[12]DACB 24
[13] DACB 25
[14]DACB 26
20Mr Speck attributes Mr House’s current symptoms to a chronic pain syndrome. He states that Mr House’s symptoms and pain behaviour appear to have developed over time, nearly seven years after the accident.[15]
[15] DACB 26
21Mr Speck also requests CT imaging of the thoracic spine and states that the views he expresses in relation to Mr House’s diagnosis are conditional on further information being provided. The additional CT imaging requested by him was not obtained.
22In his second report, Mr Speck reviews reports of Dr Kam and further clinical notes. Nothing alters the views expressed in his first report.
23In his third report, Mr Speck reviews the report of Professor Bittar. He notes that:
“The history [he] obtains of persistent and constant back pain in the same site as his current symptoms, is not supported by any contemporaneous record and Mr. House undertook manual work on a regular basis without indication of changing occupation or roles due to back pain over the years subsequently.” [16]
[16] Defendant’s Supplementary Court Book (“DSCB”) 7
24Nothing in Professor Bittar’s report alters the views Mr Speck expressed in his first report.
25Finally, Professor Bittar provided a supplementary report on 11 October 2021 considering the views of Mr Speck and Dr Kam. Professor Bittar states:
“Dr Speck states, ‘The history the (SIC) obtains of persistent and constant back pain in the same side as his current symptoms, is not supported by any contemporaneous record…’. I questioned Mr House about this as I too was unable to find any relevant medical records that indicated ongoing back pain following the subject transport accident. Mr House’s explanation of the absence of medical documentation is contained in my previous report, and I believe that this explanation is very plausible.
I agree with Dr Speck’s comments about Schmorl’s nodes and Scheuermann’s disease. Dr Speck provided an excellent explanation of Scheuermann’s disease on the final page of his previous report (August 30, 2021). Dr Speck finished his explanation with the following sentence which referred to Scheuermann’s disease: ‘It generally produces stiffness in the region rather than being a painful condition’.
Given that I was unable to view the images directly and was reliant on radiology reports, I considered the fact that the reported fractures in the thoracic spine were in the same region of his ongoing pain as well as the region of pain immediately after the 2010 transport accident. I also considered the fact that Scheuermann’s disease generally does not cause pain but rather stiffness. Taking these factors together, I formed the opinion that, whilst the changes may represent Scheuermann’s disease rather than fractures, it is more likely that fractures did occur as a result of the 2010 accident (and was simply not seen on early x-rays), as these would certainly account for ongoing pain and disability as well as for the subsequently identified changes on imaging of the lower thoracic spine.”[17]
[17] Plaintiff’s Further Supplementary Court Book (“PFSCB”) 3
26Also of relevance to the question of causation is the report from Mr House’s treating GP, Dr Daniel De Villiers. He states that he has reviewed their records, and the records kept by the hospital, and that:
“…
a. I am not aware of any lasting injury suffered by him that was related to the accidents.
I dealt with the 2010 accident and the notes relate to clinical clearance of his C spine in order to remove a neck brace
The only abnormality reported by him was some tenderness of the spinous processes of T8-10X rays were requested, and reported as normal.” [18]
[18] PCB 85
27He further states:
“… He has also had very intermittent complaints related to lower back pain. The link between this and his accidents would be very tenuous.” [19]
[19] PCB 86
28It can be seen from the above summary that a critical difference was the view taken by each medical expert of the history of symptoms experienced by Mr House. Mr Kossmann and Professor Bittar accepted Mr House’s reports that he had suffered back pain in the region of his lower thoracic spine since the accident. Mr Speck (and ultimately Dr Kam) did not accept that Mr House had suffered persistent back pain in his lower thoracic spine. Their views also find support in the report of the GP, which describe only intermittent complaints related to lower back pain.
29Ultimately, the question of whether or not Mr House has suffered ongoing pain in his lower thoracic spine since the accident is a factual issue to be determined by me on the evidence led at the hearing, rather than a question which can be solely left to determination as a matter of expert opinion.
Has Mr House suffered ongoing pain in his lower thoracic spine since the accident?
30Mr House’s evidence was that he has suffered ongoing pain in his middle and lower back since the accident. He said that pain has worsened over time but remained of the same nature and location.
31For the following reasons, I have concluded that Mr House has suffered ongoing pain in his lower thoracic spine since the accident:
(a) firstly, Mr House appeared to be an earnest and sincere witness who was doing his best to tell the truth; made appropriate concessions; and demonstrated reasonable recall. He plainly had very strongly-held religious beliefs which guided his conduct. I saw no sign of any self-serving dramatisation or exaggeration of his symptoms;
(b) secondly, Mr House’s reports of ongoing pain since the accident are corroborated by his wife, who met him in 2012, only two years after the accident. Mrs House said that Mr House had complained of back pain as long as she had known him; and that although his back pain had worsened over the years, it was of the same nature. I found Mrs House to be an entirely honest witness. Her frustration at Mr House’s inability to assist with household chores after the birth of their first child in February 2014 was readily apparent. I note that in cross-examination Mrs House described this pain as being in Mr House’s lower back and around the hips, however I accept that she may have been using this term to describe a broad area of Mr House’s back which included the lower thoracic region;
(c) thirdly, the accident was a significant single vehicle accident, which involved the car veering off the road to the right and rolling over a number of times before impacting a tree. The investigator’s report prepared shortly after the incident notes that the driver said he was travelling at approximately 45 kilometres per hour. I do not consider the driver’s self-serving estimate of his speed to be particularly reliable. I accept that this accident was of a sufficient magnitude to provide a mechanism of injury;
(d) fourthly, Mr House is recorded as having reported pain in his back, and particularly in his lower thoracic spine, on a number of times at or shortly after the accident: in the ambulance report;[20] in his statement to police[21] and in his TAC Claim form dated 18 August 2010;[22]
(e) fifthly, I have considered the lack of any observed fracture in the x-ray of the thoracic spine performed on the day of the accident. I accept the opinion of Mr Kossmann and Professor Bittar that a fracture might not have shown up in the x-ray. This view is supported by the report of that x-ray, which states “CT would be more sensitive to fracture if there is ongoing clinical evidence of this”.[23] No CT scan of the thoracic spine was ever performed;
(f) sixthly, I have considered the absence of any relevant report of back pain in the clinical records until 2016 and also the unsupportive report of Dr De Villiers. Mr House explained that he did not complain of ongoing back pain to Dr De Villiers because, when did complain, he was told the damage to his back would take years to recover, but that it “will eventually come good”[24]. Having had the opportunity to observe Mr House giving oral evidence and taking into account his young age at the time of the accident and religious belief in the acceptance of “God’s will”, I consider this explanation to be plausible;
(g) seventhly, I have considered the fact that Dr De Villiers is reported to have described Mr House’s diagnosis as “severe whiplash”, which both Dr Kam and Mr Speck take to mean as an injury to the cervical spine. I accept Professor Bittar’s explanation that whiplash can be used to describe a mechanism of injury to the spine rather than specifically to the cervical spine. In any event, Dr De Villiers himself records that the “only abnormality” reported by Mr House was “tenderness of the spinous processes of T8-10”;[25]
(h) eighthly, I have considered the fact that when Mr House did complain of back pain to a GP in 2016, he is recorded as having described lumbar pain and was referred for a CT scan of the lumbar spine. Mr House explained in oral evidence that he thought his “lower back” was the entire lower half of his back (including the region of his lower thoracic spine).[26] I observed Mr House to have some difficulty reaching around to his back to point to the area of concern. I accept that in circumstances of chronic back pain it may not be realistic to expect a patient to specify the specific vertebra which is the source of the pain; or whether that pain radiates up from the lumbar spine or radiates down from the lower thoracic spine. I have also considered the fact that in 20 April 2018 Mr House reported a workplace injury to his back to Dr De Villiers and does not mentioned his chronic back pain. By this stage, Mr House had already retained lawyers in relation to his TAC claim and said he had “lost a bit of faith”[27] in Dr De Villiers. I do not consider his lack of complete report to Dr De Villiers at this late point in time of particular relevance;
(i) ninthly, I have considered Mr Speck’s suggestion that Mr House’s physical activity as a teenager may have contributed to development of Scheuermann’s disease.[28] Mr Speck records a history of Mr House having being involved in basketball, Little Athletics and becoming a State champion in shotput and discus after the accident.[29] I accept Mr House’s evidence that he was actually a State champion in shotput and discus in the Under 13’s, well before the accident, and that after the accident, while he was involved in athletics, it certainly was not at an elite level. This unremarkable history does not provide a more probable mechanism of injury than the accident; and
(j) finally, I have considered the fact that Mr House, for many years, worked in the food-processing industry in jobs which had a high level of manual labour and included heavy and repetitive lifting, and also played basketball while employed at Edlyn Foods Pty Ltd for approximately a year. I accept Mr House’s explanation that his options locally were limited to manual labouring jobs and that he needed to support his young family. Mr House was plainly a stoic young man who was heavily influenced by his religious beliefs and his desire to provide for his family. I also accept that Mr House’s pain has become worse over the years. This is consistent with the views of Mr Kossmann and Professor Bittar that the initial fracture has subsequently collapsed with time, weight bearing and activity.
[20] PCB 79
[21] PCB 68
[22] PCB 18
[23] PCB 179
[24] T46, L23-29; see also T55, L14-23
[25]PCB 85
[26] T61, L1-9; see also T63, L18-25
[27] T67, L9-17
[28] DACB 25; DACB 35
[29] DACB 16
32In light of the above matters, I prefer the opinions of Professor Bittar and Mr Kossmann to that of Mr Speck. The reports of Professor Bittar and Mr Kossmann provide a better explanation for Mr House’s ongoing symptoms of mid-lower back pain since the accident. I find, on the balance of probabilities, that the anterior wedging at T11 and T12 of Mr House’s thoracic spine resulted from the accident and is the cause of Mr House’s current symptoms of mid-lower back pain.
Is Mr House’s spinal impairment serious and long term?
33Mr House was a credible and reliable witness. In light of this, I accept that, as a result of the accident:
(a) he continues to suffer aching pain in his middle and lower back that only goes away if he is totally rested and has taken strong painkilling medication;
(b) his pain is worse in the morning when his back is stiff and sore;
(c) he takes up to six Nurofen per day and one Tramadol, 150 milligrams per day;
(d) his back pain interrupts his sleep;
(e) getting dressed can be hard due to the back pain and he sometimes requires the assistance of his wife to put on his shoes and socks;
(f) he can help with some household chores, but needs to take regular breaks and pace himself;
(g) he struggles with long periods of sitting and this can make study difficult;
(h) he struggles with long periods of standing;
(i) he can walk satisfactorily at a steady pace over flat ground, but suffers increased pain on long walks, uphill or on uneven surfaces. This has impacted on his capacity to join his family for walks;
(j) he is unable to play with his children in the active manner he would like and had difficulty picking them up from the ground when they were young. This is particularly upsetting for him and makes him feel very depressed and anxious at times. He feels he is not the father he wanted to be;
(k) his social life has been impacted by the pain and the fact he cannot stand for long periods of time;
(l) his capacity to engage in sport such as basketball and football has been impacted (although he was able to play basketball whilst employed at Edlyn Foods); and
(m) his difficulties walking and engaging in sport have had some impact on his weight. However, I do not accept it is reasonable to attribute the entirety of his weight gain to his spinal impairment, particularly given his capacity for manual labour in earlier years.
34Mr House’s pain has become progressively worse over the years. I am satisfied on the basis of Mr Kossmann’s and Professor Bittar’s reports that this pain will continue for the foreseeable future and may worsen further.
35For many years, Mr House was able to perform manual jobs which required heavy and repetitive lifting (albeit with some pain). I accept that, as a result of his worsening back pain, he would not now be able to engage in such occupations. Having regard to Mr House’s education and experience, this creates a significant reduction in his employment flexibility. Although he is currently studying theology and aspires to work as a pastor, there is no certainty that he will be successful in finding consistent employment in this field.
36Having considered all of the above, I am satisfied that Mr House has suffered an impairment of his spine which is both long-term and serious, in the sense that it is more than “significant” or “marked” and “at least…very considerable”.[30]
[30] Humphries v Poljak [1992] 2 VR 129, [40]
37I will grant leave to bring proceedings for damages.
---
Certificate
I certify that these 13 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 8 November 2021.
Dated: 8 November 2021
Jane Le
Associate to her Honour Judge Tran
8 / Nov / 2021
0
0
0