Howlett v Transport Accident Commission (No 1)

[2014] VCC 57

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-10-04750

GAY MARCIA HOWLETT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 5 February 2014
DATE OF JUDGMENT:	7 February 2014
CASE MAY BE CITED AS:	Howlett v Transport Accident Commission (No 1)
MEDIUM NEUTRAL CITATION:	[2014] VCC 57

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – transport accident – serious injury – injury to the neck – referred symptoms

Legislation Cited:     Transport Accident Act 1986, s93(4)

Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Commission v Kamel [2011] VSCA 110; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

Judgment:                 Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Scanlon QC with Mr P Bourke	Shine Lawyers
For the Defendant	Mr P Rattray QC with Mr M Klemens	Solicitor to the Transport Accident Commission

HIS HONOUR:

1 Leave is sought pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) to bring proceedings for the recovery of damages arising from a transport accident on 25 July 2002. The plaintiff’s car was hit in the rear by a truck loaded with plaster.[1]  I accept that considerable forces were involved and the plaintiff was suddenly thrown forward and back in her seat.[2]

[1]Joint Court Book (“JCB”) 41

[2]JCB 5 and 31.5

2       The plaintiff relies on an impairment of the body function of her neck, with referred symptoms into her right shoulder and arm, together with consequential headaches.  The only issue for determination on the s93 application is whether the consequences reach the “at least very considerable” level.[3]

[3]Transcript (“T”) T 97-98

3       An application to extend the limitation of actions period is also before the Court.  Sensibly, the parties wished to have the serious injury application determined before proceeding to deal with that extension application.  This is consistent with an Order of his Honour Judge Carmody of 27 May 2013.

4       The plaintiff is a single mother who turns 54 years this month and has largely raised four children to adulthood without assistance.  She has a very good work record in different types of employment over many years.

5       In this case, the plaintiff’s credit has not been in issue.  No doctor across the range of those engaged by the plaintiff, a WorkCover insurer and the Transport Accident Commission has questioned her genuineness.  In fact, the most recent report tendered by the defendant was from the rheumatologist, Dr K Fraser, who reported to the Transport Accident Commission on 15 January 2013.  He said that she gave her history “… in an honest and straightforward fashion”.[4]  I agree with that assessment of the plaintiff’s evidence before me.

[4]JCB 202

6       I found the plaintiff a very stoical person in regard to her injuries, the extensive treatment regime she is still undergoing after some twelve years and her daily pain.  I found her to be extremely well motivated towards work.

7       I also accept her evidence as reliable and accurate in describing the level of her symptoms and the consequences of her injuries on her work, daily life and recreational interests.  There was no exaggeration.  If anything, she understated her problems in just putting up with constant pain and simply getting on with her daily life, her work and continuing duties as a single mother.

8       This plaintiff brings to mind the warning that a brave, stoical person should not be disadvantaged in assessing consequences in these applications.[5]

[5]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph 3; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 47; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs 67 and 68

9       The pain in the plaintiff’s neck and right arm, together with the migraine headache commenced on the very day of the accident.  They worsened overnight.[6]  I find these symptoms have more or less continued in spite of an enormous amount of treatment right up to the present time.[7] 

[6]JCB 6

[7]JCB 6– 8, 15–18 and 45–46

10      Treatment commenced the day after the accident.  It has included daily medication of different types.  Some of those medications have also caused unfortunate side-effects.[8]

[8]JCB 6, 16; T61 and T 67

11      At the heart of this application is the task of assessing the consequences of daily pain in the plaintiff’s neck and into her right arm.  At times it has been severe, with deteriorations and aggravations, depending to some extent on activity.[9]  I accept this pain has been constant and is associated with severe headaches that are suffered in conjunction with the neck and right arm pain.[10]

[9]JCB 8–9, 17 and 46–48

[10]JCB 18 and 47

12      When one looks at what the plaintiff has done about her pain, the treatment regime is indicative of a compliant and motivated patient.  She has tried many treatments in an attempt to get better.  It is pointless listing them all.  They include almost twelve years of general practitioner attendances, constant prescription medication, all forms of radiology, several physiotherapy courses, Pilates’ programs, a ten-week course of laser acupuncture, injections, radio-frequency neurotomy, pain management treatment at the Epworth Rehabilitation Centre, regular massage, as well as home remedies such as hot and cold packs, massage and or exercises for her neck.[11]  This is not a complete list of her treatment modalities.

[11]JCB 6–9, 15–18, 45–46

13      The plaintiff has also been referred to numerous specialists.  These include doctors practising in the field of neurosurgery and pain management, as well as physicians specialising in rheumatology.  I accept the treatment for her neck and right arm pain has been extremely thorough and over twelve years or so has resulted in “… no real change”.[12]

[12]JCB 45

14      I accept it is long term pain after this passage of time and this protracted treatment journey.

15      The treatment is still ongoing.  It includes, at the present time, attendances on her local doctor, multiple medications, ongoing laser acupuncture, regular massage and hot and cold packs on her neck at night.

16      An evaluation of pain and whether the consequences can be said to meet the test of being “at least very considerable” will typically involve considerations of its effects on a number of things.[13]  Such factors to be considered include capacity for work, sleep, recreational activities, social activities and daily home and family tasks, as well as just enjoying life.  In this case, the pain impacts on all of these aspects of the plaintiff’s life.  It will continue to do so.

[13]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 16; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph 38

17      Appropriate to this application is the appellate statement:

“The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[14]

[14]Transport Accident Commission v Kamel (supra) at paragraph 68 and Kelso v Tatiara Meat Co Pty Ltd[2007] VSCA 267 at paragraph 199

18      It is incumbent also to ordinarily consider what the doctors say about the extent and intensity of the plaintiff’s pain.  In this case, I will not quote those medical reports in any great detail.  Reports from sixteen medical practitioners have been tendered.  There is really very little controversy among the doctors about the appropriateness of the plaintiff’s treatment which, as I have already indicated, is so extensive that it virtually speaks for itself in terms of what the general practitioner, for example, thought about her pain.

19      I must judge the consequences now, so it is the latest reports that are probably most helpful.

20      Dr A White, general practitioner, has known the plaintiff as a long-term patient and she presented the day after the accident.  While she lived in other parts of Victoria at times, he is still her general practitioner now.  He indicated there were no relevant family or past medical risks or problems in regard to her spinal and right arm symptoms.[15]

[15]JCB 88

21      He had some optimism at the start about recovery.  His reports detailed the extensive and prolonged treatments he has given and organised by way of referrals.  His last report of 10 May 2013 described her ongoing pain, and he described it in language that could hardly be more definite:

“This is to certify that Gay Howlett continues to have problems with ongoing pain as a protracted result of her injury in 2002.  She has chronic intractable pain … .”[16]

[16]JCB 95

22      This practitioner knows her best of all.  I accept his evidence and description of her cervical pain.  It supports my finding that her pain and its consequences meet the test of “serious injury”.

23      The evidence indicated the plaintiff has had other medical and health issues before and after the accident but I accept these have not had any lasting effects in terms of incapacity for work or enjoyment of life.

24      In the order of tender, Dr D Vivian first treated the plaintiff in December 2002 and reported on 19 December 2013 after seeing her again last year.  He said that she had “persistent pain”.[17]  He thought the condition had stabilised, but:

“She is likely to need treatment lifelong as it does not appear that this condition is going to recover.”[18]

[17]JCB 79

[18]JCB 80

25      In fact, he said the pain may get worse, and he was very direct when he said:

“Her condition remains at least as it was; she has a permanent and stable significant disability.”[19]

[19]JCB 80

26      He noted the substantial effects on her ability to work and enjoy domestic, leisure and social activities and these will be compromised in the longer term.  I accept that evidence from a doctor who has also had the considerable benefit of evaluating her pain over many years.  He noted also the migraine triggered by cervical problems.

27      On its own, in my opinion, the suffering of migraines over close to twelve years, that is still continuing, is a very considerable consequence on the enjoyment of life for this plaintiff.[20]

[20]JCB 7, 18 and 47

28      The report of Mr G Malham, neurosurgeon, who treated her in 2003, is really too dated now to assist.  However, in those early days he did comment on how her symptoms of neck pain and stiffness, together with right upper limb symptoms –

“… significantly interfered with her job as a retail manager and activities of daily living.”[21]

[21]JCB 83

29      Professor J Rosenfeld, neurosurgeon, treated the plaintiff in 2004.  His opinion is also now not current but his view about pain included:

“Ms Howlett does still suffer from an injury which occurred at the time her motor vehicle accident.  This has resulted in chronic headaches and right shoulder pain and some neck pain which have not been relieved by the recent surgery, as expected, and as mentioned above.”[22]

[22]JCB 104

30      At that stage, her work capacity had been impaired and she would need ergonomic adjustments to the work environment, as well as regular breaks and a graduated return to duties.[23]

[23]JCB 105

31      Dr Hoi, consultant physician and rheumatologist, saw the plaintiff in 2011.  He reported on different prescription medication that included Norspan patches and Endep for pain.  His last letter of 7 September 2011 does not really help in evaluating the consequences in 2014.  He noted the medication helped the management of her pain but his letters indicate ongoing pain problems with five prescription medications being required when he last wrote.

32      The last of the treaters’ reports tendered was from Dr D Lewis, consultant physician, who reported on 16 December 2013.  As to the neck pain, he stated:

“Gay has a long history of cervical pain which has been continuous since her 2002 accident.  The chronic pain is likely to be due to both peripheral and central pain sensitisation.”[24]

The future was likely to be one of continuing pain and movement restriction.

[24]JCB 165

33      The treating doctors’ evidence supports a finding of chronic pain of very considerable proportions over the long period from the accident to the present time.  They also support ongoing pain into the indefinite future.

34      In spite of the plaintiff’s return to work, which is more indicative of her motivation and stoicism than anything else, her pain and its consequences meet the test of “serious”.

35      The medico-legal doctors who saw the plaintiff for both sides have not had anything like the opportunity the treaters have had over multiple attendances to gauge the plaintiff’s pain and its consequences.

36      Mr G Klug, neurosurgeon, only saw the plaintiff once in 2012.  He reported a soft tissue cervical spine injury that had not fully resolved.  He thought it lessened her employment capacity, and office type work with flexible duties was indicated.  An adverse affect on her normal daily living was reported, as was an impaired function that would lessen participation in a normal manner in leisure and social activities.[25]

[25]JCB 173

37      Mr T Kossmann, orthopaedic surgeon, also saw the plaintiff on one occasion in 2012.  He reported that she –

“… will require treatment for her cervical spine issues mostly for the rest of her life.”[26]

[26]JCB 179

38      Flare ups were to be expected throughout her life and there was the possibility of deterioration with increasing pain and movement restrictions.

39      Mr P Blombery, consultant physician, reported on 19 January 2014 of a cervical spine injury that involved disc bulging and degenerative changes that were rendered symptomatic.  The prognosis for recovery was poor.  He thought –

“The injury has had a very significant impact on her ability to be employed as well as her ability to do leisure activities … .”[27]

[27]JCB 185

40      The medico-legal opinions relied on by the plaintiff support the evidence of the treating doctors and a finding of very considerable consequences flowing from the impaired function of the neck with its referred symptoms into the arm and resultant migraine headaches.

41      A body of reports obtained by the WorkCover insurer was tendered.  These were Mr D Nye, neurosurgeon, in November 2002; Mr D Brownbill, neurosurgeon, March 2003 and January 2005; Mr J Cummins, neurosurgeon, in June 2003; Mr P Battlay, surgeon, in 2004 and 2010, and Mr I McInnes, general surgeon, in March 2010.

42      These reports do not need extensive comment.  Mr Nye reported now over eleven years ago and while he found a cervical disc prolapse with neuropathy, he does not assist in evaluating consequences in 2014.

43      Mr Brownbill thought damage to the neck structures including a cervical prolapse had resulted from the collision.  The injuries were stable[28] and he gave a percentage impairment to the neck that was permanent.  Household services to assist the plaintiff avoiding heavy lifting and certain neck positions were reasonable.

[28]JCB 128

44      Mr Cummins reported that the plaintiff suffered an acute soft tissue injury to her neck.  He alone of the doctors thought she was likely to eventually become symptom free although he did say the neck “… symptoms may go on for a prolonged period”.[29] This report is now over ten years old and is not helpful.  Facts I accept include symptoms continuing on, with no real change up to the present time, so his optimism did not prove accurate.

[29]JCB 133

45      Mr Battlay’s 2010 report diagnosed neuropathic pain in the neck, head and right shoulder blade and right arm.  He did not consider the plaintiff fit for her pre-injury duties.

46      Mr Battlay described a continuation of the injuries previously described in his 2004 report that resulted from the transport accident.  In effect, over the six years between attendances on him, pain had not resolved and symptoms were identical in 2010 to what they were in 2004.[30]

[30]JCB 139

47      The report of Mr McInnes really just confirmed that the transport accident was still the cause of the plaintiff’s cervical spine symptoms when he saw her in 2010.  Any aggravation from work duties had ceased and thus had only been of temporary duration.

48      Dr Fraser saw the plaintiff on I January 2013 and he thought the cervical musculoligamentous strain as a result of a whiplash injury in the accident had really recovered.  He accepted the ongoing symptoms this honest and straightforward lady described, but he did not accept they were still caused by the accident.  He does not state how it is that injuries caused originally by the collision[31] are now not caused by the collision.  His reasoning was not clearly set out.  He said her symptoms were now due to fibromyalgia and possibly age-related degenerative changes.  Nowhere is it properly explained how physical insult and symptoms that the whiplash caused suddenly ceased to be caused by the whiplash.  When did this cause cease?  When and why did the fibromyalgia or age-related degeneration take over from the whiplash as the cause?

[31]JCB 202

49      His second report does not take the absence of clear reasoning any further.  I do not accept Dr Fraser’s opinion about a temporary aggravation.  It goes against a formidable body of other treating and medico-legal opinion.  He is on his own.  I reject his opinion.  It is not sufficiently explained to be able to comprehend how it was formed and on what facts it was based.

50      For the reasons mentioned, I find the plaintiff has discharged the onus of proving consequences in relation to her earning capacity that are “very considerable”.  I accept she has left one job already due to symptoms.[32]  I also accept she has had periods when she could not work at all.[33]  Also, duties have been interfered with while at certain jobs.[34]  Medications have affected her capacity to work[35] and she still struggles to continue working.[36]  She relies on an understanding employer.[37] Working has aggravated her symptoms.[38]  Ergonomic adjustments have been required due to neck pain.[39]

[32]JCB 8, T25

[33]JCB 9 and 48

[34]JCB 10, 17; T27, T28 and T38

[35]JCB 16

[36]JCB 46; T26

[37]JCB 17

[38]T46, T73

[39]T38

51      I also find the plaintiff has discharged the onus of proving consequences that are “very considerable” in terms of enjoyment of life.  These include the impact on household tasks and even the type of clothes and jewellery she wears.[40]  For a woman working in retail, her presentation has to be important to her.  Her recreations have been impacted upon.  Just to be still taking the multiple medications she requires for pain and the other treatments she is following is a serious consequence.  Side effects from the medication are very real.[41]  She has lost the expectation of undisturbed sleep which is a consequence limiting her ability to concentrate.[42]  Her daily life has been very considerably compromised.

[40]JCB 47

[41]T26, T59 and T67

[42]T27, T61

52      For the reasons mentioned, I give leave to issue proceedings for the recovery of damages.

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