Jacobsen v Transport Accident Commission
[2015] VCC 1428
•7 September 2015
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01227
| RUTH ANNE JACOBSEN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 24, 25, 26, 27 August 2015 | |
DATE OF JUDGMENT: | 7 September 2015 | |
CASE MAY BE CITED AS: | Jacobsen v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1428 | |
REASONS FOR JUDGMENT
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Subject:Serious Injury Application;
Catchwords: Transport Accident; application for leave to bring damages claim; section 93 Transport Accident Act 1986; paragraph (a) of definition of “serious injury”; whether restrictions psychologically driven; application dismissed.
Legislation Cited: Section 93 (4), (17) Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Bezzina v Phi [2012] VSCA 161; Phelan v Transport Accident Commission [2013] VSCA 306
Judgment: The application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with | Stringer Clark |
| Mr I Fehring | ||
| For the Defendant | Mr P Elliott QC with Ms D Manova | Transport Accident Commission |
HIS HONOUR:
Background
1 On 27 September 2008 Ms Jacobsen, the plaintiff, was driving her car across an intersection in Warrnambool with a green light. An oncoming vehicle with ‘P’ plates turned right across her path, and the vehicles collided. Ms Jacobsen suffered immediate pain in her neck. According to an affidavit she swore in this proceeding, she “had a burning sensation from [her] neck, under the right shoulder-blade and down the low back, as well as abdominal pain where the seatbelt was sitting across [her] lap.”
2 As a result, she said, since the accident she has pain in her neck and low back all the time. The pain is particularly intense in her low back, right buttock and right leg. Her left leg suffers “with daily numbness, tingling and throbbing”. She complains of cramps in both legs “on a daily basis”. She said she has also suffered vertigo and sensations of dizziness. The pain affects her sleep: “Not a night would go by that I do not wake up at some stage or another as a result of low back and leg pain.” She says she finds it difficult to tend her garden or mow her lawns, and housework such as making beds, vacuuming, sweeping, mopping, and cleaning the bathroom and the shower, is extremely difficult.
3 She said that her social and recreational activities are limited to attendance at bingo for two hours each week, “and even then I am unable to sit for the full two hours”. At home she spends time reading and watching television. “although I have to stand up and walk around the room regularly to relieve my pain”.
4 Ms Jacobsen said she has difficulty driving her car because she cannot sit for long, and has difficulty operating the brake pedal after driving for more than 30 minutes: “because of numbness in my right leg and there are times when I have real difficulty turning my head in the course of reversing the vehicle.” She had trouble hanging out her washing until the Transport Accident Commission provided an indoor clothesline.
5 At the time of the accident she was enrolled as a student studying for a nursing degree at Deakin University, but according to her affidavit she “eventually discontinued the course on 3 December 2009 because I was unable to fully commit myself because of my pain and the medications I was taking”.
6 Since the accident she worked as a cleaner at a Warrnambool motel. She said she had an understanding with co‑workers whereby she did “little vacuuming, less carrying of linen baskets and laundry baskets, and less climbing up and down stairs”. She said she had a dispute with a new co‑worker on 14 January 2014 who declined to assist her by “checking under the beds at the motel”.
7 She has received continuing treatment before and after the accident from her general practitioner, Dr Tim Slattery, and a psychologist, Ms Joy Atkins, whom she sees monthly.
8 Ms Jacobsen, who is now aged fifty-one, has been a lifelong smoker, starting cigarettes at the age of thirteen. She has also used marijuana on a long-term basis. She is participating in a program at St John of God Hospital in Warrnambool to treat her substance abuse. She told me that she is allowed two or three tobacco cigarettes, but continues to smoke marijuana – but for pain-relief purposes.
9 More recently, whilst the pain in her low back, buttock and right leg have persisted, her cramps have become less frequent. She continues to struggle with housework. She says she cannot sit for longer than 20 or 30 minutes, and cannot stand in one position for more than 5 to 10 minutes. In a supplementary affidavit sworn this year she said that she now finds it difficult “to put any weight on my right leg. For most of the time now I use a walking stick to help me get around.”
10 Whilst she still attends bingo, she says the restrictions on her standing and sitting preclude her from having “a counter tea”. She said she used to be a good sewer, but now sewing is a real strain: “The only other thing that I do is get up in the morning, sometimes at 10 or 11 o’clock, take my medication and have a shower and at least try and make myself presentable. I will just spend the rest of the day pottering around the house, reading or watching television or trying a bit of sewing ...”
11 Since the accident she has taken Diazepam and Endone, but her evidence was that she no longer takes these drugs, but now takes Lyrica and Endep and Temazepam.
12 She complains that the pain invariably wakes her at night, and she is “not able to sleep ... until 5 or 6 in the morning”. She has sought funding for further treatment from Dr Neels du Toit, a pain specialist, which has been declined. A review application has been filed in the Victorian Civil and Administrative Tribunal and awaits determination.
13 Ms Jacobsen’s life has been complex and in some respects chaotic. It is well summarised in the history taken by Dr Michael Epstein who saw Ms Jacobsen for medico‑legal psychiatric assessment on 23 September 2014 and reported to her solicitor in a report of the following day. Dr Epstein records:
“Her childhood was dysfunctional, she attended sixteen different primary schools. She was abused by one of her brothers from the age of eight over a prolonged period. An uncle also sexually abused her. She was gang raped at the age of fourteen and had a year [of] counselling.. Her parents separated when she was fourteen years of age in 1978. She left school at the age of sixteen. At that time the abuse by her brother started to include sexual intercourse.
She worked in a clothing factory for approximately three years after leaving school. She began working as a nursing aide at Pentridge Prison in 1983. She began smoking cannabis and injecting speed. In 1985 she briefly went to Western Australia to try and get her life back on track. She became pregnant and returned to Victoria and gave birth to her daughter in February 1986. She was a sex worker for twelve months and also worked as a cleaner and kitchen hand.
She was married in 1990 and began living in Portland. The marriage ended in approximately 1991 because of violence and abuse. She became involved in another relationship in 1993 that was equally tumultuous. Her daughter was placed in the care of her mother for two weeks in 1994 (sic) because of her drug abuse and her daughter’s exposure to violence. She moved to live in Warrnambool in November 1999 and at that time was smoking about 1 g of cannabis a night.
In August 2001 she began working as a cleaner at an abattoir working 38 hours a week and she was also cleaning a local police station for an hour each day. She began having significant pain in her neck, right shoulder and upper back in relation to her heavy work duties at the abattoir. She had medication, physiotherapy, time off work and was referred to specialists. She became involved in a relationship in 2003, mainly to have a sexual partner.
She returned to work on modified hours and duties on 22 September 2003. Her employer returned her normal duties faster than she had hoped. She struggled to cope, and her position was terminated in 2004. She had ongoing problems with her right shoulder, right arm and neck. Her mother died in 2005 and her brother stopped sexually abusing her at about that time. She began working at a caravan park as a cleaner.
She was a driver involved in a transport accident on 16 June 2006. Her car was written off. This exacerbated her physical symptoms. She had left wrist tendinitis, bilateral trapezius tendinitis, pain in the mid thoracic region and a reduction of left shoulder movement.
She had nightmares and flashbacks to the accident and was much more anxious as a driver after the accident and avoided being a passenger. She especially avoided driving on the Princes Highway.
Toby Pettigrew, a physiotherapist, wrote to Dr Slattery, her general practitioner, on 23 October 2007. He stated she had a long history of cervical, thoracic and lumbar complaints. She had lost significant amount of weight over the previous six months and had ongoing respiratory problems. She had fallen in the shower six months prior and had experienced right sided thoracic and cervical pain at the mid scapula level since that time. He planned to try thoracic and cervical mobilisation, accessory muscle taping and simple deep, diaphragmatic drills
She was sacked from her job after taking an overdose of ecstasy tablets. She decided to become a nurse and enrolled in a Bachelor of Nursing degree at Deakin University. During the holidays she worked in two caravan parks as a cleaner. She continued to smoke 1 g of cannabis a night. She continued to see her sexual partner three or four times a week. She had pain in her right shoulder and neck as well as anxiety arising from the 2006 car accident.”. (PCB 121-2)
14 Following a history of vascular problems, Ms Jacobsen had two stents inserted in her abdominal aorta in July 2010. Following further vascular difficulty, she had a balloon angioplasty of her common iliac artery stents in December 2011 administered by surgeon, Mr North.
15 Solicitors acting for Ms Jacobsen filed a Notice of Motion dated 14 March 2014 seeking leave pursuant to s93 of the Transport Accident Act 1986 for Ms Jacobsen to “commence proceedings on the basis that [she] has sustained a serious injury” in the transport accident which occurred on 27 September 2008.
Expert opinions
16 Ms Jacobsen has been a long term patient at the Cambourne Clinic in Warrnambool. Her treating general practitioner at this clinic is Dr TJ Slattery who has provided a number of reports. In a letter to Ms Jacobsen’s solicitors of 30 March 2009, Dr Slattery gave a history of Ms Jacobsen’s injury at Midland Meats sustained in 2003 and then a motor vehicle accident on 16 June 2006. He reported her attendance at Cambourne Clinic on 29 September 2008 on referral from the Emergency Department at South West Health Care and following a second motor vehicle accident on 27 September 2008 which is the subject of the present proceeding. The symptoms recorded on the first attendance were:
(1)thoracic spine pain;
(2)neck pain;
(3)lumbar pain; and
(4)generalised allodynia.
17 It was stated that Ms Jacobsen “required antiemetic and analgesics in the form of Tramal”. Dr Slattery said that thereafter Ms Jacobsen was “troubled by a number of issues which [she] attributes to her accident.” He referred to:
(1)right hip and leg pain;
(2)ongoing neck, thoracic and lumbar pain;
(3)lumbar back pain with leg ache on walking and weakness;
(4)episodic exacerbation of asthma;
(5)exacerbation of depression.
18 According to the doctor, the examination failed to find “a focal neurological change” and extensive imaging was found to be “basically normal”. A CT scan of the neck suggested an abnormality. An MRI scan was taken which showed the old injury [from 2003] at C5-C6, a disc bulge with little change. Ms Jacobsen had required “much treatment”, especially physiotherapy. She attributed some significant improvement to this therapy. Her medications were in the form of:
(1)Panadol Osteo;
(2)Panadeine Forte;
(3)Diazepam; and
(4)Temazepam.
19 Dr Slattery said she was intolerant of non-steroidal anti-inflammatories and “at the advice of a local surgeon takes Lyprinol as an anti-inflammatory”. Dr Slattery said that the previously problematic shoulder and neck had been stable “pre her MVA on 27/04/08 [presumably a mistaken reference to 27/09/08]”. The doctor said that Ms Jacobsen’s response “has been slower and less predictable than would normally be anticipated”, and he therefore could not give a projected time for recovery. The neck and back which had previously been stable had flared up since the second transport accident. He commented, “[Ms Jacobsen] also has ongoing right hip and leg pain as well as thoracic lumbar pain from her MVA.” The doctor said the prognosis was “uncertain.”
20 Dr Slattery provided a further letter of 14 September 2009 to Ms Jacobsen’s solicitors noting, that she had been prescribed Valium “at different times of her life for various reasons”, the most recently at that time being in 2005 “for agitation post-death of her mother. She came off it slowly.” Following the 2006 transport accident, she was again prescribed a low dose of Valium to treat back spasms “and the associated impact on her mood and anxiety.” She was weaned off the Valium as things improved. She was back on Valium after the subject accident because her symptoms had been “more troublesome and persistent with spasms especially in the back and lower limbs.” She had apparently been prescribed Lyprinol at the suggestion of general surgeon, Mr Philip Gan, “whom she saw in regard to breast issues.”
21 The next letter to the solicitors was dated 29 December 2009 where the doctor reported Ms Jacobsen suffering neck pain at C5-6. This was exacerbated by the subject transport accident but “relates to work injury in 2003.” He said the prognosis was uncertain but “we would be hopeful of settling.” Meanwhile, she was being treated with physiotherapy and simple analgesia and Panadol Osteo. Secondly, as to low back pain and to right hip and buttock, again the prognosis was said to be uncertain. The low back was being treated with physiotherapy, simple analgesia and Valium PRN for spasm. She also suffered occasional thoracic pain which required the same treatment. She also suffered “leg weakness without focal neurology” which the doctor believed was secondary to back pain and spasm and it was said to be dependent on back issue. He also noted a flare up of depression which he said was “secondary to physical issues as a by-product of above and pain.” He felt there was a good prognosis but this was dependent on the resolution of pain issues. These conditions according to the doctor “make simple tasks painful; and as such currently limit any meaningful return to work.”
22 The next letter was dated 8 September 2010. The doctor reported that Ms Jacobsen developed symptoms in her back, buttocks and lower legs “only post her MVA.” The doctor said that Lyprinol was originally prescribed for breast tenderness “but has proved effective for her back and leg pain.” It was a natural anti-inflammatory. As to Temazepam, he said that Ms Jacobsen had used it before the transport accident “but has needed it more frequently post due to her pain effects.”
23 In a letter of 12 July 2010, Dr Slattery reported on the vascular disorder. He commented again on Lyprinol and Temazepam and noted that Ms Jacobsen continued to benefit from physiotherapy. He said that her “functional activity has decreased significantly following her MVA in 2008 and … she requires ongoing assistance with lawn mowing.” He said that following this accident, Ms Jacobsen was “unable to perform her previous employment. She [was] currently unable to do any significant work due to ongoing back, buttock and leg pain.”
24 In a letter of 12 June 2013, Dr Slattery reviewed Ms Jacobsen’s symptoms and progress including a report on the vascular problems. He said that Ms Jacobsen’s condition was stable, “However, she has ongoing right leg pain and requires ongoing vascular review following the stenting of her aortic narrowing.” He said her prognosis remained “indeterminate.” She required ongoing physiotherapy “and also currently with a sports medicine physician in regards to possible injections.” The doctor said Ms Jacobsen was “currently unable to work although at times she has endeavoured to do so.” He said she was “not in a position to stand for prolonged periods of time, carry heavy weight, or bend excessively.” In a report of 16 June 2014, the doctor said it was “feasible that the trauma associated with the accident may be in some way associated with the onset of her narrowing of the distal aorta which led to the requirement of the stents. Though it would be difficult to prove this one way or the other.”
25 The doctor reiterated these views in a further letter dated 1 July 2014. In a letter of 14 August, Dr Slattery summarised what he saw as Ms Jacobsen’s non-transport accident related symptoms; namely:
(1)advanced chronic obstructive pulmonary lung disease/emphysema;
(2)vascular problems treated with stents;
(3)depression;
(4)hypothyroidism resulting from an underactive thyroid following thyroidectomy for nodules. Ms Jacobsen was “on oral replacement therapy in the form of Thyroxine.”
26 Finally, on 14 July this year, Dr Slattery referred to the initial presentation after the transport accident, continuing saying that Ms Jacobsen “has had ongoing pain especially in her lower back and right hip area.” He referred to a number of specialist referrals including to a neurologist and to musculoskeletal physician, Dr Murray Grave. He commented, “Since this time she has not been capable of working due to the ongoing symptoms and pain associated with this primarily in her lower back and right leg.” Her prognosis was uncertain but unlikely to improve “given the duration.’
27 In January 2010 Dr Slattery referred Ms Jacobsen to Dr S.R. Yerra, neurologist. Ms Jacobsen told Dr Yerra that since her transport accident in September 2008:
…she had been experiencing more or less a constant uncomfortable feeling [from the] waist down. She reported aching sensation, particularly felt in the back of her thighs from hips to the knees. Her hips were hurting constantly. She could not get comfortable in any one position. She had to turn frequently when she [was] in bed. She could not sit in one place for any length of time. Being in one position or walking for any distance, for example, about ten minutes or so, made her both lower limbs feel numb and with continued walking her legs felt weak and she had to sit down otherwise she felt like she was going to fall and legs may not support her”.
28 She complained of daily headaches since the 2008 accident but Dr Yerra found the “neurological examination was unremarkable”. He noted, however, that Ms Jacobsen “reported pain with any neck and spine movements”.
29
Dr Yerra noted an MRI scan of Ms Jacobsen’s neck carried out in January 2009. “It showed few degenerative changes with the right C5/C6 level disc bulge/bony bar complex indenting the spinal cord anteriorly without any signal change in the cord itself.” An MRI arranged by Dr Yerra of the spine” showed few degenerative changes and there was no significant neural compromise”. He found that nerve conduction studies were normal with no evidence of neuropathy or myopathic process. The doctor said “[he] could not find any neurological explanation for [Ms Jacobsen’s] lower limb symptoms ….” He felt that her spinal pain was “likely related to musculoskeletal injuries from her accidents ….” Ms Jacobsen was referred to Dr Yerra again by
Dr Slattery in May 2012 when she complained of ongoing lower limb pains, particularly in the right leg. She complained of cramps in the right leg and a feeling of weakness and shooting pain down the right leg from about the right buttock. She complained of “difficulty in sitting or lying in any one position for any length of time”. The arterial stents had been fitted by the time Dr Yerra carried out his second review. MRI’s of the whole spine failed to disclose to the doctor “any significant neurological compromise”. As at May 2012
Dr Yerra concluded that “neurological examination was again completely normal”. He wondered if the pain in the right buttock and right thigh might be Piriformis Syndrome, “which is a type of sciatica”. He recommended stretching exercises. This syndrome, if Ms Jacobsen is suffering from it, according to the doctor “may not be related to her motor car accidents”. As to prognosis, Dr Yerra said that the failure of neural imaging to reveal any significant neural compromise led him to expect Ms Jacobsen to do well with “physiotherapy, occupational therapy and graded return to work”. He remarked, nevertheless, “Pain is a difficult symptom to objectively assess but with encouragement I expect her to do well”. He made this prognosis as at the date of a report to Ms Jacobsen’s solicitors dated 28 January 2013. Dr Yerra concluded that Ms Jacobsen did not have a “progressive neurological or other condition”. He felt that the pains were from degenerative changes in her spine and elsewhere, and due to age and motor vehicle accidents, and “with appropriate physiotherapy I expect her to get better, not worse”. (PCB 53-6)
30
Dr Paul Mestitz, a senior medical specialist from Geelong Hospital, responded to queries relative to Ms Jacobsen’s vascular treatment at the hospital.
Dr Mestitz was not involved in the treatment, but consulted the medical records held by the hospital relative to Ms Jacobsen’s treatment there. The treatment did not relate in any way to the transport accident in September 2008, but to a vascular issue. He said that the hospital’s records showed no “mention” of injuries in the accident during her attendances at the hospital in 2010 and 2011. The doctor said, according to the record:
“It would appear that [Ms Jacobsen] continued to complain of difficult to assess pain in her buttocks and legs, and when last seen in the outpatient clinic she was told that no adequate explanation had been found for these pains”. (PCB 58)
The doctor provided this information in a report to Ms Jacobsen’s solicitors dated 5 June 2013.
31
Dr Murray Grave, a musculoskeletal physician, reported to Ms Jacobsen’s solicitors by letter dated 23 August 2010 that Ms Jacobsen attended his clinic for the first time on 11 May 2009 complaining of musculoskeletal injury and chronic pain. He said he had seen her on three occasions in total, namely
11 May 2009, 27 August 2009 and 18 May 2010. The doctor took a history of a neck injury at Midfield Meats in 2003, a road accident in 2006 and the subject accident in 2008. She told the doctor “that she sustained injury to her thoracic spine, neck, sternum area, lower back, right hip and … developed pain in her lower limbs” as a result of the 2008 accident. She complained of pain in the right buttock, “which occurs with walking for ten minutes or so”. She complained of numbness and pins and needles which “may intermittently appear in both of her feet in a non-dermatomal distribution”. (PCB 59-60) He recorded her complaining that “she did get pain in both the left leg as well as the right leg. In addition to this, she complained of pain that [would] spread up the lumbar spine to the lower thoracic region” and she described the pain in the lumbar region as “an ache [that] could be fluctuating [and] the pain in the thoracic region as more persistent and severe”. She also complained of “full numbness” in her legs. Dr Grave noted that at the time of the consultations, Ms Jacobsen was a smoker of 30 cigarettes daily.
32
At her second visit she told Dr Grave that “she felt she had made little progress”. Again, Dr Grave found no neurological sign. At the first assessment the doctor found straight leg raising to 70 degrees in both legs. At the second assessment he found straight leg raising limited to 45 degrees on the right leg and 75 degrees on the left leg. At Dr Grave’s suggestion,
Ms Jacobsen underwent an MRI of the lumbar spine and sacrum on
1 September 2009, that is, a year after the transport accident. According to the doctor’s report:
“The MRI did not demonstrate any abnormality of the cauda equina. There was no evidence of disc prolapse or nerve root impingement. There was no evidence of any central or outlet canal stenosis. There was no evidence of any mass effect within the cord or sinister lesion within the lumbosacral spine”. (PCB 66)
As at the final consultation on 18 May 2010, the doctor said, in light of the extensive investigations carried out by Dr Yerra without any clear conclusion, there was “thus far, no neurological cause for her chronic pain syndrome”. The doctor referred to “a variety of painful symptoms” for which there was no obvious explanation. The doctor referred to Ms Jacobsen’s “significant past psycho-social history”. The doctor observed, “On examination of the lumbar spine on 18/05/2010 Ruth was able to flex, to touch her toes, extend 30 degrees, side-bend to the knee bilaterally and rotate without restriction”. I read this to be a record of unrestricted movement of the lumbar spine. The doctor suggested in light of the “past biopsychosocial history”, that
Ms Jacobsen have “proactive management with an emphasis on education regarding her chronic pain”. He said Ms Jacobsen would “benefit from attending a psychologist to iron out some of the deeper issues and fears that plague her”. He said he encouraged Ms Jacobsen “to take up normal, enjoyable life choices that enhance her quality of life. No further investigative procedures were recommended”. A planned further review appointment did not proceed.
33 Ms Jacobsen was also referred by Dr Slattery to Dr Neels du Toit of Metro Pain Clinics. She attended her first consultation with Dr du Toit on 18 February 2013 and according to his report to Ms Jacobsen’s solicitors dated 30 May 2013 (PCB 69-74), the main reason for the referral related to persistent lower back and buttock pain following the 2008 motor accident. Dr du Toit noted the history of the transport accident in September 2008 and the diagnosis of arterial stenosis. He observed that following apparently effective treatment of that condition which allowed her to increase her tolerance to walking dramatically, the right leg and right buttock pain continued. Dr du Toit found no evidence of radicular irritation concluding “there were no signs that her leg symptoms were caused by nerve irritation”. Again, there were no neurological signs. He observed, however, “she had signs of right sacroiliac joint irritation on provocative testing. She had localised tenderness over the right sacroiliac joint.” After the initial assessment Ms Jacobsen, “had a right sacroiliac joint and dorsal interosseous ligament injection” in April 2013. According to the doctor it gave Ms Jacobsen “some relief”, therefore he concluded some part of her current presentation related to the right sacroiliac joint. The doctor’s conclusion was that Ms Jacobsen had “somatic lower back, buttock and leg referred pain, mostly likely coming from sacroiliac joint origin”. He also referred to the possibility of Piriformis Syndrome. The doctor provided a further report to Ms Jacobsen’s solicitors dated 22 May 2014. As to the injective therapy which he administered in April 2013, he reported “she had at least 50 per cent improvement in symptoms following this intervention.” (PCB 75) In the following six month period he said she required fewer analgesics. The doctor persisted in his diagnosis of a disorder of the right sacroiliac joint. He noted that upon review of Ms Jacobsen on 22 May 2014, he found a “good range of lumbar spine flexion and extension”. These test results, as well as an observation of straight leg raising of 70 degrees to the right compared to 80 degrees on the left fortified the doctor, in his view, that Ms Jacobsen’s pain was “not radicular in nature meaning it is not coming from nerve impingement.” Dr du Toit responded to critical comments upon his assessment and procedures made by a medico-legal assessor for the Transport Accident Commission. rheumatologist, Dr Tony Kostas, remaining unrepentant in his original views.
34 Dr du Toit provided a third report to Ms Jacobsen’s solicitors dated 23 October 2014 (PCB 79-80) in which he reiterated the views he had expressed in the earlier reports.
35 In addition to the report obtained from Dr Mestitz of the Geelong Hospital, Ms Jacobsen’s solicitors obtained a report from Mr David A North, vascular and general surgeon, who carried out the procedures to her vascular system in 2010 and 2011. Mr North noted that he had taken a history that Ms Jacobsen was a very heavy smoker and her smoking included marijuana “as well as traditional cigarettes”. Mr North observed “no mention appears in her notes of [her] ever having a motor vehicle accident in 2008.” (PCB 81)
36 On 30 June 2011 Dr Slattery referred Ms Jacobsen to Ms Joy Atkins, a psychologist of Southern Ocean Psychology, “for depression and anxiety”. She provided a reported dated 13 August 2015. (PCB 82-4) Ms Atkins places the focus of her analysis of Ms Jacobsen’s presentation upon the 2008 transport accident. She noted that Ms Jacobsen:
“… has a diagnosis of Post Traumatic Stress Disorder (PTSD) associated with her MVA. She has also experienced depression and anxiety as a result of the MVA. Some of the PTSD symptoms include fear of driving, fear of crossing the highway in her car, fear of getting hurt ….”
It is not clear whether Ms Atkins was herself making the diagnosis of Post- Traumatic Stress Disorder or was describing a diagnosis she believed to have been made by someone else. No report which has been put into evidence before me makes a diagnosis of PTSD unless Ms Atkins is to be regarded as having made that diagnosis herself. As to the other matters in Ms Jacobsen’s history, including the injury at work at Midfield Meats in 2003 and the car accident in 2006, Ms Atkins comments:
“Ms Jacobsen has a very difficult personal history and has suffered abuse in the past. As a consequence of that she has also experienced depression and PTSD in the past associated with this abuse. However, in discussing these events with Ms Jacobsen, she indicated that in her life she has been able to overcome her past and make adaptive and realistic plans for her future. Evidence indicates that she was also able to put those plans into action and move forward (by going to University). Unfortunately, Ms Jacobsen’s plans were interrupted by the MVA.”
Ms Atkins, therefore, proceeds upon the footing that a line can be ruled under the previous events of Ms Jacobsen’s life with all maladaptive responses since September 2008 being solely attributable to the accident that occurred in that month. Ms Atkins commented that:
“During sessions, Ms Jacobsen has always presented as open and honest. She can be over-inclusive and unfocussed in her discussions, especially when the topics are stressful to her. I have found Ms Jacobsen to be forward thinking and generally positive about her attitude toward life. She has been able to maintain her sense of humour and has a strong sense of loyalty. I have found her to be an ethical and moral person, with a tendency to be self-sacrificing for those she cares for”.
37
In addition to these treating practitioners, Ms Jacobsen has been referred to an array of professionals for medico-legal purposes. She was referred to orthopaedic surgeon, Mr S Schofield, and examined by him on
17 September 2009. His report to the solicitors appears at PCB 85-90.
Mr Schofield’s report included an impairment assessment in accordance with the fourth edition of the AMA Guides. He found spinal flexion of 70 degrees with mildly restricted extension to 20 degrees, and other movements normal. Straight leg raising was 80 degrees in both legs “which reproduced buttock pains only”. Neurological examination of the legs was normal. Whilst he found a 5 per cent whole person impairment relative to the neck, he found a 0 per cent impairment for the lumbosacral spine.
38 Ms Jacobsen was examined by surgeon, Mr John F O’Brien, on 13 October 2009 at the request of her solicitor. Mr O’Brien reported at PCB 91-95 that he found her thoracolumbar spine straight with lumbar flexion of 70 degrees and 20 degrees of extension and lateral flexion. There was no local lumbar tenderness. Ms Jacobsen demonstrated “a full, active straight leg raising and was able to perform an active sit-up without any obvious discomfort”. Reflexes in the legs were normal, hence there were no neurological signs relevant to the legs. Mr O’Brien viewed an MRI of the lumbar spine carried out on 1 September 2009, that is, almost a year after the accident. He observed L3/4 and L4/5 indicating some desiccation with age-related degeneration and there was no evidence of neurological compromise or canal stenosis. Mr O’Brien observed that Ms Jacobsen demonstrated “quite good spinal function”. He said that she would not be fit to return to heavy physical work such as heavy cleaning, but did not think she was totally disabled and could undertake modified or light duties. He made an assessment of a 5 per cent whole person impairment for the neck but found no impairment relative to the lower back. Mr O’Brien carried out a follow-up examination on 2 February this year and reported the results to Ms Jacobsen’s solicitors in a letter dated 2 February. (PCB 96-100) He reported:
“Current physical signs in relationship to the cervical and lumbar spine are indeed minimal. There is evidence of very mild restriction of movement in the cervical spine, with some mild loss of movement in the lumbar spine, although this would appear to be somewhat variable. I could certainly find now no current clinical evidence to suggest any nerve root compromise or evidence of radiculopathy, particularly in relationship to the lumbar spine. In fact, I would consider these current signs are not diagnostic of specific pathology underlying pain generation and I would have to conclude that the patient now presents with chronic non-specific back and leg pain, noting that the most recent MRI does not contribute to any specific underlying pathology. Certainly from the clinical perspective I could not specifically confirm the presence of any sacroiliac joint pathology.” (Emphasis added)
Mr O’Brien concluded that the patient was describing “ongoing disability associated with chronic pain”. He doubted she would ever return to paid employment.
39 The solicitors also referred Ms Jacobsen to Dr Peter Blombery, a consultant physician in vascular diseases. He responded in a letter dated 12 November 2009, (PCB 101-4) describing his examination of Ms Jacobsen on 13 October 2009. He described “whiplash-type injuries” involving neck, back and hip. As to the low back he referred to a range of symptoms such as numbness in the legs on walking, burning feelings in the arms, numbness in the right arm, burning between the scapulae and cramps in the feet at night. He said “I am unable to find a physical basis for most of these symptoms. It may well be that there is a component of secondary depression and anxiety tending to enhance her experience of pain.” Dr Blombery saw Ms Jacobsen for a further assessment on 2 February 2015, reporting to her solicitors in a letter of 13 February 2015. (PCB 105-9) At the second assessment, Dr Blombery found reflexes “intact and symmetrical in the lower limbs”. Her lumbar flexion was limited to 30 degree, extension to 0 degrees, 10 per cent of right and left lateral extension and 10 per cent of right and left rotation. Straight leg raising, however, was intact to 80 degrees but was “painful on the right”. Dr Blombery diagnosed “aggravation of pre-existing degenerative changes in the cervical spine and in the lumbar spine and L5/S1 prolapse”. He said, “she is going to require ongoing treatment for chronic pain as well as for secondary depression. She will also require monitoring of her arterial system. In regard to the treatment proposed by Dr du Toit, it is difficult to know whether this treatment is necessary or not.” He felt there would be “no significant change to her level of disability” and assessed her as having a 10 per cent whole person impairment. He concluded, “It is my opinion that the pain in her low back, buttock and right thigh is partly due to an injury in the back, partly due to an injury to the right hip and sacroiliac joint, and partly due to the occluded aorta.” The last matter being the disorder that led to the installation of the stents.
40 Ms Jacobsen was also referred for psychiatric assessment by her solicitors to Dr Michael Epstein, consultant psychiatrist. She attended his rooms on 24 August 2010 and he provided his report in a letter dated 26 August of that year. He rehearsed a tragic history of upheavals and conflicts in life and various physical injuries she had sustained starting in detail with the injury she sustained whilst working at the abattoir in 2013.
41 In his report (at PCB 110-120) he recorded that he found her “garrulous, circumstantial and [with] an agitated manner”. He found no impairment in intellectual functioning and no evidence of thought disorder, hallucinations or delusions though she did appear, on his observation, to be “significantly depressed and anxious”.
42 As to the subject accident it was said that she was injured in that incident:
“…with what appears to be soft tissue injuries. She appears to have also developed some symptoms of traumatisation since this accident and is avoidant of the scene of the accident or reminders of the accident”.
43 He found he suffering from a 20 per cent psychiatric impairment in accordance with the Guide to the Evaluation of Psychiatric Impairment for Clinicians which applies pursuant to s46A of the Transport Accident Act. Ten per cent of that impairment was, in his view, pre-existing and, of the remaining 10 per cent, four per cent could be regarded as the consequence of “traumatisation” and was therefore to be taken into account in assessing her impairment under the Transport Accident Act in accordance with s46B.
44 The solicitors sent Ms Jacobsen to Dr Epstein for re-assessment on 23 September 2014.
45 The second report (at PCB 121-132) recorded that Ms Jacobsen:
“still has constant pain in her neck and right lower back occasionally radiating to her right buttock and right thigh. She still has occasional pain in both calves, especially her right calf, and still has occasional pain in her shoulders with activity.
She said her symptoms are made worse by doing household tasks such as vacuuming and sweeping, walking for more than 500 metres, sitting for too long and carrying heavy parcels. She said she is mildly anxious going to supermarkets and usually goes late at night with her daughter. She said she can walk about 500 metres and cannot run.” (PCB 128)
46 In his “Opinion” section, Dr Epstein recorded:
“The effects of the accident on 27 September 2008 now appear to be relatively minimal and certainly with regard to her mental state she is much less depressed than she was and has only few symptoms of traumatisation with some anxiety as a driver, and especially as a passenger, and some avoidance behaviour.
…
Over the years she appears to have a had a persistent depressive disorder and a Substance Use Disorder both of which have improved with psychological counselling.
She continues to have concerns about her daughter’s mental health and her grandson’s possible autism.
I did not gain the impression that any psychological symptoms arising from this transport accident have interfered with her work capacity and indeed she did return to work as a cleaner on a part-time basis during 2013 and was obliged to cease work only because of her ongoing physical symptoms.” (PCB 130-131)
47 According to the same criteria as in his previous report, he found a psychiatric impairment of 10 per cent with five per cent of that being classed as pre-existing and five per cent resulting from the accident. One per cent, he said, arose from “residual symptoms of traumatisation”. (PCB 131)
48 As to her arterial disorder, she was referred by her lawyers to Mr Kenneth Myers, general surgeon, by her solicitors. He furnished a report to them dated 13 September 2010 (PCB 133-136) in which he concluded:
“at some stage after the motor vehicle accident she developed occlusive arterial disease which has been successfully treated by iliac artery stenting…The development of the disease is undoubtedly due to secondary thrombosis on the basis of pre-existing atheromatous plaques subsequent to the accident. The delay in development of the occlusive disease is too great to allow [it] to be linked to the motor vehicle accident.”
49 In late 2014 the solicitors referred Ms Jacobsen to a new orthopaedic surgeon, Mr Thomas Kossmann. Making an assessment in accordance with the 4th edition of the AMA Guides, Mr Kossmann assessed zero per cent impairment for the cervical spine and five per cent impairment on the lumbar spine. His report (at PCB 140-148) diagnosed:
(i) aggravation of pre-existing degenerative changes [of] cervical spine;
(ii) discogenic back pain, lumbar spine on the basis of L5-S1 disc prolapse.
50 He said that Ms Jacobsen was “able to perform some work but will not be able to walk long for distances on uneven ground, up and down stairs, on inclines/declines, climb up and down ladders, kneel, squat or carry heavy items weighing more than five kilograms”. He said she was not able to use “her upper extremities in a continuous manner or work above shoulder or head height”.
51 He said that Ms Jacobsen was suffering from “multiple medical issues as well as a psychiatric condition, which may prevent her from finding and working in suitable employment”. He recommended a referral to a psychiatrist. He did not think Ms Jacobsen was a candidate for surgical intervention and did not advocate any further treatment for her. Mr Kossmann assessed her orthopaedic impairment in accordance with the AMA Guides at five per cent of the whole person impairment.
52 Mr Kossmann provided a supplementary report dated 19 December 2014. He did not, it appears, have a further consultation or examination with Ms Jacobsen, rather he was referred to the report of Dr du Toit dated 23 October 2014. (PCB 149-150)
53 Mr Kossmann commented “It is plausible that Ms Jacobsen’s pain in her lower back, buttock and right thigh is sequelae of an injury to her right hip and/or sacroiliac joint.”
54 He noted that she had had some positive reactions to injections in her right sacroiliac joint and dorsal interosseous ligaments and that the pain in her low back “radiated into her lower legs and over the left iliosacral joint”.
55 Mr Kossmann said it was also plausible to consider that the putative injury to Ms Jacobsen’s right hip occurred as a result of the transport accident on 27 September 2008 in the absence of any documented evidence of its existence prior to that date.
56 The Transport Accident Commission referred Ms Jacobsen to Dr Gary Davison for medico-legal purposes. He assessed her over one hour on the afternoon of 31 August 2009 and provided a report to the Commission (DCB 9-13), dated 16 September 2009. Dr Davison reported Ms Jacobsen as being able to sit for up to 60 minutes, walk for 10-20 minutes and lift up to 10 kilograms. As at that date, she reported that she felt she was getting worse.
57 The doctor found flexion at the lumbar spine at 80 degrees, extension 30 degrees, lateral flexion 30 degrees, lateral rotation 30 degrees. He found that examination of the right hip was “unremarkable”. He also found no evidence of neurological deficit in the legs. Dr Davison said, “There is no radiological or clinical evidence of radiculopathy. The worker [sic] is best described as having a chronic pain syndrome”. (DCB 12)
58 The Commission, some years later, referred Ms Jacobsen to Dr Tony Kostas, rheumatologist, for medico-legal assessment. He saw her in the company of her step-mother on 23 August 2013 and reported his assessment in a letter to the Commission of 28 August 2013. (DCB 14-18) He found no neurological signs but noted diffuse tenderness along the entire thoracolumbar spine and sacrum and the adjacent paravertebral areas and buttocks, right greater than left. He noted, “all movements whilst sitting and standing are restricted with pain in all directions”. He “noted pain with axial compression and simulated rotation”. [This seems to be a reference to the “Waddell” signs.] (DCB 16)
59 Dr Kostas remarked:
“Obviously I have to rely on this history today but I certainly could not exclude the possibility that this woman may have had ongoing lower back problems in the past.
Having said this it is apparent that her predominant problem today was that of a chronic pain syndrome and her widespread tenderness suggests that this probably relates to fibromyalgia.
This is a pain amplification state the symptoms of which are influenced by psychological and social factors with the role of inherent personality traits, previous life experiences and the adaptability to cope with anxiety and stress becoming increasingly appreciated.
Part of the problem is that her condition was medicalised from the outset when she was told that she had ‘injuries’ to her neck when all she had was some minor disc degeneration and osteoarthritis which was constitutional in origin and completely unrelated to her employment.
Unfortunately this medicalisation has continued with respect to her back.
It is clear that a thorough history and examination will reveal that this woman has a generalised pain response with inconsistencies and discrepancies on physical examination and non-organics signs as described by Waddell.”
60 Dr Kostas then furnished a scathing critique on Dr du Toit’s report of 30 May 2013. He rejected Dr du Toit’s conclusion that Ms Jacobsen had shown clear benefit from the injections which Dr du Toit had administered.
61 As noted above, in his second report Dr du Toit responded with a point-by-point denial of the criticisms of his assessment and treatment made by Dr Kostas.
62 Most recently, the Transport Accident Commission sent Ms Jacobsen for assessment to Mr Robert Dickens, orthopaedic surgeon, on 14 July of this year. He responded with a report of the same date. (DCB 19-32) The doctor recorded (DCB 22):
“She indicated that she had pain 24 hours a day in her lower lumbar region going into the right buttock and in the last two months even into the tail bone. She attributed this new symptom to the fact that she was doing a lot of sitting and driving to and from Melbourne to keep appointments. The pain also goes down the legs more so on the right than the left side to the ankle region. She describes spasms in the legs as well.”
63 The doctor noted that pain worsened when she walked for more than 500 metres. She could not stand for more than 45 minutes or sit for more than 20 minutes. He noted complaints of numbness in the legs (DCB 23) “and a feeling as if they are swollen”. Mr Dickens found normal reflexes in the legs (DCB 26) but “assessment of power resulted in a collapsing response making any meaningful assessment not possible”. Mr Dickens said that he generally did not carry out a straight leg raising test “as it is likely to cause aggravation of back pain”.
64 He noted, however, that Ms Jacobsen said that “her vascular surgeon had done such a procedure and that the right leg had limited straight leg raising as compared to the left”. Mr Dickens then stated:
“I noted when she was sitting on the side of the couch and I performed assessment of her plantar responses, that she was able to sit with the hips at 90 degrees and the knees extended on both right and left sides to an equal degree”.
65 He found flexion of the lumbar spine to 50 degrees and extension to 10 degrees, lateral flexion to the right and left was 40 degrees, “There was slight asymmetry of rotation being better to the right than the left side”. (DCB 26)
66 In his diagnosis section (DCB 27) he said, “With regard to the spinal injuries, there are no hard clinical findings to confirm the presence of radiculopathy in either upper or lower limbs”. He said, “I believe she has…sustained a soft tissue injury to the lumbosacral spine with no evidence of radiculopathy”. (DCB 29) He also said, “There are some inconsistencies in the clinical findings suggesting factors other than organic factors that are having an impact on this patient’s current disability”. (DCB 30) He continued, “Radiologically there is not a great deal to suggest major pathology and there is potential for improvement”.
67 He found Ms Jacobsen suffering a five per cent whole person impairment attributable to the lumbar spine.
68 The Transport Accident Commission put into evidence a series of reports from Dr Noel Bayley, who treated Ms Jacobsen for respiratory ailments. The first report from the clinic at which Dr Bayley practices, namely, Warrnambool Physician’s Group, was directed to general practitioner, Dr Slattery, in a letter dated 24 December 2009. (PCB 39) This report was over the signature of Dr Mark Page, noting an attendance at the clinic for “atypical chest pain”. The findings at that stage were inconclusive.
69 A further report from the same clinic, this time over the signature of Dr Bayley, was addressed to Dr Slattery. (DCB 37-38) The doctor noted that Ms Jacobsen had, at that stage, given up smoking but was still using nicotine replacement therapy. He failed to see any improvement in her respiratory symptoms. According to Mr Bayley, she:
“Has to do the more vigorous household activities such as vacuuming and sweeping in divided portions because of breathlessness. She has worked as a cleaner in the past but doesn’t feel she would be able to do so at present.”
70 The doctor noted:
“Her lung function is pretty horrible for her age with an FEVI post bronchodilator 1.2 litres (predicted 2.6 litres) and a diffusion capacity just over 50 per cent of predicted. The lungs are hyperextended with an increased residual volume.
This lady clearly does have chronic obstructive lung disease and a reduced diffusion capacity which suggests that she has established emphysema.”
71 The doctor felt, at that stage, that her symptoms were not sufficiently serious for her to be “considered for lung volume reduction procedure” but this may change.
72 In 2015, Dr Slattery referred her to Dr Bayley again. Dr Bayley reported on that referral in a letter to Dr Slattery on 25 February 2015 (DCB 36). He said that three years previous [actually four years] he found that Ms Jacobsen:
“had quite advanced chronic obstructive lung disease/emphysema and sadly she has continued to smoke since and indeed, although she is trying to give up, she is still smoking fairly regularly.”
73 According to Dr Bayley, she cannot walk more than 20-30 yards “on the flat” and struggles to do any housework. Dr Bayley said, “I must say from the purely respiratory point of view, at this stage she is probably in far less danger from THC use than she is from tobacco use. If it were one or the other, I would favour the former!” Dr Bayley said that he felt his hands were tied “whilst she is smoking”.
74 On 26 March 2015, Dr Bayley say Ms Jacobsen again. He commented, “Her lung function is bad as expected, and a little worse than three years ago”. A CT scan showed minor changes of emphysema “which grossly underestimates the physiology”. He said that Ms Jacobsen “was off the cigarettes at present and smoking ‘pot’ three or four times a day”. He concluded, “at her current trajectory she is going to die of a respiratory ailment by her mid-50s if she keeps smoking”.
75 Finally, Dr Bayley provided a report to Ms Jacobsen’s solicitors dated 12 August 2015. (DCB 33-34) He summarised the attendances already reported on to the general practitioner. He said that he had advised her that, unless she changed her habits, “it’s likely that her lung disease will result in respiratory failure and death within the next four to five years at the most”. The final paragraph said, “The severity of her airways disease certainly renders her incapable of any paid employment” [emphasis added].
Legal considerations
76 Section 93 of the Transport Accident Act precludes a plaintiff from recovering damages for the results of a transport accident except in accordance with the provisions of the section. Sub-section (2) permits a plaintiff to recover damages for such an injury if the Transport Accident Commission determines the person’s degree of impairment and the injury is a “serious injury”. Sub-section (3) deems an injury to be serious if the impairment assessment made by the Commission is 30 per cent or more. Under sub-section (4), if the determined impairment is less than 30 per cent, then the damages claim may be brought only if the Commission is satisfied that the injury is serious and issues a certificate or a court gives leave to bring the proceeding. Sub-section (6) provides that the court must not grant leave “unless it is satisfied that the injury is a serious injury”.
77 Under sub-section (17), the expression “serious injury” is defined as follow:
“In this section—
‘pain and suffering damages’ means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
‘pecuniary loss damages’ means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d)loss of a foetus.”
78 In the present case, reliance is placed solely upon paragraph (a) of the definition. The injuries relied upon, in accordance with the amended particulars of injury, are:
·lower back injury with referred pain into the right hip, buttock and sacroiliac joint;
·piriformis syndrome.
79 In the early days of the operation of these provisions, the Full Court of the Supreme Court of Victoria gave what has become a hallowed analysis of their operation in Humphries v Poljak [1992] 2 VR 129. In a joint Judgment, Crockett and Southwell JJ said:
“Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think "long term" is not an expression likely to give rise to difficulty. To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as "very considerable" and certainly more than "significant" or "marked"? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.”
80 Earlier, on page 114, their Honours had said, speaking of the definition of serious injury in sub-section (17):
“…It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c)…”.
81 In Richards v Wylie (2000) 1 VR 79, the Court of Appeal set aside a determination of serious injury made by a judge of this Court. The error in the trial judge’s assessment was identified by Winneke P as follows:
“In my opinion, it is implicit in his Honour's conclusions that he was accepting that the respondent's mental disorders or disturbances were, to a significant degree, producing the symptoms upon which his Honour relied in finding that the respondent was suffering from a long term impairment of a body function…”
82 Buchanan and Chernov JJA concurred. In his concurring Judgment, Chernov JA stated:
“The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak[9] that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of "serious injury" in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a "serious injury".
It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a "serious" one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as "functional overlay" to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the "anomaly" to which their Honours referred in Humphries v. Poljak[10] which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a "serious injury" fell to be determined by the provisions of para.(c) and not para.(a).”
83 In the present instance, reliance was placed on behalf of the plaintiff solely on paragraph (a). The effect, then, is that if pain and restrictions are found to the relevant bodily functions which are predominantly psychologically-driven, as distinct from the consequences of physical injury, such impairments or restrictions must be put to one side and ignored for the purposes of determining whether the plaintiff in this case has sustained a serious injury.
84 If, however, pain and restrictions are found which are predominantly caused by physical injury, it is proper to consider not only the consequences of the physical injury but also any “functional overlay”.
Conclusions
85 Mr Bird submitted that it was rare for the court to be confronted by an applicant for a serious injury certificate who is so fragile and frail. So much may be accepted; but the lengthy history taken by Dr Epstein, which was not in dispute, indicates that there are many other factors in this plaintiff’s life which may play a role in producing her frailty and fragility. In circumstances where a plaintiff suffers from such a collection of injury and affliction, it is the obligation of the court to look at how those matters “affected the applicant as [s]he was and would likely have been absent the injuries [s]he sustained in the transport accident” per Harper JA and Beach AJA (as he then was) in Bezzina v Phi [2012] VSCA 161, 23. In this difficult process the plaintiff bears the burden of proof. See Phelan v Transport Accident Commission [2013] VSCA 306 [3] per Ashley JA.
86 First, it is necessary to consider the matters which must be put to one side. Anything that is the primary consequence of psychological factors must be put to one side – Richards v Wylie. Secondly, the consequences of Ms Jacobsen’s arterial disorder must be put aside on the basis of the evidence of Professor Kenneth Myers. Thirdly, the consequence of Ms Jacobsen’s respiratory disorder must be put to one side upon the basis of the evidence of Dr Bayley. Fourthly, the consequences of pain and restrictions to Ms Jacobsen’s neck must be put to one side on the basis either, as most examiners accept, they were the consequence of an employment injury at an abattoir in 2003 or, in the view of Dr Kostas, were primarily constitutional. On any view, they pre-existed the subject accident.
87 What remains are the consequences of an injury manifesting itself in pain and restrictions of the lumbar spine with pain radiating into the buttocks, principally the right buttock, and the legs, principally the right leg.
88 These disorders of the low back, buttocks and leg can be viewed as either being:
(a) an orthodox discogenic injury;
(b) the product of nerve irritation in the low back;
(c) Piriformis Syndrome; or
(d) an injury or a disorder of the sacroiliac joint (as proposed by Dr du Toit and concurred by Mr Kossmann).
89 I was told that there is a review application pending before the Victorian Civil and Administrative Tribunal whereby Ms Jacobsen seeks review of the Transport Accident Commission’s refusal to fund further treatment of the hip advocated by Dr du Toit.
90 I turn first to consider whether the evidence establishes the existence of an orthodox discogenic injury of the low back as found by Mr Kossmann. It will be recalled that he refers to the existence of a disc prolapse at L5-S1, a finding not generally made by other practitioners, but concurred in by Dr Murray Grave and Dr Blombery.
91 Dr Kossmann referred to this disc prolapse as having been identified in a CT scan of the lumbar spine carried out on 6 January 2014. The radiological report of that scan is as follows:
“At L5-S1, very mild focal disc bulge is seen on the right posterolateral aspect of the disc and may compress the right first sacral nerve root within the canal. Appearances are unchanged since the previous scan dated February 2011. Both facet joints appear normal.” (PCB 167C)
92 It is not clear if Mr Kossmann viewed any transparencies himself and therefore he is relying upon the radiologist’s interpretation or making his own interpretation.
93 A previous scan on 18 March 2011 said of Ms Jacobsen’s spine, “No disc protrusion on nerve compression is seen at any level. The central spinal canal and neural exit foramina are capacious”. (PCB 167A)
94 An MRI of the lumbosacral spine taken on 19 June 2012 at the request of Dr Yerra records, “the tip of the conus is normally positioned at the L1 level. The central spinal canal is capacious throughout with no evidence of central canal stenosis. No evidence of abnormal marrow infiltration or significant focal bony lesion. No significant findings noted in the visualised posterior abdomen…The lumbar intervertebral discs were quite well-preserved for age with no substantial disc or large disc herniation. At the L1-L2 level on the left there is a small left posterolateral disc protrusion measuring several millimetres with some slight proximal migration of disc material and this does abut and may potentially impinge the exiting L1 nerve root on the left. No other disc herniation or evidence of potential neural compromise”. (PCB 166-67)
95 Dr Yerra did not regard this as revealing any significant neurological compromise. (PCB 54)
96 In light of the findings made by other examiners, except Dr Blombery and Dr Murray Grave, excluding orthodox discogenic disorder and finding no neurological signs in the leg, I reject Mr Kossmann’s isolated finding of a disc prolapse. The radiological evidence establishes the existence of, at most, a slight bulge.
97 There is no orthodox discogenic injury.
98 Dr Yerra raised the issue of a Piriformis Syndrome in 2013. This matter does not seem to have been followed-up in any way. Apart from some “throw away lines” suggesting that this syndrome is similar to sciatica, but apparently not a neurological phenomenon, there is no explanation of the issue at all.
99 Dr Yerra said that this syndrome “may not be related to her motor car accidents”. (PCB 54) Dr du Toit referred to Piriformis Syndrome as a possible differential diagnosis. (PCB 71)
100 There is simply a lack of evidence which could establish the existence of this impairment and, as noted above, the burden of proof lies on the plaintiff. I therefore find that, in the absence of clear evidence of any examining practitioner making a definitive diagnosis of Periformis Syndrome, I should put it to one side.
101 This brings me to a consideration of the hip disorder which Dr du Toit has diagnosed. In one sense, it is unfortunate that I am called upon to make a finding on this matter now, without hearing evidence from any of the practitioners. If a review application goes forward in the Victorian Civil and Administrative Tribunal, one may expect that there would be evidence, at least from Dr du Toit, and presumably from practitioners called by the Commission who support the Commission’s view that no hip disorder exists.
102 The evidence before me discloses that an array of practitioners, treating and medico-legal, retained both by the plaintiff and the Commission failed to make any finding of a hip disorder. Dr du Toit is alone in making this finding. Mr Kossmann was prepared to concur in the finding without, however, having made any additional observations of signs or symptoms himself. It would seem to follow that if the pain and restrictions in the low back, buttocks and legs are, in truth, related to the injury to the sacroiliac joint, then Mr Kossmann’s primary finding that they are the consequence of a disc prolapse at L5-S1 is unreliable.
103 It follows that Mr Kossmann’s role as a corroborator of Dr du Toit’s diagnosis is of dubious significance. His corroboration of Dr du Toit would appear to discredit his own primary opinion.
104 It follows that the suggestion of a hip injury depends solely upon the opinion of Dr du Toit. The weight of expert opinion quoted at length above would exclude the hip injury. Orthopaedic examiners could be expected to examine the hip. In the case of Dr Kostas, he specifically excluded a hip injury. Accordingly, I do not find that Ms Jacobsen’s complaint of pain and restrictions in the lumbar spine, buttocks and legs is the consequence of a hip injury.
105 What, then, is one to make of the pain and restrictions of which she complains?
106 This was not a case where Ms Jacobsen’s presentation in the witness box tended to discredit the validity of her complaints. (See Phelan v Transport Accident Commission [2013] VSCA 306 [52]-[56])
107 Ms Jacobsen attended court giving every indication of being in pain. She used the occasional assistance of a walking stick and repeatedly changed her posture from seated to standing in the course of giving her evidence and whilst observing the balance of the hearing from the body of the court. I do not believe she was malingering. The likely interpretation, however, is the one proposed by quite a few practitioners, namely, that she is in the grip of a chronic pain syndrome.
108 These findings, which necessarily exclude the very existence of an injury within the meaning of paragraph (a) of the definition of serious injury, would be sufficient to dispose of Ms Jacobsen’s application.
109 Nevertheless, lest the matter go further, I should record my findings on some other matters which, even were I wrong as to the existence of an injury within the meaning of paragraph (a) of the definition of serious injury, would tend against a finding, as required by the analysis of the Full Court in Humphries v Poljak, that the injury or its consequences were very considerable and more than merely significant or marked.
110 First, based on the findings of Dr Bayley, the seriousness of Ms Jacobsen’s respiratory findings now precludes her from employment. Even apart from that consideration, there are other matters which point away from a finding that Ms Jacobsen has been deprived by the accident of an employment capacity which she had before the accident and would continue to have but for the occurrence of the accident.
111 Ms Jacobsen was in part-time employment before the accident. She had been able to return to part-time work for a lesser number of hours, which continued until January 2014 when, according to her affidavit, her employment terminated as a result of a conflict with a co-worker. The history taken by a number of the medical examiners, that this employment ended because of her pain and restrictions, seems not to be accurate.
112 It is necessary also to consider the correctness of the view that this accident has deprived her of the opportunity of pursuing a career in the profession of nursing. First, the emphysema diagnosis of the direst possible type would necessarily have precluded Ms Jacobsen from practising the nursing profession even if she had managed to complete the academic studies. Secondly, in any event, even if the accident had not occurred, I am not satisfied that she would have been able to complete the degree course.
113 Upon her evidence, she had major problems with English expression. These problems affected her ability to communicate effectively and to receive communications. Even with the benefits of special tutorials, her academic progress before the accident was unsatisfactory. Her presentation in the witness box at the hearing shows that these problems persist to this day.
114 Further, almost a year before the accident, the Chair of the Academic Progress Committee at the School of Nursing wrote to Ms Jacobsen in a letter of 28 November 2007 (DCB 44) administering a warning on the basis that in Semester 2 of 2007 she failed 50 per cent or more of the enrolled credit points in that semester. In a letter dated 2 December 2008, that is, only a few weeks after the accident, a further proposal to restrict her enrolment was made upon the basis that “you have failed 50 per cent of enrolled credit points in the course in the preceding two active semesters of enrolment”. That is, in Semester 2 of 2007 and also Semester 1 of 2008. (DCB 45-46)
115 Her entire academic record was put into evidence and she was finally excluded by letter dated 6 November 2009 (DCB 47) on the basis that she failed a compulsory unit twice. The pattern established even before the accident makes it impossible to accept that she could have pressed on to a successful graduation even in the absence of the accident.
116 Again, the material put into evidence shows that Ms Jacobsen had sought special consideration based on medical grounds as early as May 2007 based upon a fall which she said she suffered after leaving the shower to answer the telephone.
117 For all these reasons, this application must fail and so it is dismissed.
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