Jenkins v TAC
[2011] VCC 1231
•19 August 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03808
| RACHEL JENKINS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 August 2011 |
| DATE OF JUDGMENT: | 19 August 2011 (Revised) |
| CASE MAY BE CITED AS: | Jenkins v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1231 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – application pursuant to s.93(4)(d) – soft-tissue injury of the spine – identification of relevant body function – whether consequences sufficient to constitute serious injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Y Rattray QC with | Slater & Gordon |
| Mr D C Pulling | ||
| For the Defendant | Mr W R Middleton SC with | Wisewould Mahony |
| Ms RJ Boyce | ||
| HIS HONOUR: |
1 The plaintiff in this proceeding seeks leave to commence a proceeding claiming damages for injuries suffered by her as a result of a motor vehicle collision in which she was involved on 6 January 2007. As a result of the collision, the plaintiff suffered what has been described as soft-tissue injuries to the cervical and lumbar areas of her spine. In the proceeding, the impairment of body function relied upon by the plaintiff is that of the spine.
2 The first issue which arises for my determination is whether, pursuant to the provisions of the Transport Accident Act (“the Act”), injuries sustained to the cervical and lumbar areas of the spine should be categorised as:
ƒ separate injuries resulting in impairments of different and separate body
functions; orƒ one injury affecting one body function. 3 I am informed by both Mr Middleton SC, who appeared with Ms Boyce on behalf of the defendant, and Mr Rattray QC, who appeared with Mr Pulling on behalf of the plaintiff, that there is no authoritative statement which binds my decision upon this issue and that within the County Court, a number of conflicting statements have been made as to the issue. In these circumstances, I consider myself to be at large upon this issue.
4 In my opinion, the position contended for by the defendant is artificial. Whilst for descriptive purposes the spine may be divided into cervical, thoracic and lumbar areas, it is one continuous structure consisting of bony vertebrae separated by discs throughout its length. I see no reason why, for the purpose of the analysis required of me pursuant to the provision of the Act, the body function associated with the spine should be divided into a number of categories. For this reason, I accept the position put by Mr Rattray QC that the plaintiff is entitled to rely upon the effect which the transport accident has had upon her spine in its entirety in this application.
5 In the application, the plaintiff relies upon two affidavits deposed by her dated 8 June 2010 and 4 August 2011 respectively and an affidavit deposed by her husband dated 11 May 2011. The plaintiff was required to attend the proceeding for cross-examination and gave viva voce evidence. Otherwise the parties rely upon various medical reports and documents tendered by them.
6 In her affidavits, the plaintiff states that, having obtained a first class Honours Degree in Community Welfare from the James Cook University, and after having worked for a number of years in various occupations within the area of community services, she commenced a PhD at James Cook University which she was working towards completion of at the time of the subject accident.
7 The plaintiff’s affidavits set out in detail the effect which the transport accident has had upon both her lifestyle in respect of consequences which are appropriately categorised as those associated with:
ƒ pain and suffering and loss of enjoyment of life; and ƒ post earning capacity.
8 As to her capacity for work, the plaintiff, who now holds a PhD in Social Policy, has deposed that since the completion of her PhD she has been restricted to part-time employment and, in particular:
•
That on the completion of her PhD, she applied for a position at Monash University which, although the position was advertised as being a full- time position, was converted to a part-time position by reason of the fact that her injuries restricted her capacity for work to part-time employment;
•
That since commencing employment with Monash University, she has structured her work so that she attends the University on Mondays, Wednesdays and Thursdays and works for no more than 21.75 hours per week;
•
That in September 2010, as a result of a request by the University for her to increase her hours, she attempted to increase her hours to those equivalent to a four-day working week. She said that this attempt:
“… did not involve me working prescribed days but instead I could work flexible hours including on the weekends in order that I could fit my work commitments around my injury-related pain. I found that working the hours required of a four-day week was too much for me. During the three-month period of the contract I found that I would have to spend at least one day a week in bed as I suffered from headaches of a severe degree. During this time I also suffered from an escalation in the frequency and the severity of the back pain that I experience. I tried to work through the back pain but I found that I could not work whilst suffering from headaches as I cannot function normally whilst I have a headache of the severity that I was experiencing … .
At the conclusion of the three-month contract I reverted to working a three-day week but I now work flexible hours and not on particular days.”
The Plaintiff’s Viva Voce Evidence
9 In the course of cross-examination, the plaintiff said:
•
That it had been her desire to enrol her son at the Billanock School which had a particularly good program for children with Asperger’s Syndrome but that the fees associated with this private school were beyond her means, with the result that her son was now attending St Joseph’s College in Ferntree Gully;
•
That whilst she had a pre-existing history of suffering from migraines, that condition was cured when she was prescribed reading glasses and that the headaches associated with her car accident involve a pain different to that which she experienced with her previous migraines;
•
That her management by the physiotherapist, Jerome Higgins, had initially resulted in a significant improvement in the symptoms in her back and neck;
•
That when she had consulted the orthopaedic surgeon, Mr Wilde, in March 2008, her symptoms may have been mild on that occasion;
•
That she employed Panadeine Forte only when she travelled as she did not like being reliant on medication;
•
That she was able to achieve an uninterrupted night’s sleep but her sleeping pattern was such that she woke after six hours by reason of the presence of pain and that that this period of sleep was insufficient for her;
•
That in October 2010, she had recommenced consulting a physiotherapist who she had seen, since that time, approximately once per month;
•
That she undertook a home exercise regime which included walking every day, hydrotherapy and swimming;
•
That the forced sale of the café which she was operating in partnership with her parents at the time of the transport accident had been a factor in the sale of her house at Kalorama, because the issue of the debt of some $70,000 had weighed heavily upon her husband who had become discouraged;
•
That she had travelled overseas on some six occasions since her accident, four of these occasions being work-related and two involving holidays;
•
That she worked 21.75 hours per week which she managed by both working at the university and at home, and that she did not in any one week work more than 21.75 hours;
•
That her career was limited, such that she would not achieve the position of associate professor, as to do so would require her to work full-time;
•
That the rehabilitation she had undertaken in 2007 had assisted her significantly in handling her domestic activities and in driving.[1]
[1] The affidavit deposed by the plaintiff’s partner, Gary Jenkins, generally supports the material contained in the plaintiff’s affidavits and the evidence given by her, both as to her capacity to work on a full-time basis and the ongoing effects of her injuries upon her. That evidence was not challenged and for that reason I have not summarised its content.
10 Having regard to the fact that it is conceded on behalf of the defendant that if I am satisfied that the plaintiff has established that:
(i) but for the transport accident, she would have worked a full 38-hour week; (ii) the effect of the injury suffered by the plaintiff to her spine by reason of the transport accident has been to impair her capacity for work such that it is limited on a permanent basis to 21.75 hours per week; the onus placed upon the plaintiff by the provisions of the Act to establish that she has suffered a serious injury as defined by the Act would be satisfied. I find it convenient to consider that aspect of the plaintiff’s claim at this time.
11 In considering the issue as to whether, but for the injury occasioned to her spine in the transport accident, the plaintiff would have chosen to work a 38-hour week, I take into account the following matters:
(i) Firstly, the plaintiff has deposed that: ƒ Her son Terry, who was born in 1997, suffers from Asperger’s
Syndrome;
ƒ
Notwithstanding her separation from Terry’s father and her marriage to her present partner, she has been responsible for Terry’s financial support, whose medical condition is such that he is ill-suited to attending a State school and has, throughout his education, attended a private school;
ƒ
It was her desire to send her son to a specialist school but that by reason of the restriction which her injury had placed upon her capacity to earn income, she has been unable to meet the relevant school fees with the result that her son attends the St Joseph Catholic School.
(ii) Secondly, at the time at which the transport accident occurred, the plaintiff, in partnership with her parents, had purchased a café business at the Lilydale marketplace on the understanding:
ƒ that the plaintiff would assist her parents by working in the business
on a part-time basis until the completion of her PhD;ƒ that upon obtaining employment with the completion of her PhD, whilst she would no longer be able to assist physically in the conducting of the business, she would assist financially given her expected earning capacity. It was the plaintiff’s evidence that by reason of her inability to continue to assist her parents in the management of the café, the business collapsed, resulting in the plaintiff and her husband being exposed to a debt in the vicinity of $70,000.
(iii) Thirdly, that the plaintiff’s husband had been retrenched from his position with Telstra and had commenced training with the Victoria Police, having graduated earlier this year, the plaintiff deposing:
“His change in career has resulted in a change in our financial
circumstances.”[2]
(iv) Finally, the plaintiff impressed me as a very reliable witness – see, for example, her evidence at T 27, L11; T 32, L6; T 51, L17 – these passages being typical of the approach she took to her evidence which, in my opinion, was one in which she made appropriate concessions and did not seek to overstate her symptoms or embellish their effect.
[2] Having regard to the fact that the plaintiff’s husband earns only $52,000 gross per annum as a
12 When I take into account each of these matters which attest to the plaintiff’s reliability as a witness and her financial motivation to work a full week, and consider in addition, the plaintiff’s sworn evidence, which I accept:
•
that it was her desire but for the injuries sustained by her in the transport accident to work on a full-time basis with the aim of achieving the position of a senior lecturer and eventually that of a professor;
•
that any significant advancement in the plaintiff’s academic career is precluded to her unless she works on a full-time basis;
•
that the plaintiff has attempted to increase her hours of work to the equivalent of four full working days a week and has failed to do so;
a compelling case is presented in support of a finding that but for the transport accident, the plaintiff would have worked a full 38-hour week. For these reasons, I am satisfied that but for her injuries, the plaintiff would not have requested of the university to alter the full-time position which was available to her to one which was part-time, and that the plaintiff would have pursued her academic career on a full-time basis.
The Medical Evidence
13 Following the accident, the plaintiff initially consulted her general practitioner, Dr Gillian Ambrose, who referred her for physiotherapy to Mr Jerome Higgins.
14 In a report dated 26 March 2008, Mr Higgins states that the plaintiff initially presented to him with neck and back pain which he treated on an intensive basis two or three times a week for a period of four to six weeks, and thereafter weekly and then fortnightly for a period of three to six months; but that:
“… Mrs Jenkins continued to develop muscle spasms through her right lumbar spine, in particular through quadratus lumborum, and stiffness in the upper thoracic and right cervical spine. Mrs Jenkins’ right-sided frontal headaches also seemed to be related to her neck and upper back pain and were relieved with treatment of the cervical and thoracic spine region.”
15 Mr Higgins reported that his treatment of the plaintiff ceased in January 2008 as the result of the Transport Accident Commission discontinuing funding for his treatment, commenting:
“… I would not be surprised if her symptoms continued for some months yet. It is not unusual for whiplash injuries of this type to be ongoing for 12-18 months however Mrs Jenkins should be able to self manage her symptoms largely from here on.”
16 The plaintiff was examined by Mr Peter Wilde, an orthopaedic surgeon, at the referral of Dr Ambrose on one occasion on 18 March 2008. On that occasion, Mr Wilde described the plaintiff as presenting with mild lumbar and cervical pain which the plaintiff rated at being at levels of three out of ten on the visual analogue scale. Mr Wilde opined that the plaintiff had suffered a soft-tissue strain of her neck and back and that:
“… the natural history for this diagnosis is resolution over eighteen
months to two years.”
17 Whilst Mr Wilde opined that it was unreasonable of the Transport Accident Commission at that time to have discontinued the plaintiff’s physiotherapy which was providing her with symptomatic relief, it was his opinion that:
“… in time the symptoms will improve and resolve.”
18 In this application, the defendant relies upon:
ƒ the reports of Mr Harris and Mr Wilde; ƒ the absence of any abnormality being reported as the result of an MRI scan undertaken of the plaintiff’s cervical spine and lumbosacral spine in
October 2007;to support a position put by it that any soft-tissue injury suffered by the plaintiff as the result of the accident must have resolved, and that I should not be satisfied that the plaintiff has established that the accident has caused her to suffer an organic injury, the consequences of which are such that they continue to adversely impact upon her capacity for work.
19 Other than for the reports of Mr Higgins and Mr Wilde, which prognosticate as to the plaintiff’s condition at a time at which it had not stabilised, the balance of the medical evidence provides strong support for the position that the injury suffered by the plaintiff has permanently incapacitated her in the manner claimed by her.
20 In a report dated 2 October 2008, Mr P Moran, an orthopaedic surgeon, opined that whist the plaintiff’s condition had, at that stage, not stabilised:
“Dr Jenkins describes a significant transport accident, in which her vehicle was rear ended at speed, at a moment when she sat with her neck extended, drinking from a container.
This rather violent impact has left her with persistent neck and lumbo- sacral back pain with symptoms arising predominantly from posterior spinal elements, with painful limitation of extension in both the neck and lower back.”
21 In a further report dated 6 February 2010, Mr Moran opined:
“The physical limitations described by your client are consistent with the mechanism of injury and with her clinical picture, and at this stage I would consider that her condition has stabilised, in that further spontaneous improvement in her clinical status is unlikely. There is a risk that in the longer term, she will experience accelerated degenerative change in the neck and lower back as a consequence of this injury.”
22 In the course of his examination, Mr Moran obtained a history from the plaintiff that her back and neck pain was such that she was:
“forced to get out of bed after six hours”
that her neck symptoms were:
“exacerbated by tasks such as using a computer keyboard and by
driving”
and that the plaintiff had been forced to sell her property in the Dandenongs,
having found the tasks involved in the upkeep of the property impossible.23 In a further report dated 12 May 2011, Mr Moran obtained a history from the plaintiff that:
“Dr Jenkins works as a clinical research fellow in nursing and health sciences, and has in the past attempted to extend her period of employment from alternate days (three days per week) to four days per week. The last attempt at this was in late 2010, but after three months, she was forced to return to working on alternate days, to allow adequate recovery time.”
24 On examination, Mr Moran detected restriction in movement in the plaintiff’s neck and the presence of paravertebral muscle spasm and restriction of movement in her lumbar spine. He opined:
“Dr Jenkins remains incapacitated by spinal pain and in particular, by associated occipito-frontal headaches, which are the main barrier to her returning to full time employment.
Her condition has stabilised, in that further resolution of her symptoms is improbable.
I would consider that she has a now chronic spinal pain syndrome which genuinely inhibits her ability to return to her normal employment and certainly restricts her greatly in her recreational and domestic activities.”
25 In a series of reports, the plaintiff’s general practitioner, Dr Gillian Ambrose, describes the plaintiff as presenting to her practice in January 2007 with symptoms of increasing neck and back pain following an accident in which she was involved on 6 January 2007 and thereafter, continuing to present on various occasions with continuing symptoms of neck and back pain of varying intensity. She said that in April 2009, the plaintiff had undertaken a multidisciplinary course at the Victorian Rehabilitation Centre; that in June 2009, she had been referred to Mr Clayton Thomas, a pain management specialist; that in August 2009, the plaintiff was attending the Victorian Rehabilitation Centre “and finding that very helpful”. Dr Ambrose continued:
“On 2nd September 2010, Rachel was still working three days a week and contemplating a trial of working four days a week. She was doing swimming lessons in walking in a hydrotherapy pool. (? Self funded or TAC funded) I referred her to do a hydrotherapy course through Angliss Hospital.
I reviewed Rachel on 1/11/2010. She was in the early stages of a trial of working 4 days a week and was initially coping. Her workplace was flexible and allowed her to leave early and work from home if needed. She was on a waiting list to do a hydrotherapy program through Angliss Hospital.
Rachel described a severe flare-up of her neck symptoms after a work trip to Italy on 6 October 2010, where she had a neck pain and tingling into her fingers after the plane trip. These symptoms settle with NSAIDs and painkillers from a GP at the conference.
…
During the trial of working four days a week ending mid-December 2010, she experienced increased headaches and back pain. She was having to self fund physiotherapy with Adam at Physio Health Mr (sic) Waverley on a fortnightly basis.
Rachel described headaches every 2-3 weeks that were severe and required a day in bed, coming up from her neck and going behind the eyes. These were also associated with nausea and unsteadiness on her feet.
…
Rachel’s condition appears to have stabilised [and] she has not shown any significant improvement since late 2007.
I think that Rachel will require an ongoing lifelong exercise and maintenance plan. I believe that Rachel will require periodic physiotherapy in the term for (sic) exacerbation. My opinion re work is that Rachel will have to stay in part-time work of no more than 3 days a week. [S]he will require a flexible workplace where she can leave early if required, get up and stretch when required, and space her day so that she is not working 3 consecutive days.
I don’t believe that Rachel is like[ly] to have [a] capacity to work more than the 7.5 hours 3 times a week … .”
(sic)
26 Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, examined the plaintiff at the request of Dr Ambrose on 25 November 2009. On that occasion, Dr Thomas obtained a history from the plaintiff that she had, since her injury, reduced her hours of work to three full days a week. Whilst his examination of the plaintiff revealed the presence of neck tenderness and minor loss of movement in the neck and back, Dr Thomas opined that the plaintiff was suffering from a “whiplash and associated disorder”; that her partial incapacity for work was “secondary to the motor vehicle accident”; and that her situation had stabilised from an impairment perspective.
27 In a report dated 10 August 2010, Mr Rodney Simm, an orthopaedic surgeon, who examined the plaintiff on behalf of the defendant, opined that the plaintiff had suffered:
“(i) An unresolved non-specific soft tissue injury to the neck. (ii) An unresolved soft tissue injury to the lower back. The mechanism of the injury and her clinical course is consistent with the diagnosis of a whiplash syndrome involving the neck and lower back.
There were no pre-existing injuries or diseases and none have occurred since the accident that have influenced her clinical course.”
and continued:
“The injuries are consistent with the accident. She was involved in a high impact rear end motor vehicle collision. This mechanism of injury may be responsible for protracted symptoms in the neck and/or lower back. She has received appropriate treatment. Formal treatment is no longer required.
…
Her injuries have stabilised.”
28 I note that in the course of his report, Mr Simm described the plaintiff as presenting as a pleasant and cooperative person, there being no elaboration of her physical signs, and commented:
“She will have to continue to self-regulate her activities within the limits of
her symptoms.”
29 It is put on behalf of the defendant that the plaintiff’s capacity to exercise, work, and travel overseas for work and holiday activities were matters which called into question the evidence given by the plaintiff that her injuries incapacitated her from engaging in full-time work. In my opinion, none of these factors are telling upon this issue.
30 The plaintiff’s description as to her level of exercise, namely the implementation of a home exercise regime, including activities such as walking, swimming and hydrotherapy, is precisely the type of exercise which is often recommended for management of whiplash-type injury.
31 That the plaintiff is able to prepare papers for publication within her academic discipline is, in my opinion, of no moment, having regard to her evidence that she is able to undertake all the work activities required of her in this regard within her limited working hours which she maintains religiously.
32 Finally, when the plaintiff’s history of overseas travel is considered in the context of her evidence in paragraphs 9 through to 13 of her affidavit of 4 August 2011 and her answers to cross-examination at T 41 to T 44, I do not consider that these activities in any way undermine the evidence given by the plaintiff as to her incapacity for full-time work.
33 It is further put on behalf of the defendant that I should not accept the medical opinion to which I have referred as being persuasive upon the issue that the plaintiff has suffered an organic injury of sufficient consequence to restrict her capacity for employment on a permanent basis to no more than 21.75 hours per week. I reject that submission.
34 Whilst it may be that in some cases, if the trauma involved in an accident is de minimis or the mechanism of an injury is such that it is unlikely to occasion an injury of lasting consequence, circumstances may arise in which the evidence given by the victim that the consequences of such an injury have been severe and long-lasting, would not be persuasive. There is nothing however about:
ƒ The medical evidence in this case; ƒ The nature of the plaintiff’s injury, particularly given the circumstances in
which it was occasioned;[3] orƒ The evidence given by the plaintiff as to the consequences of that injury; [3] The plaintiff’s neck was in a position of extension at the time of the collision. In this respect see the comments of Mr Moran in his report of 6 February 2010.
which causes me to doubt the sworn evidence given by the plaintiff as to the effect which the transport accident has had upon her capacity for work or the large body of medical opinion which supports her evidence in this regard.
35 I am satisfied that the plaintiff has established that the effect of the transport accident has been to inflict upon her an injury which has restricted her capacity for employment on a permanent basis to no more than 21.75 hours per week. Accordingly, having regard to the concession made by Mr Middleton SC, on behalf of the defendant, that in the context of the other findings I have made, a finding to this effect would establish the plaintiff’s entitlement to leave which she seeks, I am of the opinion that the plaintiff is entitled to such an order in her favour.
36 I will hear the parties as to the precise nature of the order which should be made in the application and also upon the issue of costs.
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probationary constable, I interpret this latter statement as being a change in financial circumstances to
their detriment.
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