Jessett v Transport Accident Commission
[2019] VCC 417
•4 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. Cl-18-03707
| DAWNAE JESSETT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2019 | |
DATE OF JUDGMENT: | 4 April 2019 | |
CASE MAY BE CITED AS: | Jessett v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 417 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to spine – psychiatric impairment – aggravation
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis & Ors [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to bring proceedings for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr Y Chen | Slater and Gordon |
| For the Defendant | Mr G A Lewis with Ms C L Alden | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident that occurred on 22 July 2014 (“the transport accident”).
2 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides:
“A court must not give leave under sub-section (93(4)(d) unless it is satisfied that the injury is a serious injury.”
3 Reliance was placed by the plaintiff upon paragraphs (a) and (c) of the definition of “serious injury” in s93(17) of the Act.
4 The term is defined under s93(17)(a) as serious long term impairment or loss of body function. The body function pursuant to (a) relied upon by the plaintiff is the spine, particularly the neck.
5 The enquiry under s93(17)(a) focusses attention first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by s93(17)(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment or body function.[1]
[1]Richards & Anor v Wylie (2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 134 and 140
8 In assessing a mental or behavioural disturbance or disorder under s93(17)(c), the definition requires that the condition be “severe”. This has been held to be more significant than the threshold to satisfy the test under s93(17)(a).[3] Counsel for the plaintiff conceded that the claim in respect of the plaintiff’s neck injury was stronger than that related to her psychiatric condition because of the “severe” hurdle.[4]
[3]Mobilio v Balliotis & Ors [1998] 3 VR 833
[4]Transcript (“T”) 75
9 The plaintiff swore two affidavits dated 9 August 2017 and 29 October 2018 and was cross examined. The plaintiff also relied on an affidavit sworn by her sister, Fay Beryl Williams, dated 1 November 2018. Additionally, there was some video surveillance of the plaintiff on three occasions during November 2018 that was tendered by the defendant.
10 I have read all the tendered documents, including medical reports, together with the transcript of the proceedings and viewed the video surveillance.
Issues
11 Given the plaintiff’s age and the fact she has not worked for over 25 years, the application related to pain and suffering consequences only.
12 The evidence disclosed a history of physical and psychiatric issues before the transport accident. It is in issue whether the plaintiff can discharge the onus of proving that the consequences to her of her injuries arising from the transport accident are serious and long term.
13 In Petkovski v Galletti,[5] the Full Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious, so it was said, then leave must be refused.”
[5][1994] 1 VR 436
14 It is thus necessary to consider what the evidence disclosed as to the prior condition of the plaintiff and determine whether any additional physical impairment resulting from the transport accident is serious and long term. In the case of the psychiatric application, whether any psychiatric impairment is severe and long term.
Background
15 The plaintiff is an aged pensioner, currently seventy-four years, with two children and three grandchildren. At the time of the transport accident, she was sixty-nine.
16 The plaintiff had various administrative jobs after she left school. In the late 1980s, aged forty-four years, she suffered a lower back injury at work and has not worked since.
The Plaintiff’s evidence pre-transport accident condition
17 The plaintiff, in her first affidavit, deposed that she had suffered a number of injuries/conditions prior to the transport accident, including:
(i) Lower back pain during the late 1980s, due to a lifting incident at work. She was diagnosed with a herniated disc in the lumbar spine and continued to experience a degree of recurrent back pain, though she was able to manage it. She was treated with physiotherapy and medication such as Panadeine Forte, which she took as required;
(ii) In about 2011, she developed significant pain in her left shoulder, left arm and neck, and underwent relevant scans. She initially required strong medication, including Endone and other opiates, to treat the flare-up of pain, but the shoulder pain, and particularly her neck pain, improved after she received acupuncture in 2011 and 2012. She ceased taking opiate medication and her neck did not give her any further trouble after about mid 2012, two years before the transport accident. In 2013, she had further scans on her left shoulder and received cortisone injections. Although there were some flare ups of her left shoulder in April 2014, the pain was well managed and she avoided using her arms over shoulder height.
(iii) She has experienced depression and anxiety as a consequence of child sexual abuse, domestic abuse and an upsetting incident with her neighbour, that she reported to police. She saw a psychiatrist, Dr Mark Symons, from about 1995 to 1997, and again from 2006-2007, to help manage her mental health. She was prescribed anti-depressants (Lexapro) at times during the period 2006-2010, though she had stopped taking this medication four years prior to the transport accident.[6]
[6]T32
Circumstances of the transport accident and subsequent treatment
18 The plaintiff deposed in her first affidavit:
· that in the course of the transport accident, she was jolted in her seat and experienced pain in her neck. She did not seek medical attention immediately, though overnight and the next day, her neck pain worsened, and she also felt worsening pain in her lower back.
· On 29 July 2014, she saw her general practitioner, Dr Norma McGowan, and reported she was experiencing neck pain as well as a severe aggravation of her lower back pain. Dr McGowan diagnosed whiplash and referred her to a physiotherapist.
· She attended at the physiotherapist in August 2014 and by that stage, was sometimes using a walking stick for support. She was experiencing frequent headaches and recurrent dizzy spells, particularly whilst in bed rolling over or first getting out of bed. She continued with physiotherapy on and off for over a year with only limited success in alleviating stiffness in her neck and back;
· In February 2015, she had an x-ray of her cervical spine. The x-ray showed degenerative changes and some foraminal narrowing, but no fracture or dislocation. Around this time she also tried acupuncture to relieve her pain but found it unhelpful.
· In 2017, she started a pain management program at the Barbara Walker Centre. The program consisted of psychological counselling, pain education, and physiotherapy. The program helped her to gain some insight into her pain, but did not alleviate the daily pain she suffered in her neck and back.
Psychiatric treatment
· In October 2014, she recommenced seeing Dr Symons her psychiatrist, reporting insomnia and depression. She was prescribed an antidepressant, Lexapro, (10 milligrams daily) and Temazepam to help her sleep.
· Later in 2015, her mental health deteriorated and she began seeing a different psychiatrist, Dr John Cooper. She has continued to see him every couple of months. She currently takes Lexapro, 30 milligram per day for depression, and Diazepam, 5 milligram for anxiety.
Current situation
19 The plaintiff, in her affidavit material sworn on 9 August 2017 and 29 October 2018, deposed that since the transport accident she:
· experiences constant debilitating pain in her neck, particularly on the left side. The pain can at times radiate into her arms and she can also experience a burning sensation from her neck that radiates into the back of her head. Many days, the pain spreads up from her neck towards the back of her head. She experiences frequent headaches, on average about four to five times a week, lasting several hours at a time. She finds the headaches extremely irritating, struggles to focus and is often required to lie down or stop what she is doing.
· regularly experiences swelling in her neck, which is usually preceded by increased pain in the left side of her neck. The swelling in her neck has become more regular in the past year and she gets more severe pain with the swelling. The swelling is pronounced, often dark and looks bruised.[7]
[7]Plaintiff’s Court Book (“PCB”) 16A
· she continues to experience the restriction of movement in her neck and experiences regular spasms. The spasms happen, on average, several times a week and when occurring, feel sore and hot to the touch and her neck swells up.
· experiences back pain, which has become much worse since before the transport accident – it is constant and usually at a higher level of intensity. The back pain is not as severe as her neck pain, but is noticeably worse than before the transport accident.[8]
[8]PCB 16A, 17
· When her injury to her neck refers pain through her head, she experiences intermittent pain in both eyes, which she described as sharp, intense pain in the right eye, and dull but continuing pain in the left eye. She occasionally experiences double vision and feels as if the pain is pressing behind her eyes.[9]
[9]PCB 11
· experiences tinnitus in both ears. The pain and ringing varies from mild to severe, can last for hours and is more prominent on the left side. The ringing tends to escalate when the pain in her ears is more severe. She was informed the tinnitus and ear discomfort are related to a spasm in her neck and pterygoid muscles, and are transport-accident related.[10]
[10]PCB 12; Report of Dr Webb, otolaryngologist, at PCB 73
· experiences tingling and pain in her left arm and hand, with some numbness and weakness. She unsuccessfully tried acupuncture, then commenced taking Lyrica in mid 2018. With this medication the pain reduced, but due to the side effects she ceased this medication and the pain continued.
· underwent nerve conduction studies on her left arm and had an MRI scan of her neck, but other than prescribing Lyrica, Associate Professor Oster, rheumatologist, could not suggest any further treatment.[11]
[11]PCB 17
· continues to experience occasional spells of vertigo and dizziness. She was informed this form of vestibular migraine related to her neck injury.[12]
· continues to frequently feel depressed, stressed and anxious. She constantly worries about her pain, symptoms, psychological state and the future. She experiences panic attacks on a regular basis and uses breathing techniques and Diazepam when particularly anxious and stressed. She experiences flashbacks of the transport accident, avoids going to the accident site and using taxis.[13]
[12]Report of Dr Webb, otolaryngologist, at PCB 73
[13]PCB 17A
The Plaintiff’s current situation compared to before the transport accident
20 The plaintiff, in her affidavits, deposed that prior to the transport accident, she:
· managed her back pain, and her neck did not give her any further trouble or pain after about mid 2012.
· took Panadeine Forte for back pain and occasional shoulder pain, but took it more infrequently before the transport accident. She takes up to four to six Panadeine Forte, several days a week for her neck pain and does physiotherapy exercises.
· previously avoided driving on long road trips due to her back pain, but her driving tolerance was greater than it is now. She was previously able to read comfortably as long as she shifted her position from time to time. She is now restricted in driving and other activities that require her to keep her neck still, such as reading, as it exacerbates her pain. As a consequence, she drives only occasionally and for short distances,[14] and finds it difficult to participate in other activities.
[14]PCB 10
· the pain in her neck and back make it difficult for her to sleep and she wakes most nights with neck pain or spasms, or back pain. She continues to take Temazepam, 10 milligram a few times a week.
· did not have the constant and distracting degree of tinnitus that she now does. Her current ear symptoms contribute to her general sense of annoyance and fatigue arising from her physical injuries.
· her walking tolerance is reduced and she sometimes uses a walking stick for support.
· struggles to do many domestic tasks around the house – she used to be able to clean and vacuum, albeit with breaks so that she could rest her back. She now avoids vacuuming altogether.
· is unable to do most of the gardening tasks, whereas prior to the transport accident, she could do light gardening as long as she had breaks. She is reliant on two hours per fortnight of domestic help.
· has become withdrawn socially since the accident. Her injuries, pain and restrictions limit the activities she can engage in with her granddaughter and she no longer attends church gatherings or visits and helps friends. She feels unable to contribute when she is feeling unwell physically and feels emotionally tired and flat.
· had suffered from some periods of depression in the past, but had managed the condition reasonably well, and she felt she had built up a degree of resilience. She had learnt to cope with her long-term back condition and other health conditions. The transport accident added an extra dimension of pain and restriction, and has caused her to lose most of her resilience. Her levels of anxiety have increased since the transport accident;
· She was not taking anti-depressants at the time of the transport accident. She now takes Diazepam about three times a week for anxiety and takes Lexapro, 30 milligram daily, for her depression.
Cross-examination of the Plaintiff
21 The plaintiff was cross-examined extensively about:
· the level of her current disability or pain consequences of her spinal injury on the basis of the video footage.
· information recorded in the notes of her general practitioner clinic files in relation to complaints by her regarding neck pain prior to the transport accident, and medication she was taking at the time of the transport accident. She indicated that she did not remember making such complaints or those specific attendances at the clinic, but conceded that it if that was what was recorded in the notes, then that was likely to be the case.
· the medical history that she provided to medical practitioners that she saw after the transport accident, particularly as to whether she included a reference to previous neck pain.
The Plaintiff’s medical evidence – treaters
General Practitioner, Dr Norma McGowan
22 The plaintiff saw her general practitioner, Dr Norma McGowan, on 29 July 2014 after the transport accident. Dr McGowan provided two reports, dated 5 April 2015[15] and 31 May 2017.[16] Additionally, the plaintiff’s medical notes or file from Craigrossie Clinic were tendered.[17]
[15]PCB 21-23
[16]PCB 32 -35
[17]PCB 46-52, 1/6/17 – 26/6/18; and DCB 70-101, 20/10/06 – 21/12/16
23 On Dr McGowan’s initial examination of the plaintiff after the transport accident, she found:
· there was no tingling in the fingers
· stiffness in the neck and pain in her lower back
· movements of the neck were full but were painful at the extreme
· tenderness in the suprascapular area of the trapezius muscle, the paravertebral muscles at L2-L4 with the right more tender than the left.
24 Dr McGowan diagnosed a whiplash injury, and also noted that the plaintiff had suffered a previous injury to her lower back. Dr McGowan was well acquainted with the plaintiff’s health issues, having treated her in the years preceding the transport accident, including in respect of lower back and shoulder pain. [18]
[18]PCB 21, entry on 14 August 2014
25 The plaintiff continued to consult Dr McGowan on a weekly basis for the next few months, then more infrequently. At the second consultation, the plaintiff was recommended physiotherapy, and a referral was made to Ewa Bogatek, physiotherapist. On 28 August 2014, Dr McGowan noted the plaintiff was quite depressed and provided a referral to her previous psychiatrist, Dr Mark Symons.[19]
[19]PCB 21-22
26 Dr McGowan has consistently noted since the transport accident that the plaintiff has complained of neck pain and stiffness, headaches, depression, anxiety, insomnia and weight loss.
27 As at 15 May 2018,[20] the plaintiff was prescribed medication in the relevant amounts:
[20]PCB 46
· Temaze tablets, 10 milligram, one nocte
· Diazepam tablet, 5 milligram, one daily
· Lexapro tablets, 10 milligram, one daily
· Lipitor tablet, 20 milligram, one daily
· Lexapro tablets, 20 milligram, one daily
· Micardis Plus tablet 40 milligram/12.5 milligram, half b.d.
28 In her report dated 31 May 2017, Dr McGowan diagnosed a severe whiplash injury. She noted that the plaintiff has suffered insomnia, marked anxiety and depression since the transport accident, requiring antidepressants and treatment by a psychiatrist. Dr McGowan reported that the plaintiff had neck muscle pain with stiffness and spasm, mainly in the left supraclavicular fossa, and also frequent swelling, which appeared for no apparent reason. Dr McGowan noted that the plaintiff’s tinnitus was worse when she extended the neck, and that she had eye pain.[21]
[21]PCB 34
29 Dr McGowan considered the plaintiff to be “highly motivated to get better” though viewed this as likely to take time and that “her life has been greatly compromised by the injury but she wants to be able to enjoy her remaining years”.[22]
[22]PCB 35
Psychiatric – treaters
Dr Mark Symons, psychiatrist
30 Dr Symons previously treated the plaintiff between 1995 and 1997 and 2006 and 2007. The plaintiff attended for consultations with him on 3 November and 3 December 2014 post the transport accident.
31 Dr Symons reported the plaintiff had been experiencing significant symptoms of general emotional distress, anxiety, stress and depression. He considered these symptoms had developed since, and in the context of, the recent transport accident and its aftermath.[23]
[23]PCB 28
32 The plaintiff’s symptoms included general emotional distress; feeling overwhelmed and stressed much of the time, and experiencing senses of deadness, unjustness and unfairness. The plaintiff felt a sense of being intruded on (both from the accident itself, and the physiotherapy), had depressed mood much of the time; was often on the verge of tears, and suffered insomnia, tiredness and irritability. She had a degree of preoccupation with past traumatic events with reactivation of distressing emotions relating to past trauma and physical contact.[24]
[24]PCB 28
33 The plaintiff reported to Dr Symons that she was doing reasonably well and thought that she had improved significantly up until the time of the transport accident. I note that the plaintiff had not seen Dr Symons or any other psychiatrist since 2007.
34 On examination by Dr Symons, the plaintiff was emotionally distressed and tearful. She eventually settled, seeming to benefit from ventilation, and from the suggestions made by Dr Symons. He recommended supportive counselling and various strategies to help her deal with her emotions.[25]
[25]PCB 29
35 On 3 December 2014, as the plaintiff’s symptoms were persisting, Dr Symon prescribed antidepressant medication, Escitalopram, 10 milligram. He noted that she had previously responded well to this medication in 2006-2007.
Dr John Cooper, psychiatrist
36 Dr John Cooper, the plaintiff’s current psychiatrist, provided reports dated 26 April 2016[26] and 14 August 2018,[27] and was consulted by the plaintiff on a number of occasions, initially on 29 January 2016. The history taken from the plaintiff as recorded in his report refers only to psychological and physical difficulties since the transport accident.
[26]PCB 30
[27]PCB 53
37 On initial examination, when Dr Cooper recorded the plaintiff’s symptoms, which included depressed mood, fatigue, insomnia, poor concentration, anxious worry, weight loss, irritability, loss of confidence and dominant feelings of helplessness, he also noted that she reported a complex array of physical symptoms which, he was informed by the plaintiff, had been assessed by a neurologist as relating to a whiplash injury.
38 Dr Cooper’s diagnosis was of a mixed syndrome of Depression and Anxiety that had arisen secondarily from her chronic neck and head pain and other physical symptoms arising from the transport accident.[28]
[28]PCB 54
39 Dr Cooper, in his second report, was of the view that, comparatively, the depressive component of the plaintiff’s condition had improved with medication and participation in the pain management program. Her anxiety, worry and distress had remained active and were mainly aggravated by her neck pain and related stressors.
40 Dr Cooper’s prognosis was that he expected her Chronic Pain Syndrome would trouble the plaintiff for an indefinite period. With the benefit of her pain management program and her ongoing use of antidepressant medication, he expected the worst aspects of her Depression and Anxiety would remain under control, but that she was likely to suffer ongoing fluctuating psychological symptoms, especially when her pain exacerbates.[29]
[29]PCB 55
The Plaintiff medico-legal evidence
Mr Peter Moran, orthopaedic surgeon
41 The plaintiff was examined by Mr Peter Moran on 17 February 2016, who provided a report dated 3 May 2016.[30] Mr Moran was provided with material regarding the plaintiff’s medical history (see letter of instruction dated 4 February 2016),[31] including medical notes from Dr McGowan.
[30]PCB 79-82
[31]PCB 170, Added to the plaintiff’s material - T43
42 On examination, Mr Moran observed that the plaintiff sat and moved stiffly, was cautious when undressing and dressing and demonstrated stiffness in the neck and back. She displayed symptoms of anxiety, but he did not feel that she demonstrated signs of abnormal illness behaviour.
43 With respect to the neck, forward bending was measured at 35 degrees and extension limited to 5 degrees. At that point, as her neck extended, she developed significant vertigo. Right and left rotation was measured at 45 degrees and 70 degrees, with right and left lateral flexion measured at 20 degrees and 15 degrees. Neurological examination showed no evidence of radiculopathy in the upper limbs nor evidence of a cervical myelopathy. In the lower back, forward bending was inhibited to 60 degrees and extension to 10 degrees, with right and left lateral flexion measured at 15 degrees and right and left rotation at 20 degrees.
44 In Mr Moran’s opinion, the plaintiff had longstanding issues with lower back pain, which had limited her mobility to a degree, but as at the date of consultation, she presented with a significant traumatic aggravation of age-related degenerative change in the neck and back, fortunately without neurological impact.
45 Mr Moran notes:
“Whilst the mechanism of injury seems rather trivial, it is quite reasonable to an incident of this type could aggravate underlying degenerative change in the spine and provoke a persistent spinal pain issue such as this when it would not expect to have any significant effect on a much younger patient. On that basis I think her complaint of neck and aggravated back pain is legitimate and reasonable.”
46 As to the prognosis, Mr Moran regarded her condition as stabilised. He noted:
“… she had previously suffered from a lumbar disc prolapse, and therefore would accept that she may well have some ongoing spinal stiffness. I have taken note of her family doctor’s comment that her range of lumbar spinal movement had deteriorated significantly since injury, hence an impairment assessment of 5% is I believe appropriate.”
Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist
47 Dr Richard Sullivan saw the plaintiff on 13 September 2018 and provided a report of the same date.[32] Dr Sullivan was also provided with material regarding the plaintiff’s medical history.[33]
[32]PCB 116
[33]PCB 172, Added to the plaintiff’s material – T73
48 On examination, the plaintiff had difficulty going from a seated to standing position and vice versa, with her having a degree of instability and lack of confidence with the movements. She was able to ambulate reasonably well with a single-point stick. She had a reduced range of neck movement, some of which was related to her kinesophobia, some which appeared to be due to mechanical stiffness and some due to exacerbation of pain. She had moderate restrictions in terms of extension, mild restrictions in terms of flexion and moderate restrictions in terms of lateral flexion. She was able to put her hands behind her head and behind her back without substantial impediment though with some hesitancy.
49 Dr Sullivan had available to him results of nerve conduction studies and MRI scans, both dated 5 June 2018.
50 Dr Sullivan diagnosed a chronic pain condition, and opined that it affected her neck, head, lower back and leg. The plaintiff had cervical radiological evidence of cervical spondylosis, though Dr Sullivan expected that this predated the transport accident, as she was not troubled by pain or symptoms in this region prior to it. He was of the view that the transport accident was a precipitating factor in the onset of the plaintiff’s neck pain and associated symptomatology. Further, that the transport accident had precipitated worsening of the plaintiff’s back pain and left-sided leg pain and a worsening of her psychological comorbidities.
51 Dr Sullivan’s prognosis was that the plaintiff’s current presenting symptoms were likely to continue into the foreseeable future. He made various recommendations for future treatment on a multidisciplinary basis, including input from a clinical psychologist, psychiatrist and physiotherapist, her general practitioner regarding her medication, and also thought that the plaintiff would benefit from intermittent reviews with a pain medicine physician.[34]
[34]PCB 117
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
52 Dr Clayton Thomas examined the plaintiff on the defendant’s behalf on 14 November 2017 and provided a report dated 16 November 2017.[35] His report includes a full medical history of the plaintiff.
[35]PCB 131-133
53 On examination, he noted that the plaintiff was able to walk unaided, but that she had a single-point stick with her at the consultation. She was highly anxious and tender in the lower lumbar spine. She was anxious about moving her lower back, and her movements were grossly limited. She was also tender in the areas to the left cervical spine, left shoulder girdle region, with her neck movements also significantly limited.
54 Dr Thomas viewed the plaintiff as a seventy-three-year-old woman who had previous spinal complaints relating to her lower back and her cervical spine and left shoulder girdle. He considered that the plaintiff had been on a number of medications for a long period of time, and that both her previous medical condition and medications were well documented in the medical notes from her general practitioner’s clinic.
55 Dr Thomas noted that the plaintiff was taking Panadeine Forte prior to the accident, though questioned, given the records or prescriptions in this period, whether the plaintiff had used this medication as extensively as she had indicated or whether it was used intermittently. He noted that there was not documented or recorded in the local doctor’s notes significant complaints of lower back pain post the transport accident.
56 In Dr Thomas’ view, it would be appropriate for the plaintiff to be assessed by an expert in vestibular problems; however, he noted that she had poor balance prior to the transport accident, referring to her application for a parking permit. His prognosis was for persistent pain with associated disability. He considered that there was no requirement for operative intervention and that the plaintiff was unlikely to respond predictably to any interventional pain management treatments. He accepted that the aggravation of her condition had made it more difficult for her to perform domestic and leisure activities.[36]
[36]PCB 136
The Defendant’s medico-legal evidence
Dr Greg Speck, orthopaedic surgeon
57 Dr Speck examined the plaintiff on 5 December 2018 and provided a report dated 24 December 2018.[37] He noted that the plaintiff had a long history of disability related to various musculoskeletal areas, including neck and back, but without identifiable specific pathology. He considered that the plaintiff’s current presentation did not indicate any identifiable organic pathology relevant to the minor transport accident with insufficient damage to the taxi to require her to change her transport on the day
[37]Defendant’s Court Book (“DCB”) 33
58 He viewed her prognosis for the soft tissue injury as good and considered the ongoing symptoms and complaints of pain as not related to those organic injuries. He noted that the plaintiff was disabled prior to the transport accident, as she had applied for a disabled parking permit in the weeks leading up to the transport accident, and that she had multiple attendances at her general practitioner in the preceding years for neck, back, both shoulders and trochanteric bursitis conditions. He opined that none of these were related to her transport accident.
The Plaintiff’s medico-legal evidence – psychiatrist
Dr Nathan Serry, consultant psychiatrist
59 Dr Nathan Serry saw the plaintiff on 4 September 2018 and 21 October 2018, and provided reports of the same dates.
60 Dr Serry recognised that the plaintiff has a “not insignificant past psychiatric history”. He noted that she suffered considerable depression following her back injury and thereafter, that she experienced ongoing anxiety and panic, reflecting, he suspected, previous and considerable levels of trauma in her life.
61 In Dr Serry’s opinion, the plaintiff’s psychiatric illness arising from the transport accident was consistent with a combination of the following:
· Moderately severe Chronic Adjustment Disorder with Anxious and Depressed Mood and with features of panic and traumatisation;
· Somatic Symptom Disorder with predominant pain, persistent and of moderate severity.
62 Dr Serry, in forming that opinion, considered the plaintiff’s past psychiatric history, remarking that she was clearly quite vulnerable prior to the transport accident. He was of the opinion that the transport accident substantially increased the plaintiff’s level of both physical and psychiatric symptomatology.
63 Dr Serry noted that there has been a substantial impact on the plaintiff’s lifestyle since the transport accident. Her mobility remained restricted by physical factors, having already been somewhat compromised by pre-existing chronic low back pain. Further still, her mobility remained restricted by anxiety, especially as a passenger and in particular when in taxis. Her personal relationships had been compromised. She is not as social as she would wish to be and she described a sense of fatigue and a reduced inclination to engage with others. She is now provided assistance with domestic duties in the form of home help and gardening assistance via the Transport Accident Commission. He viewed her leisure activities as remaining rather compromised by both her physical and psychological state.[38]
[38]PCB111
64 Dr Serry’s prognosis is mixed. Though the plaintiff has a degree of premorbid vulnerability, she has, in Dr Serry’s opinion, suffered considerable setbacks, both physically and psychologically, by the impact of the transport accident. [39]
[39]PCB 111
The Defendant’s medico-legal evidence – psychiatrist
Associate Professor (“Dr”) Peter Doherty, psychiatrist
65 Dr Doherty examined the plaintiff on 18 January 2018 and provided reports dated 25 March 2018 and 23 January 2019.[40] In the reports he sets out the material that he considered, including the medical notes from the clinic.
[40]DCB 4-24
66 Dr Doherty viewed the predominant symptom in the plaintiff as pain, and accepted that her preoccupation and concern regarding her pain was interfering with her daily activities. He described the plaintiff as an eccentric person, and suggested that the plaintiff had a Somatic Symptom Disorder with predominant pain persisting.
67 Dr Doherty gave consideration to whether the plaintiff had a Post-Traumatic Stress Disorder. In his view, the nature and severity of the transport accident was such that the plaintiff did not meet the necessary essential clinical criteria.
68 Dr Doherty also gave consideration to whether the plaintiff suffered from an Adjustment Disorder with Depressed and Anxious Mood with features of traumatisation. He considered that diagnosis was a reasonable descriptor or explanation of the presence of mood symptoms suffered by the plaintiff following the transport accident. He viewed that there was a pre-existing vulnerability for the plaintiff’s psychiatric condition to deteriorate under stressful circumstances, as it had when she suffered a back injury in 2008. ·
69 Dr Doherty considered the prognosis for the plaintiff’s psychiatric state was favourable and that she had few functional limitations.
70 Dr Doherty, in his first report, noted the following:
“There were significant pre-existing stressors. They are documented in the clinical notes of the general practice. She was stressed and in treatment with a psychiatrist and was taking antidepressant medication at or before the transport accident.
She remained stressed afterwards due to pain, tinnitus and problems with sleep … .”
71 Dr Doherty also remarked that the plaintiff had taken anxiolytic medication before the transport accident and that she was not currently on antidepressant medication and attends a psychiatrist every three months for review. In conclusion, he noted:
“In my opinion there is no psychiatric impairment which is a direct result of the transport accident. …
In my opinion, all the psychiatric impairment that arises is secondary and consequential to the physical injuries resulting from the effects and circumstances of the transport accident. …
Thus, I concluded that the claimant has no current psychiatric impairment resulting directly from the effects and circumstances of the transport accident … .”
72 He considered that the plaintiff’s condition or
“… mental state including worry about pain, change in lifestyle, and reduced social engagement makes some, though minor interference in her social, domestic and recreational activities.”[41]
[41]DCB 13-16
Psychiatrists’ competing views
73 Both Dr Serry and Dr Doherty considered each other’s reports and findings.[42]
[42]Dr Serry at PCB 112; Professor Doherty at DCB 21
74 Dr Serry indicated that though he agreed with Dr Doherty’s diagnosis, he considered that the plaintiff was experiencing considerable levels of anxiety, ongoing panic attacks and not insignificant levels of depression. Additionally, he viewed the plaintiff as having ongoing traumatisation symptomatology regarding the direct circumstances of the transport accident. This included the plaintiff’s flashbacks in response to triggers, her uneasiness as a passenger and, wherever possible, avoidance of travel by taxi.
75 Dr Doherty, after consideration of Dr Serry’s opinion, maintained, based on the plaintiff’s treating psychiatrist’s (Dr Cooper) view, that
the plaintiff’s symptoms of mood had improved. Further, that on his viewing of some of the DVD footage, it appeared to him that the plaintiff’s physical condition had also improved. He maintained that in his opinion, the plaintiff had a much lower level of psychiatric impairment than the higher level assessed by Dr Serry.
76 Both appear to link the plaintiff’s anxiety to the transport accident and the pain associated with her neck injury
Counsels’ submissions
(i) Spinal/neck injury
77 Counsel for the defendant submitted that the plaintiff had failed to establish that the transport accident-related consequences were serious and long term, given her pre-existing medical conditions and the manner in which those conditions impacted on her life prior to the transport accident.
78 It was submitted that the plaintiff was not a reliable historian in providing a history to medical practitioners, particularly Mr Moran and Dr Sullivan, regarding her previous neck problems and pain.
79 Counsel for the defendant highlighted the following portion of Mr Moran’s report:[43]
“She indicated that since the collision, back· pain had been far worse than she had experienced previously, but the dominant issue of concern was neck pain. This had not bothered her in the past.”
(my emphasis).
[43]PCB 80
80 It was submitted that even accepting that Mr Moran had been provided with a considerable amount of material regarding the plaintiff’s medical history (see letter of instruction dated 4 February 2016),[44] her account to Mr Moran was that she had “not been bothered by her neck pain in the past”, and this was inconsistent with her affidavit and evidence.
[44]PCB 170, Added to the plaintiff’s material – T43
81 Counsel for the defendant submitted that I should not accept Mr Moran’s opinion – that there was no mention in his report that the plaintiff had, prior to the transport accident, suffered or been treated for neck pain. That his findings relied on an assessment of the plaintiff that was not properly informed.
82 Reliance was also placed on Dr Sullivan’s report and that he was told by the plaintiff of prior back pain but not pain relating to her neck or shoulder. Even accepting that Mr Sullivan had been provided with a considerable amount of material regarding the plaintiff’s medical history (see letter of instruction dated 3 September 2018),[45] there was no mention in his report that the plaintiff had, prior to the transport accident, suffered or been treated for neck pain. That his findings, like those of Mr Moran, relied on an assessment of the plaintiff that was not properly informed.
[45]PCB 172, Added to the plaintiff’s material – T73
83 It was submitted that:
· the plaintiff was suffering from spinal complaints leading up to the transport accident as evidenced by the plaintiff applying for a parking permit three weeks prior;
· the plaintiff had limited arm/shoulder range movement and problems sleeping, before the transport accident; and
· there was no radiological evidence regarding spine damage from the transport accident.[46]
[46]T55
84 That I should accept that the plaintiff’s previous complaints of back, shoulder and neck pain and her level of medication were all relevant and affecting her situation at the time of the transport accident.[47]
[47]T53 – These were documented in Schedules A and B of the defendant’s submissions
85 It was submitted that I should view the DVD footage as illustrating the plaintiff moving about, walking briskly, getting in and out of her car, interacting with and attending with friends shopping – that her actions were inconsistent with someone suffering the level of pain as outlined by her in her affidavit and evidence.[48]
[48]T64
86 Counsel for the plaintiff submitted that I should accept the opinion of Mr Moran, particularly in respect of the plaintiff’s neck pain. It was submitted that the neck pain was as a consequence of the injury suffered in the transport accident and that any medical issues relating to the plaintiff’s neck pain had ceased as at the time of the transport accident.
87 It was submitted that Mr Moran was aware of all the plaintiff’s previous injuries, that he had the radiology regarding her left shoulder[49] and had knowledge of her limited work history and restricted walking capabilities prior to the transport accident.[50]
[49]T69
[50]T69
88 Further, that the reference by Mr Moran to her neck pain as “not bothering her in the past” should be read in the context of him having the letter of instruction which incorporated medical reports, in which reference is made to the plaintiff’s neck pain before the transport accident and that he had an awareness of the plaintiff’s history.
89 Examination of the medical notes revealed no complaint of any neck pain from May 2012 until the transport accident in July 2014. This was consistent with the evidence of the plaintiff that she was not experiencing any neck pain during this two-year period prior to the accident. It was also submitted that given her level of contact with the medical clinic, she would not have hesitated in complaining about her neck if such pain had existed.[51]
[51]T74
90 That I should accept the opinion of Mr Sullivan for similar reasons – he too had available to him a wide range of documentation relating to the plaintiff’s medical history.
91 Reliance was placed on the analysis of Dr Thomas, an opinion sought by the defendant. That he was provided with a complete history, and that he opined that the aggravation of the plaintiff’s condition (as a result of the transport accident) had made it more difficult for her to perform domestic and leisure activities.
92 Further, it was submitted that:
· the plaintiff’s current medication regime was consistent with significantly increased pain and anxiety since the transport accident;
· the plaintiff was a credible witness who made appropriate concessions and was forthcoming. She conceded in cross-examination that she did use a walking stick before the transport accident[52] and that her lack of memory for details regarding her clinical file was understandable given her age, circumstances and the passing of time;
· the video surveillance was merely a “snapshot” over a period of three days in November last year, and that she was not challenged as to her having her stick folded in her bag if the need for it arose on those occasions.
[52]T34
(ii) mental impairment
93 Counsel for the defendant submitted that the plaintiff had a history of treatment for psychiatric issues and that the transport accident had not resulted in or caused a condition that could be described as “severe”.
94 That the plaintiff had been referred to a psychologist in December 2013 as part of a mental health plan by her general practitioner, and that although it did not appear in the subsequent notes, or her evidence, that she consulted a psychologist as a consequence of that referral, the plaintiff had psychological issues in the months leading up to the transport accident.
95 Further, that Dr Cooper, the plaintiff’s treating psychiatrist, had regarded the plaintiff’s psychiatric condition as having improved with medication and thus was not “severe”.
96 Counsel for the plaintiff submitted that I should accept the opinion of Dr Serry as to the severity of the plaintiff’s condition and that the factors expressed by him, related directly the transport accident and taxis, and this was compelling in terms of an assessment of the plaintiff’s current functioning.
Overview/Findings – application under Section 93(17)(a)
97 In assessing the plaintiff’s application, there must be a comparison between the plaintiff’s pre-existing level of functioning and that after the transport accident. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[53] I must consider only the consequences arising from the transport accident.
[53] Supra
98 Dr McGowan noted neck pain complaint after the transport accident and in the same context, noted her previous lower back and left rotator cuff pain. A clear distinction was made as to the onset of neck pain and other previous pain issues. Similar delineation of neck pain and aggravation of back pain is referred to by Mr Moran and Dr Sullivan.
99 Criticisms made by counsel for the defendant of inconsistencies in the plaintiff’s account to medical professionals with that given in Court, should be viewed in context. Neither Mr Moran nor Dr Sullivan in their reports, purported to be giving a verbatim record of the plaintiff’s account of her history.
100 They both had available the medical records – given the records are consistent with the plaintiff not having suffered neck pain for approximately two years before the transport accident, I regard their opinions regarding the plaintiff’s neck pain as valid. Mr Speck is alone in considering that her current condition does not relate to the transport accident. He made reference to the history of neck and pain and the parking permit application. This application is not in evidence, although there is reference to it in the clinical notes. It was signed about three weeks before the transport accident, though the medical basis for that application is not revealed. In her evidence, the plaintiff indicated that application was made because of an unrelated issue, not attributable to neck or other physical pain she was suffering.[54]
[54]T22
101 Having seen the plaintiff give her evidence and on consideration of information provided by the plaintiff to medical practitioners, I view any inconsistency in her account, if it can be viewed in that manner, was not of such a nature as to significantly undermine her credit.
102 I viewed the surveillance footage whilst the plaintiff was being cross-examined and again after the completion of the hearing. The footage, taken in November 2018 on three occasions depicted the plaintiff walking or getting in and out of her car or engaging with her friends. The surveillance is of limited assistance – in some portions the plaintiff does appear to be struggling getting in and out of the car and walking on the street, in other parts she appears to cope better. Further, as is frequently the case in these applications, the footage is only a snapshot of the plaintiff’s life and activities.
103 The plaintiff has consistently maintained a significant level of pain associated with the neck to all medical practitioners after the transport accident. None of the medical professionals were of the opinion that the plaintiff had exaggerated or feigned her pain or restrictions in anyway.
104 The plaintiff did make a number of concessions in the course of her evidence – including her limited use of the walking stick, that she had used the stick prior to the transport accident, and her acceptance of the veracity of the notes obtained from the Clinic. These support an assessment of her as a reliable witness.
105 Having had the opportunity to view the plaintiff in the witness box, it is also important for me to make an assessment of the manner in which the plaintiff gave her evidence. The plaintiff was cross-examined and I was able to observe how she responded to challenges regarding her capacity to undertake tasks and the impact on her day-to-day functioning and as to the information that she provided to medical practitioners.
106 I found the plaintiff to be a truthful witness who gave a credible account of the neck pain that she is suffering and the consequences to her. I accept that she feels that her capacity to undertake various daily tasks and to participate in social activities is significantly reduced because of, or as a consequence of, her neck pain. Further, I accept that as a consequence of this injury, she has a heightened level of anxiety, consistent with her increased prescription of medication.
107 I consider the plaintiff’s affidavits material, together with the records of the clinic between 2012 and 2014, provide an accurate description of her physical state at the time of the transport accident. Based on such evidence, I am satisfied that, at the time of the transport accident, the plaintiff was not suffering any pain in her neck and had not experienced such pain in the preceding approximate two-year period.
108 In assessing the plaintiff’s application, I have compared her level of impairment regarding her neck pain and the consequences of which I am satisfied existed immediately prior to the transport accident, with her current condition. In so doing, I have only considered the symptoms or consequences that are attributable to the transport accident.
109 I am satisfied that since the transport accident and the spinal injury, the plaintiff:
· suffers significant pain in her neck, with constant debilitating pain in her neck, particularly on the left side.
· experiences frequent headaches on a weekly basis which are debilitating;
· regularly experiences swelling in her neck, which in recent times has become more regular and painful;
· continues to experience the restriction of movement in her neck and experiences regular spasms. The spasms happen, on average, several times a week and when occurring, feel sore and hot to the touch and her neck swells up,
· experiences back pain at a level which is more intense and constant than previously;
· experiences intermittent pain in both eyes, which she described as sharp, intense pain in the right eye, and dull but continuing pain in the left eye,
· experiences tinnitus in both ears, with the pain and ringing varying from mild to severe, an episode lasting for a period of hours,
· continues to experience occasional spells of vertigo and dizziness,
· continues to frequently feel depressed, worried, stressed and highly anxious.[55]
[55]Richards & Anor v Wylie (supra)
110 None of these symptoms had been indicated to medical practitioners in the two years preceding the transport accident.
111 Further, the plaintiff has significantly increased her medication for depression and pain.
112 I am satisfied that as a consequence of this level of pain, that the plaintiff’s enjoyment of life and activities is reduced. She encounters difficulties sleeping, waking most nights with neck pain or spasms, or back pain, and takes medication to assist in sleep a few times a week; her distance of walking tolerance is reduced; she sometimes uses a walking stick for support and she struggles to do many domestic tasks and gardening around the house, reliant on domestic help.
113 As this situation has continued for nearly five years without significant improvement despite treatment, I am satisfied this impairment is long term.
Conclusion
The Plaintiff’s physical injury to the spine/neck
114 I accept that the consequences to the plaintiff following the transport accident are “serious”, with her levels of pain impacting on all aspects of her enjoyment of life physically, socially and in her day-to-day functioning. Further, when the consequences are considered and when judged by comparison with other cases in the range of possible impairments and losses, I am satisfied that those consequences can be fairly described as serious and long term. I therefore grant the plaintiff leave to commence proceedings in respect of the transport accident.
The Plaintiff’s psychiatric impairment
115 Having granted leave to bring proceedings for damages for pain and suffering pursuant to s93(17)(a), I am not required to make a finding in relation to the application pursuant to s93(17)(c).
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