Kacer v Transport Accident Commission
[2013] VCC 322
•27 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Unrestricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00254
| EDITH KACER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 March 2013 | |
DATE OF JUDGMENT: | 27 March 2013 | |
CASE MAY BE CITED AS: | Kacer v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 322 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck
Legislation Cited: Transport Accident Act 1986
Cases Cited:Fleming v Hutchinson (1992) 66 ALJR 211; Humphries & Anor v Poljak [1992] 2 VR 129; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2013] VSCA 46; Luv Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to commence proceedings for the recovery of damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Victorian Compensation Lawyers Pty Ltd |
| For the Defendant | Mr R Middleton SC with Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”). It arises out of a transport accident that occurred on 16 December 2004 in which the plaintiff, who turns eighty-two-years-of-age this year, was a passenger when the car she was travelling in was hit from behind. She was thrown forward in the accident, hitting her head on the dashboard. She was conveyed by ambulance to the Maroondah Hospital and admitted there with a number of recorded complaints of injury.
2 The plaintiff relies on s93(17)(a) of the Act:
“serious injury means—
(a) serious long-term impairment or loss of a body function.”
3 The injuries and impairments relied on are to the neck, left eye and the right shoulder. However, it is apparent the plaintiff’s case is that the left eye injury led to a disturbance of vision that saw her suffer a fall on 27 November 2007, some three years after the accident, and in that fall she injured her right shoulder. The plaintiff relies on the fall and the resultant shoulder disability as a “serious” consequence of the left eye injury.[1]
[1]Transcript (“T”) 17-18
Background
4 The plaintiff, who is now a widow, has something of an extraordinary background, in that her daughter was killed in a car accident in 1969 and her first husband was also killed in a car accident. Her second husband died of cancer in 2002, after suffering a very bad spinal injury. Her son was also injured in another car accident some years ago and was rendered paraplegic. He was buried on the Friday before the transport accident that this application is concerned about, it having happened on Wednesday, 16 December 2004. The daughter who was killed in a car accident was two days off her seventeenth birthday. Her son, who was rendered paraplegic, died at age fifty-two. She had three other children. However, she describes that one only lasted 24 to 48 hours before dying and she had two stillborn babies.[2] The plaintiff was acting as the carer for her second husband and for her paraplegic son up until the time of their deaths.
[2]T27-28
5 She ran the home herself, and her affidavit describes a number of health issues of her own that did not prevent her carrying out her very considerable family responsibilities fully. I find that prior to the subject accident, she led a very full life for a woman of her age and had a very stoical nature with which she dealt with life’s tragedies and any health issues.
6 I accept that the pre-existing health issues that she describes[3] and the others that were disclosed in some 30 pages of clinical notes did not prevent her in any way from pursuing her domestic and recreational activities. As well as running the home and looking after the family members I have described, she also was a keen gardener and played golf for decades. Due to her son’s health deteriorating, she did not play golf between about 2002 and his death in 2004, such were his needs, but the probabilities are she would have returned to playing.
[3]Plaintiff’s Court Book (“PCB”) 6 and 7
7 It was clear that her memory on a number of matters when they were put to her about her medical history was not accurate. For example, when she was taken through years of clinical notes,[4] she could not remember a number of aspects and attendances on her doctor. However, I found that she was doing her best to recall these matters and was answering truthfully. In view of the domestic tragedies that she has suffered, together with her age, some forgetfulness on these details was, in my view, understandable. It was not such as to lead me to have any concerns about her being a genuine historian, although one who was not always accurate. Another example is her conviction that she was unconscious for a significant number of hours after the subject accident, which is clearly wrong. There may well have been a short period of unconsciousness, as the records indicate that she hit her head and was left with some signs of injury on her forehead, but it was not for long.
[4]Exhibit 5
8 An affidavit from Rita Guenzel[5] paints a compelling picture of how, before the accident, the plaintiff functioned, and the contrast with what she is like since. I accept this evidence. While the particular injury is not individually referred to, this witness speaks of pain in both the neck and right shoulder. However, she states that, “since the transport accident”, changes were apparent.[6]
[5]PCB 16-18
[6]PCB 17
9 I accept the picture she paints reflects the three or so years before the 27 November 2007 fall on the shoulder as well as the years since. I accept the physical incapacities in those three years, as opposed to any visual disturbance, spring from the cervical spine impairment alone. There has been no improvement to her neck since the fall, and when one looks at the physicality of a lot of the activities Mrs Guenzel speaks of, I accept the neck injury on its own continues to prevent the plaintiff carrying them out up to the present time. Her shoulder problems since November 2007 have added another cause of disablement from these physical activities but I do not accept that diminishes the connection between her neck impairment and the restrictions. The restrictions are serious consequences of the impairment of the function of the cervical spine.
10 Unfortunately, since November 2007, she now has a later and additional shoulder injury that limits her enjoyment of life but the activities were precluded anyway by the impairment of the neck commencing in 2004.
11 What has happened to her since this transport accident is that she has gone from being a carer of two seriously unwell gentlemen, namely her second husband and her son, to a person who has effectively needed a carer herself. I am assisted in this regard by the evidence both on affidavit of Robert Peel and his viva voce evidence. While some criticism was made of him in relation to some aspects of his affidavit that he may not have been able to give direct evidence about, such as her impaired vision affecting her golf, I accept his evidence as truthful. It reflects a lady who has been very severely affected by the transport accident in terms of her home life, her capacity to look after herself and her life outside the home.
Medical evidence
12 There was extensive cross-examination through the course of some 30 pages of clinical records from the plaintiff’s general practitioner in Alexandra. It is clear that she suffered from some problems with her vision and dizziness prior to the subject accident.[7] However, there is an absence of evidence about any pre-existing neck problems that could be said to have impaired her life in any meaningful way. There seems to be throughout those notes no more than a couple of passing references to her neck. These do not amount to anything I find as a disability when the transport accident occurred.
[7]Exhibits 1 and 2
13 Turning to the evidence of injuries in this transport accident, there is a series of documents[8] from the Maroondah Hospital. The second page of the ambulance report describes cervical pain amongst other areas of pain, together with a bruise to her forehead and a reference about possibly hitting her head on the dashboard. I note the initial assessment is “RTA neck/back pain” and I note that the first passage in the management refers to a cervical collar. It is important to note the diagram on the right of that second page that indicates clearly that pain is in the neck area and up the back of her head. The Transport Accident Commission (“TAC”) medical certificate from a Dr Nainthy, that is the second document in that exhibit, describes her injuries as “sprained neck”. The Emergency Department nursing assessment also describes neck pain and a cervical collar, and when one goes to the two-page handwritten clinical notes, virtually the first reference is: “hit head on the dashboard/then back and hit head on seat”. On examination, those notes record neck pain and headache and a CT scan of the spine being required.
[8]Exhibit 3
14 On any reading of that material, it is clear that she suffered a whiplash-type injury in which her neck was jerked violently and the focus of the medical attention at the Maroondah Hospital is clearly on a cervical spine injury. I find that she sustained a neck injury from the accident that is consistent with the forces described in this rear end collision.
15 The plaintiff saw her general practitioner, Dr Owen Crompton, on 23 December 2004 and he describes a soft-tissue neck sprain, as well as a left sixth cranial nerve palsy.[9] He said that:
“It is reasonable to presume some of her neck pain may be caused by her cervical osteoarthrosis, but I believe most of the pain is attributable to the collision, as there is no record in her clinical notes of complaints of neck pain prior to 16 December 2004.”
[9]PCB 60
16 He does say further that:
“I am not able to state whether the collision caused a worsening of this pre-existing condition.”[10]
[10]PCB 61
17 I read his report as saying he was unable to say whether the degenerative condition itself has been made worse in terms of the pathology involved, but he is clearly stating, in my view, that those degenerative changes have been made symptomatic by this car accident. I accept that his last report of 9 January 2013[11] does not take the question of the neck injury any further.
[11]PCB 61.1
18 Dr Crompton referred the plaintiff to a chiropractor, Mr Kenneth Given, on 18 February 2005 and a long period of chiropractic treatment commenced. Mr Given, as well as providing three reports, was required for cross-examination and gave evidence to the effect that he had treated the plaintiff over some twenty-nine years for general chiropractic care. While there had been some attention given to her neck, I take it that the treatment was focussed on the low-back injury she had suffered some forty years ago, together with some thoracic attention. I find that he did not provide any treatment for her neck other than routine chiropractic care to her whole spine that encompassed some minor attention to her neck. He describes[12] that when he saw her in February 2005, she was “complaining of localised left side neck and occipital pain”. This is consistent, in my view, with the Maroondah Hospital records.
[12]PCB 55
19 Mr Given treated her then very consistently and he describes her injury further as “cervicothoracic sprain/strain injury”. He described as a relevant finding, not only the decreased range of motion in her neck, but “spasm in the right shoulder girdle muscles”.[13] He said that this spasm was coming from the cervical spine problem. He noted that the plaintiff, when he reported in March 2007, “had actually deteriorated” and he thought “the plaintiff is unlikely to recover”. She does have an old lower back injury not related to the neck”.[14] In a report of 3 May 2012, he gives a pessimistic prognosis. He says she would not recover and that she repeatedly deteriorated without the chiropractic assistance and, indeed, had “deteriorated further”.[15]
[13]PCB 56
[14]PCB 57
[15]PCB 59
20 The other treating doctors really do not take the question of the neck injury much further. The report of Dr Craig McAulay[16] concerns the right shoulder problem following the fall that she had on 27 November 2007. Similarly, the report of the orthopaedic surgeon, Mrs Anita Boecksteiner,[17] is concerning the right shoulder, although I do note in that report the statement, “She has chronic neck injuries resulting in double vision and vertigo”. Mrs Boecksteiner further records, “She is also troubled by neck pain due to her accident”. The other treating doctor, Dr Christopher Chesney, is a cataract surgeon and ophthalmologist who is treating the plaintiff for the left eye problems.
[16]PCB 62
[17]PCB 63
21 The medico-legal reports include a report of a Dr Kaplan, psychiatrist, which does not greatly assist me in the tasks I am required to undertake. He does record, however, that when describing her injuries, the constant pain in her neck and head and stiffness in her neck is what she relates first of all.[18] I note that he describes her as “a resilient woman who has had to deal with major losses through her life and has been able to come to terms with these losses. She continued to lead a physically and socially active life until the death of her son and her accident”.[19] I find this is an accurate summation of the plaintiff prior to impairing her neck in the transport accident.
[18]PCB 74
[19]PCB 77
22 Mr Kenneth Brearley, general surgeon, reported on three occasions, although there was only one consultation involved – 16 November 2011. Mr Brearley’s further reports are really commentary following receipt of further documentation. He formed the opinion that the plaintiff had suffered “aggravation of pre-existing degenerative changes in the cervical spine”.[20]
[20]PCB 84
23 He then describes how she has been disabled by the injuries and has gone from a lady who was able “to look after her house perfectly well” to one who “now requires the definite assistance of a full-time carer”.[21] However, he is really speaking about the sum total of her injuries when he describes these consequences. He is speaking in an aggregated sense that includes the whiplash injury, the left eye injury and the consequential right shoulder injury which she suffered following the fall in 2007. In his later material, however, where he is asked questions, no doubt directed towards disentanglement, he states that the cervical spine injury limits her “social, recreational and domestic activities”.[22] I read that opinion and accept it as indicating the cervical spine injury has caused very considerable consequences in terms of impairing her ability to engage in such activities.
[21]PCB 85
[22]PCB 90
24 Mr Kenneth Myers, general surgeon and associate professor of surgery, reported on two occasions; however, again, he only saw the plaintiff once – on 10 October 2011. He diagnosed “aggravation of pre-existing, degenerative intervertebral disc disease in the cervical spine”, together with the shoulder and probably left eye injuries.[23] He thought there was little prospect of any improvement with respect to her neck or her shoulder condition and disentangles any psychological contributions from the physical injuries. He does this in the sense of aggregating the physical right shoulder and the neck injuries.[24]
[23]PCB 92
[24]PCB 93
25 Again, with respect to the obvious disentanglement task that the plaintiff must undertake, he has been sent a large number of medical reports from other doctors and radiological reports. In regard to the cervical spine injury and the question of pre-existing degenerative disease, he says: “Although there was pre-existing degenerative disease, all symptoms resulting from this are a consequence of the transport accident on 16 December 2004”.[25] He further considered that, “The transport accident with injury to the cervical spine significantly restricts her social, recreational and domestic duties”. I accept this opinion as one indicating that her loss of enjoyment of life in those areas is very considerably compromised by the neck injury alone.
[25]PCB 102
26 Mr Peter Blombery, consultant physician (vascular disease), reports on 19 October 2011. While there is some criticism made of his particular expertise, he is nevertheless qualified to give a medical opinion. He states that with respect to the cervical spine pre-existing pathology, “It is my opinion that the accident resulted in previously asymptomatic changes in the cervical spine becoming symptomatic”. He thought her prognosis for recovery was extremely poor.[26] After being sent further material, he comments about the injuries to the cervical spine, the right shoulder and the double vision. In relation to the neck he states, “I therefore attribute 100 per cent of her cervical spine condition to the transport accident. There were some pre-existing degenerative changes present but these were asymptomatic”. In my view, that is an opinion based on an accurate history when one looks at her pre-existing medical records containing only two passing references to her neck that are not indicative of any pre-accident restrictions or impairments.
[26]PCB 105
The Defendant’s evidence
27 As well as the clinical notes, a TAC Claim Form was tendered.[27] It is clearly something that the plaintiff has signed but has no real recollection of. Given that some of it is typed,[28] and other parts are filled out in longhand, it is not clear who completed the form. Interestingly, whoever it was that typed parts of it described “Closed head injury, neck injury, whiplash injury to the neck, musculoskeletal shoulder pain, stiffness in shoulder, nerve pain, symptom of complaint of the eye/left side, symptom or complaint”. This is a document dated 14 January 2004. That is some three years almost before the fall on 27 November 2007 in which the plaintiff suffered the right shoulder injury that has been the subject of much of the medical opinion and argument in this case. I find this record of complaints consistent with the plaintiff having some symptoms into the shoulder originating from her neck injury well prior to that fall. It is also consistent with[29] the chiropractor noting spasm in the shoulder girdle muscles prior to the November fall. I accept that the plaintiff, as a consequence of her injury to the cervical spine, has also suffered symptoms radiating into her shoulder.
[27]Exhibit 6
[28]PCB 24,25 and 28
[29]PCB 56
28 The defendant had the plaintiff seen by three doctors. Mr Stephen Leitl, orthopaedic surgeon, examined her on 11 August 2009. He followed this up with two further letters; however, they did not follow any second formal examinations. When asked to give diagnoses of injuries resulting from the accident, his opinion was “aggravation of cervical spine degeneration”. He further said, “I consider that her complaints of persistent intermittent neck pain is due to aggravation of pre-existing but previously symptomless, mild cervical spine degeneration resulting from the motor vehicle in question”.[30] He goes on to describe, “Her neck symptoms arise as a result of the underlying degenerative change. Aggravation of these can be attributed to the transport accident”. He notes that there were pre-existing changes suggested on the imaging studies but these were “pre-existing but symptomless”.[31] He discusses the same topic further and says that “Her pre-existing condition was the radiologically defined minor cervical spondylosis that has been brought to light and aggravated by the accident”.
[30]Defendant’s Court Book (“DCB”) 4
[31]DCB 6
29 He comments on her chiropractic treatment: “She has other conditions for which she received chiropractic treatment but these conditions are not influencing her neck condition”.[32] The plaintiff’s prognosis was poor for recovery and “the neck condition will persist for the foreseeable future”. I accept this opinion of Mr Leitl as consistent with the earlier opinions I have alluded to with respect to the diagnoses of the cervical spine injury and the symptoms being long term.
[32]DCB 7
30 His further letters do not in any way change his opinion about the neck injury but it is worth noting that in 2009, some five years after this accident, he recommended “that she have chiropractic treatment for acute flares of neck pain but confined to ten treatments per year”. He thought that the “mainstay of treatment was a daily exercise program that she had found useful in reducing her neck pain”.[33]
[33]DCB 9
31 Associate Professor Richard Stark, neurologist, provided an opinion following an examination in August 2011, and he focuses the majority of his report on the reported diplopia and the fall in which she hurt her right shoulder. He says, “I believe on balance that this lady suffered a minor closed injury and a jolting injury to the neck and back. Likewise, the accident may have contributed to her neck and thoracic pain discomfort and may have aggravated underlying degenerative problems”.[34] Other than those comments, he does not really advance any further opinions that assist with respect to an evaluation of her cervical spine impairment.
[34]DCB 14-15
32 I have reports of Dr Christopher Chesney, a cataract surgeon and general ophthalmologist, and from a Dr Mark Lazarus, eye specialist. Both these specialists provide opinions with respect to an organic injury that they consider she suffered to her left eye. I will not deal with these in any detail for reasons that will become obvious.
33 Applications such as this require me to make a judgment by comparing other cases in the range of possible impairments or losses of body function and to come to a conclusion whether or not a case reaches the test of “at least very considerable”. It has also been said in the matter of Fleming v Hutchinson[35] that “elements of fact, degree and value judgment are involved”, when adopting that passage from Humphries & Anor v Poljak.[36]
[35](1992) 66 ALJR 211
[36][1992] 2 VR 129
34 I take into account also what has been said recently in cases involving loss of enjoyment of life consequences in Hawkins v DHL Express (Australia) Pty Ltd[37] and in Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria.[38]
[37][2013] VSCA 26
[38][2013] VSCA 46
35 I accept what the plaintiff said about suffering constant pain, though varied in her cervical spine.[39]
[39]PCB 10
36 I find, in this case, that the plaintiff has suffered an impairment of the function of the cervical spine in the transport accident and this has resulted in pain that has continued over the last eight-and-a-half-years. It required a great deal of chiropractic treatment and some medication, but that for a lady with her condition there is little or no other treatment open to her. I find that this neck injury has caused very considerable consequences in terms of loss of her enjoyment of life. These include loss of her independence and her capacity to look after herself. The loss of her gardening capacity and her ability to play golf now that she is free of the responsibilities she had as a carer for her late husband and late son are both serious for her.
37 I accept what Mr Robert Peel says in relation to her lifestyle. In effect, it has been dislocated by these injuries and while to some extent he speaks about injuries in an aggregated sense, there is sufficient medical support that disentangles the neck injury from her later problems following the fall.
38 I am satisfied that the plaintiff has discharged her onus of proving the serious consequences of the impairment of the cervical spine standing alone.
39 Accordingly, the plaintiff will be given leave to bring proceedings for the recovery of damages having satisfied me that her cervical spine injury is one that has resulted in an impairment of body function, the consequences of which can be described as very considerable.
40 It was submitted by the defendant to me that the plaintiff failed to disentangle the injuries in this application as required by LuvMediterranean Shoes Pty Ltd & Ors.[40] I do not accept this submission. I find that the neck injury has been sufficiently disentangled from those other transport injuries.
[40](2000) 1 VR 511
41 It is not necessary for me to reach any conclusions and go through a detailed analysis of the left eye complaint and the resultant fall three years after the accident that led to her right shoulder pathology. Having given leave for the neck injury, I will not analyse in any detail the evidence with respect to those further matters. However, I do note that two experts have been engaged in this case in the field of ophthalmology.
42 I accept that both of these doctors find an organic injury to the plaintiff’s left eye caused in the transport accident. With respect to Dr Chesney, he considers the probabilities are that it was a “traumatic sixth nerve palsy”.[41] Dr Mark Lazarus thought that the transport accident indicated a “traumatic left lateral rectus palsy and is a permanent condition”.[42] It is unnecessary for me to analyse the consequences of that injury and to undertake any Petkovski v Galletti[43] analysis of the ocular problems and dizziness the plaintiff sustained prior to the transport accident in view of my finding that the cervical spine injury satisfies the serious injury test. Similarly, I am not required to proceed to an analysis of the right shoulder injury suffered in the fall on 27 November 2007 and whether or not it is a consequence of any left eye disturbance and whether the consequences of the left eye and shoulder injuries satisfy the test of “serious injury”.
[41]PCB 52-53
[42]DCB 20
[43][1994] 1 VR 436
43 For the reasons mentioned above, I grant leave to the plaintiff to bring proceedings for the recovery of damages.
44 I will hear the parties as to the costs.
- - -
0
3
0