Kegan v Transport Accident Commission
[2021] VCC 1336
•17 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01810
| JENNA LEE KEGAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2021 | |
DATE OF JUDGMENT: | 17 September 2021 | |
CASE MAY BE CITED AS: | Kegan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1336 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – chest and cervical spine – causation – nature and extent
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie [2000] 1 VR 79; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr D Seeman | Robinson Gill |
| For the Defendant | Mr J Batten with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 24 April 2014. On that occasion, the plaintiff was a front-seat passenger in a vehicle driven by her husband in Church Street, Brighton, when another vehicle approaching from her left collided with the front passenger side door of the plaintiff’s vehicle.
2The injuries relied on in this application are essentially impairment to the chest; alternatively, the cervical spine, with resultant problems of pain and sensory difficulties relating to the sternum and associated soft-tissue structures.
3The plaintiff tendered in evidence two affidavits and was cross-examined. She also tendered other affidavits and various other documents, all of which I have read.
4Relevant legal principles
5The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1] See s93(6) of the Act
6The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section … serious injury means–
(a) serious long-term impairment of loss of a body function … .”
7The part of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident was to “the chest and associated soft tissue structures, alternatively, the cervical spine”. The plaintiff relies predominantly on impairment of the chest.
8In order to succeed, the plaintiff must prove, on the balance of probabilities, that “the injury” suffered by her was the result of the transport accident.
9The requirements of the test are set out in the seminal decision of Humphries and Anor v Poljak,[2] wherein a majority of then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[2] [1992] 2 VR 129
10“Serious injury” as defined in subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment; however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[3]
[3] Richards & Anor v Wylie [2000] 1 VR 79
11Leading Counsel for the defendant informed the Court there was no issue in relation to the plaintiff being involved in a transport accident and suffering a degree of soft-tissue injury to the chest area, including a fracture of the sternum. The main issue in the case was whether the plaintiff was able to prove the impairment to the necessary threshold as defined in Humphries and Anor v Poljak[4] or more colloquially known as a “range case.”
[4] Supra
Identifying the injury
12Defence Counsel submit that the plaintiff has recovered from the fracture to her sternum and the soft-tissue structures surrounding, and what remains is a Chronic Pain Syndrome which is not essentially organically based. Plaintiff Counsel, on the other hand, submit that the fracture to the sternum and the associated soft-tissue structures have not healed and the plaintiff has been left with a long-term permanent impairment of the chest region which is primarily organically based.
13On 22 May 2019, orthopaedic surgeon, Mr Rodney Simm, prepared a joint report for the plaintiff and the defendant’s solicitors.[5] The material he was provided with included The Alfred hospital medical records, the osteopathy medical records of Mr Timothy Taylor, and the Royal Perth Hospital medical records pertaining to an earlier motor vehicle accident.
[5]Exhibit P, Plaintiff’s Amended Court Book (“PCB”) 117-126
14Mr Simm took a history that the plaintiff was a front-seat passenger in a car driven by her husband –
“… when a car drove at high speed out of a driveway and T-boned their vehicle, striking the vehicle in the region of the front passenger door. Mrs Kegen was shaken and thought there may have been a brief period of loss of consciousness. She was immediately aware of pain in the neck and difficulty breathing. She was able to get out of the car unassisted. An ambulance attended the scene of the accident. She was assessed and advised by the paramedic that she did not need to go to hospital. She was wearing a lap-sash seatbelt at the time of the accident and the airbags in the vehicle deployed. The paramedic said that her chest pain may relate to the airbag. She was in pain that night and was unable to sleep. She attended her General Practitioner the following day. Her main complaints were chest pain, neck and shoulder girdle pain. She was sent for x-rays, which showed a fracture of the sternum and she was advised to go to [T]he Alfred Hospital Emergency Department.
She attended [T]he Alfred Hospital. Cervical spine precautions were taken and she was fitted with a collar. She underwent investigations, which included x-rays of the chest, neck and back. The fracture of the sternum was confirmed. There were no injuries to the neck or lower back and the collar was removed. She was discharged home to the care of her doctor. She saw her doctor on a few occasions after the accident.”[6]
[6]Exhibit P, PCB 118-119
15As to progress and ongoing treatment, Mr Simm reported the plaintiff tried physiotherapy treatment with more than one physiotherapist but the treatment seemed to aggravate her pain:
“… She had seen an Osteopath in the past for a previous back injury, from which she had recovered fully. She went back to the Osteopath later in 2014 and she has continued with osteopathic treatment ever since.”[7]
[7]Exhibit P, PCB 119
16The current treatment consisted of seeing her osteopath at two to three-week intervals, and manual treatment was directed towards the upper sternum, neck and shoulder blades.
17The osteopath advised her to walk, which she was able to do three days per week until she became pregnant. She was not currently walking. She was doing exercises in a gymnasium, but the exercises tended to aggravate her pain, and these have also been discontinued. She does stretching exercises at home. She also takes Panadol four days per week. The plaintiff further stated her symptoms had not changed for over twelve months and were much the same as they were following the accident.
18As to her current symptoms, the plaintiff stated she suffered from constant pain. The pain varied from five out of ten to nine out of ten on a visual analogue scale. The severe episodes of pain occurred infrequently:
“… She may wake with severe pain or develop severe pain with activities, such as carrying weights or even with prolonged sitting at work. Her workstation was reviewed and has been altered to allow her to work with her head and neck in a more erect position. She has pain localised to the sternum in the anterior chest wall, from this location pain radiates more proximally around the shoulders into the shoulder blades, the upper thoracic spine and the lower cervical spine. She has no radiating pain in the arms and no neurological symptoms in the arms.”[8]
[8]Exhibit P, PCB 120
19Further, the plaintiff stated her lower back pain had settled and she had occasional headaches, which emanate from the occipital region. Neck movements were said to be reasonable, but she was aware of some decrease in neck movement, which was worse when the pain is more severe. She can reverse a car. She has more difficulty looking to the left than the right.
20With respect to activity tolerances, she related she could drive for one hour with increasing shoulder girdle pain. She could sit for one hour with increasing shoulder girdle pain, and sitting with her head bent forwards was worse than with her head held upwards. Walking was limited by pregnancy and was otherwise satisfactory. Prior to the accident, she jogged regularly for exercise. Since then, she has tried to jog but this causes a severe exacerbation of pain and she had now virtually ceased all jogging. She was able to carry weights of 4 to 5 kilograms and was still able to carry her two-year-old daughter with some difficulty.
21As to her past transport accident, Mr Simm took the following history:
“In 2004 she was in a serious transport accident in Perth. She was the driver of a car, travelling alone when she was struck by a road train, which had run a red light. She was unconscious for some time after the accident and remained in the Perth Hospital for about four weeks. She sustained fractures of the pelvis and sacrum and suffered ongoing low back pain for some years. The back pain eventually responded to the passage of time and osteopathic treatment, and she was pain-free before the subject accident. In a report from her General Practitioner, it was recorded that as a result of this accident she became addicted to opioids and became depressed. The depression persisted for some years, during which time she needed antidepressant medication.”[9]
[9]Exhibit P, PCB 121
22Mr Simm took a history that the plaintiff was educated to Year 12 and then completed a TAFE course in tourism. She had worked in corporate tourism ever since.
23As to domestic duties, she was unable to do the cleaning because of her neck and shoulder girdle pain and she had a paid cleaner, which is not covered by the Transport Accident Commission. She shops online and does some meal preparation.
24On physical examination, Mr Simm reported:
“She presented in a straightforward and co-operative manner.
…
… Thoracic rotation was assessed with her seated on the couch and her arms folded. In this position, with the pelvis fixed, thoracic rotation to the right was to 40o and to the left 30o with reproduction of left scapular and upper thoracic back pain.
…
There was non-uniform mild restriction of cervical movement. … There were multiple areas of tenderness at the base of the neck and around the shoulder girdles, suggestive of a fibromyalgia-type pain response.
…
She had full painless movement of both shoulders.”[10]
[10]Exhibit P, PCB 121-122
25After reviewing x-rays of the chest showing the fracture of the sternum, in answer to a schedule of questions, Simm opined as follows:
“1. Which of the injuries were caused or aggravated by the subject accident?
i. An unresolved soft tissue injury to the cervical spine, without radiculopathy.
ii. An unresolved soft tissue injury to the proximal thoracic spine.
iii. A fracture of the sternum.
iv. A soft tissue injury to the lower back with a temporary exacerbation of lower back pain, from which she has recovered.
v. Post-traumatic stress, which needs to be assessed by a Psychiatrist.”[11]
[11]Exhibit P, PCB 122
26Mr Simm then opined that her injuries had substantially stabilised and that she had suffered a 10 per cent whole person impairment which, according to the tables, related to the cervical and thoracic injuries. He further noted that she was not incapacitated for her previous employment and was still working.
27Finally, Mr Simm stated the injuries had compromised her personal and recreational pursuits and she needed to be seen by a psychiatrist.
28Mr Simm then reported back to the plaintiff’s solicitors on 22 September 2020.[12] At that time, he noted that the plaintiff was not currently working because of COVID restrictions. She had ceased work shortly after his last medical examination and delivered a healthy son. She was due to return to work in February or March of this year but was not able to do so because of the COVID restrictions. She anticipated going back to her part-time work as a travel agent when the restrictions are lifted.
[12]Exhibit Q, PCB 127
29Mr Simm reported that since his last examination, the plaintiff had not needed to attend her general practitioner for treatment of her injuries but was having face-to-face osteopathic treatment at two to three-weekly intervals prior to the COVID restrictions:
“… This treatment, in conjunction with three to four exercise sessions in the gymnasium were helping to control the pain. She has had to suspend the osteopathic treatment and going to the gymnasium. This has resulted in some increase in her pain and about a week ago she had an extremely severe exacerbation of pain, for which she took Endone. She was able to have a face to face treatment with the Osteopath and the severe pain settled over the next 24 hours.”[13]
[13]Exhibit Q, PCB 129
30As to her current medications, the Endone that she had taken was medication left over from the birth of her son. She otherwise took Panadol, two tablets on three to four days of a week.
31Mr Simm noted:
“Overall her condition has not changed. Approximately one week ago, for no particular reason, she developed an extremely severe flare-up of pain. The pain commenced in the sternal region and radiated around the left chest wall into the scapula and the top of the left shoulder. She rated the pain to be 9/10 on a visual pain scale. … As noted, this pain started to settle about 24 hours after an osteopathic treatment and after taking Endone. She is in constant pain, with pain rising to about 5/10 on an average day. The worst pain extends from the sternum, around the chest wall and into the left scapular region and top of the left shoulder, but she also has pain at the base of the neck in the upper thoracic spine and in the right shoulder girdle. She has normal right and left shoulder movements. She has restricted movement of the neck and finds it painful and difficult to turn her head fully to the left. She also finds it difficult to sit with her head flexed forwards for any length of time. Activities, such as housework, aggravate the pain and she has not been able to return to jogging. She has no radiating pain down the arms, but she does have some tingling into the left arm, but not into the left hand.”[14]
[14]Exhibit Q, PCB 129
32Her activity tolerances are such that she can walk for one hour pushing her youngest child in a stroller and she can sit for one hour but with increasing pain in the shoulder girdles, particularly if her head is flexed forwards.
33Mr Simm noted that prior to COVID restrictions, the plaintiff was paying for household cleaning. Following the restrictions, she has been managing to clean the house herself, with some difficulty, and with some help from her husband. When the restrictions are lifted, she will again employ a cleaner.
34On physical examination, of note, Mr Simm stated:
“… When I asked her to palpate around her neck and shoulder to find sensitive areas, she located sensitivity over the sternum, the left pectoral region and the top of the left shoulder. She had normal movement of both shoulders.”[15]
[15]Exhibit Q, PCB 130
35Once again, with respect to the injuries suffered, he recorded:
“i. An unresolved soft tissue injury to the cervical spine, without radiculopathy. Her clinical course has features of a Whiplash Associated Disorder with chronic cervical pain, limited cervical movement and recurrent headaches.
ii. An unresolved soft tissue injury to the proximal thoracic spine.
iii. A fracture of the sternum.
iv. A soft tissue injury to the lower back with a temporary exacerbation of lower back pain, from which she has recovered.
v. Post-traumatic stress, which needs to be assessed by a Psychiatrist. She has not required psychiatric treatment, but she admitted to being most frustrated by the chronic pain and associated limitations on her activities.”[16]
[16]Exhibit Q, PCB 131
36Mr Simm stated her injuries had stabilised and the condition was likely to remain much the same in the immediate future but in the long term there will probably be a tendency to slowly improve.
37With respect to employment, Mr Simm stated:
“She has been able to continue working in the travel industry. She has required some modification to her workstation. She needs flexibility with sitting and standing, and could not undertake alternative employment that involved frequent bending, heavy lifting or other physically demanding work duties.”[17]
[17]Exhibit Q, PCB 131-132
38Finally, he stated:
“The chronic pain associated with her injuries impacts significantly on her ability to undertake physically demanding domestic and recreational pursuits. She struggles to do her household cleaning. She has not been able to resume jogging and she cannot handle anything more than light free weights when she exercises in the gymnasium.”[18]
[18]Exhibit Q, PCB 132
39In a final report dated 29 September 2020, Mr Simm was asked to consider extensive medical material concerning her motor vehicle accident in 2004. He stated:
“Following … [that] accident she was taken by ambulance to the Royal Perth Hospital and treated for the following injuries:
1.Fractures of the right superior and inferior pubic rami, treated conservatively.
2. A fracture of the right lateral sacral ala, treated conservatively.
3.A closed head injury with right 3rd and 4th nerve palsies with resultant diplopia and reduction in visual field.
4. Soft tissue injury to the cervical, thoracic and lumbar spine.
5.Weakness of the left lower limb, specifically the left foot. This was variously attributed to the closed brain injury, or alternatively to an injury in the lumbosacral region.
She required specialised pain management and developed a dependency upon opioid analgesic medication, which was subsequently addressed. She had ongoing treatment in Perth over the next four years, prior to corning to Melbourne in 2008.
Dr Slinger, in his report, noted that after moving to Melbourne she had resumed osteopathic treatment at fortnightly intervals, directed to the neck and sacrum, and was also attending Pilates’ exercises twice weekly. Her medications at that time included antidepressant medication, Topamax for the prevention of migraines, four hourly Panadol for pain and Naramig for migraine. She was also using Voltaren and Perskindol rubbing creams. She had ongoing headaches, which had been treated with occipital nerve blocks on two previous occasions. She had pain in the neck, which was constant and aggravated by movements and radiated around the left shoulder. Dr Slinger also recorded symptoms in the area of the sacrum and pelvis. She had ongoing weakness around the left foot. Physical examination of the cervical spine showed reduction in movement, particularly extension. There was mild weakness of both plantar flexion and dorsi flexion of the left foot. Dr Slinger reviewed the imaging, which confirmed the diagnoses.
On the basis of his report, one would have to conclude there were clinical signs of a residual cervical injury and lumbar injury when physically examined, without objective neurological abnormalities.”[19]
[19]Exhibit R, PCB 134
40Accordingly, Mr Simm contacted the plaintiff and took a further history as follows:
“… When she came to Melbourne she was still troubled mostly by pain around the lower back and pelvic region, and for this reason she started regular osteopathic treatment, which has continued up until the present time. Since the accident in 2014 the treatment has been directed to the cervicothoracic region and left scapular and chest wall region. These painful regions were not painful prior to the accident in 2014. She could not remember having any significant neck pai or stiffness leading up to the accident, although, from time to time, she may have had an osteopathic treatment directed towards the neck.
She again stressed today that the pain around the cervicothoracic spine, left scapula, left shoulder, left chest wall, left pectoral region and sternum may be extremely severe and that this pain is pain in an entirely new distribution from pain she had ever had prior to 2014.”[20]
[20]Exhibit R, PCB 135
41In his conclusion, Mr Simm stated:
“Your client has developed pain involving the lower cervical spine, upper thoracic spine and the left shoulder girdle and chest wall region as a result of the accident in 2014. This distribution of pain was not present after the accident in 2004 and is currently causing the disability that I have described in my reports.
She currently has clinical signs of cervical spine and upper thoracic spine dysfunction. It is not possible to determine if there were low-grade clinical signs of cervical spine dysfunction persisting from the accident in 2004, prior to the accident in 2014. There was a period of five years from the medical report undertaken by Dr Slinger to the accident in 2014, and her history is that she had essentially recovered from all cervical symptoms and even her severe headaches in this period of time.”[21]
[21]Exhibit R, PCB 135
42In the context of the case before me, I am prepared to accept that Mr Simm’s opinion is consistent with the plaintiff suffering unresolved pain relating to the fracture of the sternum and of the associated soft-tissue structures, together with an unresolved soft-tissue injury to the cervical spine without radiculopathy. In terms of impairment to the chest area, I consider it significant that Mr Simm stated:
“… When I asked her to palpate around her neck and shoulder to find sensitive areas, she located sensitivity over the sternum, the left pectoral region and the top of the left shoulder. … .”[22]
[22]Exhibit Q, PCB 130
43Further, Mr Simm took a history as follows:
“… She has pain localised to the sternum in the anterior chest wall, from this location pain radiates more proximally around the shoulders into the shoulder blades, the upper thoracic spine and the lower cervical spine. … .”[23]
[23]Exhibit Q, PCB 120
44Further, Mr Simm, in his second report, noted:
“She is in constant pain, with pain rising to about 5/10 on an average day. The worst pain extends from the sternum, around the chest wall and into the left scapular region and top of the left shoulder, but she also has pain at the base of the neck in the upper thoracic spine and in the right shoulder girdle. … .”[24]
[24]Exhibit Q, PCB 129
45These comments from Mr Simm seem to accept that the pain from the sternum is related to the pain around the chest wall and into the left scapular region and top of the left shoulder, at least. This, in my view, would be relevant to impairment of the chest region. For present purposes, I would accept that the neck and or the upper thoracic spine are probably different sites of injury.
46I am prepared to accept that these chest symptoms are organic in nature and relate to an ongoing impairment of the chest and ribcage area as conceded by leading Counsel for the defendant.[25]
[25]Transcript (“T”) 63, Lines (“L”) 20-22
47As to the identity of the injury suffered, the defendant also had the plaintiff examined by surgeon, Mr Gary Speck, on 18 November 2020.[26]
[26]Exhibit 7, Defendant’s Court Book (“DCB”) pages 9-27
48Mr Speck took a consistent history with respect to the transport accident but also noted that the plaintiff’s vehicle, which was two years old, had been written off subsequently. Further:
“She was complaining of chest pain at the time and ‘difficulty moving and breathing’.”[27]
[27]Exhibit 7, DCB 11
49Mr Speck noted that at that time, she was also seeing her local general practitioner, Dr Josephine Samuel-King at Ripponlea Medical. Also:
“She occasionally sees the osteopath but not recently during the lockdown although she had an episode of more severe pain where she attended in recent times.”[28]
[28]Exhibit 7, DCB 12
50Her current medications were Panadol, which she was taking four days in the week, taking up to six Panadol as a maximum but generally up to four per day. The plaintiff also said the symptoms suffered at the time of the accident had continued in two areas, viz:
“1. The anterior pain in the chest in the lower sternum and slightly to either side perhaps more on the left than the right.
2. The painful area between her shoulder blades which when severe extends up to the base of the neck with cramping and tightness.”[29]
[29]Exhibit 7, DCB 13
51Further:
“She describes the symptoms in the interscapular area as being 8½ /10 on the day she was seen if 10/10 was the worst pain imaginable and can vary between 6-10/10.
She says that heavy lifting such as picking up the children will increase that pain, vacuuming similarly and these are similar activities to those that increase the anterior chest pain. She says resting and taking Panadol helps the pain as does Endone if necessary although she would take that rarely perhaps once in 2 months and is using Endone left over from her more recent child birth 18 months prior.
The chest pain is anterior, described as a dull ache and occasionally when more severe has a burning nature. She describes it as being central although it can be a little to the left and worst at night and she describes difficulty with cramping and lying prone which was her preferred sleeping position in the past.
She describes when she has ‘overdone things’ as causing more chest pain and tends to adopt a stooped posture she said. She says picking up the children for example and vacuuming would increase that pain. Resting in bed at the extreme for the posterior interscapular pain and for the chest pain help as do the analgesics. The severity of the pain in the chest was a 4/10 on the day she was seen and can vary from 4-8/10.
…
The chest pain is anterior, described as a dull ache and occasionally when more severe has a burning nature. She describes it as being central although it can be a little to the left and worst at night and she describes difficulty with cramping and lying prone which was her preferred sleeping pattern in the past.” [30]
[30]Exhibit 7, DCB 13-14
52Mr Speck took a further history:
“Currently she would still go to the gym if available 3 times per week, is busy with the two children and would spend time hanging around with family. …
She is able to look after her own finances, has a driving licence and drives her Honda as she did today to the appointment and is able to undertake shopping but generally uses delivery for her groceries as she had done prior to the transport accident. She said she would carry light items in a basket. She is able to carry items and said she could move up to 10 kilograms at bench height and can lift her 4 year old daughter if needed. She does not hold heavy weights for long and points out that she has a light frame. She finds difficulty with heavier loads with twisting and turning movements.
She does all the meal preparation although her husband will do the barbeque but she continues to do all the food preparation and cooking at home. She does some of the house cleaning, normally would have a cleaner once a fortnight to do the wet areas and heavier cleaning such as vacuuming and mopping and she has worked with her husband to clean during the lockdown with him doing vacuuming and mopping still. She will pack the children’s toys away and clean surfaces.
… She is able to look after her personal care with shower, toilet and dressing and can shave her legs and cut her toe nails. She is generally independent.”[31]
[31]Exhibit 7, DCB 14-15
53On examination, the plaintiff “was co-operative”.
54Further:
“She had a good range of thoracolumbar movement … with a pulling sensation in the right interscapular region extending between the approximately T8 area to T2 in the paravertebral muscles.
The cervical movements were … [accompanied] with pulling in the right interscapular region and some tightness in the trapezius muscle.
…
There was tenderness over the lower third of the sternum, and in the costochondral cartilages on either side in that region but no pain or tenderness on springing the chest. Posteriorly the paravertebral muscles were tender over approximately a 15 centimetre distance extending up to the trapezius muscle on the right and to a lesser degree in the midline from T2 down to T8 and maximal around T4/5. The right paravertebral muscles were tighter than the left and tender.
The trapezius was tender and there was some tenderness in the midline to the base of the skull on palpation although not an area of pain.”[32]
[32]Exhibit 7, DCB 16-17
55Mr Speck also had the clinical details of the previous accident in Western Australia, consistent with that of Mr Simm. Of interest was the opinion of Dr David Rosen, neurologist, of 9 December 2004, which concluded:
“In summary she has had a mild/moderate traumatic brain injury complicated by diffuse axonal injury documented on him (sic) are causing the left leg weakness and diplopia as a result of the resolving 4th nerve palsy. She is developing some features of early post-traumatic stress disorder, but does not have any significant cognitive impairment on the basis of the clinical neurological examination. I think it is a good idea for her to have some counselling at this stage and to commence on [a] small dose of Endep at night and I would like to review in 3 months, but would be happy to review her earlier if the need arises. She should continue on symptomatic therapy for pain.”[33]
[33]Exhibit 7, DCB 19-20
56Further, Mr Speck referred to the report of the treating osteopath, Mr Tim Taylor, dated 31 March 2019,[34] to the following effect:
“Ms Kegen presented for Osteopathic treatment on the 2nd December 2014 for treatment at Darling Corner Osteopathy where she consulted with my associate Osteopath Dr. Clare Greig.
Prior to the accident, Ms Jenna Kegen was a patient of the clinic who was treated for mechanical lower pelvic pain and lower back pain from a previous accident that she was involved in [in] 2004. Jenna suffered with episodic flare ups of sacro-iliac pain often aggravated by her office based work environment. Her last attendance to the clinic prior to the accident was on 8th September 2012.
…
[34]Exhibit L, PCB 75-79
In summary, Ms Kegen presented with a collection of dysfunctional musculo-skeletal impaired functional areas. Namely in her cervical spine, thoracic spine and anterior costo-sternal region. These dysfunctional areas where (sic) the direct result of her MVA whiplash injury on the 27/04/2014.”[35]
[35]Exhibit 7, DCB 22; Exhibit L, PCB 76-77
57Mr Speck then analysed as follows:
“… She was involved in a severe transport accident as a teenager in Perth in 2004 from which she had made a good recovery with residual treatments by an osteopath related to her pelvis and back.
The transport accident on 27/4/14 occurred at low speed, with the predominant symptoms at the time relating to a fractured sternum and soft tissue injuries across the chest and low back and interscapular pain posteriorly. The symptoms in the low back resolved, the symptoms in the interscapular region on both right and left have continued and fluctuate intermittently with chest pain to the left adjacent to the lower sternum.
The sternal fracture was not associated with any intra-thoracic injury and there was no identified thoracic spine fractures. Her ongoing chest symptoms are associated with tenderness over the left costochondral region with no pain on springing the chest and there is no evidence of neurologic injury to the spinal cord.
Her current situation reflects a healed fracture of the sternum, resolved soft tissue injuries to the low back and thoracic spine with ongoing symptoms and signs characteristic of a chronic pain syndrome. She denies any psychological treatment being required for the transport accident.”[36]
[36]Exhibit 7, DCB 22-23
58In his report under the heading “Diagnosis”, Mr Speck stated:
“Fractured sternum, healed.
She had associated soft tissue injury to the chest and thoracic region with residual chronic pain syndrome affecting the upper thoracic region and anterior left chest adjacent to the sternum.”[37]
[37]Exhibit 7, DCB 23
59Significantly, in my view, Mr Speck was asked:
“2. Are the alleged injuries consistent with the accident circumstances described by the Plaintiff?
Answer: The injuries nominated on her claim for compensation summary [dated] 29/4/14 are of; ‘fractured sternum, bruising to chest, left upper leg, whiplash, pain in lower back and pain in neck’. The symptoms associated with the soft tissue injuries have resolved in all regions other than the interscapular region of the upper back (thoracic region) and left anterior chest adjacent to the sternal fracture. The sternal fracture has healed.
3. Have any of those injuries resolved?
Answer: The symptoms associated with the soft tissue injuries have resolved in all regions other than the interscapular region of the upper back (thoracic region) and left anterior chest adjacent to the sternal fracture. The sternal fracture has healed.”[38]
[38]Exhibit 7, DCB 23
60In my view, these two paragraphs are consistent with Mr Speck opining that soft-tissue injuries to the interscapular region of the upper back (thoracic region) and the left anterior chest adjacent to the sternal fracture have continued until the present time.
61The plaintiff’s case is that these soft-tissue injuries, so described, have led to an impairment of the chest region, by way of pain and consequential limitations of movement on account thereof. I do not understand the defendant to cavil with the proposition the impairment to the chest can be associated with the soft-tissue structures surrounding the sternum and chest region.[39]
[39]T63, L20-22
62Mr Speck is asked further:
“5. Does the Plaintiff have any psycho-social issues which may be impacting on her presentation? If so, what impact do these have on the Plaintiff’s current presentation and her transport accident injuries?
Answer: Her current presentation is indicative of a chronic pain syndrome which has developed subsequent to the transport accident.
6. What is the prognosis for the Plaintiff’s transport accident injuries?
Answer: The prognosis for the sternal fracture is good with expected healing been achieved. The resolution of the soft tissue injuries and other areas is to be expected. There was no discoligamentous or fractures identified in the thoracic region at the time of her attendance at [T]he Alfred hospital or subsequently, so resolution of the soft tissue injury is to be expected within 6 to 12 weeks of the transport accident. The pain in the region of the paravertebral muscles in the thoracic region and anterior left chest pain are best characterised as a chronic pain syndrome.”[40]
[40]Exhibit 7, DCB 24
63Clearly, thus described, the pain described by Mr Speck is “chronic” and can therefore be regarded as long term and, inferentially, likely to continue into the foreseeable future.
64Mr Speck does not define what he means by “chronic pain syndrome” in the sense as to whether the pain is predominantly organic or predominantly psychological. He does not suggest the plaintiff is feigning her symptoms. He also notes that she was co-operative during the examination and does not suggest any unusual illness behaviour. He further records the plaintiff has denied any psychological treatment being required for the transport accident, and seemingly does not explore this topic any further.
65I am therefore persuaded that, on balance, the “chronic pain syndrome” described by Mr Speck is predominantly physical and explicable in terms of the chronic soft-tissue injuries associated with the chest region as described above.
66Accordingly, the question then becomes as to whether this impairment satisfies the “very considerable” test required.
The Plaintiff’s evidence
67In her first affidavit, the plaintiff swore that she was born in February 1986 in South Africa and migrated to Perth, Western Australia in 1992. After Year 12, she completed a Diploma in Travel from TAFE in Perth. She thereafter commenced working in the travel industry as an agent. She and her husband have a two-year-old daughter and a five-month old son. Her husband is an architect and the plaintiff was currently on maternity leave from corporate travel agency work.
68With respect to her previous motor vehicle accident in 2004, the plaintiff swore as follows:
“10. In 2004 I had a serious car accident in Perth.
11.I fractured my pelvis and sacrum and suffered from ongoing low back pain for several years.
12. I had cranial nerve damage.
13.I had a minor brain bleed which I understand has caused some memory loss - specifically it continues to affect my memory of dates. I tend to write things down to compensate for this. I also understand that the brain injury caused me fatigue. I believe this was prevalent for several years and improved thereafter. I think my psychiatric state also contributed to memory issues.
14.I had surgery on my eyes to cure double vision. This was largely corrected but I still have double vision when I look to the side. It has in the past affected my ability to drive at night or in low light.
15.I also had some left foot drop which has resolved save for very occasional left sided foot weakness which I notice when I am very tired. This is uncommon and I don’t recall the last time I noticed this.
16.I had some migraines after the accident which recurred 2-3 times per week for many years. I was able to gain control of them with medication and they did not interfere with my work in recent years.
17.I had neck pain and fractures to my lumbar spine and right sacrum and pelvis.
18. I was in hospital and rehabilitation for about 6 weeks and then returned to rehabilitation for about another 10 days thereafter.
19. I took medication for a number of months after the accident and I needed to go back to hospital to wean myself off the medication which was poorly managed.
20. I was prescribed various anti-depressants and Lyrica until the end of 2011 at which point I was able to gradually stop medication. I was diagnosed with anxiety, depression and PTSD in Western Australia. This improved significantly over time with only occasional anxiety associated with driving. I did however have low mood and low energy for about 5 years after the accident. I had severe anxiety as a passenger and sleep disturbance. At my lowest point I had some suicidal thoughts and severe depression and I was seeking (sic) a psychologist weekly.
21. I saw a psychologist in Perth weekly until I moved to Melbourne in 2007. I then tried to speak to the psychologist over the telephone after I moved to Melbourne which was ineffective. I struggled to adapt to Melbourne initially and suffered panic attacks weekly and had migraines 2-3 times weekly. These subsided over time.
22. I then tried various psychologists whom I did not find helpful. After persisting for a short period I stopped and then found a psychologist whom I connected with. I ceased consulting with him in about 2011.
23. Despite the seriousness of this accident and ongoing pain for several years after the accident, I was able to rehabilitate and resume my studies and full-time employment. I did however have ongoing pain for years after the accident.
24.In 2015, after the motor vehicle accident the subject of this claim, I lost a son immediately after his birth. This was extremely traumatic. I have since had two children. Having another child was very helpful in allowing me to heal. We sought legal advice about this which was also quite helpful in obtaining closure but at the same time was stressful until those matters were over.”[41]
[41]Exhibit A, PCB 9-11
69With respect to the present motor vehicle accident, the plaintiff swore as follows:
“25.On 27 April 2014 I was a front seat passenger in a motor vehicle accident driven by my husband. We were driving along Church Street, Brighton when a parked car drove out into our car hitting the passenger side.
26.I had immediate chest pain and neck pain after the impact.
27.An ambulance attended the scene and assessed me.
28.I was told to go home and that my pain was probably from the airbag which had deployed into my chest or the seatbelt.
29.I tried to sleep that night without success.
30I was in excruciating pain in my chest and neck the next day and I had difficulty lifting the kettle, getting dressed, and had difficulty taking deep breaths.
31.I consulted my general practitioner the next day and I was referred for radiology and given sleeping tablets.
32.I was advised to try to take Panadol and Panadeine as needed.
33.As the pain did not go away, I attended to [T]he Alfred.
34.At [T]he Alfred I was placed in a neck brace and had more scans. I was advised to keep taking Voltaren at [T]he Alfred which resulted in stomach ulcers.
35.I was advised that I had a fractured sternum and a whiplash injury.
36.I had ongoing chest pain (at the sternum) and neck and mid-back pain.
37.I was given Endone and Panadeine Forte and told to go home and rest.
38.I took time off from work. I believe I took of about 2-3 weeks but I am not certain of this.
39.I had nightmares of the accident and was taking pain medication.
40.The chest pain caused by breathing seemed to resolve slowly to the point that I was getting only occasional pain from heavy breathing on top of the continued sternum pain I had at a base level.
41.I tried to return to work in early May 2014 without much success. I was offered a new job about two weeks later which I accepted.
42.I tried physiotherapy. This was unsuccessful and caused me added sternum and back pain.
43.The TAC kindly agreed to pay for Osteopath treatment.
44.This assisted in reducing my pain levels and has been my source of treatment since the accident. I continue to see an Osteopath fortnightly or every three weeks, which the TAC continues to pay for, and I take over the counter medication. I do not need to consult my general practitioner about my back, neck and sternum pain because there is nothing further to be done.
45.Prior to the accident l had not seen the Osteopath since September 2012.”[42]
[42]Exhibit A, PCB 11-12
70With respect to the present consequences of her injuries, the plaintiff swore as follows:
“46. I currently have constant chest (sternum) pain. I would rate the pain as a 5-9/10. The pain level changes according to what I have done during the day.
47. I tend to wake up with severe pain which I have presumed is from sleeping on my side or rolling over during the night.
48.I wake up from sleep every night. I wake up at least twice and sometimes more. The movement of rolling over and lying on my side for extended periods causes added pain, and I think this is what wakes me. Immediately prior to the accident I used to wake up only occasionally.
49. I often wake up fatigued as a result of the poor sleep. This was the case prior to having a baby. I also cannot sleep on my stomach as it causes too much pain.
50. Other things which increase my sternum pain is sitting at my desk. I think sitting at a computer and typing for long periods increases the pain level. I find the pain tends to increase gradually throughout the day. Sitting and typing is an inherent part of my job so I just persist with this. This also increases my mid back and neck pain. Prior to being on maternity leave I was working full time.
51. The chest pain runs across my sternum and refers or radiates to the shoulder on both sides. The pain is noticeably worse in colder months.
52. Prior to the accident (after recovering from the 2004 accident) I used to enjoy jogging for exercise. I would jog most days. Since this accident I have been unable to jog for any respectable distance. I can jog for less than a block. I used to be able to jog at pace for several kilometers. Jogging now causes me increased sternum pain and I tend to walk for exercise instead.
53. I have tried spin classes as riding is low impact. This however increased my sternum and neck pain, but not as much as jogging.
54. I stopped spin classes several years ago and have since limited myself to moderate walking and light weights. I have not gone to [the] gym in recent months due to the recent birth of my son.
55. Lifting heavy objects causes me increased sternum pain. Lifting my daughter (who weighs about 10kg) causes me addition pain. Lifting weights also increases my back pain. This is terribly inconvenient for me as I often need to lift my daughter if she is upset or if she needs help traversing play areas. Doing this causes me added pain and I chose to endure this rather than deprive my daughter.
56.Things like cleaning the house cause me increased neck and sternum pain. I have had assistance from [the] TAC in the past. Whilst I did not do this type of house work after the first accident, I was able to go back to this home maintenance for years prior to the claimed accident.
57.The repetitive and heavy lifting involved in cleaning is what increases the pain. Driving for lengthy periods increases my pain in the sternum and neck. I would estimate that once I have driven for 30 minutes or so the pain starts to noticeably increase.
57.I currently take between 0 and 6 Panadol tablets per day, depending on my pain. I have good days and bad days.
58.After the accident I was advised to take 4 hourly neurofen (sic) which I did for about 6 weeks. As a result I had severe gastritis and required a gastroscopy which the TAC kindly paid for. I have since been advised that as a result of the intense neurofen (sic) intake after the claimed accident I am unable to take anti-inflammatories. This has affected my management of my sternum pain and other management of pain when I would otherwise need to take Neurofen (sic). For example, when I have a headache. Also, after childbirth I struggled to deal with recovery as a result of not using antiinflammatories. I would also like to take Neurofen (sic) when I have flare ups of muscle pain.
59.I am currently on maternity leave as a travel agent for Just Group. I intend to try to return to work 3 days per week when my child is older. After the accident my work allowed me to work from home 1 day per week.
60.My work is affected by my sternum and back and neck pain in two principal ways. Firstly, my pain is distracting and reduces my concentration. I tend to require breaks more frequently than I otherwise would and thus my productivity is compromised.
Secondly, sitting at a desk and typing for long periods increases my pain and as result I tend to get up and take breaks more frequently and take Panadol when I work.
61.I had my workstation altered after a review to allow me to work with my head and neck in a more erect position. I suspect that I will continue to need to take breaks which will effect (sic) my productivity.
62.I am now again a very anxious passenger when in a car. I struggle to go down Church Street. I have nightmares of the accident rarely. These were more frequent after the accident. I have nightmares once every month or so.
63.I feel stressed and nervous for reasons which I do not always know. Whilst I had a significant psychiatric reaction after the 2004 accident, there is no doubt that I have declined psychiatrically after the 2014 accident. I tend to eat less when I feel stressed. Anxiety comes on several times per week.
64.I am very frustrated by the constant pain.”[43]
[43]Exhibit A, PCB 14-15
71In her supplementary affidavit sworn 15 February 2021, the plaintiff affirmed that the consequences previously attested to still apply and that before lockdown due to COVID-19, she was consulting with her osteopath every two to three weeks. She further swore:
“6.On one occasion during lockdown I had to see him for an urgent appointment. I could barely move due to the pain in my sternum. The pain radiated to my ribs and shoulder.
7.I believe the pain was made worse by the regular cleaning I did in the house and having to lift my children.
8. I took Endone for the pain which I had left over from when I gave birth.
9. The lockdown was extremely difficult because I couldn’t see the Osteopath and I didn’t have a cleaner and I had two kids at home. The cleaning and house maintenance caused me severe pain, especially the sweeping and mop[p]ing and heavy lifting, including lifting my children. During this period my pain was much worse.
10. I took Endone on about 3 occasions during lockdown due to severe pain in the sternum.
11. As has been the case prior to lockdown my pain continues to be in my sternum and radiates to my ribs and into the shoulder region. The pain continues to be at a level that I would describe as 5/10 and is usually at about this level. The pain is made worse by lifting and engaging in repetitive heavy work or sleeping on my side.
12. On a bad day the pain can reach a 9/10. My sternum and neck pain are worse in winter. The sternum and associated radiating pain is worse than the neck pain.
13. The neck pain comes on when I rotate my neck to the left or if I am seated in the same position for extended periods and if I do heavy lifting.
14. As a result of the sternum pain I continue to take Panadol. I take between 0 and 6 Panadols per day. On average I take Panadol 3-4 times per week. I usually take 2 tablets at a time. On bad days I take 6 tablets. I have 1-2 bad days per week. I believe that my pain is dictated largely by what I do during the day. If I have to carry my children or sleep awkwardly the pain tends to be worse.
15. I do very minimal work at the moment because of covid-19 and the impact on the travel industry. I answer the occasional email and I do some administration, but there is minimal work.
16. When the industry returns I anticipate going back to work part-time due to my parents[‘] commitments. I will no doubt have the same difficulties that I did prior to lockdown with sitting for extended periods and needing to have an ergonomically sound setup.
17. I try to exercise by walking for about an hour per day. When gyms open up I would like to return to doing light interval training.
18. I continue to miss being about to run, lift heavy weights and do spin classes. I cannot see myself ever being about to return to this level of exercise. I could run around the block, but any more than that causes me severe sternum pain.”[44]
[44]Exhibit A, PCB 6-7
72Under cross-examination, the plaintiff said that when she had returned to work after the accident, she had had “the odd sick days off from pain, or days when I haven’t been able to drive into the office due to pain and I would work from home”.[45]
[45]T19, L24-29
73Further, the plaintiff conceded she had not had treatment for the motor vehicle accident injuries from her regular general practitioner, Dr Samuel-King, but that physical treatment had been principally from the osteopath.[46]
[46]T22, L9
74When cross-examined about the pain she suffered during lockdown, she was asked whether the pain came on from some activity of a domestic nature in the home, to which she replied:
A:“It would have been just being around the kids and picking them up and doing everything, yeah, cleaning and doing everything at home.
Q:So was the severe pain - where do you tell His Honour the severe pain was?---
A:In my sternum.
Q:In your sternum?---
A:Yeah, and radiating back to my shoulder and neck.
Q:Left or right sternum?---
A:In the middle of the sternum.
Q:You pointed to your right upper chest level?---
A:It’s right in the sternum.”[47]
[47]T22, L29 – T23, L8
75The plaintiff was then asked whether this episode of severe pain was one off. She replied:
A:“No, it’s not just a one-off, it has happened quite a few times where I’ve just had a build-up of pain.
Q:How much Endone did they give you or did you have [some] left over from the birth of your son in May 2019?---
A:I’ve got about two or three boxes.”[48]
[48]T24, L2-10
76Further, the plaintiff conceded that she had had medical treatment in Melbourne for the first motor vehicle accident between 2007 and September 2012.[49]
[49]T25, L28 – T26, L3
77Further in cross-examination, it was put to the plaintiff that in November 2014, she was doing spin classes three times per week and occasionally, stretch exercises at home, to which she replied:
“Yes, I was attempting to, yes.”[50]
[50]T32, L4-5
78When it was further put to the plaintiff that she was in fact doing spin classes three times a week at that time, she replied:
“No, I don’t believe I was.”[51]
[51]T32, L2-L9
79Further, the plaintiff denied that she stopped doing spin classes due to renal issues and that she had –
“… stopped doing gym due to … [her] sternum pain, but not for anything renal. I do not recall ever having a renal problem.”[52]
[52]T33, L27 – T34, L3
80Later, the plaintiff was asked:
Q:“Since the birth of your son in 2019, the son that’s now 21 months, have you done any jogging?---
A:I can do a lap around the block at the very most and then I get pain.”[53]
[53]T36, L21-22
81As to a clinical note of her general practitioner in December 2015 that she was performing “better at the gym”, the plaintiff replied:
“No, I was not back properly at the gym. I think I was trying to attempt it for psychological means but I was not back.”[54]
[54]T37, L17-19
82It was further put to the plaintiff that there was a clinical entry in the general practitioner’s notes dated 6 July 2017 to the effect:
“‘[T]old not to go to spin classes and to do moderate exercises only due to ? spin class related mild/acute renal issues.’”[55]
[55]T37, L26-28
83The plaintiff replied that the entry did not assist her at all with her memory.[56]
[56]T38, L1-4
84Further cross-examined, the plaintiff said that she had been to a gymnasium a week ago at her gym known as “Pulse8”. She conceded she was supervised by Anita, whose roll was to make sure she was doing the right movements so as not to get injuries. The plaintiff stated that she was involved in interval training consisting of –
A:“It’s just trying to build muscle and, you know, lift weights, whether it be short cardio workouts.
Q:So you use mats, barbells and machines, do you?---
A:Yes.
Q:Do you use skipping ropes?---
A:You can, yes.
Q:Do you use medicine balls?---
A:Yes.
Q:How long have you been doing at Pulse8 with an instructor, interval training in Oakleigh?---
A:It would be probably since - I can’t give you the exact date but I would guess it would be 2020, beginning of 2020.
Q:So it’s a regular weekly event for you?---
A:It’s not – it’s not always the same, it just depends on - if I’ve got too much pain, then I won’t go to the gym.”[57]
[57]T38, L29 – T39, L11
85Otherwise the plaintiff denied that she had done any spin classes in the last twelve months, she did not own a bike or a skipping rope and did not perform exercises at home.[58]
[58]T40, L8-16
86Further, it was put to the plaintiff:
Q:So you’re telling His Honour that you don’t do any of the work that involves repetitive vacuuming or cleaning, is that what you say?---
A:Correct.
Q:Have you gone to the physio from time to time complaining that you have difficulties doing domestic activities such as vacuuming and cleaning?---
A:When I’ve had to vacuum or clean I do get pain, yes.”[59]
[59]T41, L31 – T42, L6
87The plaintiff was further asked whether she had been referred to any specialist in respect of her treatment, to which she replied in the negative, and it was then put:
Q:And you tell His Honour that effectively your pain is constant and the same level since April 2014 and continuing?---
A:Yes.
Q:Has anyone suggested to you that you should stop going to Tim Taylor, the osteo, and that he’s promoting your symptoms?---
A:No.”[60]
[60]T47, L21-26
88The plaintiff was further asked:
Q:At 156 of the plaintiff’s court book, your husband’s affirmed affidavit in support, I think it’s paragraph 5, he makes reference to you now refraining from running long distances?---
A:I can’t run long distances, it causes me too much pain in my chest with the sternum and breathing.
Q:Do you know that as a fact?---
A:Yes.
Q:What’s the longest distance you’ve run in the last two years?---
A:It wouldn’t be more than a small block.”[61]
[61]T49, L22-30
89Further in cross-examination, the plaintiff confirmed that she had only engaged independent domestic assistance with respect to cleaning after the April 2014 car accident.[62]
[62]T51, L10-12
90With respect to any psychiatric action following the subject accident, the plaintiff opined that whilst she had had significant psychiatric reaction after the 2004 accident, there was no doubt in her mind that she had declined psychiatrically after the 2014 accident. It was her own opinion, and she stated:
“I think the accident - the 2014 accident has made me quite insecure and self-conscious, both of my posture and the constant pain really bothers me.”[63]
[63]T51, L24-26
91In re-examination, the plaintiff stated she had taken Endone on three or four occasions in the last twelve months. She stated she had taken it because of intense pain. Asked which part of her body, she replied:
A:“In my sternum and then because it’s a build-up of pain, it goes all the way down into my shoulders and then up into my neck.
Q:On those three occasions, how many tablets do you take?---
A:I think it’s only - I think you can only take two Endone.”[64]
[64]T52, L31 – T53, L2
92With respect to her gymnasium attendance, she was asked:
Q:“Since the end of the first lockdown, how often have you been going to Pulse8, roughly?---
A:It just depends on the week but I would say around three times.
Q:When you go there, is it for interval training?---
A:Yes.
Q:Your evidence was that sometimes you’re in too much pain to go to the gym. How often does that happen?---
A:I would say probably once a week or at least every fortnight I would have to stop.
Q:Do you mean stop while you’re at the gym or stop and not go to the gym?---
A:I may take a few days off or I have stopped midway through a class too.
Q:And pain in what part of your body causes you to stop?---
A:In my sternum, so which is the chest area where the sternum is, and then it radiates through to my shoulder and neck.”[65]
[65]T53, L6-20
93Further, with respect to household cleaning, she was asked:
Q:… Why do you have a cleaner now?---
A:Because I can’t do it, it just causes me too much pain.
Q:And pain where?---
A:In my sternum and through my back - through my shoulder and neck.”[66]
[66]T53, L21-25
94The plaintiff was further asked, during the lockdown period last year, whether she did the cleaning herself because of the prohibition on people attending her house, and she replied:
A:“No, I had to do it myself.
Q:And how did you manage physically with that?---
A:Not very well.
Q:In what way?---
A:There was a lot of pain and then that’s when I start taking medication and that’s when I take more Panadol and then end up taking Endone.
Q:Pain in what part of your body was caused by the cleaning?---
A:In the sternum and then radiating to the shoulder and neck.”[67]
[67]T53, L26 – T54, L5
The Plaintiff’s medical treatment
95The plaintiff attended the Emergency Department of The Alfred hospital on 29 April 2014, the day after the accident. She gave a history of tenderness over the sternum and over the cervical spine. A CT scan of the cervical spine showed no abnormality, whereas plain x-rays showed a fracture of the sternum. Thereafter, she had no further attendance.[68]
[68]Exhibit H, PCB 70
96Physiotherapist, Brendan Goonan, saw the plaintiff on 8 August 2018 and devised a treatment plan. He set goals for attendances between 30 September and 30 October 2014.[69] This treatment concerned the following anatomical sites:
“Fractured sternum, whiplash associated disorder cervical and thoracic spine.”[70]
[69]Exhibit G, PCB 69
[70]Exhibit G, PCB 69
97The reported symptoms were:
“Cervical/Thoracic spine pain bilateral, Headaches and sternal pain with sitting long periods and T6 rotation.”[71]
[71]Exhibit G, PCB 69
98The plaintiff saw gastroenterologist, Dr Sally Bell, on 10 June 2014 in the –
“… context of six weeks of four hourly Voltaren recently for a sternal fracture sustained in a motor vehicle accident six weeks ago.”[72]
[72]Exhibit F, PCB 68
99Dr Bell found a –
“… mildly virtually healed erosive gastritis in the antrum consistent with recent non-steroidal use. …
…
I have asked her to continue Nexium for the full six weeks. She should stop her non-steroidal use. She may use paracetamol or small doses of Endone at night as an alternative.
She was seen at [T]he Alfred following the accident and I suggested as (sic) further follow up as the pain has been quite prolonged and suggests that she might have a non-healing fracture. She also has a large amount of musculoskeletal pain which I am sure is muscle spasm which should be improved by physiotherapy which I have suggested.
I have not arranged to see her again but have discharged her to her general practitioner.”[73]
[73]Exhibit F, PCB 68
100The relevant general practitioner, Dr Tina Sutton, reported to the plaintiff’s solicitors on 21 February 2019.[74] Apparently she had personally treated the plaintiff up until 15 May 2014 and thereafter, the plaintiff attended the same practice until 21 November 2014. Dr Sutton reported that the injuries caused by the accident were: -
“–non displaced fracture through the superior portion of the sternum
–neck pain
–lower back pain
–Jenna’s anxiety was aggravated by the above mentioned accident.”[75]
[74]Exhibit K, PCB 73
[75]Exhibit K, PCB 73
101Further, Dr Sutton reported:
“Jenna had significant sternal pain as a result of the sternal fracture and neck pain due to muscle strain. Initially, she could not get dressed easily. She could not raise her R arm above the horizontal position without pain in the first couple of weeks. Jenna could not resume her usual hours at work and was unable to do housework due to pain. Jenna also reported left upper leg pain following the accident.”[76]
[76]Exhibit K, PCB 73
102Dr Sutton further reported:
“Initially Jenna was advised to regularly take Panadol or Panadeine, in addition to Nurofen. Following review at The Alfred, she was prescribed Endone and Panadeine Forte. On May 30th 2014, she was prescribed Voltaren 50mg twice a day. Jenna was able to decrease the amount of analgesia she was taking as her pain improved. On May 15th 2014, Jenna was able to sleep on her side and lift both arms above her head. She was reportedly seeing a physiotherapist regularly following the accident. Jenna was due to see her psychologist on May 31st 2014 to address anxiety following the accident. On November 21st 2014, Jenna reported ongoing back/upper shoulder and neck pain as well as some left upper leg pain. She also reported being unable to clean house as she couldn’t bend down.”[77]
[77]Exhibit K, PCB 73-74
103The plaintiff then underwent treatment principally from osteopath, Timothy Taylor, who first reported to the plaintiff’s solicitors on 31 March 2019.[78] He reported that the first treatment was on 2 December 2014, where she consulted his associate, Dr Clare Greig. He also recorded:
“Prior to the accident, Ms Jenna Kegen was a patient of the clinic who was treated for mechanical lower pelvic pain and lower back pain from a previous accident that she was involved in 2004. Jenna suffered with episodic flare ups of sacro-iliac pain often aggravated by her office based work environment. Her last attendance to the clinic prior to the accident was on 8th September 2012.”[79]
[78]Exhibit L, PCB 75
[79]Exhibit L, PCB 75
104Mr Taylor recorded a history that the plaintiff –
“… was involved in a moderate speed impact accident in Church [S]treet Brighton on the afternoon of the 27th of April 2014. She was the front passenger with her husband in the driver[’]s seat when a car speed (sic) out of its long drive way and failed to see the car she was in as it drove along Church [S]treet Brighton.
As a result of the impact from the car colliding with the front left side of Ms Kegen’s car the air bags were activated which expanded on to her anterior chest wall. Ms Kegen also remembers the seat-belt locking across her left upper shoulder and chest wall.”[80]
[80]Exhibit L, PCB 75-76
105Mr Taylor recorded the injuries caused by the accident, inter alia, as follows:
“ofractured sternum at the superior aspect noted on x-ray (28/04/14.)
o whiplash to the cervical spine resulting in strained spinal facet joints in the lower cervical spine C4/5/6, along with sub-occipital pain and facet joint pain at C1/2, C2/3.
o upper thoracic spine pain T3/4/5.
o Costo-vertebral joint pain on the left aspect. Rib 3 and 4.
o Costo-chondral pain at Rib 3, 4, 5 on the left.
oScapulo-thoracic articulation restriction.
oMyofascial soft tissue strain of upper thoracic spine, left greater then (sic) right side, specifically hypertonic trapezius, levator scapulae, scalenes, SCM muscle group.
o Soft tissue myofascial strain of the left pectoral muscle group.
o (Pect Major and Minor).
o Ongoing Tension Headaches - (Cervico-genic in nature).”[81]
[81]Exhibit L, PCB 76
106The plaintiff gave a history that she had consulted at least three different physiotherapists following the accident but she was experiencing a flare up of her symptoms from the physiotherapy:
“Later in 2014 she was approved for Osteopathic treatment and was referred by her GP.”[82]
[82]Exhibit L, PCB 76
107Dr Clare Greig took a history on 2 December 2014 as follows:
“[F]ractured sternum in MVA April 27th 2014, head spasms at night moving neck ... stretches and goes away … happening straight after the accident ... referred pain from the sternum ... started noticing back pain 6-8 weeks later ... better since not seeing physio ... .”[83]
[83]Exhibit L, PCB 76
108Dr Greig took a further history that in December 2014, the plaintiff was seventeen weeks’ pregnant with her first child and she was going to spin classes three times a week and occasionally was stretching at home.[84]
[84]Exhibit L, PCB 77
109With respect to her chest area, Dr Greig noted:
“HT (hypertonic muscles ) trapezius, levator scapuale (sic), scalenes, SCM muscles (sternocleidomastoid).”[85]
[85]Exhibit L, PCB 77
110Mr Taylor also saw the plaintiff in December 2014 and he took a history that she was still suffering with pain in her cervical spine, upper thoracic spine and anterior ribcage/sternum:
“She indicated that the impact from the accident caused the airbag to be deployed and also remembered the seat-belt locked on her chest.
It is my opinion that the airbag and locked seat belt would have been the main contributing factors of the fractured superior sternum and the resulting soft tissue and joint dysfunction to the discussed areas above.
In summary, Ms Kegen presented with a collection of dysfunctional musculo-skeletal impaired functional areas. Namely in her cervical spine, thoracic spine and anterior costo-sternal region. These dysfunctional areas where (sic) the direct result of her MVA whiplash injury on the 27/04/2014.”[86]
[86]Exhibit L, PCB 77
111The treatment prescribed was set out in Mr Taylor’s report as follows:
“1. d) The treatment prescribed, her progress and your prognosis.
The following Osteopathic treatment is a summary that has been prescribed
-Soft tissue massage to the area of hypertonic muscular structures. As listed above.
-Mobilisation / Articulatory techniques to restricted area of joints.
T3/4, C4/5, C1/2.
-Myofascial release techniques to the anterior chest wall, clavi-pectorial (sic) fascia release.
-suboccipital muscle energy technique to help relieve cervico-genic headaches.
-HVLA to Thoracic spinal facet joints T3/4.
-Muscle energy (MET) to costo-vertebral and costo-chondral.
-Postural advise (sic) on maintaining correct posture and stretching tight hypertonic muscles.
… .”[87]
[87]Exhibit L, PCB 77
112Mr Taylor considered the plaintiff’s progress would be considered “fair to average” as –
“… she has failed to be totally resolved of her pain and now would be classified as a chronic regional pain syndrome of her upper thoracic spine and cervical spine with associated pain in her left costo-chondral region.”[88]
[88]Exhibit L, PCB 77
113Once again, I do not infer that the title “chronic regional pain syndrome” referred to a non-organic condition, given the history and findings related above.
114Further, Mr Taylor opined:
“It is my opinion that Ms Kegen’s condition is likely to continue in the near foreseeable future the same as it currently is. I feel that whilst she is juggling the duties to care for young children and working three days a week, it is highly likely that her chronic pain syndrome will remain as it is. The combination of work and life pressures will continue to activate muscular spasming into her neck and upper spine.”[89]
[89]Exhibit L, PCB 78
115As to advice given by Mr Taylor, he stated:
“Over the last five years I have encouraged Ms Kegen to have plenty of rest periods at her work as a corporate travel agent. In particular, whilst spending so many hours seated at a desk with any compromised ergonomic environment. I believe a five to ten minute rest period for every hour that she works would be advisable.
If her current pain levels remain as they are I don’t believe she will have any total or partial incapacitated employment prospects.”[90]
[90]Exhibit L, PCB 78
116Mr Taylor furnished a follow-up report dated 15 October 2020.[91] He reported that since his last report, he had treated the plaintiff on twenty-five occasions which was, on average, every three weeks to fortnightly in occurrence. He reported further:
“Ms. Kegen is unfortunately still suffering with chronic upper thoracic spinal pain (T3-6) and left anterior costo-sternal pain (Rib 3-4-5), along with cervical spine pain and associated headaches.
Ms. Kegen’s Osteopathic examination reveals ongoing spinal joint dysfunction at T3/4, TS/6 and associated para-vertebral erector (sic) spinae muscles spasming. She has trigger points present in her left anterior pectorial (sic) muscle and inter-costal muscle spasming at Rib 4‑5-6.”[92]
[91]Exhibit M, PCB 80
[92]Exhibit M, PCB 83-84
117Mr Taylor reported further:
“Ms. Kegen[’s] primary pain area is her upper thoracic spine and costo-vertebral on the left at Rib 3 and Thoracic T4. Often Ms. Kegen will suffer with post-treatment soreness and muscle bruising for a few days, but [it] doesn’t last more than three days. I am not aware of any other injuries caused by treatment or medication.”[93]
[93]Exhibit M, PCB 84
118Mr Taylor reported that the osteopathic treatment was prescribed every fortnight to three-weekly, depending on her current symptom levels, and that the treatment involved –
“… myo-fascial soft tissue dysfunctional areas.
Mobilisation techniques to spinal and costal joints. Occasional HVLA technique to dysfunctional regions.
Ms. Kegen’s often response (sic) well to treatment and on average feel[s] better for 10 days post treatment. Unfortunately her pain is exacerbated by caring for her young children, ie. lifting her 18 month year old and playing with her nearly 4 year old.
Ms. Kegen still has difficulty in sleeping due to pain, feels fatigue during the day, is reluctant to socialise due to pain and is limited on sporting activities due to her pain. (all 8 or 9/ 10 for whiplash disability score).
Ms. Kegen has been approved via TAC to consult with a[n] Exercise Physiologist for a strength and stability program, but unfortunately has been unable to attend due to Covid restriction. Alternatively, I have given her a ‘home program’ to stabilize her posterior scapular muscle and postural exercises to improve her thoracic kyphosis, along with stretching. She often finds these activities reduce her pain levels. However, I feel she need[s] a guided program to insure (sic) she is completing the exercises correctly and to monitor strength in her activities. These would be done via a qualified exercise physiologist.
Ms. Kegen recently stated to me (Phone consultation call on 14th October 2020) that ‘somedays her pain is worse than ever’ as she now [has] full time duties as a mother [which] can exacerbate her pain levels as she doesn’t … have any breaks from caring duties. … .”[94]
[94]Exhibit M, PCB 85
119The prognosis has now been changed from “fair to average” to “poor to average” “… as she has failed to significantly improve over the last 18 months”.
120Mr Taylor expected the plaintiff to be treated on a three-weekly basis until her pain levels had stabilised to a pain score less than “5”. He also believed that she would continue to suffer with pain until she has less demanding duties of caring for young children. He also opined that –
“… due to the … [chronic] nature of Ms Kegen’s pain levels and dysfunction I … [don’t] expect a significant improvement nor a deterioration of her condition. … .”[95]
[95]Exhibit M, PCB 85
121With respect to her work capacity, he stated:
“I believe that Jenna would be able to work in a Part-time capacity only. i.e. 2 to 3 days maximum. Jenna previously worked as a Corporate Travel Agent. I feel prolonged sitting would aggravate her pain levels, especially if she was not working in a correct ergonomic environment. I would also advise her to have multiple breaks during the day and avoid excessive activities such as lifting heavy objects.”[96]
[96]Exhibit M, PCB 85
122The plaintiff also tendered a report from consulting psychiatrist, Associate Professor Nicholas Paoletti, who reported to the Transport Accident Commission on 4 April 2019[97] as follows:
“She suffers from an Unspecified Anxiety Disorder (DSM-5 300.00) (ICD-10CM F41.9), with severe traffic anxiety and features of post-traumatic stress disorder. The pre-existing residual anxiety as a driver has worsened, and it has been overtaken by a severe anxiety as a passenger, which she did not have before. She also has post-traumatic symptoms.”[98]
[97]Exhibit M, PCB 87
[98]Exhibit M, PCB 96
123Professor Paoletti considered that the total motor vehicle accident related psychiatric impairment was 16 per cent, with an allowance for pre-existing factors of 4 per cent, making an overall total psychiatric impairment of 20 per cent.[99]
[99]Exhibit M, PCB 95
Analysis
Evaluating the pain and suffering consequences
124The template for assessing an injury such as the present is succinctly set out by the Court of Appeal in Aburrow v Network Personnel Pty Ltd,[100] as follows:
[100] [2013] VSCA 46 at paragraphs [10] and [11]
“As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[101] it is of assistance in reviewing a body of evidence like this — for the purpose of evaluating the ‘pain and suffering consequence’ of an injury — to distinguish between:
• the plaintiff’s experience of pain as such; and
• the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[102] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[101] (2010) 31 VR 1
[102] See for example Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12, at paragraphs [46]-[47]
The experience of pain as such
We deal first with Mr Aburrow’s experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[103] was as follows:
[103] (2011) 31 VR 100
‘The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.’”[104]
[104] Haden (supra) at paragraphs 46-48
125The plaintiff has returned to part-time work, but is essentially curtailed by the COVID lockdown. However, I am satisfied she is suffering ongoing pain and limitation of movement with respect to her sternum and associated structures related to her ribcage and thoracic spine, such that there is an impairment to her chest area due to the ongoing effects of pain and limitation of movement. In her viva voce evidence before the Court, I found her to be honest and straightforward and, in my view, would qualify for the adjective “stoical” as used in the various authorities. I accept that the intensity and frequency of her pain is such as it has interfered in her pursuit of the robust and energetic lifestyle that she engaged in prior to the injury.
126Further, the evidence contained in her affidavits and corroborated by her husband, Paul, Kegan,[105] support the contention to the effect:
· the plaintiff experiences daily pain
· the pain is with her when she wakes up and interferes with her sleep
· the pain interferes with her work capacity, such that she is exhausted by the end of the day and she has required regular breaks
· the pain has resulted in a fit, active and strong person being completely compromised by her pain in looking after her three young children and performing normal household tasks.
[105]Exhibit B
127As Maxwell P and Tate JA stated in Aburrow v Network Personnel Pty:[106]
[106] (supra) at paragraphs [19]-[20]
“The disabling effect of the pain:
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (Ashley JA) said in Dwyer v Calco Pty Ltd (No 2):[107]
[107] [2008] VSCA 260
‘[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[108]
[108] (ibid) at paragraph [27]
As suggested in Haden (and endorsed in Sutton),[109] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[109] (ibid) at paragraphs [49]-[50]
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]’.”
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.’”[110]
[110] Haden (supra) at paragraphs [15]-[16]
128In the present matter, there is evidence as to interference with sleep, mobility with respect to caring for her children and household tasks, and recreational and social activities.
Findings
129I am satisfied in this matter that the plaintiff has suffered a compensable injury by way of organic injury to the sternum and the associated surrounding soft-tissue structures, particularly pertaining to the ribcage area.
130As opined by Mr Speck,[111] he states:
“The sternal fracture was not associated with any intra-thoracic injury and there was no identified thoracic spine fractures. Her ongoing chest symptoms are associated with tenderness over the left costochondral region … .”[112]
[111]Above at paragraph [57]
[112]Exhibit 7, DCB 22
131It is probable that the plaintiff also suffered soft-tissue injuries to the thoracic spine and the cervical spine but it is clear enough that it is the chest area relating to the sternum and the ribcage that causes the plaintiff the predominant ongoing and chronic pain and I am satisfied that independently of her thoracic and cervical spines, that the pain and disabilities emanating from this area is sufficient to meet the statutory threshold.
132In my view, the plaintiff has established pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being “more than significant or marked” and as being “at least very considerable”. I am satisfied that the plaintiff is in need of ongoing analgesia, despite infrequent recourse to Endone.
133In all the circumstances, I find the plaintiff has discharged the onus of proof with respect to the statutory threshold.
134Accordingly, leave will be granted to the plaintiff to issue proceedings seeking damages at common law arising out of a motor vehicle accident which occurred on 27 April 2014.
135I will hear the parties as to consequential orders.
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