Kenny v Transport Accident Commission

[2013] VCC 995

TRANSCRIPT OF PROCEEDINGS

[2013]VCC 995

CI-11-03907

COUNTY COURT

MELBOURNE

CIVIL JURISDICTION

WEDNESDAY 24 APRIL 2013

BEFORE HIS HONOUR JUDGE JORDAN
TANIA KENNY

Plaintiff

- and -
TRANSPORT ACCIDENT COMMISSION

Defendant

J U D G M E N T

(Revised)

(His Honour Judge Jordan)

J U D G M E N T

HIS HONOUR: In this application pursuant to s.93(4)(d) of the Transport Accident Act 1986 the plaintiff seeks leave to bring proceedings for the recovery of damages arising out of a transport accident on 22 September 2007.

The application is brought under subparagraph (a) relying on an injury best described as aggravation of pre-existing cervical spine degeneration and under paragraph (c), variously describing the injury as a chronic adjustment disorder, post traumatic stress disorder and chronic pain syndrome. 

The physical injury to the spine has also involved some referred symptoms into the dominant right shoulder.  However, the parties have sensible agreed, in view of the evidence, that the shoulder symptomatology is related to the neck and it is not a separate injury (Transcript p.11).  The definitions set out in s.93(17) are:

"Serious injury means (a) serious long term impairment or loss of a body function; or (c) severe long term mental or severe long term behavioural disturbance or disorder".

The issues in this case are quite narrow and the parties require me to determine whether or not the paragraph (a) impairment of body function of the neck meets the test of serious. Secondly, whether the paragraph (c) claim meets the test of severe (Transcript pp.12-13).  The principles in Humphries v. Poljak [1992] 2 VR 129, apply in terms of what these tasks involve.

With paragraph (a) I must determine, when judged in comparison with other cases in the range of possible impairments or losses of body function, whether or not the loss of physical body function can be fairly described as being more than significant or marked or at least being very considerable.  With respect to paragraph (c) the test is again a judgment by comparison with other cases as to whether or not the mental or behavioural disturbance or disorder meets the test of being severe, that being a higher test for the plaintiff than serious.

Background 
The plaintiff is a 46 year old lady who has two adult children.  She married for a second time in 2010.  The first marriage was not entirely happy and a domineering husband prevented her from returning to the workforce on anything like a full-time capacity, due to his views apparently about the role of women in the home. 

Notwithstanding this barrier, the plaintiff became involved between 2001 and 2004 in a business with her former sister-in-law in Healesville.  This was described as a lunch shop.  She worked long hours, starting at about 6 a.m. and working to mid-afternoon, up until the time her first marriage broke up.  In spite of her hard work, she had not got to the stage of being able to draw a wage from this new business.

She was divorced in 2006 and moved from Healesville to Rosebud to start a new life.  She took her two children with her.  After some retraining and courses (Transcript pp.25-26) she commenced work at Woolworths/Safeway as a deli assistant in about September 2006.  She was diligent and successful enough to be promoted to an assistant manager in the deli by April 2007.  She worked full time in that job, commencing at 6 a.m. and working until about 3 p.m. Although because of her duties as an assistant manager, she often started at 4.30 a.m. and went until 4 p.m.  Accordingly, the work hours were often in the order of over 50 hours a week.

This job involved a mixture of physical duties, some heavy, the setting up and stocking the deli as well as some paperwork and staff functions required of the assistant manager (Plaintiff’s court book p.12).  I accept that she had considerable pride in, and gained enjoyment from the job.  She said she absolutely loved the job (Transcript p.142).  She was asked as follows: 

"Did you like your job as the deli manager?
---Absolutely loved it".  "Do you miss it?
---Dearly miss it.  It was like running your own business within the company".  "What did you like about it?---You're busy.  You're responsible for everything.  You're responsible for what the place looks like, what the cabinet looks like.  I just love that full noise organisation working with other people, working with the people, like serving customers.  I mean, I used to go to work sometimes at 4.30 in the morning and not get home 'til 4 'cause I was quite dedicated.  And it is like running your own business.  You have to keep your figures right and everything within the store separate from all the other departments.  The deli is like run a separate business.  So, yeah, I did love my job".(Transcript p.142)

A good deal of examination took place about the plaintiff's health prior to the subject transport accident which occurred on 22 September 2007.  I find at the time of the accident that she was not suffering from any impairment of body function, nor any psychiatric condition that affected her capacity to work full time in unrestricted duties in a responsible and demanding position.  Nor was she suffering from any impairment that in any way prevented her from enjoying life to the full.

There had been some problems recorded in the medical notes with respect to neck and right shoulder symptoms some years before when in Healesville.  There had been a good deal of stress also and she had required professional help following what was obviously a difficult marital separation.  In particular, there were some real problems with her son Shane, who was about 15 years of age at the time of the separation.  There was a need for counselling and professional support for her, for Shane and the family unit (Plaintiff’s court book p.58).

I find, however, that the plaintiff had worked her way through this with a fairly stoical attitude and had built a new life and career at Rosebud.  She was described by a doctor engaged by the defendant in these terms: 

"I had no doubt that she was trying her best to be an open, honest and genuine historian." (Defendant's court book p.89). 

That is how I found her as a witness, candid, reliable and honest.  In fact, she understates traumas.  The subject transport accident was a very frightening incident, indeed.  She was having lunch at an outdoor cafe in Rye when a car hit a barrier surrounding the outdoor tables and it landed on the plaintiff on her right side.  Apparently an elderly driver had hit the accelerator instead of reversing the car.  It is probably best described by Dr David Weissman, who saw her twice for the defendant: 

"…the transport accident was obviously traumatic and frightening for the claimant.  That goes without saying."  (Defendant's court book p.90)

She was taken by ambulance to the Rosebud Hospital and the records there confirm there was pain over the right side of the neck, shoulder and hip (Plaintiff's court book p.97).  Painkillers were administered and from there on her treatment was really at the hands of her local general practitioner Dr M. Coffey.  She required four weeks off work before attempting to return to work.

As a result of her neck injury, she was not able to work either in full unrestricted duties nor full-time hours (Transcript p.37).  I find that is still the case and is a very considerable impairment of her earning capacity.

Various return to work plans with different hours and different duties were described by the plaintiff up until the time that she finally ceased work on medical advice.  This occurred in November 2008.  She describes a difficult situation with an unsympathetic manager regarding anyone who was on WorkCover or restricted duties at Safeway.  Her going off followed a crush injury to her fingers in October 2008, but a return to work followed that crush injury and she described the circumstances of her finally going off as follows (Transcript p.50): 

"So as a result of that your GP put you off work and sent you for counselling.  Is that right?---I went back to work first after the crushed finger.  I went back to work and then I went back and saw Dr Coffey and said, 'I just cannot do this.  I'm taking migraine tablets while I'm at work, I'm going to physio while I'm at work and going back to work', and I just felt that I wasn't getting anywhere with the neck and shoulder".

I accept that her job at Safeway ended because of the neck and referred shoulder symptoms that resulted from the transport accident.  

The plaintiff met her current husband in 2008 and she presently resides at Buxton, having moved up there initially to assist her elderly father who lives on a farm.  He suffered a heart attack and she went to assist him on the farm.  She permanently moved there in about July 2009.  This followed her survival with her father at the farm as the horrific bushfires swept through Victoria on 7 February 2009.

The plaintiff struck me as a brave woman who had endured some significant traumas and difficulties in life and had shown both motivation and courage in rebuilding her life, both in a personal sense and work wise, after the breakdown of her first marriage.  She candidly admitted a drug problem with marijuana that she has tackled and overcome. 

I accept that she is a highly motivated woman, evidenced by getting back into the workforce in a new town after years of coping with maternal duties and with a husband who was very disapproving of her wishing to pursue paid employment.  I find that she is still motivated and some of her consideration in recent times of self-employment possibilities reflects this motivation.  It is also consistent with her neck and shoulder problems taking her out of the full-time paid employment market as an employee.

I find that a major consequence of the paragraph (a) injury is that the plaintiff has an impaired earning capacity that is both long term and very considerable.  In addition, I find there have been very considerable consequences in relation to her personal life visited upon her by the cervical spine injury with its referred symptoms into the right dominant shoulder.  I will say a little more about that shortly.

An affidavit was provided by her daughter, Melissa Kenny.  She describes her mother as not having any significant problems with her neck or shoulder before the transport accident.  She describes the complaints of significant pain in her neck by her mother following the transport accident (Plaintiff’s court book p.25).  After it, she describes seeing expressions of pain (Plaintiff’s court book p.26).  She describes (at Plaintiff’s court book p.26):

"I have seen her experience pain in her neck and right shoulder, particularly when she attempts to perform certain home duties.  I have noticed from my mother's facial expressions and voice that she is often in significant pain".

Her daughter presents a significant before and after picture of how the consequences of the transport accident have impacted on her mother's life.  I accept her evidence in relation to these consequences around the home and in regard to the apparent pain that her mother is suffering.  Melissa Kenny gave evidence before me and I accept her as a reliable witness.  She corroborated much of her mother's evidence in relation to consequences outside the workplace.

An affidavit was provided by a workmate, a Jessica Zele, who worked with the plaintiff at Safeway.  Ms Zele described the plaintiff as a reliable and diligent worker and she commented:

"…I have noticed that since her transport accident in about September 2007 Tania has been largely restricted in her physical capacity due to increased pain in her right shoulder and neck.  Even during her limited return to work after her transport accident, I observed Tania having difficulty performing the employment duties required of her that she would have been able to comfortably complete prior to the transport accident.  I often saw her struggle with pain in her neck and right shoulder while she was at work".  (Plaintiff’s court book p.30).

While I am dealing with lay witnesses, an absent witness argument was mounted by the defendant in the course of closing address.  This argument was directed towards the plaintiff not providing any material from her current husband or other family members.  I was invited to draw an adverse inference.  I reject this argument. 

I was directed to the case of Woolworths v. Waugh [2013] VSCA 22, where comment was made in regard to absent witnesses in a serious injury application. In that case there were significant amounts of video evidence in relation to the plaintiff's alleged activities in and around a boat hire business. The submissions made there in relation to absent witnesses are not applicable to the current case. However, it is worth quoting from paragraph 147 in relation to serious injury applications and what the Court of Appeal said:

"However, in those applications a plaintiff does not commonly call the same amount and array of such witnesses as might be expected on a common law trial". 

In this case I do not draw any adverse inference against the plaintiff's application based on absent lay witnesses.

Paragraph (a) application, plaintiff's medical evidence  Combining both court books in this case, there are over 40 medical reports that have been provided, together with clinical notes from a number of practices, together with radiology, ambulance and hospital records.  There is no point in summarising all of this extensive body of material.  I will focus on the more up-to-date opinions in view of the task I have to judge the plaintiff as she presents now in 2013.

The general practitioner Dr Coffey first saw the plaintiff in regard to the accident some three days later, on 25 September 2007.  In his last report he described the situation as follows: 

"Tania … continues to have ongoing problems with her right shoulder and neck.  I would consider her to have a serious injury as defined; i.e. she has a serious long term physical impairment as well as serious psychological problems caused by her accident". (Plaintiff’s court book p.55)

He was in no doubt that the physical injuries were a direct result of the accident and, furthermore, he said: 

"… I do not believe she has any current work capacity and is unlikely to ever return to the workforce in paid employment for which she is qualified, specifically because of her physical injuries, quite independent of any psychological issues that have arisen.  These injuries will greatly limit her ability to engage in social, recreational and domestic activities".  (Plaintiff’s court book p.55)

I accept those opinions of the general practitioner as being an accurate statement of the plaintiff's current position.  These consequences for her are very considerable in regard to impaired earning capacity and loss of enjoyment of life.

Her most recent physiotherapy course was conducted at the hands of Libby Gobbart at Alexandra.  This follows courses of physiotherapy at Rosebud and at Healesville.  Ms Gobbart reports last year: 

"I feel Tania has limited current work capacity". 

She states further:

"It is unlikely she would tolerate full-time employment due to the chronic nature of her condition in the cervical spine".  (Plaintiff’s court book p.57)

A Dr David Middleton completes the treaters who have given recent opinions in this case.  Dr Middleton is an occupational and rehabilitation consultant and he reported as follows:

"Ms Kenny suffered an aggravation of underlying previously asymptomatic degenerative cervical spine and disc disease".  (Plaintiff’s court book p.61.23)

He thought a little later: 

"It is my opinion that Ms Kenny does not have a capacity for full-time, unrestricted manual or pre‑injury employment, taking into account our client's characteristics of age, background, education and prior work experience".  He also stated:  "It is my opinion that the physical effects of this injury have caused a major impairment to her ability to remain in employment".  (Plaintiff’s court book p.61.23)

On the final page of his report he adds: 

"Due to the physical effects of the injury, there has been a major impairment to Ms Kenny's ability to engage in social, recreational and domestic activities".  (Plaintiff’s court book p.61.24)

He thought the condition had stabilised and her prognosis was poor, in that she was left with a permanent disability affecting her capacity to work and her enjoyment of life.  He also separated these comments, in the sense of referring to the physical injury apart from any psychological contribution (Plaintiff’s court book p.61.24).

I accept these opinions and note that they were given following perusal of a great deal of other medical material, including material from both sides, that he considered throughout a very lengthy report that embraces some 20 or so pages.

Medico legal opinions obtained by the solicitors for the plaintiff include reports from Professor Kenneth Myers, a general surgeon.  I will concentrate with respect to these opinions on those that are relatively up to date, being in 2012 or 2103.  Professor Myers considered that the plaintiff had suffered:

"Aggravation of spondylitis in the cervical spine, inflammatory changes in the rotator cuff structures of the right shoulder" (Plaintiff’s court book p.64). 

He further thought:

"I believe the disability relating to these injuries results from the accident as described.  She has no capacity for full-time unrestricted manual or pre-injury employment.  It will be very difficult for her to obtain employment, given her ongoing symptoms in relation to her right shoulder, neck and headaches.  At this stage it is unlikely that there will be any future improvement in her condition.  I believe that her disability results from physical injury quite separate from any psychological component".  (Plaintiff’s court book p.65)

The plaintiff was seen by Dr Helen Sutcliffe, an occupational physician.  Ms Sutcliffe considered that the plaintiff had sustained an aggravation of cervical spondylosis and she described it as:

"… a very significant injury to the neck.  The injury results in increased susceptibility to further neck injury". (Plaintiff’s court book p.80.4)

In relation to capacity, she considered: 

"Ms Kenny is unable to perform the suggested occupations as listed in CoWork's report …, now and into the foreseeable future".  (Plaintiff’s court book p.80.1)

Mr Kenneth Brearley, orthopaedic surgeon, reported at the request of the plaintiff's solicitors and his opinion included the following statement that the plaintiff had suffered:

"Mechanical neck pain due to aggravation of pre-existing degenerative changes throughout the cervical spine".(Plaintiff’s court book p.84)

He thought the right shoulder pain was referred from the neck.  In relation to employment capacity, he thought as follows: 

"She is unfit for her former job or any other  manual labour".  (Plaintiff’s court book p.84)

He thought her neck injury prevented her from remaining in employment and he gave the following quote in relation to pain and suffering aspects of her life related purely to the physical injuries: 

"She is unable to carry out her domestic activities and does require assistance.  With regard to her recreational activities, she cannot run, play basketball or go horse riding.  She no longer attends social outings as she cannot sit for long periods or twist and turn to speak to people.  She has certainly lost the enjoyment of life.  There is no likelihood of any improvement in her condition in the foreseeable future and her condition is stabilised.  Her incapacity for employment will continue, as will the interference with her enjoyment of life".  (Plaintiff’s court book p.85)

Dr Peter Blombery, consultant physician, saw the plaintiff for medico legal purposes and he stated: 

"It is my opinion that the pain in her neck is caused by the above asymptomatic degenerative changes in the spine being rendered symptomatic by the force of the accident".  (Plaintiff’s court book p.92)

In relation to capacity he stated further that he felt the prognosis was poor and: 

"… it is my opinion that she has no capacity for her pre-injury employment at Woolworths and she would have difficulty in using her dominant right arm in such activities". (Plaintiff’s court book p.93)

He felt that the prognosis was poor both with respect to her capacity for work and in the sense of interfering with enjoyment of life.  And he finally stated that she had suffered:

"… a permanent compromise to the integrity of the neck".  (Plaintiff’s court book p.93)

Paragraph (a) defendant's medical evidence 
Some of the reports tendered by the defendant are now quite dated and do not assist much, if at all, in evaluating the plaintiff now, which is the task before me.  Mr Ian Jones, an orthopaedic surgeon, examined the plaintiff at the request of her former employer, Woolworths.  Mr Jones considered:

"… the patient suffers from multilevel degenerative disc disease.  There are some minor osteophytes compromising the exit foramen on the right at C5-6 level.  An ultrasound of the patient's right shoulder shows some changes consistent with subacromial bursitis".
(Defendant’s court book p.14)

He thought that the plaintiff: 

"suffers a partial incapacity as a consequence of her neck and right shoulder complaint.  I do not believe Ms Kenny could return to work at her former job in the delicatessen".(Defendant's court book p.14)

A little later he said: 

"The outlook for this patient's neck is likely to be one of varying degrees of neck stiffness and pain depending on her activity level.  The neck pain will slowly deteriorate simply with the passage of time, commensurate with the nature of her neck problem".(Defendant's court book p.15)

She was seen by a Dr Max Wearne, however he last saw her on 15 December 2008. He is a general surgeon. His opinion is so outdated it is of no use in this current application and it was directed essentially to an AMA percentage assessment in any event.

Mr Michael Shannon, a general surgeon, saw the plaintiff at the request of the defendant.  He considers:

"She has ongoing symptoms in her neck and right shoulder girdle.  I think that most of the symptoms in the shoulder girdle relate to the neck". (Defendant's court book p.57)

He said a little further: 

"… The ongoing problem is her neck where she has sustained aggravation of pre‑existing multilevel cervical disc degeneration without definite evidence of radiculopathy". (Defendant's court book p.57)

And he felt that her current orthopaedic condition is: 

"… of ongoing pain and stiffness in her neck with pain radiating to the right shoulder and mild restriction of shoulder and mild restriction of shoulder movement.  She has no relevant previous medical history".  (Defendant's court book p.57)

He went on to make a statement about treatment and employment and he considered that it was doubtful she would benefit from any further active treatment.  He then stated: 

"I think that she is limited in her employment capacity as a result of the injury, and in particular she is limited in the performance of work involving strenuous repetitive use of her arms, heavy lifting or work above shoulder level.  Partial incapacity is likely to persist for the foreseeable future".  (Defendant's court book p.58)

A vocational assessment was carried out at the request of the defendant on 16 June 2012 and it is more directed to the regime that s.134AB lays out for injured workers, and in particular it addresses s.5 of the Accident Compensation Act regarding the concept of suitable employment.  Accordingly, it is of limited assistance in this particular case, being a s.93 application.  Nevertheless, in that report is stated: 

"Ms Kenny impressed as being keenly motivated to return to work".  (Defendant's court book p.104)

And, further, by way of conclusion this comment appeared: 

"I was left in no doubt that Ms Kenny currently suffers from neck pain which compromises her ability to carry out tasks that require her to look downwards for prolonged periods of time or to maintain high levels of physical activity".  (Defendant's court book p.109)

In summary, even on the defendant's medical evidence, taking it as a whole, I find that the plaintiff has suffered a very considerable impairment of her earning capacity. 

There are other consequences in relation to the effects of the neck injury with its referred shoulder symptoms that are worth mentioning.  The pain the plaintiff has endured and still endures as a result of the cervical spine injury is a very considerable consequence.  I accept her evidence:

"I have a pain that never goes away and never has.  I tolerate it some days.  Some days I can't… “ (Transcript p.147)

She describes it as:

"… constant though varied pain in my neck and shoulder".  (Plaintiff’s court book p.16)

She also suffers from severe headaches.  She describes these as vascular headaches coming from her neck, over the top of her skull and ending up behind her eyes.  She demonstrated what she meant by this in the witness box.  They have been severely incapacitating.  (Transcript pp.122-123).  On their own they are a very considerable consequence for the plaintiff. 

I have considered the disabling effect of this constant pain on both the capacity to hold down work and I find it is very considerable.  I also accept the serious consequence it has for life outside of her work, including sleep, recreations, social life and her sexual relationship with her recently married second husband.  I refer to the case of Aburrow v. Network Personnel [2013] VSCA 46.

I also find the treatment for her pain has been extensive.  As well as attendances on her general practitioner, she has undergone courses of physiotherapy in Rosebud, Healesville and Alexandra.  She has had periods of rest on medical advice.  She has undergone myotherapy and used heat packs.  She was referred to Dr David Middleton, occupational and rehabilitation consultant, who provided ultrasound investigation and injection treatment. 

It is significant that large doses of different medications, varying from time to time, have been and are still required.  (Plaintiff’s court book p.8 and p.15, Transcript p.13 and p.14)  There have been side effects she has suffered from the stronger pain medication.  (Plaintiff’s court book p.15)  The treatment indicates the severity of the problems she has had coping with the pain from her neck and into her shoulder.

Other consequences resulting from her neck injury and the dominant shoulder symptoms are described in her affidavit.  (Plaintiff’s court book pp.16-20)  These include the impact on travel, personal care, farm work, social life, lifestyle generally and riding and tending to horses.  I find these consequences are very considerable for an energetic woman only 40 years of age when injured in this transport accident. 

There is another aspect of the evidence about consequences that I accept as being very considerable for this plaintiff.  After leaving a domineering husband who restricted her activities unreasonably, she retrained, found full-time work and was able to go into debt and purchase her own home in Rosebud.  Due to her not being able to work on account of the impairment of her neck and referred shoulder symptoms, she has had to sell her own house.  She described this in terms that indicated that it was a loss to her.

I consider this a very considerable loss for this woman, particularly after showing the motivation of trying to hang onto her job at Woolworths in various roles in the office, the bakery, on a cheese stall and in other places.  She said, "I tried many, many jobs".  (Transcript p.36)  I find that she was unable to hold that job down as a result of her neck injury and its referred symptoms.

No argument was mounted before me in relation to a disentangling exercise in this case.  Nevertheless, it is worth making some comments in relation to it.  The case of Richards v. Wylie [2000] 1 VR 79 deals with such matters. In this case the consequences I accept are organically based and result from the impairment of the cervical spine and its referred symptoms into the shoulder.

There has been some psychological or psychiatric response to the chronic pain she suffers, to the loss of her job and the financial pressure that has led to.  But her disability and impairment results from the physical injury to the neck.

Some criticism was directed in argument to her treatment being either inappropriate or not fully explored.  I note that the general practitioner was not required for cross-examination. When one looks at the evidence overall and takes into account the restricted duties she was put on, reduced hours, various medications, physiotherapy, myotherapy, different radiological investigations, referral to Dr Middleton, injection treatment, I find that the treatment was appropriate.  More importantly, the plaintiff followed the advice of her doctors in relation to her treatment and I find that she attended to her treatment both diligently and fully.

Accordingly, I grant leave with respect to the paragraph (a) application.  It is unnecessary, in view of that, for me to deal with the paragraph (c) limb.  I would make this comment.  For a plaintiff to have stoically endured the traumas of life that this plaintiff has endured, it is worth noting and I find that as a result of the transport accident she has received and required counselling from a clinical psychologist over the last five or so years.  I find also she continues to need this as a direct result of what was a frightening transport accident.

I will hear the parties as to costs.

- - -

MR HARRISON:  The plaintiff would seek an order for costs, Your Honour.  We'd also seek an order for certification.  I understand certification is not opposed.

MS DIXON:That's correct, Your Honour.

MR HARRISON:  We seek certification for two counsel and

for - - -

HIS HONOUR:  So just before that, then you want an order costs to be paid by the defendant?

MR HARRISON:  Yes.

HIS HONOUR:  To be taxed in default of agreement by the Costs Court?

MR HARRISON:  Yes, Your Honour.  I'm not sure as to whether we need in the current regime to seek certification for court books or not?

HIS HONOUR:  I'm told not, but I'll give you liberty to apply if you want to come back.

MR HARRISON:  Thank you, Your Honour.

HIS HONOUR:  But I'm told not by people who know better than me.

MR HARRISON:  Thank you, Your Honour.  We would seek certification for senior counsel at three days at $5500 per day, two hours of special conference at $550 an hour and junior counsel at 50 per cent of those figures.

HIS HONOUR:  Two hours of special conferences?

MR HARRISON:  Yes, Your Honour.

HIS HONOUR:  Yes, anything you wish to say about that?

MS DIXON:No, that's by consent, Your Honour.

HIS HONOUR:  I'll make those orders and I'll give you liberty to apply if there's some problem with court books.  I'm sure there won't be, but if it does become a problem just contact my associate and we'll list it one morning before whatever is listed.

MR HARRISON:  Thank you, Your Honour.

- - -