Kenyon v Transport Accident Commission
[2017] VCC 1498
•19 October 2017 (revised)
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-00894
| LESLIE KENYON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 6 and 7 September 2017 | |
DATE OF JUDGMENT: | 19 October 2017 (revised) | |
CASE MAY BE CITED AS: | Kenyon v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1498 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the cervical spine – injury to the thoracic spine – impairment of the spine – nature and extent of damage
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie (2000) 1 VR 79; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab with Ms R Dal Pra | Shine Lawyers |
| For the Defendant | Mr A Moulds QC with Ms G J Cooper | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This 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 28 February 2015. On that occasion, the plaintiff was a passenger in a vehicle driven by his son when another vehicle travelling at approximately 70 kilometres per hour drove across their path after travelling through a Give Way sign.
2 The serious injury relied on in this application is essentially an impairment to the entire spine as a result of aggravation injuries to the cervical spine and lumbar spine. The plaintiff accepts that he had pre-existing degenerative changes in the cervical spine and the thoracic spine, but alleges there was little or no impairment extant at the time of the motor vehicle accident.
3 The pre-existing degenerative changes were evidenced by an x-ray of the thoracic and lumbar spine dated 4 January 2010, an x-ray of the thoracic spine dated 2 January 2013, and a CT scan of the lumbar spine dated 23 June 2014.[1] The post-accident degenerative changes were shown on an x-ray of the cervical, thoracic and lumbar spine dated 2 March 2015, and an MRI scan of the cervical spine dated 14 June 2015.[2]
[1]Exhibit “E”
[2]Exhibit “E”
4 A summary of the findings of the relevant investigations was contained in a report of orthopaedic surgeon, Mr Garry Grossbard, dated 12 July 2017,[3] which stated:
[3]Exhibit “K”
“A plain X-ray of the thoracic and lumbar spine undertaken on 4th January 2010 confirmed the presence of a compression fracture of T3. A further thoracic spine X-ray undertaken in January 2013 confirms the fracture of T3, but no ‘further’ fractures.
A CT Scan of the lumbar spine undertaken on 3rd June 2014 confirms the presence of mild degenerative changes with moderate canal stenosis at the L4/5 Level.
An X-ray of the whole of the spine undertaken on 3rd March 2015 confirms degenerative change through the cervical spine, particularly affecting the facet joints on the right side. There is no evidence of further fracture in the thoracic spine, and there is evidence of multi-focal degenerative change throughout the lumbar spine.
An MRI scan of the cervical spine undertaken on 15th June 2015 confirms the longstanding degenerative change in the mid-cervical area, with facet joint hypertrophy and disc bulging.
The MRI scan of the thoracic spine does not reveal any acute injury.”[4]
[4]Plaintiff’s Court Book (“PCB”) 71
5 Mr Grossbard’s opinion with respect to these investigations was as follows:
“This man has symptomatic degenerative change in the cervical spine and thoracolumbar spine. He has had an aggravation of pre-existing degenerative change, and if the history of increased neck pain and loss of movement since the motor accident is accepted, there has been an aggravation of the pre-existing change in the cervical spine, as a result of the motor accident described as occurring on 28th February 2015.
My concern about the veracity of this statement relates to the fact this man did have radiological studies of his neck in 2013.
There is evidence of an old injury at the T3 level, but this man’s thoracic spine pain is in the mid-thoracic area, as is his tenderness. There is marked limitation of motion of the thoracic spine with dysmetria.
I believe it is reasonable to suggest the motor accident of February 2015 has been responsible for an aggravation of underlying degenerative change within the thoracolumbar spine.”[5]
[5]Exhibit “E” (supra), PCB 71-2
Pre-existing injuries
6 The plaintiff suffered an injury to his left knee in 2008. It has been described as a plateau fracture of the knee, which was the subject of common law litigation which was settled in 2012 for approximately $90,000. He continued to suffer difficulties with his left knee thereafter.
7 In 2009, the plaintiff suffered an injury to his thoracic spine, consisting of a compression fracture at T3. In his Opening, Leading Counsel for the plaintiff stated:
“From time to time, he experienced some niggles with his low back and thoracic spine. Some attendances on his general practitioner, but nothing of any great note.”[6]
[6]Transcript (“T”)1, Line (“L) 31-T2, L2
8 Further, the plaintiff had a CT scan of his lumbar spine in June 2014 because of ongoing symptoms.
The issues
9 The plaintiff’s case is that the injury was one of symptomatic aggravation of degenerative changes in the cervical and thoracic spines leading to an impairment which could be assessed as “serious”. Further, it was alleged that the consequences related significantly to the plaintiff’s ability to restore and display vintage American cars and to be engaged in building and handyman work.
10 The defendant’s case is that the plaintiff had significant restrictions pre-existing the motor vehicle accident with respect to his left knee, cervical spine, thoracic spine and lumbar spine, as particularly evidenced by applications for the Disability Support Pension tendered by his treating general practitioner, Dr Lindquist, and dated 6 February 2013, 14 October 2013 and 2 July 2014.[7]
[7]Exhibits 2, 3 and 4 respectively.
Legal principles
11 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[8] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[9]
[8][1992] 2 VR 129
[9][1998] 3 VR 833
12 In Humphries v Poljak,[10] Crockett and Southwell JJ, stated as follows:
“… 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’? Beyond such guidance it is, we think, not possible to go. … .”
[10](Supra) at 140
13 In cases involving an aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and then there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[11] In other words, in order to satisfy the Court of a “serious injury”, the aggravation of the pre-existing injury must, itself, amount to a “serious long-term impairment or loss of a body function”.
[11] Petkovski v Galletti [1994] 1 VR 436
14 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that he has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[12]
[12]Richards v Wylie (2000) 1 VR 79
15 Senior Counsel for the defendant submits that, in addition to the requirements set out in Petkovski v Galletti[13] above, the plaintiff is required to disentangle the consequences of the unrelated injuries concerned with his left knee and his lower back where those consequences overlap the consequences of the compensable injury.[14] I agree.[15]
[13]Supra
[14]T72, L15-20
[15]Peak Engineering & Anor v McKenzie [2014] VSCA 67
16 The first task for the Court is to determine what injury the plaintiff suffered to his neck and thoracic spine as a result of the transport accident on 28 February 2015. The Court is to then conduct a before and after analysis as to the extent of the impairment of the relevant body function caused in the transport accident. The body function relied upon is impairment to the function of the cervical and lumbar spine.
17 The defendant in this action has conceded that the plaintiff has suffered an impairment to the spine as claimed, but submits that the impairment does not reach the “very considerable” stage. Accordingly, in my view, the real contest in this matter is whether the consequences to the plaintiff are such that they meet the “very considerable” test referred to in the cases above.
Pre-existing impairments
18 In an application for the Disability Support Pension by his treating general practitioner, Dr Greg Lindquist, dated 6 February 2013, Dr Lindquist certified the plaintiff was suffering from:
(i)A T3 compression fracture as a result of a lifting injury in October 2009, which led to a condition of osteoarthritis and required prescriptions for Voltaren and Panamax, with the intermittent use of Panadeine Forte. He further certified the plaintiff was suffering from chronic recurrent pain between the scapuli and, as such, was to not engage in any heavy lifting over 10 kilograms, and was limited in his twisting and bending;
(ii)Post-traumatic osteoarthritis of the left knee as a result of an injury on 30 August 2008 requiring prescriptions of Voltaren and Panamax, and which led to a left knee arthroscopy on 19 July 2010. He further advised he would require a total knee replacement in the future and was currently suffering from chronic pain in the left knee, such that he was unable to squat or kneel, and was having difficulty with steps and stairs. He further certified he was not able to engage in prolonged standing.[16]
[16]Exhibit 3
19 On 14 October 2013, Dr Lindquist again applied for a Disability Support Pension on behalf of the plaintiff. Once again, he certified the injuries as:
(i)Post-traumatic left knee degenerative change requiring current treatment of an exercise program and analgesia, and a program for weight loss. He certified the current symptoms as being chronic pain, recurrent effusion and reduced range of motion. He also said he was unable to squat.[17] Restrictions included:
“Unable to stand or walk for prolonged periods
Unable to kneel or squat
Unable to lift heavy weights.”[18]
(ii)A T3 compression fracture suffered on 16 October 2009, requiring rest and analgesia. Once again, Dr Lindquist certified the plaintiff was suffering from chronic recurrent pain between the scapuli, such that he could not involve himself in any heavy lifting or repetitive bending.[19]
[17]Exhibit 4, DCB 204
[18](Supra), DCB 205
[19](Supra), DCB 207-8
20 On 2 July 2014, Dr Lindquist again applied for a Disability Support Pension on behalf of the plaintiff, citing “Osteoarthritis – Chronic Lumbar Back Pain – L knee pain”.[20] His current treatment consisted of Panadeine Forte nightly and Voltaren, together with a light exercise program. He further certified the plaintiff would require a left total knee replacement in the future and he was suffering, currently, from chronic lower back pain and chronic left knee pain, with a reduced range of motion of the lumbar spine. He was also unable to stand for prolonged periods as a combined consequence from disc degenerative disease at L4-5 and the tibial plateau fracture of the left knee, with consequential development of post-traumatic arthritis. In total, he was unable to lift heavy weights, he had limited bending or twisting, and there was to be no squatting or kneeling. Further, the plaintiff was unable to sit or stand for prolonged periods.[21]
[20]Exhibit 5, DCB 196
[21](Supra), DCB 198
21 In this context, Dr Lindquist submitted a report to the Court dated 25 November 2016.[22] He confirmed the plaintiff had attended his surgery on a regular basis since March 1996 and confirmed the injuries to the mid-thoracic spine on 16 October 2009, and the injury suffered in the motor vehicle collision on 28 February 2015. The report was silent as to the left knee condition. In any event, Dr Lindquist stated that since the injury to the thoracic spine in September 2009, the plaintiff “has experienced recurrent pain in his thoracic spinal region.”[23] After attending the surgery on 2 March 2015, complaining of neck pain and lower thoracic back pain, he ordered x-rays of his cervical, thoracic and lumbosacral spine. He stated:
“Significant degenerative changes were revealed however there was no evidence of any acute fracture.”[24]
[22]Exhibit “D”
[23](Supra), PCB 27
[24](Supra), PCB 28
22 Further, an MRI scan report obtained in June 2015 stated:
“… was consistent with chronic degenerative changes, however there were was no post traumatic changes identified in either cervical or thoracic regions.”[25]
[25](Supra), PCB 28
23 At the plaintiff’s most recent review on 25 October 2016, he stated he was experiencing frequent flare-ups of lower neck and mid thoracic back pain which was making house maintenance difficult and therefore prompted the shift to his son’s backyard to live in a converted shipping container.[26] Dr Lindquist further stated:
“[The plaintiff] has significant underlying degenerative changes in both his cervical and thoracic spine. He is markedly overweight and has other medical comorbidities such as secondary hypothyroidism, osteoarthritis and gastro-oesophageal reflux. He has also had a previous injury to his thoracic spine as outlined above which also must be a contributory factor.”[27]
[26](Supra), PCB 29
[27](Supra), PCB 29
24 The defendant also tendered in evidence excerpts of clinical records from Dr Lindquist’s medical practice from 20 October 2009 until 14 June 2017.[28] Included, therein, is a list of prescriptions from 20 October 2009 until 1 May 2015. It is submitted that the incidence of prescriptions of pain-killing and anti-inflammatory medication is roughly the same before and after the motor vehicle accident. I accept this submission.
[28]Exhibit 2
Medico-legal evidence
25 Orthopaedic surgeon, Mr Kenneth Brearley, reported on behalf of the plaintiff, 19 November 2015.[29] Mr Brearley outlined the history of the motor vehicle accident and opined that with respect to the cervico-thoracic spine:
“All of his impairment relates to the subject accident. He had no neck or upper back symptoms at all at the time of the accident. There were degenerative changes but he was completely without symptoms. Accordingly no apportionment is required.”[30]
[29]Exhibit “F”
[30](Supra), PCB 42
26 However, Mr Brearley took a history that “[t]here were effectively no pre-existing injuries or conditions at the time of the collision”[31] and this is, of course, at variance with the applications for the Disability Support Pension referred to above. Further, Mr Brearley has no history of the plaintiff’s involvement with greyhounds post the motor vehicle accident, which will be dealt with later.
[31](Supra), PCB 42
27 The plaintiff also tendered a report from Professor Stephen Davis, neurologist, dated 20 November 2015.[32] Professor Davis reported that the plaintiff had an asymptomatic neck and back pain prior to the accident. Further in the history he records:
“He told me he wasn’t even off work after this accident and he didn’t have any back pain for years before the 2015 accident.”[33]
[32]Exhibit “G”
[33](Supra), PCB 47
28 With respect to past problems, Professor Davis noted “’[t]here were some mobility problems already related to the left knee but these have been also worsened by the back pain with chronic aching”.[34] Professor Davis further states “[The plaintiff] does not see any way that he could work as a labourer at the present time with the neck and thoracic pain problems”.[35] But he does not set out whether he could work as a labourer with respect to the left knee and other pre-existing conditions, independent of the motor vehicle accident. Further, he states that “He has a couple of old American cars but has done little driving since the accident”.[36] There does not appear to be any allegation that the subject injuries prevent him from working on the cars.
[34](Supra), PCB 48
[35](Supra), PCB 48
[36](Supra), PCB 49
29 The plaintiff was also examined by two psychiatrists, being Dr Brendan Hayman, on 4 February 2016, and Dr Nathan Serry, on 7 June 2016.[37] Dr Hayman took a history that the plaintiff had never had mid- to upper-back issues prior to the motor vehicle accident, but that he was occasionally driving his motor vehicles, but less compared to before the accident. There was no history of the plaintiff’s involvement with greyhounds. Dr Serry, in turn, noted that the plaintiff still drove, and that he had made a good recovery from the 2009 injury.
[37]Exhibits “H” and “J” respectively
30 Mr Garry Grossbard reported on behalf of the plaintiff on 12 July 2017 and 29 August 2017, and diagnosed the subject injuries as related above. There is no history taken with respect to his involvement with greyhounds or with his motor vehicles. In any event, because of the pre-existing conditions, Mr Grossbard notes that the plaintiff cannot kneel and can only walk one kilometre because of his back.[38]
[38]Exhibit “K”, PCB 70
31 Finally, the plaintiff relies on two reports of Dr David Elder, occupational physician, dated 25 July 2017 and 16 August 2017.[39] Dr Elder took a history of pre-existing thoracic injury in October 2009, as well as the work-related left tibial plateau fracture in 2008. He also recorded a long history of lower back pain.[40] Post motor vehicle accident, Dr Elder records that the plaintiff does not perform any regular exercise:
[39]Exhibit “A”
[40](Supra), DCB 3
“…other than being involved in training of his three greyhounds. They have a track which they can exercise the dogs and so he does not have to walk them for exercise.
…
He also has two old US cars but he is not restoring them at present.
…
He is restricted in walking by his low back and left knee to about 15 minutes.”[41]
[41](Supra), DCB 3
32 Dr Elder did not have the advantage of any investigations and considered that the plaintiff was suffering from “continuing clinical evidence of cervical and thoracic spine dysfunction with no radiculopathy”.[42] He considered that the injury suffered in the motor vehicle accident would interfere with his normal daily living and work capacity.[43]
[42](Supra), DCB 4
[43](Supra), DCB 4
33 Thereafter, Dr Elder was shown a DVD of the plaintiff loading his greyhound dogs into the gates. He stated:
“I accept your advice that he attends the races very frequently, walking the dogs, and loading the dogs into the gates.
He appears (albeit briefly seen) to have no spinal restriction when bending forward when loading the dogs into the gates.
Given his genuine presentation, I still accept that he could not return to heavy manual labouring jobs, but could do the type of role he was doing when made redundant. He obviously is doing tasks equivalent to a work capacity in his role as a greyhound trainer. His ADL and recreational activity do not seem to be restricted. He is demonstrating a capacity for work in his greyhound activities.
With respect to the knee and low back there does not seem to be significant limitation in his ADL, recreational activity or work capacity for this type of activity.”[44]
[44](Supra), DCB 7
Greyhound racing
34 The plaintiff had assisted his son to fence off a greyhound training track at the son’s property some time in late 2016, early 2017. The defendant also tendered in evidence a schedule of greyhound racing meetings between 26 August 2016 to 29 July 2017, in which the plaintiff’s greyhounds were entered into meetings in various places in country Victoria. The plaintiff has given evidence that he was able to load the dogs in and out of transport and had then prepared for all aspects of racing. Unfortunately, there was some kind of dispute with his son in or about July 2017, and he left the property. He also has not engaged in any further greyhound racing since that time, but for reasons unrelated to his injuries.
Consequences
35 In terms of the consequential restrictions on activities, Leading Counsel for the plaintiff submits that prior to the motor vehicle accident, the plaintiff had a “very small paddock” in which to enjoy life. He submits that a major loss is the ability of the plaintiff to perform restoration work on his vintage American vehicles. However, in terms of the pre-existing conditions to the knee and the osteoarthritis and chronic pain in the thoracic spine and the lumbar spine, as certified by Dr Lindquist, it appears to me that there would be significant restrictions in carrying out those activities in any event. It would appear from the evidence that the plaintiff has been actively involved in the occupation/hobby of greyhound racing and this, in itself, gravitates against a finding of serious consequences.
36 In terms of the appropriate template to assess the consequences suffered by the plaintiff due to the subject injury, I have had regard to the criteria laid down in Kelso v Tatiara Meat Co Pty Ltd,[45] In so doing, I note that the level of medication is roughly the same before and after the motor vehicle accident.[46] Further, the allegation that the thoracic pain suffered in around 2009 “ceased after a short period of time”[47] seems to be at odds with the certifications of Dr Lindquist referred to above.[48]
[45](2007) 17 VR 592 at paragraph [199]
[46](Supra) at paragraph [24]
[47]Exhibit “B”, affidavit sworn 23 September 2016 at paragraph [3]
[48](Supra) at paragraph [18]
37 Although the plaintiff complains that sharp, shooting pains across his neck and shoulder blades often leaves him tired throughout the day,[49] there is no attempt to compare the situation before and after the subject injury and, in any event, seems at odds with the regular engagement in the greyhound racing. Equally, a complaint that he has “difficulty driving” as a result of the neck pain does not descend to the particular detail referred to above.
[49](Supra) at paragraph [10]
38 Ultimately, the test in this matter is whether the plaintiff has established that the pain and suffering consequences of his injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked” and as being “at least very considerable”.
39 This test involves a value judgement in which matters of fact and degree and/or impression are operative.[50]
[50]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
40 Further, the emphasis in s93 of the Act is upon seeing where the facts of this particular case sit in the broad spectrum of cases, remembering that includes cases which do not end up in litigation – “… because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed”.[51]
[51]See Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [42]
41 In this matter, I accept that the plaintiff suffers ongoing pain in his cervical and thoracic spine on an intermittent basis which has probably affected his ability to fully participate in activities of daily living, restoration work on his cars, and general building and maintenance. I also accept, in the foreseeable future, continuation of painful symptoms in the two areas nominated, such that the effect on his spine as a whole, would inhibit upon his enjoyment of life.
42 I consider the plaintiff’s evidence in this matter probably discloses pain and suffering consequences which are both significant and marked. The ultimate question in this case however is whether these consequences can fairly be described as being “more than significant or marked” or as being “at least very considerable”.[52]
[52]T51, L13-18
43 Considering the considerable difficulties the plaintiff was labouring under prior to the accident with respect to his left knee, his thoracic spine and his lower back, I am unable to find that the consequences can fairly be described as being “more than significant or marked” or as being “at least very considerable”.
Conclusions
44 Further, in reaching this conclusion, I take into account that the “significance of what has been lost which bears upon the seriousness of the consequences may be informed to an extent by what he has retained”.[53]
[53]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
45 Accordingly, the application is dismissed.
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