King v Transport Accident Commission
[2017] VCC 3
•27 January 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02207
| CHERYL KING | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2017 | |
DATE OF JUDGMENT: | 27 January 2017 | |
CASE MAY BE CITED AS: | King v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 3 | |
REASONS FOR JUDGMENT
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application - injury to the spine – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986 s93; Accident Compensation Act 1985
Cases Cited:Philippiadis v Transport Accident Commission [2016] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
Judgment:Leave granted
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with | Slater & Gordon |
| For the Defendant | Mr D Myers | Transport Accident Commission |
HER HONOUR:
Preliminary
1 This is an application to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
2 The plaintiff alleges she suffered injury in a transport accident which occurred on 14 June 2013. The plaintiff was driving along High Street, Malvern when a vehicle coming from the opposite direction veered into her path, causing the plaintiff’s vehicle to run off the road and strike a nearby brick wall (“the transport accident”).
3 Mr D Purcell and Mr M Fogarty of counsel appeared for the plaintiff and Mr D Myers of counsel appeared for the defendant.
4 The plaintiff claims she suffered an aggravation to degenerative changes in her lumbar and cervical spine in the transport accident, and the body function said to be lost or impaired is the functioning of her spine. The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act.
5 Only the plaintiff was called to give evidence and she was cross-examined. In addition, affidavits from the plaintiff’s daughter and partner were tendered, as well as numerous medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this Judgment.
6 The plaintiff has the burden of proving the impairment of her spine is both serious and long-term. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment.[1]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1
Relevant background
7 The plaintiff is 68 years of age. She is in a long-term relationship with her partner, Liam.
8 At the time of the transport accident, the plaintiff was an artist who specialised in painting large, 6x4 feet acrylic pieces. While she was not in paid employment, she would prepare and set up exhibitions for the purpose of exhibiting her paintings. The plaintiff derived much enjoyment and a sense of achievement when she showcased her artwork. [2]
[2]Common Court Book (“CCB”) 3
9 The plaintiff’s partner, Liam, is a musician and, prior to the transport accident, she enjoyed assisting him when he performed at events. This included helping him transport and set up musical equipment at the venues.[3]
[3]CCB 4
10 Prior to the transport accident, the plaintiff and her partner also enjoyed working out in his home gym. The plaintiff said she trained three or four times a week and that each session lasted between 45 minutes to 1.5 hours. She could bench press up to 70 kilograms.[4]
[4]CCB 4-5
11 Prior to the transport accident, the plaintiff had suffered some neck and lower back stiffness, which she referred to in her claim for compensation with the Transport Accident Commission (“TAC”).[5] In this form, the plaintiff stated that she had received some physiotherapy treatment on the left side of her neck “off and on” and that such visits had been sporadic and for the purpose of neck stiffness.[6] She also referred to suffering “some minor arthritis in left hip joint.”[7]
[5]CCB 54-55
[6]CCB 55
[7]CCB 54
12 At the time of the transport accident, the plaintiff’s regular medical clinic was the Jackson Court Clinic in Doncaster East. The records from that clinic indicate that on 18 April 2012, the plaintiff attended upon general practitioner, Dr Xiong Tan, with a complaint of “sore back without injury days”.[8] On examination, Dr Tan noted no tenderness on the plaintiff’s spine but some tenderness on her sacroiliac joints.[9]
[8]CCB 100
[9]CCB 100
13 The plaintiff was cross-examined in relation to this attendance. She accepted that the medical record referred to her suffering a sore back, but said that any back pain prior to the transport accident was “very manageable”,[10] was not ongoing, and was “nothing like”[11] what she has experienced since the transport accident.
[10]Transcript (“T”) T35, Line (“L”) 10
[11]T35, L10-12
14 The records further indicate that a multidisciplinary care plan was prepared by Dr Tan on 18 April 2012, in which it was stated that the plaintiff was suffering osteoarthritis. However, the plaintiff said she knew nothing about this care plan.[12]
[12]T7, L22-25; T8, L17-22
15 The records also include a referral to physiotherapist, Rebecca Hawkins, dated 17 January 2013.[13] The plaintiff could not recall ever consulting Ms Hawkins, and both counsel accepted that Ms Hawkins’ clinic held no records in relation to the plaintiff.[14]
[13]CCB 91
[14]T13, L26; T31, L29-30; T32, L1
16 Further, the medical records also indicate that the plaintiff was prescribed Mobic medication on 18 April 2012, 16 July 2012 and 20 May 2013. The plaintiff accepted that she received this prescription for osteoarthritis, but said that she took it only “very occasionally”.[15]
[15]T9, L12-13 and L25-29
17 The plaintiff maintained that, prior to the transport accident, any neck and lower back pain was only occasional and did not cause her any ongoing restrictions. As such, she was able to work out in the gym and complete the artwork which she loved.
The injury and its consequences
18 The transport accident occurred on 14 June 2013. An ambulance attended the scene, but did not take the plaintiff to hospital.
19 At around 3.00pm, approximately three hours after the transport accident, the plaintiff attended upon Dr Tan. He noted that the plaintiff’s car had hit a wall and that she had walked away from the accident “without a scratch”.[16] Dr Tan noted that the plaintiff had suffered general stiffness, but that she had a full range of movement in her neck and that there was no tenderness. He prescribed the plaintiff Panadeine Forte and Mobic.[17]
[16]CCB 15
[17]CCB 15
20 The plaintiff said that, within a couple of days after the transport accident, she began to experience persisting lower back and neck pain.[18]
[18]T16, L18-19
21 The plaintiff said that her car was written off in the accident, and that, without it, she was no longer able to attend Dr Tan in East Doncaster. Instead, she began to consult doctors at the Box Hill Centro Clinic, which was much closer to her home.
22 On 6 July 2013, the plaintiff first attended upon Dr Judy Chen at the Box Hill Centro Clinic. She noted that the plaintiff attended with neck and back pain, together with stress and anxiety following the transport accident.[19] Dr Chen arranged for an x-ray of the plaintiff’s cervical, thoracic and lumbosacral spine. These x-rays were noted as unremarkable, save for moderate degenerative changes at C5-6.[20]
[19]CCB 134
[20]CCB 16
23 Thereafter, the plaintiff obtained some physiotherapy treatment for her lower back and neck pain, but she felt this did not improve her pain. She therefore did not persist with ongoing physiotherapy treatment, although she said that she continues to undertake exercises at home, which she had learnt from the physiotherapist.[21]
[21]T26, L21-22
24 The last recorded complaint of lower back pain to doctors at the Box Hill Centro Clinic was on 10 September 2014.[22] The plaintiff was cross-examined regarding the absence of ongoing complaints of lower back and neck pain in those records. She said she was often required to see a different doctor at each attendance, and did not feel that the doctors were particularly concerned about her complaints of lower back and neck pain.[23] The plaintiff said therefore, that she stopped asking for Mobic medication, and stopped talking to the doctors about her ongoing pain.[24]
[22]CCB 137
[23]T18, L4, T24, L8-17
[24]T24, L30-31
25 The plaintiff has never been referred to a specialist for review of her lower back and neck pain.
26 Following the transport accident, in addition to her physical complaints, the plaintiff also suffered some anxiety. She was referred to psychologist, Ms Clare Cook, whom she consulted for a period of time between July 2013 and April 2014. The plaintiff said she ultimately stopped consulting Ms Cook as she “got sick of talking about the transport accident”.[25]
[25]T27, L17-18
27 The plaintiff said that she has suffered constant lower back and neck pain since the transport accident.[26] Her lower back pain is generally worse than her neck pain, and is exacerbated upon performing activities requiring bending, lifting, twisting, prolonged sitting and standing.[27] Her neck becomes stiff after prolonged sitting and standing.[28]
[26]CCB 3
[27]CCB 3
[28]CCB 3
28 The plaintiff said that she takes medication on a daily basis due to her ongoing pain. She said that she takes Panadol Osteo every morning, and that when her pain is especially bad, she will take extra Panadol Osteo in the afternoon.[29] The plaintiff then said that she takes Mersyndol every evening for her pain, together with Restavit, to help her sleep.
[29]T36, L1-6
29 The plaintiff obtains Chinese therapeutic massage, as well as massage therapy from her partner.[30]
[30]CCB 9
30 The plaintiff said that she has difficulties sleeping due to her lower back and neck pain, and that it can sometimes take her two to three hours before she can fall asleep.[31] She also said that she often wakes when turning in bed, and that the lack of sleep makes her feel lethargic and grumpy.[32]
[31]CCB 8
[32]CCB 8
31 The plaintiff has been unable to complete a large painting since the transport accident, due to her lower back and neck pain. She said that previously, she produced such paintings by laying a large canvas on her garage floor and painting whilst on all fours.[33] She said the repetitive movement of getting up and down from all fours exacerbates her lower back pain, such that she now completes only small pieces of art.[34] The plaintiff said that completing a small art piece is less physically demanding on her neck and lower back, but that the motion of painting still causes her pain and discomfort.[35] She said that the pain causes her to regularly shift and move about whilst painting, which she finds immensely frustrating.
[33]CCB 3
[34]CCB 3
[35]CCB 3
32 The plaintiff said that her last formal exhibition of work was in August 2014, and that it included pieces she had completed prior to the transport accident as well as smaller pieces undertaken after it.[36] The plaintiff said she was not able to hang the artwork herself, as climbing a couple of steps on a ladder increases the pain in her lower back, and the action of hanging up the piece causes her discomfort in her neck.[37]
[36]CCB 3-4 and 8
[37]CCB 4
33 The plaintiff said she is no longer able to work out in the gym with her partner as the exercises cause her increased pain.[38]
[38]CCB 5
34 The plaintiff said she used to enjoy dressing up and wearing high heels, but she now avoids such shoes as they are painful for her lower back.[39]
[39]CCB 7
35 The plaintiff is now limited in her ability to perform domestic duties, and relies upon her partner to undertake the majority of household tasks. She said she is still able to vacuum but can only do so for a short period of time, after which she suffers an increase in lower back pain. She also said that she now avoids cooking, and that if she does cook, she tends to make a simple meal in one pot.[40]
[40]T30, L20-22
36 The plaintiff stated that her sexual relations with her partner have been impacted upon due to the discomfort in her lower back.[41]
[41]CCB 5
37 The plaintiff still attends musical gigs with her partner. However, when such gigs are in regional Victoria, she finds that the car travel aggravates her pain and they have to make many stops along the way.[42]
[42]CCB 8
38 The plaintiff’s adult daughter, Monica, swore an affidavit in October 2016, which detailed changes she had observed in the plaintiff since the transport accident.[43] The plaintiff’s partner also swore an affidavit in November 2016. He, too, detailed observations he had observed in the plaintiff since the transport accident, in particular, he corroborated the difficulties the plaintiff has sleeping at night, that he now does most of the housework, and that he provides her with regular massage therapy.[44]
[43]CCB 10-11
[44]CCB 13
Plaintiff’s medico-legal material
39 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Kevin King, in July 2014. Mr King noted the plaintiff complained of constant aching in her lower back, which was always present but fluctuated in intensity. He also noted constant aching pain in the plaintiff’s neck, which was of mild to moderate severity. Mr King attributed the persistent lower back and neck pain to the transport accident.[45]
[45]CCB 24
40 The plaintiff’s solicitors also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Peter Moran, in December 2015. In his report dated 22 March 2016, Mr Moran noted the plaintiff suffered pre-existing, age-related degenerative changes in her lower back and neck. He noted that such changes were asymptomatic prior to the transport accident, which he considered to have accelerated those degenerative changes in the medium to long term.[46]
[46]CCB 28
41 The plaintiff was then re-examined by Mr Moran in November 2016, at which time he also arranged for an MRI scan to be performed. The scan demonstrated age-related desiccation of all lumbar limbs and:
“More significant change in the L5-S1 disc where there was a slight disc space narrowing, and significant endplate oedema of both L5 and S1 vertebrae. There was a small posterior disc protrusion at this level.”[47]
[47]CCB 32
42 Mr Moran noted that the plaintiff’s symptoms in her lower back and neck had persisted since the transport accident, and considered her condition to be consistent with the transport accident.[48]
[48]CCB 32
43 The defendant did not tender any medical material.
Aggravation
44 I am satisfied that as a consequence of the transport accident, the plaintiff suffered an aggravation of pre-existing degenerative changes in her spine.
45 As an aggravation case, there must be a comparison between the plaintiff’s pre-existing condition with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[49] I must consider only the consequences arising from the aggravation.
[49][1994] 1 VR 436
46 Having considered all of the evidence, I am satisfied that, prior to the transport accident, the plaintiff had suffered very occasional neck stiffness and lower back pain, for which she had received some physiotherapy treatment. I accept that the plaintiff had been prescribed Mobic medication, but that she rarely used it. Save for these temporary exacerbations of neck stiffness and lower back pain, I am satisfied that, at the time of the transport accident, the plaintiff’s underlying degenerative condition was largely asymptomatic.
47 Therefore, in assessing the plaintiff’s application, I am required to consider all consequences arising from the aggravation of her degenerative spine.
Consequences
48 The plaintiff must satisfy me that the consequences of her spinal impairment are “very considerable.”
49 In Haden Engineering Pty Ltd v McKinnon,[50] Maxwell P said:
[50](2010) 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both 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. (I will refer to the second element as ‘the disabling effect’ of the 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 compromise 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.”[51]
[51]Ibid at [9] – [12]
50 I consider the plaintiff to be creditworthy and reliable, and I have no hesitation in accepting her evidence in whole. Her credibility bears significantly on my assessment of her evidence regarding her pain experience.
51 In her most recent affidavit, the plaintiff said that her lower back pain is constant and that her pain levels vary in intensity during the day. I accept that her lower back pain is aggravated by activities such as prolonged sitting, walking and standing.
52 I also accept that the plaintiff suffers ongoing neck pain, and that it, too, fluctuates in intensity. The day prior to the hearing, the plaintiff said that she had tended to some pot plants in her home, and that, as a consequence of this relatively modest activity, her neck pain had been significantly exacerbated.[52]
[52]T34, L1-7
53 I accept the plaintiff’s explanation as to why she no longer complains to doctors at her local medical clinic about her ongoing lower back and neck pain. I do not consider the lack of recorded complaints since September 2014, to adversely impact upon the veracity of her evidence that her pain is constant.
54 I also accept the plaintiff’s explanation that she did not continue with ongoing physiotherapy treatment, as she received no ongoing benefit.
55 I accept that the plaintiff takes over the counter medication on a daily basis. As a minimum, the plaintiff takes Panadol Osteo in the morning, and Mersyndol and Restavit in the evening.
56 As has been recognised by the Court of Appeal in previous cases, “…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[53]
[53]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
57 Although the medication the plaintiff takes is not codeine-based, I consider the need for over the counter medication, every morning and every night, to be a significant consequence.
58 I am also satisfied that the plaintiff suffers the following consequences as a consequence of her spinal impairment:
– she no longer paints the large art pieces she previously enjoyed painting;
– she no longer works out in the gym;
– her sleep is interfered with on a regular basis;
– she is limited in her ability to perform domestic activities;
– when she travels by car, she needs to take regular breaks;
– she no longer wears high heeled shoes and I accept that this is a matter of upset for her;
– when she has travelled overseas, she needs to pay for extra leg room, and she “dreads”[54] the flight as it causes her increased lower back and neck pain.
[54]CCB 8
59 Collectively, I consider these consequences to be more than significant, and at least very considerable for the plaintiff.
Conclusion
60 Accepting the consequences identified above, when comparing the plaintiff’s case to the range of other possible impairments, I am satisfied that the consequences of her spine impairment are at least very considerable.
61 The plaintiff’s application for leave to commence a claim for common law damages succeeds. I shall make consequent orders.
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