Kirkpatrick v Transport Accident Commission
[2016] VCC 55
•9 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06286
| STEPHANIE KIRKPATRICK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2016 | |
DATE OF JUDGMENT: | 9 February 2016 | |
CASE MAY BE CITED AS: | Kirkpatrick v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 55 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – transport accident – late onset of neuralgia – whether caused by the transport accident – identification of the injury – identification of the body function which was impaired by the injury – identification of the consequences of the impairment – whether the consequences were “serious”
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Halpin v Wilson Transformer Company [2012] VSCA 235; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: The plaintiff is granted leave to bring a preceding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Ms M Lang | Slater & Gordon |
| For the Defendant | Ms R Annesley QC with Mr J Valiotis | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1 The plaintiff is a 32-year-old unmarried woman who was injured in a major transport accident which occurred on 22 March 2009.
2 The plaintiff suffered an injury to facial nerves which have resulted in facial pain and other consequences which she contends amount to an impairment of the body function which is serious. The application was made under paragraph (a) of the definition of “serious injury”.
3 Mr D Purcell appeared with Ms M Lang of counsel for the plaintiff. Ms R Annesley QC appeared with Mr Valiotis of counsel for the defendant.
The transport accident
4 The plaintiff was driving her car along a street in Cranbourne West. An oncoming car entered onto her side of the roadway and collided into the front quarter panel of her car, resulting in damage to that panel, the panel over the front driver’s side wheel, and the driver’s-side door. The degree of the damage can be seen in a photograph tendered into evidence.
5 Another photograph tendered into evidence shows reddening to the right side of the plaintiff’s face near the right side of her ear and below her temple area, extending down to her jaw. Additionally, the photograph shows abrasions to the base of the right side of the plaintiff’s neck and over her shoulder, left by the seatbelt.
6 The plaintiff said that she remembers that her head struck the driver’s-side window during the impact.
The Plaintiff’s evidence – causation
7 The plaintiff could not remember having pain to the right side of her face immediately after the occurrence of the transport accident. She said unequivocally in her first affidavit that she noticed a constant ache at the front of her right ear in about November 2009. She repeated that during her oral evidence, except that she thought the pain commenced in about September-October 2009.
8 The plaintiff described the onset of the pain in much the same way to Dr Roth, general practitioner; Dr De Graaff, rehabilitation physician; Dr Hunt, neurologist; Professor Cook, neurologist; Dr Fraser, rheumatologist, and Professor Davis, neurologist. Essentially, she told them that it was in about September-October 2009 that she commenced experiencing pain to the right side of her face.
9 The plaintiff told Dr De Graaff and Professor Cook that the onset of the pain coincided with the reduction in her reliance on analgesics.
10 Under cross-examination, the plaintiff was asked why, if she was developing pain to the right side of her face, she did not seek medical treatment for that earlier than May 2010. She said that she did not, because the pain was intermittent; that she did not know what the pain was when it began, and that it was only after she appreciated that she was likely to suffer that pain long-term that she then sought medical treatment.
11 The plaintiff said that she was using analgesics after the episodes of surgery performed by Mr Byrne, which I have summarised below. She returned to work two days a week from June 2009 and increased her hours to full time by July 2009. She was regularly using Panadol and Nurofen for pain relief. It was following the cessation of her physiotherapy treatment later in 2009 that she ceased regularly using that medication.
12 The cessation, or near cessation, of plaintiff’s use of analgesics temporally, coincides with her appreciation of pain to the right side of her face.
The medical opinions – diagnosis and causation
13 I propose to briefly summarise aspects of the evidence which are relevant to the question of causation, and in particular, aspects of the evidence which were the focus of the cross-examination relevant to the question of causation.
14 The plaintiff was attended upon by ambulance officers. They completed a patient care report which referred to the plaintiff’s complaints as “Right Chest pain; Left Foot pain; Right Clavicle pain”. On examination, the ambulance officers recorded “Left Foot pain; Right Chest bruising/haematoma; Right Clavicle bruising/haematoma; Left Tarsal swelling”. There is no record of pain to the right side of the face.
15 The plaintiff was taken to the Emergency Department of the Casey Hospital by ambulance. The injury which attracted the attention of attending medical personnel was a flexion injury to the plaintiff’s left forefoot with fractures of the 2nd to 4th metatarsals, with some lateral displacement. Again, there is no record of pain to the right side of the plaintiff’s face.
16 A triage nurse attended upon the plaintiff. The comments of the triage nurse were, among other things: “… denies any neck pain or head strike … .”
17 The plaintiff was referred to Mr Byrne, orthopaedic surgeon. He operated on the plaintiff’s foot fractures on 9 April 2009. It would appear from the handwritten operation note, and a copy of his clinical records, that he reduced the fractures using a K-wire. He subsequently operated again to remove the K‑wire.
18 It is obvious that the focus of Mr Byrne’s treatment of the plaintiff was the foot fractures; however, there is again no record in his clinical notes of pain to the right side of the plaintiff’s face.
19 The plaintiff was accustomed to attending a bulk billing medical clinic known as the First Health Medical Centre. She attended that clinic for medical care on a number of occasions subsequent to the transport accident without making any complaint of pain to the right side of her face.
20 The plaintiff attended that clinic on 20 May 2009, which appears to be the first occasion she reported the injuries she suffered in the transport accident. She attended again on 25 July 2009 for treatment for the injuries she suffered in the transport accident, except that there is again no mention of pain to the right side of her face.
21 The next substantive attendances are on 7 August 2009, when the plaintiff reported an illness unrelated to the transport accident, and on 17 and 19 November 2009, when it would appear she attended for treatment to her foot injury which resulted in a referral to a podiatrist.
22 The next substantive attendance is on 3 January 2010, when the plaintiff appears to have attended for treatment for a medical issue unrelated to the transport accident. There is mention of her foot injury in the clinical note, but again no mention of the pain to the right side of her face.
23 The first mention of anything relevant to the right side of her face occurred on 17 February 2010, when the plaintiff reported intermittent right ear ache, and again on 21 February 2010. The next mention of anything relevant to the right side of her face is on 26 August 2011, which cryptically refers to treatment which the plaintiff then pursued to try to understand the genesis of the pain she was experiencing to the right side of her face. I will refer to that treatment shortly.
24 The plaintiff said that she was using Panadol and Nurofen as analgesia to treat the pain she was experiencing from the foot injury. In medical opinions which I will summarise below, it was thought that the use of those analgesics was masking the pain the plaintiff was experiencing to the right side of her face until September-October or November 2009, when the plaintiff says that she noticed a constant ache at the front of her right ear.
25 During cross-examination, the plaintiff explained what she meant by pain to the front of her right ear by demonstrating that it was pain going across from her ear toward her right cheekbone area.
26 The plaintiff subsequently saw Dr Roth, general practitioner. She explained that the reason why she saw him was because he was her preferred general practitioner; however, she went to a bulk billing clinic for lesser important medical complaints, because treatment at that clinic did not expose her to paying an extra medical fee for treatment.
27 Dr Roth provided a number of medical reports which demonstrate that certainly by May 2010, the pain the plaintiff was experiencing to the right side of her face had become a serious problem for her. Dr Roth examined the plaintiff on 4 May 2010. He recorded that the plaintiff described several months of pain in the region of her right ear. He examined her and noted pre-auricular tenderness; that is, tenderness just to the front of the ear. He found no other abnormality in the ear.
28 Initially, he considered that the plaintiff had suffered obstruction of the normal movement of her temporomandibular joint. In an attempt to determine the genesis of her pain, he referred her to Mr Wongprasartsuk, ear nose and throat specialist, who saw her 7 June 2010. The plaintiff’s dentist referred her to Dr Talacko, dental specialist, who provided the plaintiff with an occlusal splint. She was also referred to a physiotherapist, and had blood tests and an MRI scan of her brain, skull and neck.
29 Those investigations did not unearth the genesis of the pain the plaintiff was experiencing to the right side of her face.
30 The plaintiff was then referred to Dr Hunt, neurologist, by Dr Talacko. It would appear that the plaintiff saw her in January-February 2012. She considered that the likely cause of the pain experienced by the plaintiff was from the transport accident. She was made aware that the plaintiff hit the right side of her face against the window of her car and of the photograph showing the reddening to the right side of the plaintiff’s face. She then expressed the opinion that the blunt head trauma suffered by the plaintiff may have caused very mild auricular sensory nerve damage. She added that this might not have been evident immediately, because neuralgia may occur and increase sometime after the event of trauma.
31 Dr Hunt reconsidered that diagnosis. She considered that the pain which the plaintiff described to her was not typical for either trigeminal neuralgia or glossopharyngeal neuralgia. She became aware, from the history given to her, that the pain experienced by the plaintiff had spread to her scalp, was very intense and throbbing. It was overwhelming pain which caused the plaintiff tiredness and interference with concentration. The pain had gone from being a burning pain to a pulsating pain which subsequently caused the plaintiff nausea, exhaustion, dizziness, interference with concentration and that the pain could be overwhelming. She thought, on the basis of this description, that the episodic nature of the pain was strongly suggestive of a migrainous cause.
32 Dr Hunt referred the plaintiff to Dr De Graaff, rehabilitation physician. The plaintiff first saw him on 1 November 2012. He continues to treat her, and indeed, she last saw him in December 2015 and will return to see him shortly.
33 Dr De Graaff was made aware that the plaintiff hit the right side of her face against the window of her car. He considered that she had developed a Chronic Regional Pain Syndrome which was associated with her striking her head against the window of her car. He also considered that the symptoms that she was experiencing to the right side of her face had been “dampened down” by the analgesics which she was taking to treat the pain from her foot injury.
34 On clinical examination, Dr De Graaff found some hypersensitivity anteriorly and inferiorly to the right ear. He gave the plaintiff a prescription for Tramadol, which is a strong analgesic, and Lyrica, which I understand is prescribed to treat nerve-related pain.
35 The last report provided by Dr De Graaff is in fact a letter to Dr Roth dated 31 October 2013. The plaintiff did not obtain any updated medical opinion from him. Despite that, as at October 2013, he noted that her pain could be considerable at times, but that she was able to cope generally. She had ceased using Tramadol and was using Lyrica, two 225 milligrams at night. She had commenced using Panadeine Forte, up to four per day.
36 The most important aspect of Dr De Graaff’s last word on the plaintiff is that the plaintiff was using the Lyrica for the purpose of easing the neuropathic quality of her facial pain and to assist her to sleep. I say that this is the most important aspect of his last word, because it was the defendant’s submission that there were different diagnoses of the plaintiff’s medical condition affecting the right side of her face, and that therefore the injury, and by extension its consequences, had not been identified with sufficient precision. I will return to this subject later in these reasons.
The neurological opinions
37 Professor Cook, neurologist, examined the plaintiff on a medico-legal basis on 10 August 2013 and again on 21 November 2015. When he examined the plaintiff on both occasions, he found altered sensation to the right side of her face. On the second occasion, he described altered pinprick sensation, with an approximately 6-centimetre diameter of skin involving the anterior ear, the posterior face on the left, with hyperaesthesia affecting the tragus and earlobe. I interpret his reference to the posterior face on the left to be to the left of the right side of her face.
38 Professor Cook then expressed the following opinion on causation, which I will set out in full:
“... I think it is reasonable to presume that it was a complication of the accident, and the syndrome corresponds to that of auriculotemporal neuralgia, which is certainly described as a post-traumatic condition. I see that this has had other diagnoses over the time provided by neurologist and pain management specialists, but the description is clearly that of a neuralgia rather than a regional pain syndrome and I can’t see there is any other good explanation for the symptoms.”
39 Professor Davis, neurologist, examined the plaintiff on 1 December 2015. Unlike Professor Cook, he found no sensory deficit over the right side of the plaintiff’s face. He has expressed a different opinion to Professor Cook, concluding that the plaintiff has a typical right-sided facial Pain Syndrome which does not fit into any characteristic diagnostic categories, and although he considered that some of the features she presented with would fit within auriculotemporal neuralgia, the absence of lancinating pain led him to prefer the conclusion that she was suffering from an atypical Pain Syndrome. He doubted any causal connection between the transport accident and the medical condition from which the plaintiff was suffering.
40 Professor Cook provided the plaintiff’s solicitors with three papers. One of them is entitled “Refractory facial pain attributed to auriculotemporal neuralgia” which appears to have been published in a medical journal known as “J Headache Pain (2012) 13:415-417.” Under the heading of Discussion, the authors, at page 416, said:
“Auriculotemporal neuralgia is characterised by crises of strictly unilateral lancinating pain that may be perceived in the temporal region … .”
41 The defendant submitted that I should be less inclined to accept the opinion of Professor Cook, because of the absence of lancinating pain. That was a point made by Professor Davis. It would appear that it was his view that the absence of lancinating pain was persuasive enough for him to conclude that the plaintiff was suffering from an atypical Pain Syndrome. Additionally, the lack of any sensory deficit no doubt also influenced the opinion he ultimately reached.
42 Professor Cook was provided with a copy of Professor Davis’s report. He commented that after reading the literature on this subject, one could not be dogmatic about the description of pain, because pain varies, and the description given of pain varies. He was certain that the absence of lancinating pain did not exclude his diagnosis, and he added that it was difficult to think of any other good explanation for the symptoms described by the plaintiff.
The issues
43 The defendant defined the issues raised by this application as embracing almost every issue that one might imagine could be raised in a serious injury application:
· Firstly, the identity of the injury suffered by the plaintiff
· Secondly, if an injury can be identified, then what body function has been impaired by the injury?
· Thirdly, if a body function has been impaired, then is the impairment long-term?
· Fourthly, if all of the above are satisfied, then are the consequences of the impairment of the body function “serious”?
44 The defendant did not seriously challenge the creditworthiness of the plaintiff. I think that was a proper concession, because it was my very strong impression that the plaintiff was truthful in every aspect of her evidence. She was responsive directly to questions put to her and she gave her answers spontaneously and with a keenness to give informative answers.
45 The defendant did question the plaintiff’s reliability. I thought the plaintiff’s evidence was given very reliably. I have been left with a very clear picture of the injury suffered by the plaintiff; the course of events over 2009, and the appearance of the condition affecting the right side of the plaintiff’s face. Degrees of uncertainty and doubt by witnesses do not equate to unreliability. Significant uncertainty and doubt might well, but that was not the case with this plaintiff.
Findings
46 The damage to the plaintiff’s car is significant damage. It was not quite a head-on impact, but a partially head-on and sideswipe-type impact. It is the sort of impact which would have caused the plaintiff’s body to suffer movement within the cabin of her car.
47 The plaintiff’s body must have struck a fitting on the inside of the car, because she suffered an abrasion to her nose. She also suffered abrasions to the base of the right side of her neck and over her shoulder, from the seatbelt.
48 I accept the plaintiff’s evidence that her head struck the driver-side window. I am fortified in reaching that conclusion, because the photograph of the right side of her face does show reddening in the areas I have already described, which are consistent with the right side of her face striking the adjacent window. Additionally, the abrasion to her nose and to the right side of her neck and shoulder demonstrate that there was significant movement of her upper body within the cabin of her car.
49 I am not persuaded that the absence of a record of the plaintiff striking her head on the driver-side window, in the ambulance records and the hospital records, is material. There can be no doubt that there is no record of that kind recorded by the ambulance officers and the triage nurse, but there might be many reasons for that. It must be remembered that the plaintiff was badly injured when removed from the accident scene by ambulance, and was in a similar state when admitted to the hospital. A failure on her part to give very specific detail is understandable, or it may be a failure on the part of the persons who recorded those details in their records.
50 It is probable that her focus was on the major injury which she had suffered in the transport accident which was, of course, to her left foot. It required surgical repair, and subsequent minor surgery to remove the K-wires. Her post-surgical treatment involved the use of analgesia to deal with the pain she was experiencing, and physiotherapy treatment, both of which were directed to treatment of her left foot injury.
51 The plaintiff’s absence from work was probably predominantly due to the injury to her left foot, and her subsequent graduated return to full-time work was likely dictated by that injury.
52 I accept the plaintiff’s evidence that somewhere around September-October or November 2009, she no longer needed to regularly use analgesia for pain relief, because it is probable that she had made, or was making, a reasonable recovery from the injury to her left foot.
53 I accept the plaintiff’s evidence that the first obvious manifestation of pain to the right side of her face occurred around September-October or November 2009. I also accept that the analgesics were masking the discomfort or pain to the right side of her face. That is certainly something which Dr De Graaff and Dr Cook considered to be plausible. I do not accept that they would have blithely accepted the plaintiff’s explanation for the delay in her appreciation of the pain to the right side of her face if it was implausible.
54 I accept the plaintiff’s evidence that the reason why she did not seek medical treatment earlier than May 2010 was for the reasons she advanced in her oral evidence; that is, because the pain was intermittent; that she did not know what the pain was when it began; it was only after she appreciated that she was likely to suffer that pain long-term that she then sought medical treatment.
55 I accept the evidence of Dr Cook that the injury comprised an auriculotemporal neuralgia produced by interference with a nerve in the right side of the plaintiff’s face. I am fortified in reaching that conclusion because Dr De Graaff initially described the plaintiff’s pain as right periauricular pain. He described the use of Lyrica as easing the neuropathic quality of her facial pain. These terms appear to me to be descriptive of nerve damage.
56 Initially, Dr Hunt was of the same opinion. I quoted from her opinion earlier in these reasons because it was the first neurological opinion which identified auricular sensory nerve damage which was later confirmed by Dr Cook. Despite the fact that Dr Hunt gave a differential diagnosis of a migrainous condition, it was not an opinion which necessarily discounted the relevance of her earlier opinion.
57 What this leads me to conclude is that the pain the plaintiff was experiencing to the right side of her face in September-October or November 2009 was very probably caused by the pathology referred to by each of the medical practitioners I have just referred to. The fact that their diagnoses are different does not change the pathology which they each considered deserved a particular diagnostic label.
58 I prefer the opinion of Dr Cook that the nerve damage is as he describes it. The nerve damage constitutes the injury suffered by the plaintiff.
59 The body function which has been impaired is the function of the nerve which is now malfunctioning to such an extent that it is responsible for the pain which the plaintiff is experiencing to the right side of her face.
60 I do not have any doubt that the impairment is long term. I do not need to review the medical evidence to be so satisfied. Because of the medical opinions I have reviewed thus far, there are no opinions which are contrary to the plaintiff having a poor prognosis, and indeed, Dr Cook considered that the plaintiff might have her present problems lifelong.
The Plaintiff’s consequences
61 I accept the plaintiff to be both a creditworthy and reliable witness. I accept all of her evidence.
62 In summary, what I accept of the plaintiff’s evidence, relevant to consequences, are as follows:
·She suffers a constant level of pain around her right ear. The pain has a burning sensation about it. The area where she experiences the pain feels hot.
·The pain is sharper in cold weather.
·The pain extends from the right side of her face into her mouth and tongue. That sensation comes and goes. When she experiences it, it can be with her for hours on end. It is accompanied by an itching sensation in her tongue.
·She consumes a significant load of medication daily. She now takes 6 to 8 Panadeine Forte per day, and sometimes more. She takes Lyrica, 150 milligrams per day. She has reduced the dosage of Lyrica from 225 milligrams because, I assume, she received medical advice to do so in response to an expressed desire to become pregnant.
·The Panadeine Forte has the effect of dulling the pain she is experiencing, but within about an hour, the pain will begin to increase. When the pain increases, the right side of her face becomes very uncomfortable. She either takes another painkiller or tries to push through the pain.
·Her use of medication has interfered with her capacity to focus attention and to concentrate. This has left her in a dilemma as to whether to take another painkiller when needed or to push through with the pain for a little longer before needing to take another painkiller.
·Her sleep is adversely affected. She may have three or four days when her sleeping pattern is alright, but there are occasions when she has broken sleep or gets no sleep at all. She feels hot at night, which she believes is due to an adverse effect of the medication.
·She is often exhausted at the end of the working day. It was my impression that the exhaustion was contributed to by a combination of work, travelling time and the pain she is experiencing.
·There have been occasions when she has had a bad day or a bad night because of the pain she experiences. She sometimes reschedules her rostered day off to the following day to recover. On occasions when she does this, she takes medication and does not engage in much physical activity. On the days when she does take her rostered day off, the pain can be extremely severe.
63 The defendant submitted that whilst the plaintiff may have suffered losses, what she has retained is significant and weighs against a finding that she has suffered a serious injury.[1]
[1]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
64 The plaintiff is working full time. She has a responsible position in a dental practice overseeing other dental nurses. She admitted to no interference with her capacity to undertake general domestic tasks. An example of her retained capacity to function is evidenced by the fact that she travelled to Europe in 2014 for two months with her fiancé. Overall, it was the defendant’s submission that the plaintiff has engaged in a significant daily routine through her work, and has the capacity to organise travel and to engage in it which demonstrate a reasonable level of functioning.
65 I am not satisfied that what the plaintiff has retained displaces what the plaintiff has lost to such an extent that what she has retained militates against a finding that the plaintiff has suffered a serious injury.
66 The plaintiff suffers unremitting pain. She requires a significant load of medication daily to deal with the pain. I infer that without the medication, she would not be able to function to the extent that she is capable now. She suffers quite serious interference with her sleep often enough for it to be a serious problem for her. When the interference is particularly bad, she takes a day off and basically does nothing in order to recover before being able to return to her normal routine.
67 The Court of Appeal has now said on a number of occasions that the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.[2] Additionally, the fact that the plaintiff is very young and probably will have to endure the pain lifelong is very relevant consequence.[3]
Halpin v Wilson Transformer Company [2012] VSCA 235 at paragraphs [46]-[50]; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [199]; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [71]
[3]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]
68 I consider it to be an extraordinarily poor prognosis for the plaintiff to have to endure unremitting pain and to have to resort to a large load of medication, together with all of the other consequences for someone who is so young.
69 Additionally, the plaintiff strikes me as being the classic stoic. She has maintained her work through sheer perseverance against a level of pain which is significant, given the load of medication she takes to try to ameliorate the pain. The fact that she pushes through the pain before taking further medication is very stoic. As was said in Dwyer,[4] it would be wrongheaded if the plaintiff were treated less favourably than another who, being of less strength of character, simply resigned herself to her injury.
[4](Supra) at paragraph [3]
70 After giving due consideration to the evidence relevant to consequences and the competing submissions of the plaintiff and the defendant, and also after considering like impairments, I am satisfied that the plaintiff has suffered a serious long-term impairment of the function of the nerve damaged as a result of the transport accident.
Conclusion
71 I will grant the plaintiff leave to bring a proceeding to recover damages at common law.
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