| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LONCAR -v- HADLEY [2002] WADC 63 CORAM : HH JACKSON DCJ HEARD : 29-31 OCTOBER 2001 DELIVERED : 5 APRIL 2002 FILE NO/S : CIV 1718 of 1999 BETWEEN : VANESSA KRISTI LONCAR Plaintiff
AND
FREDERICK ANDREW HADLEY
Defendant
Catchwords: Motor vehicle collision - Personal injuries - Assessment of damages
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3B, s 3C, s 3D, s 3E
Result: Damages assessed in the sum of $24,740
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Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Ilbery Barblett
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Hendrie v Rusli [2000] WASCA 420
Nyssen v Foy [2000] WADC 210
Wylde v Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
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1 HH JACKSON DCJ: The plaintiff was born on 9 August 1973 and was involved in a motor vehicle collision on 12 November 1997. The defendant admits liability for the collision and the matter accordingly came before me for assessment of damages only.
Plaintiff's background 2 The plaintiff completed 12 years of primary and secondary education and then an advanced certificate in applied science and an associate diploma in applied science at TAFE. After a time of unemployment, part-time work and overseas travel, she secured full-time employment with Main Roads Department and was so employed at the time of the collision. She was a keen netball player and umpired indoor netball at senior level on a paid basis during evenings. 3 Prior to the collision, the plaintiff was employed by Main Roads Department taking road samples of 10 kilograms or more, returning with them, and doing laboratory testing of them. 4 As a child, she had been found to have scoliosis at age 12, but grew out of that condition. She played golf at a state junior level and other sports socially, as well as netball and umpiring netball. She swam and did gym work also for fitness. 5 The plaintiff said that in 1996-1997, she was working full-time, umpiring netball about two nights per week, playing netball, swimming and attending the gym. In 1997-1998, she agreed, she cut down her umpiring because of increased demands in her employment.
The collision 6 A vehicle being driven east by the plaintiff in Riverside Drive, Perth was struck from the rear by a vehicle being driven by the defendant. The plaintiff agreed, in cross-examination, that there was no visible damage to her vehicle, her tow bar puncturing the radiator of the vehicle behind her so that it could not be driven. 7 She said she suffered immediate neck pain but continued on to work in Welshpool. She was sent home after explaining her position , then drove home to Scarborough and saw a general practitioner, Dr Fisher. 8 The plaintiff says she suffered a whiplash type soft tissue injury causing neck, shoulder and back pain and associated headaches.
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9 She was suffering neck pain and pain across the trapezii and in the low back. She was referred for physiotherapy and certified unfit for work for two days.
Plaintiff's evidence 10 In the days following, she said, every muscle in her body ached, she was very sore, suffered regular headaches and found sleeping difficult because sleeping on her stomach aggravated the neck and back pain and, on her back, caused her head to roll causing a stiff neck. She could not stretch forward and place her hands flat on the ground as before. 11 She took three days off work, returning to restricted duties, computer operating, for the following three months during which time she found sitting for extended periods difficult and caused headaches and neck pain. 12 She lost about five hours per week in overtime at penalty rates, her normal hourly rate being $18 gross. 13 At the time of the collision, she had been living with her then and present boyfriend, Mr D A Pitts, in a separate part of a house with four to six young men. She described herself as doing all the gardening and household tasks. 14 After the collision, gardening became difficult and she was sore for some days afterwards. Hanging washing and moving furniture were difficult without breaks or assistance. Sitting for long periods, wearing high-heeled shoes and her personal life were affected. 15 After playing or umpiring netball, she would be very still and sore for two or three days and attended physiotherapy. 16 She resumed netball umpiring after two weeks but, for about two or three months she was unable to do the full roster of work offered. She was also on light duties at Main Roads Department for about that time. 17 The symptoms improved. "It wasn't so painful all the time." She agreed that in January 1998, she may have reported to Dr Fisher that she was feeling much better, with only a few headaches. She was cross-examined also about other comments in Dr Fisher's report of 9 January 1998, exhibit 5A, but was somewhat vague. She agreed she was then swimming about twice weekly, driving to and from work. However, whereas Dr Fisher noted the plaintiff as reporting that she began to get stiffness and aching in the neck or lumbosacral region if she
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stood or sat longer than half an hour, the plaintiff said those symptoms were always there but became worse. 18 She said she gave up playing netball after about three months and also gave up umpiring because of the resulting symptoms. 19 She agreed that in June 1998, Dr Fisher had noted "she still has occasional neck and headaches" but said the symptoms were constant, not occasional, but became worse following long periods of sitting or standing. 20 Again, whereas in June 1998 Dr Fisher reported, exhibit 5A, the plaintiff as having returned to playing netball, the plaintiff was vague but thought she did not play again, at least regularly. 21 She was also vague as to when she took up the referral to physiotherapy. 22 Whereas in September 1998 Dr Fisher reported dramatic improvement since June, hoping that the plaintiff would "be able to maintain the current pain free situation", the plaintiff's evidence is that she did not remember a time being pain free or so telling Dr Fisher. 23 Cross-examined, the plaintiff agreed she had had a history of continuing, unremitting mid to upper back and neck pain, especially in the left shoulder and neck pain. Pain across the lower back had only developed in the year or so before trial. Headaches especially at night and after work had occurred after and since the collision. A pre-existing scoliosis had not caused problems. 24 She agreed that she had umpired on 26 nights between November 1997 and March 1999. She had given up netball in March 1999 and has no plans to return. 25 Dr Fisher noted on 28 August 2000 that in 1999, she had told the plaintiff to remain active and to attempt netball umpiring in November 1999 and that the plaintiff had reported that, especially after umpiring fast moving top level games, pain had increased. "She felt pain in her knees, lower back, neck and left shoulder" which remained for two or three days during which she could not walk well. She had not had that knee pain previously and agrees she does not suffer knee pain when she goes walking.
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26 In November 2000, the plaintiff accepted a voluntary redundancy from Main Roads Department in order to live in Melbourne with her boyfriend. She moved to Melbourne after a period of time and then found employment in February 2001 as a recruitment consultant with Challenge Recruitment, working 12 hours per day, even up to seven days per week. Both at Main Roads Department and in Melbourne, privately she used an exercise ball to keep fit without causing pain. She was retrenched by Challenge Recruitment on 10 August 2001, off work for six weeks and then commenced work with Parker Healthcare on a three month contract on 25 September as a quality assurance manager, working normal business hours. After being retrenched, she recommenced walking and swimming for fitness. She has recommenced yoga but not golf.
27 The plaintiff's evidence is that her neck is constantly in pain and that extension of the neck, for example in washing her hair, is painful. As well as the neck, her spine is painful between the shoulders and in the upper spine. 28 She agreed, in cross-examination, that it is not constant and some days are free of pain and that pain eases after treatment. She has experienced upper spine and shoulder pain after gardening. 29 She agreed she had first seen Dr Lego in July 2000 for a filling to tooth 36, some three years after the accident. Apart from a problem with teeth grinding and one filling, she has not suffered dental problems. The plaintiff's evidence is that she had "not really" noticed any difference in the way she closed or used her jaw but that she had noticed that during sleep, her jaw is "kind of forced up into my mouth" as if her teeth are forced together. 30 Mr D A Pitts, the plaintiff's boyfriend, said he had noticed no difficulties encountered by the plaintiff with household domestic tasks or sleeping prior to the accident. Since the accident, the position was much different. Whereas prior to the accident domestic and household tasks such as shopping had been shared, he had now taken them over. The plaintiff suffers pain with any activity that entails either long periods of sitting still or of constant rigorous movement. She has constant pain, takes pain killers Neurofen and Mersyndol regularly and still visits chiropractors and acupuncture. Her sleep is disrupted, travelling is difficult and their social and personal life affected.
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31 She said she remains nervous of driving with a vehicle behind her, suffers headaches and becomes stressed when her symptoms worsen. She still wakes about twice at night. Activities such as household work, gardening, social events and watching films still cause difficulty, as does turning her neck and head when driving.
Medical evidence
Dr Fisher 32 Dr R T Fisher, general practitioner, saw the plaintiff both prior to and after the motor vehicle collision until Dr Fisher ceased her practice in May 1999. Her reports are exhibits 5A to 5E. 33 On 9 January 1998, Dr Fisher reported: 34 Giving oral evidence, Dr Fisher added that this "shallow S-bended orientation" "lends future healing to be rather more difficult". 35 She continued:
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Since this injury was a soft tissue aggravation to a pre-existing cervicodorsal lumbar scoliosis. ... I referred this young woman immediately to a confident spinal Physiotherapist Ms Maureen Lissiman. However her back pain persists and I now think her return to work may have been premature. I further explored the work site and found that she was required to operate metal sampling apparatus and to lift heavy samples of earth in order to do this. She was not fit to do either at the time of this examination and was having headaches at night and low back pain after work. We restricted her to light duties at work and other staff were most cooperative in assisting with this process. She was having considerable headaches particularly at night after a days work, and was concerned about her pain and loss of fitness. She was assessed again by Ms Lissiman who continued to treat her and I added Panadeine Forte or Panadeine if required for pain during the day, with Mersyndol at night for neck and back ache. I next reviewed Vanessa on January 9th 1998, when she reported that she was generally much better. She reported only a few headaches - not a feature of her pre-accident health. She found that if she did stand or sit for periods of longer than half an hour she would begin to get stiffness and aching in the neck and or lumbosacral region. She has learnt to watch her posture at work and in her domestic and leisure activities and is now returning to her chief enjoyment of umpiring netball - though at last weeks first attempt she was indeed stiff and sore afterwards. She will continue to pursue her abdominal muscle strengthening programme and will increase her swimming and exercises. I expect this young woman to recover on a steadily improving basis in the warmer weather. ... This patient was referred to physiotherapy and has had excellent results. I do not expect the regular ongoing need for physiotherapy but fortunately we are dealing with an honest therapist here. This patient will notify myself and Ms Lissiman
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in the event that symptoms become aggravating, but she is an intelligent committed patient and will endeavour to replace her fitness rather than seek passive medical support for her problems." 36 After seeing the plaintiff on 12 November 1997, Dr Fisher again saw her on 19 November and 5 and 9 January 1998. After the plaintiff returned to work, she had low back pain from lifting weights she could have lifted without difficulty previous to the accident. She was then restricted to light duties. She also suffered headaches. Dr Fisher had told her to continue whatever activities she could manage. It seems the plaintiff did some netball umpiring during the months of November and December 1997, but suffered consequential symptoms. She was prescribed exercises and swimming by the physiotherapist for abdominal muscle strengthening. 37 It seems that the plaintiff visited the physiotherapist, Ms Lissiman, six times during November and December 1997. On the last visit, Ms Lissiman noted: "She described only minimal lumbar pain at the end of the day. Her thoracic spine had been asymptomatic during the past week." 38 The plaintiff next saw Dr Fisher on 6 April and 6 May and, as a result, was referred back to the physiotherapist, Ms Lissiman. She was umpiring and playing netball but suffering symptoms for two days after, especially between the shoulders. 39 The plaintiff did not see Ms Lissiman again until a series of visits in July to September 1998, then briefly in April and May 1999 and in the last quarter of 1999 and the first half of 2000. 40 In June 1998, Dr Fisher reported:
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I had referred her for treatment to Physiotherapist, Ms Maureen Lissiman in January 98 but Vanessa chose to persevere without physiotherapy. On review today however she has agreed to return to Ms Lissiman particularly for treatment of the facet joints between L2-6 on the left. This young woman requires mobilisation of this section of her spine but is fit to continue work in her pre-accident capacity as she has done since my last report. She has not required to miss work as a result of this injury, and has arranged for other colleagues to lift trays of soil for testing and this has not met with a problem in the work setting. ... I anticipate she will require periodic physiotherapy and analgesics during the colder weather but it is hoped that her work with Ms Lissiman will reduce the intensity and duration of such soft tissue flare up episodes. She uses Nurofen periodically for pain relief and I have given her a supply of these. She also uses Mersyndol Forte at night when pain prevents her from going to sleep." 41 In September 1998, Dr Fisher noted further progress: "She has improved dramatically since ... June ... At that time I referred her to Physiotherapist Ms Maureen Lissiman who has treated Vanessa on a regular basis since that time. Ms Lissiman yesterday terminated her supervision of Vanessa's treatment and exercise programme because she has recovered to a dramatically improved position, where she is able to self manage her left neck and left shoulder pain. She has learnt to sleep in a different posture, to do stretching and strengthening exercises to avoid recurrence of spasm of her trapezius and scaling muscles on the left, and prevent left anterior and posterior shoulder muscle aggravation. She is however not able to freely use this arm to lift, carry or participate in heavy work, but is delighted that she is once again pain-free at least while she is undertaking her exercise programme. The treatment she has had, has been chiefly physiotherapy from Ms Lissiman. This treatment is no longer required and although
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42 However, in November 1999, Dr Fisher reported: "My first consultation following my last report ... occurred on the 8th December 1998. On this occasion Vanessa reported that she continued to avoid heavy lifting and continued to try to do sport ... She also reported that she continued to have post exercise stiffness in the cervico dorsal region and was not troubled by lower lumbar spine symptoms. However she was concerned she continued to have stiffness in her spine and feared she would 'have what Mum and Dad have'. For that reason I referred her to Rheumatologist Dr Rob Will, ... ... he diagnosed a possible left rotator cuff tear with myofacial syndrome affecting soft tissues in Vanessa's dorso cervical spine region. He also reported facet joint strain injury in the cervical and lumbar region. This seems in keeping with our findings ... to date. This also explains post exercise pain and stiffness in the cervical dorso spine region as described continually by Vanessa since the time of the accident. ... on the 9th January 1999 ... she reported that she still continued to play sport and was sore for two days afterwards. She also experienced pain in the cervico dorsal region to her shoulder joints after gardening. She continued to do yoga to try to strengthen the affected muscles. We agreed that specific gym work would help ...
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43 By solicitor's request, Dr Fisher: "... examined the plaintiff again on 5 May 2000. I found her to have cervico dorsal scoliosis concave to the right with associated right shoulder elevation with relative left shoulder drop: this is in keeping with Vanessa's consistent report in two and half years of continuing head-aches particularly after prolonged periods of neck flexion or rotation of her neck from side to side. The latter is a feature of the movements necessary for her previous umpiring activities: the need for continuous movement, particularly during umpiring fast moving A or B grade games demands this constant sidestepping accompanied by upper torso and neck rotation movements. Under these conditions she reported headaches, neck stiffness radiation to both shoulders for 3 days after umpiring. She tried lower grade umpiring but this too caused continuing problems ... I believe Vanessa gave up umpiring netball solely because of injuries sustained in this motor vehicle accident. ... also ... that she is incapable of working as a netball umpire at even low netball grade levels as the movements required consistently throughout any game cause symptoms which last 3 days despite her own rigorous and continuing efforts to maintain fitness and symptoms control with exercises prescribed by Ms Lissiman, Senior Physiotherapist, yoga and swimming 3 times per week. ...
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44 In both her pre-trial reports and in giving oral evidence, Dr Fisher stressed that the plaintiff had been, prior to the collision, extremely fit and keen on exercise and had, after the collision, made very considerable efforts to regain fitness and become pain-free, especially by non-pharmaceutical means. 45 In a report dated 28 August 2000, Dr Fisher reviewed the report by Professor P S Hollingworth dated 14 August 2000, exhibit 6B referred to below, addressing what she describes as "an extraordinary number of frank errors":
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weight in the team; she no longer had the necessary strength in her arms and shoulders and found it hard to jump because of spinal pain (lower back and neck) left shoulder pain and general weakness. She persevered because she had always loved the game, and tried to 'get on with it', pushing past the pain barriers to test what her limits were. This was on my advice and was known to her physiotherapist Ms Maureen Lissiman who had prescribed specific exercises and stretches for the above mentioned problems. At all times, Vanessa had followed advice to keep moving to avoid muscle wasting and stiffness. She began regular Yoga from November 1998 and continues to do so because this relieves stiffness. She was umpiring before the MVA of 12.11.1997 at top national level on a regular basis. She stopped at the time of her Motor Vehicle Accident because of neck and back pain. She was told by me to remain active and try to recommence umpiring which she did 25.11.1999. This is when she started making movements of sideways running making pain worse particularly after fast moving national level games. She then withdrew from umpiring these fast games. During these games she felt pain in her knees lower back, neck and left shoulder and these areas remained sore for 2-3 days after the game. For 2-3 days after each game she could not walk well - she had to stretch after games, and limped off the court after every game. She umpired a total of 26 games between Nov 1997 to March 1999 when she finally stopped umpiring both fast national level games and slower less active games because of the pain described above." 46 (In fact, the reference should be to 26 evenings.)
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3. Nor, in her reports to me did Ms Lissiman, Physiotherapist tell her to stop netball - in fact, as in her report to me of 22.12.1997 Ms Lissiman reports weekly mobilisation of Vanessa's cervical dorsal and lumbar spine which in fact made her return to a trial of netball umpiring possible - Vanessa continues to the present day to attend Ms Lissiman, now on a monthly basis, to address the continuing problems of stiffening and tenderness in her cervical dorsal and lumbar spine in order to maximise mobility in all segments and to prevent abnormal movement patterns. Vanessa began to attend Dr Cynthia Innes (her current treating general Practitioner since June 1999 when I closed my general practice in May 1999). Dr Innes, sometime in 1999, advised Vanessa to consider a course in Feldenkrais - a quite reasonable follow on from Ms Lissiman's treatment plan. In summary at no time has Vanessa stopped undertaking the advice given by both Ms Lissiman and myself that, she must continue to be active and mobile. Pain in the originally effected areas is still present almost 3 years after her injury. This indicates the degrees of effect of this injury on this young womans soft tissues. Pain also causes weakness of muscles which spasm and affect injured areas of her spine. In spite of this, Vanessa, as has been documented, has continued to attempt to play her much loved sport after period of 1 year (when she did not play sport but swam, walked and worked and rarely missed work. She umpired low pace matches to maintain fitness, 2 games per week). I cannot therefore support Professor Hollingworth's poorly researched statement that Vanessa's 'lack of fitness' - (while not, I agree maintained at it's previously exceptionally high level in her first post injury year) accounts for the continuation of her left shoulder and spinal symptoms. I agree however that because of pain, not lack of effort on Vanessa's part, or competent treatment on the parts of myself or Ms Lissiman - that her fitness necessarily declined from its previously exceptional high level after this MVA. However she
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did maintain a fair level fitness because of her efforts to exercise regulary. I now address the matter of Vanessa's 'sleeping on her face' (Professor Hollingworth's report of 14/08/2000 Pages 1 - 2) Vanessa uses pillows to prevent herself from rolling onto her face but finds herself lying face down when waking each morning. The medical profession has failed to achieve any effective means of programming the sleeping human to maintain postures (desired by the Medical Profession) while a patient is sleeping. Dr Hollingworth's disparaging reference to Ms Lissimans treatment of Vanessa's condition is seriously challenged by Vanessa's continued mobility and efforts to maintain fitness (to the extent that she walks 20-30 minutes 3 times per week, maintains work place requirements for fitness with further walking and yoga programmes practised twice per week. She will swim when the weather permits as she has done over the past three years. Her low finances prevent her use of heated pools swimming in winter)." 47 Dr Fisher then summarised her conclusions as to the plaintiff's symptoms and prognosis: "Vanessa's continuing symptoms - Neck soreness - never not sore - Sleep disruption - every night - Left shoulder aching especially in cold weather - Cannot hold things in left her hand eg bags of shopping 2-4kgs for more than 15-20 minutes. - Lower back pain from sitting eg incorrectly in other peoples furniture or for long periods of time at home, at work, at social gatherings or movies. - Low back aching and discomfort always affect sexual intercourse - anxiety if cars move close to the rear of her vehicle
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Disabilities - - Vanessa is unable to garden more than 20min before onset of spinal pain - hang out clothes - sweep, vaccuum more than 10mins - sitting in poor car seat or leisure seating - reversing her vehicle - yoga postures requiring neck extension - unable to lie on left shoulder - unable to lift eg children older than 2 years - can only do hobbies eg bead making 15-20mins then has to stop - unable to read sitting - lies in bed with neck support on pillows - has to change posture every 15-20 minutes Vanessa's treatment programme has not changed with the exception of her not being able to maintain swimming in the cold weather. I have documented her exercise (Walking Yoga) programme and she continues to have stiffened areas mobilised monthly to avoid abnormal movement patterns from extending to involve further muscles groups. Vanessa has had 1 - 2 monthly massages from her cousin who is a naturopath. This also has prevented entrenchment of symptoms of stiffness and undesirable movement patterns. ... I believe Vanessa will need spinal segment mobilisation and muscle and tendon release in related muscle groups on an ongoing basis (>5 years) by physiotherapist periodically for worse symptoms and monthly to 2nd monthly massage to relieve stiffness. Vanessa has been my patient from 1992-1999. She has always resisted pharmacological agents and - though it has been at
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times painful - she has avoided anti-inflammatories and steroids ie use of prescribed drugs and analgesics. As she grows older, or undergoes the hormonal ligament softening of pregnancy her symptoms may well escalate to the point where she must abandon the higher moral ground in this matter and accept our none-the-less toxic anti-inflammatory agents. I say this particularly as I cannot see that she is aggravating her condition in any way or by doing any activity other than by her work demands of long periods of standing sitting, typing or lifting. While I am certain it is these activities ... I have not advised Vanessa to seek alternative employment, but rather to stretch and walk about the office on a regular hourly basis, which she does. She cannot avoid lifting heavy (5-10kg) trays of soil samples and heavy equipment in the field at times. She cannot always get assistance from co-workers for this. Physical treatment will continue in the style and frequency described above: costs will be indexed from the current rates with time. While pharmacological medications are not desired by Vanessa I expect cost for O.T.C. analgesics eg mersyndol at night and later anti-inflammatories will range from $100 - $200 per annum over the next 5 years. Permanent disability relating to physical problems has already been established: this young lady has continued to work and exercise and attend physical treatment as prescribed at all times, yet her symptoms persist. She has exercised regularly and loved to do so, and will continue to do so. While she now understands this is imperative for her continued spinal health, she remains tender in the areas mentioned above. Finally I address the matter of Post Traumatic Stress Disorder implied in your letter of 17/08/00.
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You have asked me to address with Vanessa the shock of her accident and sequelae to this. She describes the events prior to the impact as causing immense tension and consequent muscle tightening throughout her body. She describes the events as follows: - Raining, on Riverside Drive. Stopped at Plane Street lights 15-20 cars back from lights. - Lights changed to green and the cavalcade in front of her slowly moved off as did she. - However, in her rear mirror she watch a vehicle coming at what seemed considerable speed from which she knew she could not escape by accelerating. - She therefore braced her entire body in anticipation of rear impact - which inevitably occurred pushing her a metre or more forward along Riverside Drive towards the intersection. - She describes her feeling in her preimpact time as panic, powerlessness and immense fear. - At the impact she heard metal crunching, she shook uncontrollably but was too shocked to experience any pain at that point. She was also frightened because the driver of the vehicle that hit her swore as he left his vehicle and approached her: he recognised her terror when he saw her face: he reassured her that he was not swearing at her. This did not greatly change her fearfulness or tremor; she gave details in a state of shock, returned to her vehicle and she tried to compose herself so she could drive but didn't know what to do. She suddenly grasped the right side of her cervical spine which had begun to tighten and hurt. As the pain radiated to her head and down her spine she began to feel nauseated. No one came to help her. She was afraid of the other driver so could not ask for help from him. She drove to work because there was no one at home (her parents were at work). She was panicky and shakey 15 mins later when she finally arrived at work. Over the following months the acuteness of the
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experience faded appropriately ie she states that she cannot recall ever having had nightmares or flash backs of the accident but recalls very clearly its details on specific enquiry. She retains a fear of vehicles she feels are too close when viewed in rear view or side mirrors: this is much less intense than at first but is very much present on use of her rear and side mirrors. ... I consider physiotherapy treatment to be perfectly appropriate as described above - monthly over the next 5 years and more frequently should Vanessa require this during any future pregnancy. Vanessa has tried very hard to remain competitive as a netball umpire since her injury. ... I advised Vanessa to continue whatever sport and exercise she could possibly do. She did this when she returned to a post injury trial of netball umpiring between 25/11/1997 till March 1999. Low pace games suited but her umpiring employers would not accept her continued request to umpire games downgraded and rostered her to umpire higher grade games which she could not do: Vanessa left umpiring because she felt that because she was umpiring she needed physio. After resigning from umpiring she was not being paid and had the additional financial burdens of paying for her own physio treatment (which she found helpful). This cost she hoped would be reduced if she did not aggravate her condition by umpiring. Unfortunately this was not completely so. Instead she took up a lower impact lower paced exercise of Yoga and swimming 3 times per week to maintain fitness. These exercises do not 'cure her' but in turn do not aggravate her spinal pain as did umpiring both low grade and to a greater degree high grade netball. In this setting, it is entirely reasonable that Vanessa no longer umpires netball.
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ON EXAMINATION On 26th August 2000, I found Vanessa to have mild but obvious cervicodorsolumbar scoliosis with mild left should muscle wasting. She had bilateral mid to lower cervical facet joint tenderness and left levator scapulae spasm. She had tenderness around the left Rhomboid muscles and tenderness along the spinal muscle insertions associated with dorsal spine scoliosis concave to the left from D1 to D10. She was tender over the lower lumbar facet joints bilaterally with associated bilateral lumbar paravertebral muscle tenderness. With the exception of cervical spine rotation (restricted by lower cervical spine stiffness), she had a good range of movements of her spine and left shoulder. She no longer had restriction of knee movements or painful knees. These findings are consistent with her post injury symptoms which are less but certainly still evident today."
Dr Innes 48 Dr C L Innes, a general practitioner, took over the plaintiff's care when Dr Fisher ceased her practice. She first saw the plaintiff in August 1999 and last in August 2000. Her reports are exhibits 4A and 4B. In August 1999, the plaintiff complained of low back pain at L1/2 and of pain into the left shoulder. She had been attending physiotherapy and yoga. In August 2000, Dr Innes reported: "She is still c/o neck pain extending to left shoulder, low back pain and pain between shoulder blades. She is being helped with physiotherapy approximately 15 visits per year with traction and massage. Yoga also helps. It appears that her condition has become chronic and I would suggest that as physiotherapy relieves her symptoms, she continues seeing them as required. Your client has estimated she has been approximately 15 times per year to physiotherapy.
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She c/o persistent discomfort that has thwarted her sporting activities. I understand Dr T Fisher referred her for physiotherapy to Maureen Lissiman. I referred her for further physiotherapy with view to rehabilitation. I also suggested Yoga and Feldenkrais classes. Your client states she experiences pain carrying out her previous work as umpire for indoor netball games, and therefore has not wanted to continue."
Dr C Lazaroo 49 The plaintiff, since moving to Melbourne, has seen a general practitioner, Dr Lazaroo. Her report of 11 July 2001 is exhibit 7: "... Ms Loncar continues to suffer from left-sided neck, shoulder and back pain. This interferes with many daily activities, as she gets significant pain with housework, computer work and any activity that involves carrying or lifting her hand above her head. Sleep is disturbed and sexual relations are still affected. Ms Loncar continues to require anti-inflammatories and mersyndol, both of which she prefers to reserve for severe bouts of pain. When she is having trouble managing the pain herself, she gets some relief from visiting a physiotherapist or chiropractor. Her total monthly costs approximate $120.00 for this. As there has been no improvement in her symptoms and disabilities since she left Perth, I believe Ms Loncar will continue to require this level of treatment, that is analgesia, fortnightly visits to physiotherapists or other health professionals. I cannot foresee any improvement in the near future, and I am worried about the prospect of her developing further back problems as a result of compensatory postures. ... I have advised Ms Loncar to continue regular physiotherapy for the purpose of pain management and to maintain muscle strength. I have recently referred her to a Pain Management Clinic, in order to assist her to deal with what appears to be a
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chronic pain syndrome, and in order to get another opinion as to whether facet joint injection would be helpful in her situation. Ms Loncar has described to me the degree of pain that she experienced following her attempts to umpire indoor netball. She has not endeavored to return to this activity out of fear of the pain being aggravated. As a significant period of time has elapsed since she last umpired, I would prefer to wait until she has been reviewed by the Pain Management Clinic, and to see if she makes any progress in that direction, before giving her any new advice regarding that activity." 50 Giving oral evidence by video-link, Dr Lazaroo elaborated: "She complains that it's very hard for her to stay in one posture for a long period of time and I am concerned, because she finds that it's hard for her to maintain a good posture, that she may develop further stiffness as a result of that ... she is certainly complaining of quite a bit of lower back pain now. I think I was concerned that that may have been worsening over a period of time, ... ... I was concerned ... that she never followed through with getting more definitive treatment of her facet joint injury and I had seen that Dr Will had suggested that maybe she consider fact joint injections and ... I was hoping that she might reconsider that and, secondly, I found with some of my other patients who have had ongoing pain following an injury that they often do quite well going to a pain management centre where they get assessed by a range of different people, get psychological support and ... get some other tips on how to manage their pain at work. ... ... On my understanding Vanessa restricts herself really only using analgesia when she has severe pain and I think she just uses Mersyndol or non-steroidal anti-inflammatories and seems to get by doing that. I certainly wasn't thinking of anything stronger ...
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... There have been times when Vanessa hasn't been able to see a physiotherapist ... she has gone to see a chiropractor on those occasions and received similar treatment to what she would receive from a physiotherapist. What about acupuncture? Do you see a place for that?---With patients like Vanessa I do sometimes encourage them at least to try it and for some people its very useful. Other people find it doesn't help at all. Once a patient is stuck in a kind of chronic situation like Vanessa I do recommend they try things like that and see if it does help. I take it you see a place for ongoing involvement of a general medical practitioner in her condition?---Yes, I do; partly just for encouragement and support but also if she does have any severe exacerbations then, yes, certainly review of that. ... obviously with a chronic long-standing condition like this one always needs a coordinating person to keep an eye on things. ... This year she has seen me three times and that seems to have been adequate. She seems very good at managing her condition herself. She understands it and seems to take really good care of herself, as much as is possible for her to do. So three or four times a year. ... For a standard visit at our surgery it's between 36 to 40 dollars."
Mr Will 51 Mr R K Will, a consultant rheumatologist, saw the plaintiff in March and April 1999 and August 2000. His reports are exhibits 2A to 2C. In April 1999, Mr Will reported: "She describes ongoing intermittent pain in her neck which is bilateral and mid cervical and also pain in the left posterior and lateral shoulder aggravated by physical exercises such as taking up swimming recently, lifting and repetitive movements. She also describes pain under the left scapula and bilateral mid lumbar back ache. She finds that she can only sit for about 10-15 minutes and then has to move. She has to spend time sitting at a computer. Her work involves field work and lifting
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10-20 kgs of soil samples for subsequent testing. This aggravates her pain. She was playing netball and umpiring netball prior to the accident but had to give up these activities for about 12 months and recommenced playing netball in November last year. She has not played squash since the accident. ... EXAMINATION She was a thin woman with a long neck. There was tenderness at the mid cervical spine bilaterally. She was also tender over the left lateral deltoid and resisted contraction of the supraspinatus, infraspinatus and subscapularis aggravated her left shoulder pain. Lateral rotation of the neck was restricted to about 60º. She complained of pain in her neck on lateral flexion. She was tender under the left scapular and about the L2/3 level in the lumbar spine and her back pain was aggravated by extension and lateral flexion of the lumbar spine." 52 He recommended "x-rays of her cervical spine and also an ultrasound of the left shoulder to establish whether there is any evidence of a left rotator cuff tear". 53 He diagnosed "mid cervical facet joint injury (bilateral), possible left rotator cuff tear, left inferior scapular myofascial syndrome, and bilateral L2/3 lumbar facet joint irritability". 54 He thought it "likely that she may require ongoing treatment. She may need to take up a membership of a Health Club and undertake a water or gym based exercise programme. Depending on the results of investigations that I have requested further treatment may be required. In particular, she may require further treatment for the left shoulder symptoms." 55 The plaintiff had told him that, in particular, she would wake in the morning with neck and shoulder pain and that doing keyboard or computing for more than 10 or 15 minutes or lifting soil samples of 10 to 20 kilograms aggravated her pain. The plaintiff had not indicated spinal problems prior to the accident.
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56 She had related a history of giving up netball and umpiring for about 12 months but recommencing netball in November 1998.
57 He agreed the plaintiff had not reported headaches. He agreed that symptoms vary but added that methods of examination and assessment vary and that the conditions in which patients are when assessed may also vary. The conclusion that the plaintiff had suffered only soft tissue injury was not accurate. The neck injury pointed to cervical facet joint injury, probably mid-cervical. 58 The plaintiff had reported intermittent symptoms since the accident. Whilst most individuals would be expected to recover within 12 months, some did not for a variety of reasons not always understood. There had been various evidence of continuing improvement but symptoms persisted. Initially, he had been optimistic - the plaintiff had returned to work and, in November 1998, to playing netball. 59 In July 1999, Mr Will reported that "an ultrasound of the left shoulder undertaken on the 26.3.99. was unremarkable. The cervical spine X-rays were normal without evidence of significant disc or joint disease". He felt that "most of her left shoulder and deltoid pain was referred from her neck from the left C3/4 to the left C6/7 levels. He suggested left C3/4 and left C4/5 cervical facet joint injections with a corticosteroid and Marcaine preparation to see if this modifies the symptoms". 60 The plaintiff had refused the injections. In August 2000, Mr Will reported again:
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joints up to about the left C4/5 facet joints. There was loss of mobility of the neck with about 75º of lateral rotation of the neck in both directions. Other neck movements were normal. There was a full range of upper limb mobility. ... She continues to require physiotherapy for management of her symptoms and also requires the use of occasional analgesics and anti-inflammatory medications. It is likely that she will require ongoing physiotherapy and analgesics for management of her symptoms. Physiotherapy is likely to be at the frequency of one or two sessions a month for the next two years. ... It is likely that her symptoms will be permanent and that she will require further sessions of physiotherapy. I would estimate that she will require 12 sessions of physiotherapy a year after the first two years and it is likely that this will be on an indefinite basis. ... I would regard her as having a permanent residual disability as a result of the motor vehicle accident as it is now nearly three years since the time of the accident." 61 He then turned to the report of Professor Hollingworth referred to above: "I read with interest Dr Hollingworth's report of 14 August 2000. I would support the advice of Ms Loncar's GP that avoiding impact sports such as netball or squash would be recommended in someone who has sustained a hyperflexion and extension neck injury in a motor vehicle accident. All the available evidence points to the pain these patients experience originates from the cervical facet joints. Thus it is not a 'soft tissue injury' unless one simply regards soft tissues as not being bone! Facet injuries in fact are injuries of the joints. If an individual undertakes physical activities which specifically aggravate the neck then this may not only diminish their quality of life and increase their level of suffering but also put at risk continuation in the workforce. Ms Loncar's GP sensibly
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suggested that yoga or Feldenkrais could be reasonable physical activities to promote a stretching program to help to minimise ongoing symptoms. In many musculoskeletal problems involving the spine a stretching program is advised. Surprisingly Dr Hollingworth who is not a musculoskeletal specialist, suggests that 'sleeping on her face ... is always known to increase neck symptoms'. I would not agree with this statement. Sleeping on someone's face in fact promotes extension of the neck and mobility of the cervical facet joints and is frequently advised by musculoskeletal specialists and rheumatologists in patients with neck pain and stiffness. While it is well recognised that physiotherapy does not at times solve the problems of chronic pain in individuals who sustain neck injuries following motor vehicle accidents, it can lead to a symptomatic lessening of their symptoms. Mobilising treatment of the neck and/or appropriate traction if applied by a suitably experienced physiotherapist is not unreasonable treatment and I would advise that this continues if it provides symptomatic relief for Ms Loncar and enables her to improve her level of function. I am surprised by Dr Hollingworth's comments that cervical spine X-rays are not advised in patients who sustain injuries following motor vehicle accidents. Clearly it is important to establish whether there is any underlying pathology such as evidence of instability within the cervical spine, congenital fusions of the cervical spine, evidence of disc degeneration or other musculoskeletal conditions. I note that Dr Hollingsworth is not a Consultant Physician or a specialist in musculoskeletal conditions. Joint injections can frequently be helpful in patients who sustain neck injuries due to motor vehicle accidents and are not only helpful symptomatically but they can also be helpful diagnostically in establishing the origin of a patients symptoms." 62 There was no mention of low back pain at that time. She was taking two Mersyndol and two Neurofen tablets weekly. 63 Giving oral evidence, Mr Will confirmed that scoliosis may lead to pre-existing spinal problems and increase the risk of problems following injury. However, he found no evidence of significant scoliosis on examination. He also confirmed that women with long necks have higher
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rates of neck injuries following motor vehicle accidents than other persons. 64 Mr Will was asked to comment on lumbar pain reported to him by the plaintiff in March 1999. There had been no such complaints noted by Dr Fisher in her reports in September and December 1998 or by Professor Hollingworth in February 1999. However, the plaintiff reported lumbar pain shortly after the accident and pain under the left scapula and mid-lumbar backache in the history given to Mr Will. 65 He agreed that his findings contrasted with those made within a month by Professor Hollingworth.
Professor P S Hollingworth 66 The defendant called Professor Hollingworth, Associate Professor of Occupational Medicine at Curtin University with consulting rooms at the Perth Orthopaedic Institute, Nedlands. He saw the plaintiff three times. His reports are exhibits 6A to 6E. 67 In February 1999, Professor Hollingworth reported: "Her main complaints, at the moment, are that she cannot sleep on her stomach and she gets Left shoulder pain, but nobody has actually detailed for her how she should be sitting when doing a keyboard job for most of the day. She has a document holder but is not correctly positioned, and she had no idea about the height of her seat. Currently she is not having any treatment, but has had Mersyndol or Nurofen. She is playing netball and doing some swimming. She did quite a lot of swimming this weekend and had some neck pain, whereas the week before, when she had not been swimming, she did not have any. She says that she gets Left shoulder pain and low back pain if she has been sitting a lot. She says she knows she has got bad posture and keeps having to sit up and straighten.
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ON EXAMINATION She is a tall, thin young lady, 5'7 tall, weighing 58 kgs, and she is slightly under-weight. She shows a good range of head and neck rotation, and there is no cervical tenderness. There is a full range of shoulder movements, both when the arm is abducted 0 and 90 degrees, and none of these resisted movements produce any pain. The power in the upper limbs is MRC 5, and again, none of these movements produce any discomfort. There is a slight change of sensation in that there is a small area of pins and needles over the pulp of the tips of the fingers on the Left hand, but not on the Right. There are no other sensory changes and the reflexes are symmetrical. She shows excellent back movements, but can only flex to her ankle, whereas, normally, she says she can touch the floor. I note dextro-rotation of her spine in flexion, but there is good extension, and lateral flexion is to a level where her fingertips reach the joint line. I gave this lady an idea of some of the equipment which would be appropriate for her to be using in the laboratory, to prevent the heavy lifting which she is doing. Laboratory work, in fact, would be better for her because of the frequent changes of movement, rather than being seated at a keyboard all day. ... there is nothing to suggest any symptom magnification or discrepancy between her symptoms and the findings. ... The diagnosis is that this lady had soft tissue injuries which affected the cervical and the lumbar spine. These are superimposed on a previously asymptomatic scoliosis. I believe the way in which she has been working, in a less than ideal ergonomic situation, has retarded her recovery. ... I do not think that she needs passive treatment; what she does need is an active exercise programme, and I showed her some water based exercises which she could do. I suggested ... two or three times a week ...
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She wanted to know whether she should do gym work and I suggested that, at this stage, she not do this, although, in the past, she did have a personal trainer and went for some three years when she was a member of Lords. ... She will not be left with any permanent impairment, disability or restriction in her choice of job opportunities as a result of these soft tissue injuries. ... As a laboratory technician, working in laboratories, this would seem to be entirely appropriate, although I did show her some gadgets which will help with the manual handling of many of the containers, some of which will weigh in excess of 25 kgs." 68 Professor Hollingworth next reported on 14 August 2000. It is clear that in this report, he is very critical of the treatment and advice given to the plaintiff by her general practitioners and Mr Will. (As I have said above, Dr Fisher and Mr Will in turn criticised Professor Hollingworth's reports in their evidence.) 69 As to the plaintiff's injuries and prognosis, he reported: "She has got a normal range of head and neck rotation, but she reports a pulling sensation in flexion which really extends throughout the entire cervical and thoracic spine. There was some tenderness to palpation in the mid line over C7 and T1. As regards in the low back she shows the site of the pain as being from D12 down to S1, and then horizontally a broad band at the lumbosacral junction. She flexes to a level where her fingertips reach the ankles, and her extension is very good. Left and Right lateral flexion is to a level where her fingertips reach one finger's breadth below the joint line, and active rotation is 45 degrees in either direction. Passive pelvic rotation did not produce any pain, whereas she had reported some discomfort over the Left sacro-iliac joint with active rotation to the Left. To palpation there was tenderness from D6 to D123 in the mid line, but not over the sacro-iliac joints. Both ischial tuberosities were tender and, on the Left side, there was some rostral spread of the discomfort. She can easily balance on tiptoes and heels. Straight leg raising was to 90 degrees bilaterally. Knee jerks and ankle jerks were symmetrical.
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It was of interest that throughout the history taking she sat at the front of the chair and kept repeatedly slouching and sitting up. This is characteristic of a person who has become deconditioned and has poor paravertebral and abdominal musculature. This reflects the change from active sport to yoga and Feldenkrais, and the latter two are useful in maintaining a range of movements but are completely ineffective in maintaining the tone of the muscles. I believe that it is important that she gets back to playing some active sport or doing some active training. She said that she finds just going to a gym and just swimming boring, and I suggested that she consider taking up badminton as a social recreation. She could easily return to playing netball, particularly women's netball, and she could return to umpiring, but not necessarily at the very high level which she was previously performing. She feels that this would be humiliating and that there would be too much pressure on her to return to the highest grade and she is not prepared to do that. In a person who plays sport at that level and has continued to perform at that level for at least a year after the accident, I think it can be confidently said that the injuries were not sufficient to prevent her playing, and the fact that eventually she quit cannot be laid at the door of the mva. Some doctors do not seem to appreciate the need to keep people with this sort of injury, of a soft tissue nature, active after a motor vehicle accident, and continue to give advice of resting rather than active exercise. All the scientific evidence supports a programme, commencing early, of active exercise as being the way to decrease symptoms and promote rapid healing. This is a message which has yet to be appreciated by all general practitioners." 70 Giving oral evidence, he outlined his lengthy history of involvement in dealing with soft tissue and other musculoskeletal injuries in athletes and dancers. 71 On 18 September 2000, Professor Hollingworth reported in terms critical of Mr Will's findings, saying that international expertise was suggesting that the significance of facet joint injuries and symptoms had been grossly over-estimated and that facet joint injections were losing support. Further, such expertise regarded physiotherapy, whilst useful in
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the acute stage of injury, to be of little use in the longer stages and grossly over-used. 72 Giving oral evidence, he said the plaintiff's lower back had very good extension and was pain free. The cervical spine did not have the pain tenderness or the major restriction of movement one would expect with facet joint problems. The fact that neck pain was intermittent was evidence that the collision was not its cause. 73 On 25 October 2001, Professor Hollingworth reported again. The plaintiff had recently taken up her current employment: "Since taking up this new job she has gone back to walking each night for between 30 to 60 minutes. She is doing some swimming, usually twice a week, and she says this involves a mixture of freestyle and kickboarding. She says she would spend 30 to 60 minutes on each session, but she says she is very unfit ... She says she has become very deconditioned but her weight has remained much as it was when I last saw her. She continues with yoga, and is thinking of a return to sport but not netball. She thinks that, probably, for her recreational sport she will just keep doing the swimming. When she first went to Victoria, which was last year, she had some physiotherapy, and this took the form of acupuncture, massage and manipulation, which I understand was cracking of her neck, but she said she just went twice to that practitioner. She started attending a chiropractor in August of this year, initially going weekly, having cracking and massage. She is now going every 2 weeks, and says that the plan is that the interval will shortly be lengthened to every 4 weeks. She also went to a traditional Chinese practitioner, who did a mixture of acupuncture, cupping and moxibustion, and she said that she would get several days relief from these treatments. This practitioner also prescribed a brown pill which she thinks was probably a mixture of vitamins and analgesics. Currently she is taking Nurofen, 2 to 4 a day, and will take Mersyndol Forte at night, which she says she would need, on average, once or twice a week.
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Since I last saw her she has been trying very hard to sleep on her back, using pillows to pad herself, and has had a measure of success with this. However, she says that she will often waken with her head well over to one side because the pillow has fallen out of the bed. She currently complains of neck pain, going down the Left side of the neck into the scapula, and she says that driving will aggravate this. She also has a mid thoracic pain which is aggravated by bending. She says she has had depression, and there was a lot of stress at her previous work which she thinks was the reason for the depression. ON EXAMINATION There is good voice modulation and facial expression today, with nothing to suggest any current depression. She shows a normal range of head and neck rotation, although she reports a pulling down the upper fibres of the trapezius at the end of the range of movement. There is good flexion, with the chin reaching within two fingers' breadth of the sternum, but, in this position, she reports a pulling sensation at the cervico-dorsal junction. There is good extension, and there is a fair range of lateral flexion on both sides, with contra-lateral pulling at the end of that movement. There is some tenderness to palpation over C6 and C7 in the mid line, bilaterally over C7 facets and, in the mid line, from D1 to D12. Examining her back she flexes to her mid tibia and there is fair extension. Lateral flexion is to a level where her fingertips reach one finger's breadth above the joint line, and there is good active rotation, about 45º in either direction. Passive pelvic rotation does not give pain. There is some Left sided sacro-iliac tenderness and ischial tuberosity tenderness, and very slight tenderness over those positions on the Right hand side. She had no problems balancing on tiptoes or heels. Lying supine straight leg raising was to 80º on either side, with pulling reported down the back of the calf and the thighs, into the back. There was a false positive Lassegue test in that
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performing that test it increases the pain in the leg but does not give referred pain to the back. There is very good abdominal tone, although she says that it is not as good as it was when she was fit. There are no palpable abnormalities. Sitting on the edge of the couch the straight leg raising is to 90 degrees with symmetrical and brisk ankle and knee jerks. COMMENT This lady continues to make progress in her recovery from the soft tissue injuries following the mva in November 1997. There has been such an improvement that she did not actually mention any neck problems until I specifically asked her, and there is nothing to suggest any symptom magnification in this lady. I state this lady continues to recover. There is, at this examination, no evidence of continuing musculo-skeletal problems attributable to the mva. However, she has not recovered the physical fitness that she apparently had when she was actively engaged in sport. To that extent she is continuing to recover. I do not think that she needs any further investigation, just simple treatment in the line of analgesics and, importantly, to continue with the gentle exercise programme to improve her general well being as well as her psychological well being. She said that when she had seen the traditional Chinese physician there had been an emphasis on being happy and the need to start with happiness deep in the body and slowly pervading the entire persona." 74 Professor Hollingworth made it clear in evidence that he believed the plaintiff's description of her "aches and pains" but attributed these to causes other than the collision, and said there were no medically appropriate explanations for them other than a relative de-conditioning and the normal symptoms from work and exercise in that situation. He did not find the plaintiff to be dishonest or amplifying her symptoms. 75 Cross-examined, Professor Hollingworth agreed that he was not, at present, either treating patients or teaching, but had been involved in
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writing medico-legal reports only for four or five years, increasingly on instructions from the Insurance Commission. 76 The scoliosis was not causing symptoms but was relevant in that her work situation had not been ideal for recovery. She needed active exercise, not passive treatment. The first need was to build up the plaintiff's paravertebral muscles. He agreed that he did not know if the plaintiff, during the first year or thereabouts after the collision, had been playing or umpiring the same levels of netball as before or continuously doing so. He had assumed so. Nor was he aware whether the symptoms which caused her to stop or investigate any cause thereof. Had he been her treating doctor, he would have done so.
Mr S W Brash 77 Mr S W Brash, orthopaedic surgeon, saw the plaintiff twice, in October 2000 and a year later. His reports are exhibits 8A and 8B. In October 2000, he reported: "The neck pain has had a steady course of pain over the last 3 years. She states that the pain comes on if she does not have physiotherapy and does not do her exercises. The pain is therefore relieved with physiotherapy and her exercise. She finds that she is unable to lift and carry heavy objects, she is unable to bend or do any gardening. She cannot do any cleaning. She especially had difficulty hanging out the washing. For 20 odd games, that is, about 12 months after the accident she umpired netball. She has not umpired since. She therefore last umpired about 2 years ago. She did play netball for about 2 months after the accident. She has played some squash since the accident. Her present activities therefore are yoga, massage and swimming and she is now doing more swimming as the warm weather comes. This patient has constant but varying pain in the back of the neck radiating to both shoulders, the interscapular area and down the whole of the left arm. This arm is made worse with physical activities, as well as with cold weather. The pain is
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relieved temporarily by physiotherapy, yoga, stretching, massages and tablets. On a scale of 0 to 10 with 0 being no pain and 10 being the worst pain imaginable the pain varies between 7-8 out of 10 and compared to one year ago the symptoms are remaining the same. She told me today that she first noticed low back pain some two months ago. She readily agrees that neither the passage of time nor treatment nor stopping of sporting activities have helped her symptoms. Examination Examination showed a very healthy young lady. In the standing position with the knees straight the fingertips came to about 10 cm from the floor. There was a full range of active motion in all areas and all directions of the spine including the cervical spine. There was a full range of active motion in both shoulders. There was no neurological deficit. The most dramatic finding was one of superficial decreased sensation to touch in the whole of the left upper quadrant including the front and back of the left shoulder and the whole of the left arm. This is a non-anatomical so-called glove and stocking distribution. Investigations X-rays were not available for my review but I understand that x-rays of the neck have shown no abnormality. She also has had an ultrasound of the left shoulder but this has shown no abnormality. Opinion The first point to make is that there is absolutely no objective evidence of pathology to account for this patient's severe ongoing symptoms which have not responded to the passage of time, the treatment to date or stopping sporting activities. This is not the history of soft tissue injury. The refereed international journals and the best evidence base does not support the diagnosis of soft tissue injury. We do not know the speed of the car which struck Ms Loncar's Subaru Liberty but it is doubtful whether the impact speed
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reached the threshold of 20kph. I should point out at this stage that whiplash experiments using human volunteers have failed to cause pain lasting longer than 4-5 weeks. The Quebec Taskforce also points out the fact that most treatments in these situations are non-effective. I therefore cannot recommend any further treatment. Certainly further physiotherapy is contra-indicated. In my opinion Ms Loncar does not require any further therapy, she requires reassurance and motivation to get back to the full activities of daily living. There is not and there will not be any objective, measurable permanent residual disability. There is no reason whatsoever why this patient should not be able to do her basketball commitments without restriction. I fully support the opinions of Dr Peter S Hollingworth." 78 Giving oral evidence, Mr Brash stressed the low impact speed in the collision, the complaint of low back pain developing so long after the collision, and his conclusion that non-organic factors were involved in the plaintiff's pain symptom distribution. 79 One year later, Mr Brash reported that: "In general terms she tells me that her subjective symptoms are the same to worse as compared to when I saw her one year ago. ... ... Her present treatment consists of no physiotherapy. She is having chiropractic treatment once every two weeks. She is taking herbal remedies on a regular basis. She continues to take Nurofen and Mersyndol on an as required basis. This patient has not done any sports in the last year. She is walking almost daily and swims every two days. She does yoga on a regular basis. ... She has constant neck pain radiating down the left arm and this pain is made worse with general activities. The pain is relieved with stretching and tablets. ...
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The patient has intermittent low back pain radiating to the left buttock. She can be free of pain in this region for three days at a time. She awakes with the pain in this area. She has pain when she bends. ... likewise the symptoms in the low back and left buttock area are the same to worse as compared to a year ago. It would thus appear that the patient's symptoms have not been improved with the passage of time nor with the treatment to date. Examination Examination showed a very healthy looking young lady who moved spontaneously in a normal fashion. In the standing position active movement in the lumbo-sacral spine was such that with the knees straight the fingertips could come to just above the ankles. Extension, rotation to both sides and lateral bending to both sides were normal, although she experienced the most pain when she forward flexed and bent to the right side. Active range of motion with respect to the cervical spine was virtually normal with flexion being such that the chin came to one finger breadth from the manubrium. Extension, rotation and lateral bending were normal. There was a full range of active motion in both shoulders. The most dramatic finding was one of non-anatomical decreased sensation to touch in the left upper quadrant including the front and back of the left shoulder, the back of the left side of the neck and the whole of the left arm, front and back. This is a non-anatomical or inconsistent finding. There was no limited straight leg raising. She was able to actively bilateral straight leg raise without any further problems.
Comment: Active bilateral straight leg raising is a very good test of lumbar instability. Investigations The patient has had no further x-rays in the past year. Discussion and Opinion My opinion is as before ... there is clearly no evidence of
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pathology that I can relate to the accident now 4 years ago. There is no evidence of pathology to explain her ongoing, constant, severe and probably increasing subjective symptoms. ... I am of the opinion that there are non-organic or functional factors present in the total pain picture. I make this statement because: • I am not able to reconcile the ongoing severe, constant symptoms which are remaining the same or are increasing slightly with the complete lack of underlying pathology. • I am not able to reconcile the symptoms with the most minor of impact forces. • The non-anatomical decreased sensation to touch in the whole of the left upper quadrant. In the medical literature this is a very strong sign of non-organic or functional factors present in the total pain picture. • The abnormal pain drawing. I therefore am of the opinion that this patient does not require further treatment. ... physiotherapy and chiropractic treatment from the best evidence (evidence based medicine) is of no value beyond a few weeks. I am of the opinion that this patient is completely fit for the full activities of daily living without restriction." 80 Giving oral evidence, Mr Brash outlined and was cross-examined on his experience and his knowledge of various international literature on whiplash injury, pain and its significance. Despite his admitted opposition to a system of lump sum compensation for injury, he said he considers each individual case on its merits and accepts that whiplash soft tissue injuries occur. Whereas in his first report he said he agreed with the opinions of Professor Hollingworth, however, it is clear that, unlike Professor Hollingworth who stressed post-accident de-conditioning and lack of activity as well as poor working conditions, Mr Brash stresses non-organic causes for the reported symptoms. 81 Mr Brash expressed the view that if the plaintiff suffered a soft tissue injury in the collision, "it would have been a grade 1 (ie, with pain and no
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signs) and those symptoms would have only lasted on a physical basis a few days)". He regarded Mr Will's view that facet joint damage may have been caused as pure conjecture given the forces in the collision.
Dental 82 I do not intend to summarise here the contrasting evidence that Dr T J Lego, a practising dentist of Midland, and of Dr Gerschmann. Dr Lego's reports are exhibits 3A and 3B. He first saw the plaintiff in July 2000. Dr Gerschmann's reports are exhibits 9A and 9B. I regard the latter as much more persuasive. Dr Lego's conclusions are speculative and uncertain and I am not satisfied on the balance of probabilities by this evidence that the plaintiff suffered compensible injury in relation to her teeth arising from the collision. I am not satisfied that any dental problems are causally related to the accident.
General damages 83 I accept, as do all the various witnesses except, perhaps, Mr Brash, that the plaintiff is an honest witness who has not consciously set out to amplify her symptoms. She suffered the symptoms she described initially, but made a reasonable, predictable and reasonably rapid recovery over a few months during which I accept she sought and obtained advice and treatment from her general practitioner and physiotherapist and by medications. In large measure, she continued umpiring and playing netball although I accept her evidence that this was at a lower level than before and she continued in employment, again albeit that for a short period, she was on what were regarded as lighter duties. 84 Nonetheless, the question of the relationship between those symptoms thereafter over the lengthy period between what was a relatively minor collision and trial is difficult. 85 I accept, as Mr Brooksby argued, that pain in the dorsal and lumbar spinal areas was relatively shortlived. The re-occurrence of lumbar spine in 2000 has not, I find, been shown to be related causally to the motor vehicle accident. 86 I accept also that the plaintiff is, by reason of her having given up, in particular, the playing and umpiring of netball, albeit at least initially, partly because of symptoms resulting from the collision, considerably less fit than pre-accident.
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87 There are divergences in the medical evidence over not only the degree and nature of her symptoms, but over the appropriateness of her past treatment which obviously caused considerable friction amongst a number of the medical witnesses.
88 I am satisfied that the plaintiff suffered injuries of a soft tissue type from which she largely recovered in a reasonable time, but that in the neck and shoulder areas, residual symptoms have persisted and may continue to persist for a period. I reject the proposition that she has a permanent injury resulting from this relatively slight accident some four years ago, given her employment and private history since, and on that, prefer the evidence of Professor Hollingworth where it differs from that of others. |