Lynch v TAC
[2020] VCC 2087
•17 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02051
| CATHERINE LYNCH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 November 2020 | |
DATE OF JUDGMENT: | 17 December 2020 | |
CASE MAY BE CITED AS: | Lynch v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2087 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Transport Accident Act 1986;
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Richards v Wylie (2000) 1 VR 79; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Lexa v Transport Accident Commission [2019] VSCA 123; Petkovski v Galletti [1994] 1 VR 436; Philippiadis v Transport Accident Commission [2016] VSCA 1; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr M Schulze | Slater & Gordon |
| For the Defendant | Mr R Middleton QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 1 February 2014, Catherine Lynch was injured in a transport accident. She seeks leave to commence a proceeding to recover damages under s93 of the Transport Accident Act 1986 (the Act). She relies on paragraph (a) of the definition of “serious injury” in s93(17), namely, a serious long-term impairment or loss of a body function. She relies on two body functions, one involving the cervical spine and the other, the left upper limb. One of the complications of this application is that Ms Lynch says the injury to her cervical spine affects her left upper limb.
Circumstances
2 Ms Lynch is 61. She was educated to Year 12 level. She was married and has three adult children. She has not engaged in paid employment since about 2005 and now receives a disability support pension.
Accident
3 In the morning of 1 February 2014, Ms Lynch was driving her motor vehicle. It was stationary while she waited for oncoming traffic to clear so she could turn right into Henry Street. While waiting, her motor vehicle was struck in the rear by another vehicle and pushed into the path of oncoming traffic. Her motor vehicle was then struck a second time and forced into a light pole. Her motor vehicle was extensively damaged, both to its front and rear.
4 Although an ambulance attended, Ms Lynch did not go to hospital. She was picked up by her daughter, Renee Mesilane, and taken home. Shortly afterwards, she saw a general practitioner, Peter Carruthers. He noted scratches on her right forearm and ankle, a haematoma on her right lower leg and her complaint of cervical soreness. She was very upset, shocked and stressed. He recommended rest and prescribed analgesia. It appeared her daughter would care for her.
5 When collected from the scene, among other things, Ms Lynch complained to her daughter of a sore arm and neck. In the weeks after the accident, she complained to her of worsening neck and shoulder pain and pain and weakness in her left arm.
6 Before the accident, Ms Mesilane recalled her mother complaining of pain in one of her elbows; she does not now recall which one. She does not recall her mother complaining of neck pain.
7 Lisa Overmars is a longstanding friend of Ms Lynch. The day after the accident, Ms Lynch rang her, told her of the accident and experiencing pain in a number of places including her left arm and shoulder, neck and back.
8 In August 2015, Ms Lynch swore the first of her affidavits. In it, she explained what she felt immediately after the collisions:[1]
“Upon the happening of the impacts I immediately felt pain in my left forearm where I struck the steering wheel. I also experienced pain in my right leg and shortly thereafter I experienced aching in my neck, headache and general spinal pain.”
[1]Affidavit sworn on 3 August 2015 at [4].
9 A bone of contention between the parties is the left forearm and whether it struck or came into contact with the steering wheel.
Healesville Clinic
10 Both before and after the accident, Ms Lynch regularly attended her general practitioners at the Healesville Clinic. Admitted into evidence were its clinical records. I have already mentioned her attendance on Dr Carruthers shortly after the collisions.
11 Ms Lynch returned to the clinic on 5, 7, 10, 12, 17, 20, 24, 26 February and 6, 13 and 17 March 2014. It is only on 17 March that there is any mention of the left upper limb:
“left hand = numbness spreading, less power,
CT scan suggested MRI due to radiculopathy.”
12 Earlier, there was a mention of the other upper limb on 26 February, where Dr Khan recorded a complaint of pain in the right arm when lifting heavy items.
13 In view of the failure to mention the left upper limb in the clinical notes, a curious thing happened. On 5 February, another practitioner at the clinic, Dr Khan, saw Ms Lynch. He was the general practitioner she usually saw. She complained of neck pain and he ordered CT scans. Before the accident, on 16 January, Dr Khan ordered CT scans in the context of complaints of paraesthesia in the left hand. On 30 January, the day before the accident, he told Ms Lynch the scans revealed degenerative changes in her cervical spine and disc bulges. The radiologist concluded:[2]
“Mild to moderate C5/6 degenerative changes. Shallow broadbased [sic] disc bulges without central canal compromise. Mild left C5/6 foraminal narrowing secondary to uncovertebral osteophyte.”
[2]Report dated 29 January 2014.
14 Myron Rogers, a neurosurgeon, viewed the scans and commented:[3]
“CT cervical spine 29/1/2014: there is mild multi-level degenerative change, being most pronounced at C5/C6 with severe bony foraminal narrowing on the left and to a lesser extent at C6/C7.”
[3]Report dated 20 January 2020 at p 4.
15 Nine days after the accident, on 10 February, Ms Lynch underwent CT scanning, followed by MRI scanning on 1 April. One supposes her general practitioner was investigating the possibility of an aggravation of her cervical spondylosis and cervical radiculopathy, which is only referrable to complaints about the left upper limb. The CT scans were inconclusive with the radiologist saying:[4]
“There are degenerative changes particularly at C5/6. No spinal cord or radicular compression or displacement seen. A fracture has not been identified. If this patient has a radiculopathy, then a follow up MRI would be indicated.” (my emphasis)
[4]Plaintiff’s Court Book (“PCB”) 31.
16 I cannot see why the radiologist referred to radiculopathy unless the possibility was raised in the referral by the general practitioner.
17 There was a follow-up MRI, with the same radiologist concluding:[5]
“There are disc lesions in the cervical spine. Left sided foraminal stenosis is present at C5/6, C6/7, which may account for a left C6 or C7 radiculopathy…”
[5]PCB 33.
18 In the body of the report, the radiologist noted about the C5-6 and C6-7 discs:[6]
“C5/6 disc is narrowed and protruding with a left paracentral component. Left C5/6 foraminal stenosis is present, which would likely account for a left C6 radiculopathy. Right C6 nerve root impingement is not seen.
The C6/7 disc is narrowed and protruded. There is a central left paracentral disc protrusion which migrates into the neural foramina entry zone and would likely account for a left C7 radiculopathy. Right C7 nerve root impingement is not seen.”
[6]PCB 32.
19 Again, Mr Rogers viewed the MRI scans of 1 April. He commented:[7]
“MRI cervical spine 1/4/2014: there is again mild multi-level change, no evidence of acute trauma and mild contact on the left C6 and C7 roots without compression.”
[7]Report of 20 January 2020 mat p m4.
20 In the body of his report, the radiologist says it is likely there is C6 and C7 radiculopathy. In his conclusion, he says C6 or C7 radiculopathy. I presume he means “and” instead of “or”. Mr Rogers speaks of mild contact of those nerve roots without compression.
21 The history noted by the radiologist for the MRI scans reproduces the clinical note of Dr Khan on 17 March. There is no history noted for the CT scans but the radiologist’s conclusion implies that there was an interest in radiculopathy. That could only come from the general practitioner. The lack of mention in the clinical notes is surprising. The distribution of the left C6 and C7 nerve roots is into the left upper limb. If Ms Lynch described to her general practitioners the movements of her neck during the collisions coupled with symptoms in her left upper limb, it is little wonder the issue of radiculopathy was explored from an early stage.
22 During her evidence, Ms Lynch described those movements:[8]
“…and I remember my – in the first impact my neck went back and then came forward again, and in the second impact same happened. My neck went back and my neck went forward again but there was nothing there to stop it from moving.”
[8]Transcript (“T”) 29.
23 And, in cross-examination:[9]
“Now, I was slightly aware that there was some form of a seat there, but not completely, so from what I can gather what happened is that the seat was breaking at the time that my head went back. The second impact, there was nothing there to stop my neck from going back and it flipped back quite severely.”
[9]T45.
24 On 3 December 2014, there were nerve conduction studies of left median and ulnar nerves and the C8/T1 distribution. A neurologist concluded:[10]
“There is electrophysiological evidence of a sensory-motor neuropathy affecting the left ulnar nerve. No slowing was demonstrated in the across elbow segment either on direct testing or with the inching sty. Needle EMG is in keeping with a C8 root problem.”
[10]PCB 41.
25 Of the April MRI scans, the radiologist commented:[11] “The C7/T1 disc is normal and the C8 nerve roots are clear”.
[11]PCB 32.
26 On 26 February 2015, Gavin Davis, a neurosurgeon, re-examined Ms Lynch.[12] She complained of increasing weakness of her ulnar-innervated hand intrinsic muscles. He noted the findings of the above nerve conduction tests and the MRI scans. The latter showing no evidence of C8 nerve root compression and suggested Ms Lynch’s problems were due to ulnar neuropathy. He recommended an operation.
[12]Report dated 26 February 2015.
27 On 25 August 2015, a left ulnar neurolysis was performed. The ulnar nerve was exposed above the medial condyle and neurolysis was performed proximally and distally. It was found the nerve was compressed by aponeurosis between the two heads of the flexor carpi ulnaris and released. The nerve appeared atrophic or discoloured distal to the medial epicondyle.
28 Doubt was thrown on the accuracy of the earlier nerve conduction studies. On 17 March 2016, there were further nerve conduction studies. The neurologist, Gary Yip, concluded:[13]
“Overall today’s electrophysiological findings are best interpreted to represent co-existence of two entities: (i) a significant left ulna neuropathy, with the severity of pathology being likely unchanged since the surgical decompression; and (ii) a chronic inactive C7 radiculopathy affecting the left arm which is likely contributing to some of the patient’s symptoms but, on the whole, is mild.”
[13]Report dated 17 March 2016.
29 Also on 17 March 2016, Dr Yip wrote to Dr Khan.[14] After explaining why there were doubts about the earlier studies and his interpretation of that day’s studies, he concluded:
“My formulation is that Ms Lynch almost certainly had left ulnar neuropathy and cervical spondylosis that pre-dated the MVA, and the physical trauma likely caused an acute acceleration of the extent of both problems…”
[14]PCB 52.
30 Unfortunately, the ulnar neurolysis provided no relief to Ms Lynch. When seen by a nurse in neurosurgery in April 2016, Ms Lynch said her symptoms were worsening and she had weakness in the intrinsic muscles innervated by the ulnar nerve. She also complained of pain radiating from her neck.
31 On 25 May 2017, further nerve conduction studies were performed. The report is not in evidence. However, Dr Aliashkevich quotes from the conclusion of the report.[15] Essentially, electrophysiological testing revealed left ulnar neuropathy without slowing of conduction velocity across the left elbow. Needle electromyography saw denervation or reinnervation changes consistent with ulnar neuropathy, but similar changes were seen: C7 innervated muscles consistent with a superimposed chronic left C7 radiculopathy. No acute denervation changes were seen and there was no significant change since the previous study on 17 June 2016.
[15]Report dated 7 January 2019 at p 14.
32 On 24 June 2017, MRI scans were made of the cervical spine and brachial plexus. There was no significant change from the MRI scans of six months earlier. Despite a slight degradation of the brachial plexus sequences, the appearances were normal with no suspicious abnormality or compressive lesions.
33 On 19 August 2017, MRI scans were taken of the left elbow. The radiologist’s conclusion:
“Medial subluxation of ulnar nerve perched along the posteromedial border of the medial humeral condyle. At this level, the nerve is thickened and hyperintense suggesting ulnar neuritis. No compressive mass.”
34 On 18 December 2017, a neurology registrar examined Ms Lynch. Her presentation was consistent with left ulnar neuropathy and C7 radiculopathy but more important were his examination findings:[16]
“..there was sensory loss over the medial aspect of the palm of the left hand without extension up the forearm, and patchy sensory loss over the dorsum of the hand. There was weakness of abduction, adduction and flexion of the fourth and fifth digits with relative preservation of the other digits. Proximal power was intact, biceps and brachioradialis reflexes were present but left tricep difficult to elicit.”
[16]PCB 55.
35 On 19 January 2018, Jeremy Russell, a neurosurgeon, wrote to Ms Lynch’s general practitioner following his examination and his review of earlier investigations. His examination and review pointed to the ulnar nerve at the elbow as the main cause of her problems rather than a significant compromise of the C7 nerve root. He recommended an ulnar nerve transposition.
36 On 19 February 2018, the left ulnar nerve was transposed to a newly created submuscular pocket from the pronator teres. In part, the operation report says:[17]
“Previous ulnar incision reopened and extended superiorly and inferiorly
Ulnar nerve identified, dissected and untethered
Pronator tares incised for submuscular pocket creation
Ulnar nerve transposed to submuscular pocket.”
[17]Operation report for 19 February 2018.
37 On 20 January 2020, Myron Rogers, neurosurgeon, examined Ms Lynch at the request of the defendant. On the issue of the left upper limb, he concluded the motor vehicle accident was far more likely to aggravate her cervical spondylosis than the ulnar nerve.[18]
[18]Report dated 20 January 2020 at p 5.
38 In a second report, answering questions posed by the defendant’s solicitors, Mr Rogers said his clinical examination found no evidence of ulnar nerve entrapment or cervical radiculopathy and the changes were more consistent with a chronic pain syndrome or central sensitisation in association with a chronic pain syndrome.[19]
[19]Report dated 23 March 2020 at p 2.
39 On 4 May 2020, Chloe Spiegel, a medical practitioner with the neurology clinic at the Austin Hospital, reviewed Ms Lynch over the phone. Ms Lynch said there was some improvement of her symptoms after the transposition surgery but they have gradually worsened. An ultrasound apparently eliminated rotator cuff pathology or joint effusion.
40 Alfred Samaddar has been Ms Lynch’s general practitioner since 10 November 2016.[20] His report outlines his treatment. There are some telling passages:[21]
“Management of her chronic pain has largely failed because of the nature of her chronic pain and her mental ability to cope with pain. Due to the side effect and allergy to several medications it was not possible to use various medications available for chronic pain management for Ms Lynch.”
[20]Report dated 12 October 2020.
[21]At p 3.
41 And:[22]
“Over past 4 years I have not seen Ms Lynch make any improvement with her chronic pain management. With her current support I don’t believe she will improve in next 12 months.”
[22]At p 3.
42 Dr Samaddar believes he has done his best through what he calls “bio-psycho-social mode”. He referred her to a psychologist and, over time, prescribed some powerful pain relieving medicines: Panadol Osteo; Endep; Panadeine Forte, Endone; and Targin.
Present condition
43 Ms Lynch suffers constant pain and stiffness in her left upper limb, especially about her shoulder, and in her neck. She feels her shoulder pain travels both upwards and downwards: into her arm, hands and fingers; and into her neck. After injuring her right shoulder in 2016, Ms Lynch has not been able to protect her left arm and its condition has worsened.
44 Pain is worsened by substantial use of her left arm or hand, particularly repetitive use, or using her arm above shoulder height, in front or to the side of her body.
45 She has lost strength in her left arm and grip strength in her hand. She suffers “pins and needles” and tingling in her left hand. They make her feel uncomfortable. She cannot control these sensations.
46 She finds her neck pain interferes with her usual domestic activities. As she increases her activities, so does her pain.
Medicines
47 At one time of another, Ms Lynch has taken Endep, Panadol Osteo, Panadeine Forte, Targin, Oxycodone, Naloxone and Valium.
48 Presently, she takes Targin for pain relief for her left shoulder and arm and right shoulder. She takes Targin in the morning and evening. It releases its effect over 12 to 14 hours and gives relief. She takes Endep at night for pain relief and to help her sleep. She takes Valium to help her sleep. She takes other medicines to control her blood pressure and reduce her cholesterol levels.
Cervical spine
49 Ms Lynch suffered from her cervical spine before the accident. Her condition of cervical spondylosis was symptomatic. She suffered a whiplash injury in the accident. The mechanism was severe through the course of two accidents, occurring almost simultaneously.
50 The state of her cervical spine has been studied radiologically, mainly through MRI scans. The studies both preceded and followed the accident. Those scans revealed the extent of her cervical spondylosis before the accident.
Flynn
51 Jennifer Flynn is an orthopaedic surgeon. On 7 August 2019, she examined Ms Lynch at the request of her solicitors.[23] The purpose of her examination was an impairment assessment, presumably for the purposes of s98C of the Act.
[23]Report dated 20 September 2019.
52 Her examination of the cervical spine revealed some limitation in movements with complaints of tenderness in the trapezius and periscapular muscles.
53 Judging from her figures,[24] there was no loss of movement in flexion, a noticeable loss in extension, a noticeable loss in left lateral flexion, minor in right lateral flexion, minor in right rotation and none in left rotation.
[24]At p 7 of her report.
54 There was decreased power in the left upper limb due to severe pain on power testing. There was decreased sensation of the limb’s dermatomes, wasting of the left forearm and arm, weakness of the muscles innervated by the ulnar nerve and the absence of reflexes despite reinforcement.
55 Under the heading of “Diagnosis”, among other things, Dr Lynch diagnosed an exacerbation of cervical spondylosis. Attributing the left upper limb symptoms caused her a problem:[25]
“Having regard to the radiculopathy of the left upper limb, I acknowledge the complexity in attempting to differentiate the ulnar nerve from radicular symptoms and examination findings. The neurological examination on 7 August 2019 was particularly unhelpful in determining the underlying cause of the symptoms given that there was global left upper limb weakness which seemed to be due to pain with power testing. I note that the EMG reported a C8 and C7 radiculopathy after the transport accident and I am unsure of the reason for the discrepancy on repeated studies. It is my understanding that there were no radicular symptoms prior to the transport accident, but mild paraesthesia and hand weakness was noted.”
[25]At p 10 of her report.
Aliashkevich
56 Ales Aliashkevich is a neurosurgeon. On 7 January 2019 and, again, 19 May 2020, he examined Ms Lynch at the requests of her solicitors. He made an impairment assessment.
57 He found non-uniform loss of range of motion (dysmetria) and muscle guarding of the cervical region without objective evidence of long tract signs.
58 Judging from how the accident occurred, Ms Lynch sustained a whiplash injury which aggravated her existing degenerative disease of the cervical spine. This injury caused her cervical radiculopathy affecting the C7 innervated muscles. Since her left arm struck the steering wheel, she may have aggravated her existing ulnar neuropathy.
59 He noted pre-existing cervical spondylosis and left hand and arm paraesthesia and weakness. He considered about half of her left ulnar nerve impairment is not due to the accident because “there was about a 50% chance that [Ms Lynch] may have developed symptoms of progressive ulnar neuropathy without the transport accident on 1/2/2014”.[26]
[26]PCB 89.
60 He saw Ms Lynch suffering from a chronic pain syndrome. He recommended ongoing management by a pain specialist or rheumatologist and participation in a multi-disciplinary pain management program. The former to address possible myofascial pain or fibromyalgia syndrome.
61 There was the possibility of cervical nerve root decompression.
62 Assessing various medical and non-medical matters, he considered Ms Lynch had no current work capacity in a “reliable, consistent and productive manner”.
63 Her conditions had stabilised. Identifying 11 factors, his prognosis was very guarded. Included among those factors was central sensitisation.
Rogers
64 On 20 January 2020, Mr Rogers examined Ms Lynch at the request of the defendant.[27] He also examined her for the purposes of an impairment assessment.
[27]Report dated 20 January 2020.
65 With the cervical spine, he found restriction of movement in the cervical spine in lateral rotation and lateral flexion, left and right.
66 Mr Rogers examined the clinical records of the Healesville Clinic, before and after the accident. From those entries for visits after the accident, he concluded there was no immediate exacerbation of symptoms of the left arm or hand:[28]
“There is no record of direct trauma to the left arm and elbow being associated with the motor vehicle accident and the recurrent symptoms in the left hand did not occur until six weeks after the accident. If there was significant trauma to the left ulnar nerve at the time of the accident I would have expected symptoms to present immediately.”
[28]At p 5 of his report.
67 Before the accident, Mr Rogers considered Ms Lynch probably suffered from her cervical spondylosis through C7 radiculopathy and possibly mild ulnar neuropathy, and the accident was “far more likely to aggravate the cervical spondylosis rather than the ulnar nerve”.[29]
[29]Report dated 20 January 2020 at p 5.
68 Despite the likelihood of aggravation of the cervical spondylosis, Mr Rogers did not believe the symptoms and dysfunction of her left arm were related to the accident.
Ulnar neuropathy
69 Professor Davis excluded C8 radiculopathy because MRI scans did not show any compression of the C8 nerve root. He suspected her ongoing pain, numbness and weakness of the left hand was due to ulnar neuropathy. He suggested ulnar neurolysis, which occurred. The operation found the ulnar nerve was compressed by aponeurosis between the two heads of the flexor carpi ulnaris. It did not relieve the symptoms.
70 Mr Rogers noted the inability of the nerve conduction studies to identify a point or points of compression. He was unsurprised the ulnar release or the ulnar transposition gave little relief to Ms Lynch. His clinical examination gave no evidence of ulnar entrapment or cervical radiculopathy with her condition being more consistent with a chronic pain syndrome or central sensitisation and a chronic pain syndrome.
71 It appears Mr Rogers was unaware of the report of Mr Drnda of the ulnar neurolysis on 25 August 2015 even though it was among the documents supplied to him by the defendant’s solicitors. It identifies the main source of compression of the ulnar nerve and its release. Although the evidence does not allow me to understand fully the process of compression, its location between two heads of the flexor carpi ulnaris seems specific.
Legal considerations
72 Paragraph (a) of s93(17) defines “serious injury” as a long-term serious impairment or loss of body function.
73 The meaning of “serious” in s97(17) of the Act was explained in Humphries v Poljak:[30]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[30][1992] 2 VR 129 at 140 per Crockett and Southwell JJ.
74 Dodds-Stretton JA observed in Kelso v Tatiara Meat Co Pty Ltd:[31]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of ‘very considerable’ consequences.”
[31](2007) 17 VR 592 at 629.
75 In Richards v Wylie[32] where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the court will need to evaluate in determining whether the loss or impairment of body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’….Thus, the ‘serious injury’ defined in para (a) of subs (17) can, I think, have its seriousness measured in part by a mental response to the physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[32](2000) 1 VR 79 at 87-88. See also Buchanan JA at 90.
76 Relying on two paragraphs from Lu v Mediterranean Shoes Pty Ltd,[33] the plaintiff submitted she could aggregate the injuries to her cervical spine and left upper limb. In paragraph [27], Chernov JA said:
“But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body is serious and long term.”
[33](2000) 1 VR 511.
77 And in paragraph 29, responding to an interpretation of Humphries v Poljak:
“To the contrary, in my view, their Honours intended such aggregation to be limited to injuries that impair the one body function and which have arisen from the one incident.”
78 In Lexa v Transport Accident Commission,[34] the Court discussed aspects of Lu and other cases and focussed on the concept of “body function”. In defining a “body function”, that Court has distinguished between a physical act or operation and an activity to which the physical act or operation may be applied.[35] It is the former which defines a “body condition”. Applying the former, it cannot be said that the body condition related to the left upper limb is the same body condition related to the cervical spine.[36] However, the body condition related to the cervical spine may be related to the left upper limb through the effect of cervical radiculopathy. In this case, however, that effect is mild and of little consequence.
[34][2019] VSCA 123 at [40] to [48].
[35]At [46].
[36]The plaintiff expressly excluded the shoulder.
79 The defendant referred to Petkovski v Galletti.[37] It says where there is aggravation of a pre-existing injury, the applicant must establish what injury was caused by the accident. An analysis must then be made of the extent of impairment of a body function before and after the relevant injury. To qualify as a “serious injury”, the additional impairment or loss of body function must itself be a serious long-term impairment or loss of that body function.
[37][1994] 1 VR 436.
80 The absence of mention of the left upper limb in the clinical notes until 17 March raises observations by the Court in Philippiadis v Transport Accident Commission.[38] First, a court needs to exercise care when relying on those notes through inaccuracy or incompleteness, but they can constitute highly probative evidence through independence, contemporaneity and dealing with matters within expertise. Second, ordinarily, one expects a patient to tell his or her longstanding doctor the health issues of concern to the patient and the doctor would note them.
[38][2016] VSCA 1 at [105].and [106].
Discussion
Credit of the plaintiff
81 The defendant attacked Ms Lynch’s credit. There were discrete areas of attack. First, Ms Lynch did not draft her affidavits. They were done on her instructions by legal practitioners in answer to their questions. I do not consider that she has misled those practitioners.
82 Second, in her first affidavit, Ms Lynch said:[39]
“Since the accident I am extremely limited in my ability to use knitting needles and most of my sewing is now conducted by automatic machine.”
[39]At [7].
83 What she told Mr Rogers is consistent with that passage.[40] Nor do her answers in cross-examination conflict with that passage.
[40]See pp 3 and 6 of the report dated 20 January 2020.
84 Third, I do not see as inconsistent the fact of her injury to the right shoulder in November 2016 and her belief that the greater pain and stiffness she experiences there is due to protecting her left upper limb. Ms Lynch spoke of “a lot more pain and stiffness” and “over the past two to three years or so”.[41]
[41]Affidavit sworn 1 September 2019 at [13].
85 Overall, I do not accept the submission that Ms Lynch’s affidavits are not of any great assistance to her credit or case.
86 I do not consider Ms Lynch is an untruthful or unreliable witness.
Credit of Ms Lynch’s daughter and friend
87 From the plaintiff’s perspective, an important part of the affidavits of her daughter and friend concern her past history. Her daughter said:[42]
“Prior to my mother’s transport accident, I don’t recall her suffering any serious physical ailments. I recall she had complained at some stage of pain in her elbow prior to the accident, but I can’t recall whether that related to her left or right arm. I don’t recall her complaining of neck pain prior to her accident.
Both mother’s physical and mental health have continued to deteriorate in the years following the accident. She now complains almost every day, sometimes via text message, about how sore she is – especially her arm, shoulder and neck.”
[42]Affidavit sworn 16 June 2020 at [5] and [6].
88 Her long-standing friend was aware of an injury to her right elbow in a train incident, adding:[43]
“However, I am not aware of health issues that impacted upon Cathy’s independence, mobility, ability to undertake normal activities of daily living or maintain a healthy social life.”
[43]Affidavit sworn 18 September 2020 at [5].
89 And:[44]
“Prior to sustaining her transport accident injuries, Cathy also maintained regular contact with her elderly father and her youngest son (who resides with her ex-husband) which involved her driving long distances to see them, including suburbs such as Springvale, Malvern, Lyndhurst and Tecoma. Prior to her accident, I do not recall Cathy having any difficulty with driving to maintain these relationships. She certainly held a licence and never complained to me about neck, back or arm pain.”
[44]At [9].
90 The defendant invites me to reject those aspects of the affidavits of the daughter and friend, mainly through their inconsistency with the clinical records. This submission raises the nature of an affidavit.
91 When a person swears or affirms the truthfulness of the contents of his or her affidavit, he or she undertakes a solemn procedure. Its importance is emphasised by the severe consequences which could follow if the contents are known to be untrue and the person swears or affirms anyway. Accordingly, it requires very powerful matters before one looks behind an affidavit and rejects part or all of its contents. In this application, the matters raised by the defendant are nowhere near powerful enough.
Cervical spine: causation
92 As an injury, it is the view of the practitioners who expressed an opinion on the matter that the accident accelerated, aggravated or exacerbated Ms Lynch’s pre-existing degenerative changes or spondylosis in the cervical spine.
93 Dr Yip thought the accident caused an acute acceleration of the pre-existing spondylosis. Mr Aliashkevich saw her whiplash injury aggravating the pre-existing condition. Dr Flynn diagnosed an exacerbation of the condition. Mr Rogers thought the accident aggravated her cervical spondylosis.
Left upper limb: causation
94 In her first affidavit, sworn in August 2015, Ms Lynch deposed to her left forearm striking the steering wheel. Shortly after the accident, she complained to her daughter of soreness in the arm, and pain in the left arm to her friend. On the other hand, there is no record of her mentioning the left arm until 17 March, that being the twelfth visit after the accident. For busy general practitioners, the doctors of the clinic made reasonable notes of the consultations. The lack of mention is disturbing.
95 In her claim for compensation lodged 5 February 2014, Ms Lynch did not specifically mention her left arm among her injuries:[45]
“Nasty lum[p] on leg and bruising to right leg, back soreness, internal bruising to lower back, severe whiplash GP wants CT scan to be performed, upper abdominal bruising (ultrasound performed), abrasions all over.”
[45]PCB 119.
96 However, there were MRI scans of the neck on 30 January. There were CT scans on 10 February, where the radiologist recommended further investigation in the form of MRI scans. The reason for the CT scans following so closely upon the MRI scans must relate to the accident and investigating damage to the neck at least and possibly radicular damage to the left upper limb.
97 On 13 March 2014, Ms Lynch saw Matthew Hassett, an osteopath. He does not record a complaint about her left arm.[46]
[46]PCB 46.
98 In December 2017, Ms Lynch was reviewed by a neurology registrar, Alexander Bryson. He records:[47]
“Catherine first recalls developing tingling in the fifth digit of her left hand a few weeks before a motor vehicle accident in 2014. After the accident she also developed sensory loss over the medial part of her left palm and weakness of her fingers in her left hand. She is a little unclear of the details of the accident but remembers being rear-ended and bracing the impact with her arm.”
[47]PCB 55.
99 In September 2019, Ms Lynch told Dr Flynn:[48]
“Reportedly she struck her left forearm on the steering wheel. Ms Lynch advised that she injured the lower back, neck, right shoulder and left arm as well as sustaining a haematoma of the right leg.”
[48]Report dated 20 September 2019 at p 2.
100 In January 2020, Ms Lynch told Mr Rogers of the emergence of symptoms in her left upper limb after the accident:[49]
“Ms Lynch told me that several weeks after the accident, she developed pain which involved the entire left arm and this was constant, she also had numbness in her middle, ring and little fingers of the left hand…”
[49]Report dated 20 January 2020 at p 2.
101 Two weeks earlier, she told Mr Aliashkevich:[50]
“She also had scratches and bruises in both arms. She reported that she was getting pins and needles of her left hand as well.”
[50]Report dated 7 January 2020 at PCB 72.
102 And:[51]
“After the accident she claims she felt pain in her left forearm, which extended into her left upper limb with weakness.”
[51]PCB 73.
103 Assuming there is ulnar neuropathy, Mr Rogers rejected a link with the accident. He did so on the assumption that the arm became symptomatic weeks after the accident. I speak of assumption because I think Mr Rogers did not consider the problems of the limb were due to an organic reason. That is why he speaks of a chronic pain syndrome or that syndrome in combination with central sensitisation.
104 Ms Lynch says she struck her left arm against the steering wheel. The blow caused immediate and significant pain. At the time, she received other injuries, which were “much more” painful. Nevertheless, shortly after the accident, she told her daughter and her friend of soreness and pain in the arm. Judging from the photograph of her vehicle after the accident, it received two solid impacts, front and rear. Her referral for CT scans may be explained solely on the basis of concern about the effect of a whiplash injury. However, the comment of the radiologist implies an interest in radiculopathy, suggesting left upper limb symptoms. The lack of mention to the osteopath may depend on the areas of interest to him: he appears interested in the spine.
105 There is another curious circumstance. In his clinical notes, on 16 January 2014, Dr Khan noted constant paraesthesia and mild weakness in the left hand and requested CT scans of the cervical spine. He discussed the results of the scans with her on 30 January. Thereafter, until 17 March, the left arm did not gain a mention in the clinical notes. One cannot suppose the accident cured her problem with the left hand. She says she told him of the worsening of the numbness of the hand and arm when she first saw him after the accident. For him, the left upper limb may have been outweighed by the other problems posed by the accident. This is consistent with her evidence:[52]
“And, as we’ve discussed, you hit it badly, you were noticeably in pain and significant pain and you were very much aware of the impact of the left elbow and forearm? – I was aware of the impact of my left arm, however there were other injuries that were much more painful than that as well.”
[52]T49.
106 Certainly, the right leg was very sore after the accident. There was an initial fear of deep vein thrombosis, quickly discounted after investigation. While a scan raised the possibility of bone contusion at the mid and lower tibia. The soreness persisted for weeks after the accident.
107 Despite the quality of the clinical notes, overall, I am satisfied Ms Lynch struck her left arm on the steering wheel, suffering significant pain. She is a creditable witness. She told her daughter very shortly after the accident and her friend a little later. There is no legitimate reason to reject the evidence of her daughter or friend on that issue or any other. There was the possible masking effect of her other injuries, distracting the doctor from recording complaints about the limb. Finally, there is the remark of the radiologist, implying concern for an upper limb. For that reason I reject Mr Roger’s opinion as to the lack of a causal link. It is based on an incorrect assumption of fact: the delay in the upper limb becoming symptomatic.
Consequences
Left upper limb
108 Ms Lynch suffers constant pain in the limb. Its intensity varies from day to day. The main focus of the pain is her shoulder where it can be severe: “rather like a ‘pulling’ or ‘electric shock’ type of pain”.[53] To her, the shoulder pain radiates into her arm. She experiences “pins and needles” and “tingling sensations” in her hand and fingers. She has lost feeling in part of her arm.
[53]Affidavit sworn 1 September 2019 at [10].
109 Since the accident, there have been increased efforts to determine and cure her complaints. The combined effect of two operations has seen little relief.
110 Acting on advice, the impairment to her left hand caused her to cease driving vehicles for safety reasons. In any event, her driver licence has been suspended indefinitely on medical grounds. Apparently, both upper limbs require examination and, presumably, sufficient improvement before the suspension is lifted. Where originally, Ms Lynch voluntarily stopped driving, now, she cannot for to do so is a criminal offence. Since both limbs are involved, I would apportion responsibility equally for her inability to drive.
111 Her inability to drive has other consequences. Before the accident, she once drove long distances to see her father and her youngest son. Her father has died and this child lives with her former husband. She cannot visit her son now where it means she drives. Before the accident, she taught her son to drive. I presume this is the child who lives in Reservoir.[54] Since the accident, she has not done so. She believes it is her inability to teach him that saw him still on a learner’s permit in August 2015.
[54]See T89 at lines 23 to 28.
112 As to her father, her inability to visit him was a source of considerable regret:[55]
“Before the accident I was able to get there at least once a week to relieve her [her sister] of that and to spend a really great time with my dad on my own. Both of us loved music, we loved theatre, so we had that special time together just for ourselves and also obviously if he needed any help I could do it. After the accident that stopped completely. I would still ring him every couple of days but it wasn’t the same as actually physically being with him.”
[55]T103.
113 Before the accident, Ms Lynch sewed and knitted a great deal. She no longer does so by hand and gave the example of a jumper she started knitting four weeks before the accident which “is still sitting there waiting to be done”.[56] Her ability to sew and knit by hand was a source of considerable pleasure to her, which is now denied. This is a matter of considerable distress to her for she made clothes for her children, relatives and friends.
[56]T90.
114 The numbness and weakness of her left hand means she struggles to carry objects or weighty items. In the kitchen, she has dropped plates of food because of this weakness. Apart from her ability to grasp and carry things with her hand, her arm itself is weaker.
115 Before the accident, Ms Lynch shopped for groceries normally. After, she always shops online, irrespective of the COVID-19 restrictions. The groceries are delivered and placed on her kitchen table. She unpacks the parcels and puts the items away in her kitchen.
116 Before the accident, Ms Lynch undertook Tupperware parties. She had done that for two years and conducted 25 to 30 parties. She earned $200 to $250 from each party. She has not conducted any since the accident. She cannot drive to other people’s homes and she cannot stand and demonstrate. Although there is a loss of income, it amounts to $5,000 to $7,500 over two years. This is not a serious consequence by itself. Despite the view of Mr Aliashkevich, Ms Lynch had very little capacity for work prior to the accident for she had not worked since 2005.
117 In March 2019, Ms Lynch started a Diploma of Community Services at the “Open College”. Ultimately, if her condition improved, she hoped to obtain part-time employment as a community service worker in a supervisory role. The course is undertaken online. Unfortunately, her pain interfered with her concentration and she found the typing of documents beyond her. She stopped in November or December 2019 and has deferred the course indefinitely.
118 She struggles with many uses of the limb: any substantial use of the hand or arm, repetitive use of either, use of the arm above shoulder height, in front of her body or to her side. She has difficulty pushing, pulling or lifting using the limb.
119 In November 2016, she hurt her right shoulder. What this means is, because of the pain, sometimes she cannot use either limb and at other times she can use both.
120 Her grandson was born in October 2016. In his early years, she could not lift or care for him properly. These inabilities were due to the effect of injuries to both limbs, not just the left. By September 2019, he had grown sufficiently so that lifting him was no longer a necessary part of caring for him. Presently, Ms Lynch looks after her grandson every second weekend if she can. He is now four.
121 The numbness has caused her to burn her hand as she is less able to detect heat:[57]
“I couldn’t feel anything, I would forget that something was hot in the oven and lift it and it wasn’t until 20 minutes later that I realised I had burnt my arm…”
[57]T78-9.
122 She now experiences difficulties in the most mundane of activities: doing up her bra strap, brushing her teeth and fastening buttons. This is due to the weakness and numbness.
123 Before the accident, Ms Lynch actively participated in the activities of her church each week. Since the accident, she does not. The denial of the spiritual and communal benefits of attendance at one’s church is to her a significant deprivation. This is understandable. She lives alone. She is not in paid employment. She does not drive. To an extent, she is isolated.
124 Before the accident, she was an avid reader of fiction and non-fiction. She reads less because of her lesser ability to hold a book.
125 During sleep, if she lies on her left hand, it becomes so numb she cannot feel any sensation in it.
126 Before the accident, Ms Lynch attended a gymnasium about four times a week:[58]
“Prior to the accident I was attending Curves gym approximately 4 times a week. I found this helped with my psychological issues, as well as weight loss. I also found that I was energised and feeling positive after attending. I no longer attend the gym due to my physical injuries which is frustrating and upsetting.”
[58]Affidavit sworn 3 August 2015 at [14].
127 However, on 15 July 2013, 26 September 2013 and 30 January 2014, Dr Khan wrote certificates requesting suspensions of her membership for short periods.
128 Before the accident, her attendance at the gymnasium were not uninterrupted. She requested suspension of her membership on, at least, three occasions due to physical complaints. Nevertheless, the contrast is significant. Before the accident, she attended frequently with some interruptions. After the accident, she has never returned to a gymnasium because she could not manage. The gymnasium staff have helped her with home exercises. She would prefer the ability to attend the gymnasium, which is now denied.
129 By reciting the names of the medicines she took before the accident and comparing them with the medicines she has taken since, one cannot say the accident has enlarged her need for medicines.
130 Ms Lynch suffered some symptoms in her left upper limb before the accident. She first sought treatment in 2006 or 2007 relating to her shoulder only. On about 1 July 2013, she braked her vehicle suddenly. There was no collision. But her left arm ached and she experienced pins and needles and numbness in that arm. She next experienced paraesthesia in her left hand a few weeks before the accident. She suffered from ulnar neuropathy before the accident.
131 After the accident, the condition of her left upper limb became much worse. The diagnosis of ulnar neuropathy was confirmed. Several investigations and two operations followed in an attempt to cure her symptoms. She continues to suffer with the limb through that condition. The contrast between the state of the limb before and after the accident is stark. The pre-accident condition was minor. The post-accident condition is serious and unremitting.
132 The accident aggravated the condition of ulnar neuropathy. The effects of the aggravation persist and will do so long-term. The consequences of the aggravation she experiences can be fairly described as at least very considerable and certainly more than significant or marked. The injury to her left upper limb is serious for the purposes of s93.
Cervical spine
133 Ms Lynch did suffer problems with her neck before the accident. She sought treatment from the osteopath, Mr Hassett, for her lower back and neck, but mainly the lower back. Over a period of about three years before the accident, he treated her regularly but treated her neck on only about four occasions. Her neck showed “a little bit of discomfort”, not pain.[59]
[59]T53.
134 In her claim form, she referred to a pinched nerve in her shoulder/neck as a previous injury. Her understanding of the reason for the CT scans on 30 January 2014 was to investigate the cause of her hand and arm symptoms.
135 Shortly after the accident, Ms Lynch experienced aching in her neck. That aching developed into pain. In August 2015, she rated the level of pain in her neck at 6 out of 10. Her neck pain does not respond to medicines. After August 2015 in her subsequent affidavits, she spoke of the worsening of her neck pain, among other things. By November 2020, she still suffers constant pain and stiffness in her neck. These symptoms interfere with many of her activities of daily living and general activities around her home.
136 Her comparison between the level of neck pain she now experiences and the level before the accident:[60]
“How does that neck pain, did that neck pain, to your recollection compare with what you have now? – It doesn’t compare. What I have now is extreme pain. It’s disabling and it makes me extremely irritable.”
[60]T97.
137 Before and since the accident, there have been repeated investigations seeking to discover whether her cervical spine contributes to the symptoms of her left upper limb. The scans of 30 January 2014 were inconclusive. Subsequent scans implicated the C7 nerve root and radiculopathy. The impact of the radiculopathy is usually described as mild. The cervical spine affects the upper limb, but the very major cause is the ulnar neuropathy.
138 I am satisfied Ms Lynch suffered an injury to her cervical spine in the accident. The injury is the aggravation of her pre-existing cervical spondylosis. The effect of the aggravation is long-term. It has lasted more than six years and will not abate in the foreseeable future.
139 The major consequence for Ms Lynch of this injury is the pain. It is significant or, as she puts it, “extreme” and constant. There is a world of difference in the condition of her cervical spine after the accident compared with it before. The extent of the aggravation is very significant. There are other consequences due to the pain: loss of movement in some areas and the impact of her life generally. These are of lesser importance in the face of unrelenting pain. As a consequence to Ms Lynch, the pain and suffering alone satisfies the test in Humphries v Poljak. The injury to her cervical spine is “serious”.
Chronic pain syndrome
140 Both Mr Rogers and Dr Aliashkevich diagnose a chronic pain syndrome. Mr Rogers goes further and suggests, as an alternative, that and central sensitisation. Neither explains what he means by those terms. It is unclear whether they are speaking of a psychological condition or an organically based condition. I suspect the former for a chronic pain syndrome and the latter for central sensitisation. If so, for the former, strictly speaking, neither is qualified to do so authoritatively: it is beyond the scope of their expertise. As to the latter, I am uncertain of their qualification to do so for I am only supposing the organic nature of central sensitisation.
Jones v Dunkel
141 Relying on Jones v Dunkel[61] and O’Donnell v Reichard,[62] the defendant submitted the Court was disadvantaged by the failure of the plaintiff to call as witnesses: Mr Drnda (neurosurgeon); Dr Khan (general practitioner); Mr Hassett (osteopath); and Mr White (osteopath).
[61](1959) 101 CLR 298.
[62][1975] VR 916.
142 Even if I may have benefited hearing from those practitioners, it does not mean I should draw an adverse inference.[63] The question is whether the plaintiff without explanation fails to call as a witness a person whom she might reasonably be expected to call and does not do so.
[63]At p 929.
143 The plaintiff’s tendered material included a note of Mr Drnda’s operation on the plaintiff, a report of one osteopath, and the clinical notes of Dr Khan. I would not expect the plaintiff to call any of them as a witness, even Mr White. Dr Khan and Mr Hassett may have spoken of the plaintiff’s condition before and after the accident but, after all these years, that is uncertain. I doubt Mr Drnda would have any memory of his operation and would rely upon the note. If there were issues to be asked on these practitioners then there was little to stop the defendant from calling them itself.
144 I would treat the failure to obtain an affidavit from the neighbour, Fay Sagan, in the same light. Her evidence might have helped with the assessment of the plaintiff’s current condition, but its absence does not lead to an adverse inference. She is not a witness I would expect to be called, as opposed to, maybe called.
145 I do not draw any adverse inference against the plaintiff.
Conclusion
146 Having regard to the test in Humphries v Poljak, I am satisfied the consequences to Ms Lynch of the injury to her cervical spine are “serious”. Separately, I am similarly satisfied as to the injury to her left upper limb. I will grant her leave to bring a proceeding to recover damages.
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