Maria Meyn Plaintiff v Transport Accident Commission Defendan
[2020] VCC 391
•8 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03948
| MARIA MEYN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 March 2020 |
DATE OF JUDGMENT: | 8 April 2020 |
| CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION: | Meyn v Transport Accident Commission [2020] VCC 391 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Motor vehicle accident – Serious injury – Spinal injury – Credit –
Disentanglement – Pre-existing condition – Pain and suffering –
Multiple conditions
Legislation Cited: Transport Accident Act 1986
Cases Cited: Petkovski v Galletti [1994] 1 VR 436; Dressing v Porter [2006] VSCA
215; AG Staff Pty Ltd v Filipowicz: Arnold Ribbon Co Pty Ltd v
Filipowicz [2012] VSCA 60
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis and Mr D O’Brien of Counsel | Arnold Thomas and Becker |
| For the Defendant | Ms S Manova of Counsel | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 Maria Meyn was involved in a “concertina” motor vehicle accident on 15 December 2015: her car was struck from behind and pushed into the car in front of her. The exact injuries Ms Meyn sustained in the motor vehicle accident are the subject of dispute before the Court. Ultimately, however, Ms Meyn claims that she sustained a serious injury to her spine, specifically the neck and back. She argues that this spinal injury has had consequences which render it a serious injury within the meaning of s93 of the Transport Accident Act 1986 (“the Act”).
2 In order to determine Ms Meyn’s application it is necessary to identify the issues in sequence. This is because the parties are in dispute across most issues in the case. The first issue which arises is that of Ms Meyn’s credit and the believability of her affidavit and viva voce evidence. I consider I need to deal with this issue at the outset as it was squarely put in issue, it illuminates the identification of the injury Ms Meyn relies on, it affects the way issues of disentanglement are dealt with and (given there is no other lay witness evidence) it is central to the assessment of the consequences Ms Meyn relies on to support her claim.
3 The second issue is the identification of the spinal injury Ms Meyn relies on.
4 The third issue, allied with the second, is to what extent that identified spinal injury can be disentangled from any pre‑existing condition, see Petkovski v Galletti [1994] 1 VR 436.
5 The fourth issue is the identification of the pain and suffering consequences alleged to flow from the claimed spinal injury. This involves a stripping out of consequences associated with other injuries. In doing so, I am mindful that there can be multiple causes for a pain and suffering consequence but that does not mean the consequence cannot be relied upon by Ms Meyn.[1]
[1] Dressing v Porter [2006] VSCA 215, at [47]
Brief relevant factual background
6 Ms Meyn was born in July 1974. She is married to Royce and has three children. Until recently, she cared for both her elderly parents. Her father passed away last year. She had a fall and hurt her back, at age seventeen, in 1991. She began working full time at the Alfred Hospital as a receptionist and doing data entry in 2001.
7 On 2 December 2005 she was involved in a motor vehicle accident where her car was struck from behind. She consulted Mr Wong, a physiotherapist, who noted no history of past neck problems.[2] His recording of her condition was of left sided neck pain and shoulder pain.[3]
[2]Clinical notes of Mr Wong, dated 5 December 2005, at Defendant’s Court Book (“DCB”) 91
[3]Ibid.
8 There then seems no further treatment for neck, shoulder or any lower back pain for several years. This accords with Ms Meyn’s affidavit evidence.[4]
[4] Affidavit of Ms Meyn, dated 16 May 2019, paragraph [9], at Plaintiff’s Court Book (“PCB”) 3
9 However, on 1 October 2012, she returned to Mr Wong with one day of lower back pain which came on spontaneously.[5] There seems no ongoing course of treatment. She then returned to Mr Wong on 27 June 2013 complaining of worsening right sided neck pain over four days.[6] Again, there was no ongoing course of treatment.
[5]Clinical notes of Mr Wong, dated 1 October 2012, at DCB 97
[6]Clinical notes of Mr Wong, dated 27 June 2013, at DCB 99
10 On 4 September 2014, she returned to see Mr Wong who took a history of her moving furniture and experiencing a pulling sensation in her left leg with pins, needles and numbness.[7] Over the next month Mr Wong recorded her complaint of central right lumbar pain and pain in her left thigh.[8]
[7] Clinical notes of Mr Wong, dated 4 September 2014, DCB 101
[8]Clinical notes of Mr Wong, at DCB 102
11 She gave evidence that thereafter she began going to the gym on an almost daily basis and did not need ongoing treatment with Mr Wong.[9]
The motor vehicle accident on 15 December 2015
[9]Affidavit of Ms Meyn affirmed 16 May 2019, paragraph [39], at PCB 6. See also Transcript (“T”) 90,
Line (“L”) 4
12 After being involved in the motor vehicle accident, she saw her treating doctor at Interhealth Medical Clinic.[10] The notes record complaint of pain in the “neck and body”.[11] Two days later, she returned with pain, limitation of movement and tenderness of the neck and lumbar spine.[12] She then began seeing a Dr Ryan Harrod, a chiropractor.[13] She saw him some 28 times between December 2015 and December 2016.
[10]Affidavit of Ms Meyn, affirmed 16 May 2019, at PCB 3 and Clinical notes of Dr Nguyen, dated 15 December 2015, at DCB 40
[11]Clinical notes of Dr Nguyen, dated 15 December 2015, at DCB 40
[12]Clinical notes of Dr Senini, dated 17 December 2015, at DCB 41
[13]Clinical notes of Dr Harrod, dated 18 December 2015, at DCB 56
13 At no consultation with Interhealth or Dr Harrod from 15 December 2015 to 21 December 2016 is there a notation indicating Ms Meyn complained of right shoulder or right hip symptoms. For several reasons, addressed below, this is important.
14 She returned to work in January 2016. In cross-examination she said this worsened her hip pain.[14]
[14]T 74, L 9
15 She consulted with Interhealth on 6 April 2016[15] and was noted to have an “okay neck” and right elbow pain. She had investigation for migraine.[16]
[15]Clinical notes of Dr Kaye, dated 6 April 2016, at DCB 41
[16]Clinical notes of Dr Senini, dated 6 October 2016, at DCB 43
16 In February 2017 she was referred for x‑ray of the cervical spine by a doctor at Interhealth.[17]
[17]Clinical notes of Dr Senini, dated 2 February 2017, at PCB 43 - 44
17 She then changed treating doctors to the Keysborough Medical Centre in September 2017.[18] The notes in 2017 record anxiety issues, discussion regarding the contraceptive pill and the stress associated with her elderly father’s condition.[19] There was no reference to the motor vehicle accident, back or neck pain.
[18]Clinical notes of Dr Nadiger, dated 1 September 2017, at DCB 48
[19]Clinical notes of Dr Nadiger, dated 1, 6, 12 & 22 September 2017, at DCB 48-49
18 The parties agree that a clinical note of Mr Wong, who she had been seeing in 2017, dated 28 December 2017, is the first notation of a right shoulder injury. It states: “Strained right shoulder when possibly helping parents move.”[20]
[20]Clinical notes of Mr Wong, dated 28 December 2017, at DCB 113
19 On 6 February 2018, Ms Meyn went to Japan on a nine-day family holiday.[21]
[21]Incoming passenger card dated 15 February 2018, at DCB 62. See also Movement details, entry of 15 February 2018, at DCB 66
20 On 14 March 2018, she registered a party hire business called Mystic Events.[22]
[22]ABN Historical Business Details, at DCB 68
21 On 14 May 2018, her employment ceased, and she has not worked since that time.[23]
[23]Affidavit of Ms Meyn dated 16 May 2019, paragraph [17], at PCB 4. See also report of Mr Kossmann, dated 25 February 2019, at PCB 30.
22 Around this time, Dr Nadiger of Keysborough Medical Centre began recording right hip and groin pain. She organised ultrasound then CT scan of that area.[24] Ultimately an MRI scan of the right hip was done on 5 June 2018[25] and Ms Meyn was referred to a neurosurgeon Mr Goldschlager with MRI scan of the cervical spine and right shoulder on 27 June 2018.
[24]Radiology referral dated 1 June 2018, at PCB 14. See also Clinical notes of Dr Nadiger, dated 14 and 26 May 2018, at DCB 52-53
[25]Radiology report from Capital Radiology, dated 7 June 2018, at PCB 16
23 On 23 July 2018, she went to Thailand on a family holiday for 10 days.[26]
[26]Movement details, entry of 23 July 2018, at DCB 66. See also T85, L15
24 On 14 January 2019, she went to India for 12 days.[27]
[27]Movement details, entry of 14 January 2019, at DCB 66. See also T83, L2
25 On 27 March 2019, she went to India for five weeks.[28]
[28]Movement details, entry of 27 March 2019, at DCB 66. See also T83, L4
26 On 17 August 2019, she went to India for a few weeks.[29]
[29]Movement details, entry of 17 August 2019, at DCB 66. See also T84, L2
ISSUE 1: THE PLAINTIFF’S CREDIT
27 The plaintiff’s credit was put squarely in issue by the defendant. For the reasons which follow, I consider Ms Meyn’s evidence, overall, was not credible and left me in such doubt that I could not accept it on critical points. I formed this view from a whole consideration of the evidence and not one single matter.
28 First, the defendant pointed to Ms Meyn’s failure to disclose adequately, or at all, her past medical history as to her spinal problems which are mentioned in her affidavit evidence. Ms Meyn was asked whether, other than her age 17 or 2005 back injuries, she had any back or neck pain.[30] She denied that she had.[31] It was then pointed out that in 2012 she had seen Mr Wong with about one day of lower back pain. She said she had forgotten about that.[32] Such was not disclosed in her affidavit material.
[30]Transcript (“T”) 15, L18,
[31]T15, L18
[32]T16, L5
29 She was then taken to September 2014 and Mr Wong’s note of pain when moving furniture. Despite this not being in her affidavit material, she specifically recalled this event.[33] She then specifically denied the accuracy of Mr Wong’s note as to (a) whether the pain was constant, (b) on which side the pain was (right or left) and (c) that it was back pain at all.[34]
[33]T16, L13
[34]T16, L30
30 She similarly denied – or could not recall – seeing her treating doctor at Interhealth for lower back pain on 12 December 2014 at all.[35] No reference to this consultation is in her affidavit material.
[35]T17, L17-30
31 By themselves, these matters are of limited weight as they occurred many years ago and are subject to lapses in memory. They also appear to be self-limiting episodes. However, the fact that Ms Meyn had such a specific memory of her furniture incident and queried such significant portions of Mr Wong’s notes in ways which draw a distinction between the impact of this incident and her current claim gives me cause to question this evidence and her overall credibility.
32 Allied with this issue of past medical history, the defendant noted in submissions that the 2012 and 2014 back history was not disclosed by Ms Meyn to Mr Kossmann, Dr Kennedy or Mr Speck. Certainly, those reports do not record a history given by Ms Meyn of the 2012 and 2014 events. Mr Speck noted that he had asked “twice” about relevant past medical history and Ms Meyn did not venture any past medical history of back problems.[36] In cross-examination, she was taken to the reports of Mr Kossmann and Dr Kennedy and it was put that she had not mentioned any incidents at age 17, in 2005, in 2012 or 2014.[37] Her evidence was that she had mentioned her age 17 fall and the 2005 motor vehicle accident,[38] but the doctors had simply not recorded those events. When looked at as a whole, the recordings of Mr Kossmann,[39] Dr Kennedy,[40] and Mr Speck[41] are uniform in the taking of the past medical history. None record the accurate history – that Ms Meyn had a fall at age 17, a motor vehicle accident in 2005 and problems in 2012 and 2014 involving her spine. It is difficult to assume they all asked as to pre‑existing problems and did not record what Ms Meyn told them accurately. Perhaps one doctor might not, but for all three to so comprehensively fail seems to me unlikely. I find that Ms Meyn did not properly disclose her past medical history to the medico‑legal practitioners who examined her. This tells against the believability of her evidence and impacts on their ultimate opinions.
[36]Report of Mr Speck, dated 20 February 2020, at DCB 10
[37]T19 – T20
[38]T20, L4 – 9
[39]Report of Dr Kossman, dated 25 February 2019, at PCB 30
[40]Report of Dr Kennedy, dated 11 July 2019, at PCB 68
[41]Report of Mr Speck, dated 20 February 2020, at DCB 10
33 Secondly, it was put to Ms Meyn that her treatment with Dr Harrod, the chiropractor, (28 times from December 2015 to December 2016) was effective such that she had little to no neck pain by late 2016.[42] Ms Meyn denied this assertion.[43] However, when regard is had to Dr Harrod’s notes, they do not support Ms Meyn’s assertion. On 28 June 2016, Dr Harrod has recorded pain as “1/10”.[44] Specifically, and importantly, his detailed note reads: “Past 25 days only one day pain which is today …” When pressed that this meant what it said, Ms Meyn responded that her pain was fluctuating, that the note was wrong,[45] and that she actually had pain for a few days.[46] She went on to say that her pain is usually more than 5/10 and fluctuating.[47] It was then pointed out that in September 2016, Dr Harrod recorded pain of 2/10 and “small discomfort in the neck”.[48] In the note for 30 November 2016, Ms Meyn was recorded as “asymptomatic” and on 21 December 2016 it was noted “Has not spoken of any symptoms”. Ms Meyn denied each of these recordings as accurately reflecting her situation at that time. I found it very useful to see Ms Meyn give evidence. At times she did not seem willing to grapple with the question being asked and counsel had to repeatedly ask for an answer from her. This was especially so during the exchange over Dr Harrod’s notes. I formed the impression that Ms Meyn was trying to explain away the obvious meaning of the series of recordings by a regular treating practitioner to suit her own case. This decreased the believability of her evidence. I consider the recordings of Dr Harrod to be most likely accurate and highly illuminating as to Ms Meyn’s spinal condition through the course of his treatment of her.
[42]T24
[43]T25, L13
[44]Clinical notes of Dr Harrod, entry of 28 June 2016, at DCB 57
[45]T24, L30
[46]T25, L9
[47]T25, L24
[48]T26, L2
34 This assessment is fortified by the last matter Ms Manova put to Ms Meyn regarding chiropractic treatment. It was put that she ceased seeing Dr Harrod at the end of 2016 because her symptoms had essentially resolved.[49] Ms Meyn disagreed. For the first time Ms Meyn then volunteered that she had returned to Mr Wong who had then referred her to another chiropractor. She nominated this chiropractor as “Ryan” in Keysborough. She said as this was too far for her, she went back to Mr Wong who then referred her to a chiropractor, Richard Squire, who she had seen since 2019. She gave evidence that she is still seeing this chiropractor every week.[50]
[49]T28, L10
[50]T64, L27. Also see the second Affidavit of Ms Meyn, affirmed 27 February 2020, paragraph [4], at PCB 10
35 There are several problems with this evidence. First, there was no mention of the referrals by Mr Wong to chiropractors Ryan or Richard Squires in her affidavit material. Second, these matters do not appear at all in the plaintiff’s affidavit material, save for referring to seeing a chiropractor once per week in her second affidavit.[51] Third, at paragraph [7] of the plaintiff’s affidavit,[52] she specifically refers to Mr Wong referring her for hydrotherapy – but there is no mention of what is surely critically relevant treatment for ongoing neck and back pain – being constant referrals to chiropractors. Fourthly, there is no material, notes or a report from Ryan or Richard Squires. Mr Valiotis did not seek to explain why this was so. Given those matters, I find it unlikely that Ms Meyn did seek chiropractic treatment after ceasing with Dr Harrod. This substantially affects the reliability of her evidence.
[51]Second Affidavit of Ms Meyn, dated 27 February 2020, paragraph [4], at PCB 10
[52]Affidavit of Ms Meyn, affirmed 27 February, at PCB 10
36 An allied point was put that Ms Meyn did not complain of any neck pain while seeing Dr Nadiger at Keysborough Medical Centre through 2017 and 2018. Counsel suggested that such was the case because Dr Nadiger had recorded nothing to do with neck complaints in any of her records.[53] Ms Meyn’s response was to suggest that she had told Dr Nadiger of her neck problems and in response Dr Nadiger had decided to investigate her leg, hip and back and then proceed from there.[54] I consider this unlikely. Over 20 consultations, with often detailed notations of symptoms, were undertaken by the Keysborough Medical Centre doctors during 2017 and 2018. There is no mention of neck symptoms in these notes. There is no confirmation of the course of action Ms Meyn suggest Dr Nadiger set out; ultimately, there is no investigation of the neck. There is no mention in her reports of neck symptoms either. For all these reasons I do not find Ms Meyn suffered neck symptoms while under the care of Dr Nadiger.
[53]T30 – T31
[54]T31, L28
37 Sixthly, the defendant submitted that Ms Meyn had sought to suggest she had right hip problems arising from the motor vehicle accident when, in fact, such a condition arose separately and much later. The starting point to this argument was the history Ms Meyn gave to Mr Kossmann. Ms Manova read to her from this report in the following terms: “After the accident she suffered immediately from neck pain, pain in the buttock and right hip.” Ms Meyn unequivocally adopted that recording of what she had said to Mr Kossmann as correct.[55] When pressed on why there was no contemporaneous recording of such right hip problems (at Interhealth, Dr Harrod or Mr Wong), she almost immediately went back on her evidence given to say:[56]
“Immediately. It was not immediately. It progressed as the years went.”
[55]T36, L21-24
[56]T37, L25
38 She then sought to suggest that as she returned to work the hip pain began to become noticeable.[57]
[57]T38, L23-25
39 Her evidence was confusing at best. I consider it unreliable because it varied so much in cross-examination. It is also inconsistent with the recording of an orthopaedic treating specialist, Dr Jones. He was specifically sought out by Ms Meyn to treat her right hip condition. He took a history that her right hip problems began in 2017.[58]
[58]Report of Mr Jones, dated 3 July 2018, at DCB117
40 I prefer the contemporaneous notes which reveal no recording of right hip symptomatology until some time in 2017, on the history to Dr Jones, but specifically recorded as 14 May 2018 when it was noted by Dr Nadiger at Keysborough Medical Centre.[59] Ultrasound ultimately confirmed trochanteric bursitis.[60] Ms Meyn ceased work at around this time.
[59]Clinical notes of Dr Nadiger, entry of 14 May 2018, at DCB 52
[60]15 May 2018, at PCB 25
41 The reason for the great variance in Ms Meyn’s evidence as to the onset of hip symptoms is not reconcilable with the contemporaneous notes. However, she was very specific in the history she gave to Mr Kossmann that she ceased work because of, in part, pain issues in her right hip.[61] This is a matter which goes to the consequences Ms Meyn alleges flow from the transport accident.
[61]Report of Mr Kossman, dated 25 February 2019, at PCB 30
42 Seventhly, as to her right shoulder, up to the commencement of the serious injury trial, it was Ms Meyn’s case that her right shoulder problems emanated from the motor vehicle accident.[62]
[62]Second Affidavit of Ms Meyn, dated 27 February 2020, paragraph [22], at PCB 13
43 In her affidavit, she deposed as such;[63] that her right shoulder problems were present when she returned to work in January 2016. In cross-examination, however, she admitted that her right shoulder problems did not start until about two years after the motor vehicle accident.[64] That inconsistency between her affidavit and evidence in cross-examination cannot be explained in any sensible way. It was confusing at best. 1
[63]Affidavit of Ms Meyn, affirmed 16 May 2019, paragraph [15], at PCB 3
[64]T40, L27. See also clinical note of Mr Wong, entry of 28 December 2017, at DCB 113
44 It was then suggested that the right shoulder injury occurred in circumstances where she was helping her parents move[65] as recorded in Mr Wong’s notes. Ms Meyn gave evidence that all she was doing was moving a “small little box” not carrying it, but moving it from side to side.[66] There are several difficulties in accepting this evidence; it is not disclosed in any affidavit; it is not disclosed to any medico‑legal practitioner; it seems highly implausible that a box that was so small and little could cause such problems. Overall, I consider Ms Meyn’s evidence unreliable. Rather, I find that her right shoulder injury is not related to the motor vehicle accident but rather more likely to a lifting incident. To this extent I prefer the contemporaneous recording of Mr Wong to the plaintiff’s evidence in cross-examination.
[65]Clinical notes of Mr Wong, entry of 28 December 2017, at DCB 113
[66]T42, L7 – 10
45 Eighthly, it was put that Ms Meyn had failed to disclose the establishment a business named Mystic Events, in April 2018. She did not disclose this in her first affidavit at all. It appears this was a hire business for functions.[67] Ms Meyn’s evidence was that she only did four to five functions because it became too difficult to do the linen washing associated with it.[68] This was not in her affidavit, either the first or the second affidavit. Ms Meyn said she did not disclose this because she did not think it relevant. However, she had stated in her first affidavit that she ceased work because of her injury, she knew clearly her capacity for work was an issue and she had belatedly disclosed the fact of the business in her second affidavit. This answer does not then seem logical. This is because, if work capacity was relevant in her first affidavit, it remained relevant at the time of the swearing of the second affidavit. Despite it then being a relevant matter, she did not disclose it.
[67]T50
[68]T53, L25
46 Further, she explained that for each function she charged somewhere between $60 and $100 in total. I consider this to be a nominal figure. It does not seem logical to charge such a small price. I consider the evidence of Ms Meyn confusing at best. I do not accept it. I consider the true situation, whatever it was, to be concealed so as not to have a detrimental effect on her case.
47 Ninthly, Ms Meyn also gave evidence that she regularly used a crutch or walking stick. Her evidence was not entirely precise, but I took from it that in 2019 she used a crutch when she was outside the home to help with her balance.[69] When she attended Mr Kossmann, in 2020, she had an elbow crutch. Dr Turnbull in his last report recorded that she used a walking stick.[70]
[69]T66, and see report of Mr Speck, dated 20 February 2020, at DCB 8; Report of Dr Weissman, dated 30 May 2019, at PCB 58
[70]Report of Mr Kossmann, dated 25 February 2019, at PCB 26 and Report of Dr Turnbull, date 20 November 2019, at PCB 26
48 Surveillance video was then shown. It was of four dates from July to December 2019, each showing Ms Meyn outside of the home. In none of these videos was a stick or crutch used by Ms Meyn when walking. It must be noted that this was a small sample of the overall surveillance. My impression of the film overall was that it was not decisive in demonstrating Ms Meyn was lying about using a crutch, but it provides support for an argument that she was not being entirely candid or was embellishing her symptoms.
49 Tenthly was Ms Meyn’s claim that she struggled to engage in air travel by reason of her injuries. She deposed that in October 2018 she was unable to travel to India for her mother-in-law’s funeral. She deposed further that her ability to visit her brother-in-law in Queensland was also limited by reason of her spinal injury.[71] She deposed to that fact in her affidavit sworn 16 May 2019. That date is important. While her affidavit deposed to a trip to Thailand in 2017, it makes no mention of the trip to Japan on 6 February 2018. It was pointed out that her trip to Thailand was spent as many family holidays are – “relaxing with some swimming” (as her Affidavit deposed) – and that she could not point to any other restrictions. It was a point well made, especially given that by this stage Dr Harrod recorded her having a good response to treatment and Dr Nadiger at Keysborough Medical Centre was not recording any spinal problems. It was also prior to her developing the right hip pain.
[71]Affidavit of Ms Meyn, affirmed 16 May 2019, paragraph [50], at PCB 7,
50 What is even more significant is that Ms Meyn did not depose in her first affidavit, sworn 16 May 2019, to travelling to India on 27 March 2018 for five weeks. Furthermore, she again travelled to India on 17 August 2019 for some weeks.[72] This was not disclosed in her affidavit either. Given Ms Meyn had considered it relevant to mention her inability to fly to India in October 2018 and Queensland because of her back injury, the failure to mention her trips to Thailand and twice to India is a significant omission which tells against her credibility. Overall, I did not consider her evidence to reveal the full picture of her situation.
[72]Incoming passenger card, dated 9 September 2019, at DCB 61 and Movement details, entry of 9 September 2019, at DCB 66
ISSUE 2: THE IDENTIFICATION OF THE INJURY RELIED ON
51 Moving away from that evidence, I consider it necessary to establish what injury was caused in the motor vehicle accident. To do so I focus primarily on the medical material but am informed to some extent by Ms Meyn’s evidence given the limitations I have in accepting it, as set out above. It is to be remembered that Mr Valiotis relied only on an injury to the spine in the application before the Court. He disavowed any reliance on the right shoulder and specific injury to the right hip. Rather he argued that pain in the sacroiliac joint was referring pain to the hip.[73]
[73]T112, L25 - 31
52 Ms Meyn’s evidence as to the spinal injury sustained in the motor vehicle accident is from:
(a)Mr Kossmann who opined it was:
(i)lumbar spondylosis in the form of a posterior disc protrusion, mild canal stenosis and facet joint degeneration.
(ii)cervical spondylosis in the form of a small disc protrusion at the C5/6 level with facet joint degeneration at C7/T1.[74]
Save to say there is “a direct relationship” between the motor vehicle accident and the above injuries, he says no more as to identify the injury caused. For example, that there was an aggravation of the spondylosis, canal stenosis or facet joint degeneration.[75]
(b)Dr Kennedy opined Ms Meyn had sustained myofascial injuries to, inter alia, her neck and thoracolumbar spine from the motor vehicle accident.[76] I do not find this particularly useful or illuminating in determining what spinal injury was caused in the motor vehicle accident, if any.
(c)Associate Professor Goldschlager opined that the MRI scan of her cervical spine was normal, with no typical radicular pain or symptoms.[77] I interpolate that I consider this to mean no organic basis for the neck pain could be found. He commented that the MRI scan of the lumbar spine was normal. Given his history, radiology findings and the fact he did not treat her for the spine further but referred her for right hip treatment, I consider that he did not find an organic basis for the lumbar pain. Even if it were otherwise, he did not identify the injury caused by the motor vehicle accident.
(d)Mr Speck considered that Ms Meyn had soft tissue injuries to her neck and back without evidence of radiculopathy, but which had resolved and left a chronic pain syndrome.[78]
[74]Report of Mr Kossmann, dated 25 February, at PCB 37
[75]Report of Mr Kossmann, dated 25 February, at PCB 37 and report of Mr Kossmann, dated 27 February 2020, at PCB 51
[76]Report of Dr Kennedy, dated 11 July 2019, at PCB 71
[77]Report of Associate Professor Goldschlager, dated 12 October 2018, at PCB 20
[78]Report of Mr Speck, dated 20 February 2020, at DCB 18
53 Taking the evidence as a whole, I prefer the opinion of Mr Speck. He is the only doctor to have considered the notes of Interhealth, Mr Wong, Dr Harrod and Keysborough Medical Centre. This provides him with a unique insight, which is critical to understanding the state of Ms Meyn’s spine at the time of the motor vehicle accident and subsequently. I consider that had Mr Kossmann had this material, it may well have changed his view. Despite Mr Kossmann providing a report just prior to trial, he was not armed with this relevant information. There was no explanation as to why this was so.
54 Further, I consider Mr Speck’s opinion fits with Ms Meyn’s symptoms as reported to Dr Harrod – that of gradually subsiding neck and low back symptoms over 2016. To this end, the recordings of Keysborough Medical Centre over 2017 do not make much note of neck and back pain which once again fits Mr Speck’s opinion.
55 Even if I am wrong about that, I consider Mr Kossmann’s opinion to insufficiently define the injury said to be caused in the motor vehicle accident. It has been made clear in numerous cases since Petkovski that where the claimed injury is put on the basis of an aggravation of an underlying condition, then the scope of the aggravated condition must be identified to some degree.[79]
[79] AG Staff Pty Ltd v Filipowicz: Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60, at [22]
56 Here Mr Kossmann does not even descend to identifying the injury as an aggravation of underlying degenerative changes. He simply states there is a direct relationship between the spinal condition and the motor vehicle accident. However, by its very nature the spondylosis is a degenerative condition and “what direct relationship” does the motor vehicle accident have to that is entirely unclear.
57 Ms Meyn also argued that the lumbar spine injury caused pain to the right hip. I do not accept that submission given the history given to Mr Goldschlager of pain in the right hip starting only in mid-2017, ultimately it being disclosed to Dr Nadiger in May 2018, and her view that it was related to specific hip pathology, being trochanteric bursitis.[80] This is supported by Mr Jones.[81] Given the timing of right hip symptoms and the opinions of both treating specialists I consider her right hip condition unrelated to her spinal pathology. The highest Ms Meyn’s case on this point reaches is Mr Kossmann’s view that her back pain caused the limp which “may” (his words) have caused the right hip symptoms. This opinion is insufficient to satisfy the plaintiff’s standard of proof.
[80]MRI report from Capital Radiology, dated 7 June 2018, at PCB 16 and report of Associate Professor Goldschlager, dated 12 October 2018, at PCB 21
[81]Report of Mr Jones, dated 3 July 2018, at DCB 117
58 Even if it were accepted that Ms Meyn had sustained an aggravation of spinal changes by reason of the motor vehicle accident, she cannot demonstrate, with the clarity required, the consequences of that injury. This is because of the effect of her co-existing conditions, being to the right hip and right shoulder. The best example of this is Mr Kossmann’s analysis of her symptoms.[82] He described significant pain and movement restrictions in the right hip, left hip, right shoulder, right knee and right big toe. He makes no mention of the spinal condition. He makes comment that she ceased work particularly due to pain issues from her right hip which affected her ability to walk, sit and stand.[83] While Ms Meyn relies on her cessation of work as a significant consequence of the injury sustained in the motor vehicle accident, I consider the evidence points in other directions:
[82]Report of Mr Kossmann, dated 9 January 2020, at PCB 46
[83]Report of Mr Kossmann, dated 9 January 2020, at PCB 46
(i)she was working normal hours until the time the right hip problems began;
(ii)the opinion of Associate Professor Goldschlager that her main problem was to her right hip; and
(iii)the evidence of Dr Harrod of resolving spine pain in 2016[84];
(iv)the evidence of Keysborough Medical Centre in 2017/2018 of limited to no spinal problems[85];
(v)the evidence of Interhealth Medical Centre that her current condition is of soft tissue injuries resulting in chronic pain from injuries to the neck, right shoulder, low back and right hip – a totality of conditions.[86]
[84]Clinical noted of Dr Harrod, entry of 22 July 2016, at PCB 57
[85]Patient Health Summary of Mrs Meyn, Keysborough Medical Centre, entries from 1 September 2017 to 8 June 2018, at DCB 48 - 54
[86]Report of Dr Turnbull, dated 20 November 2019, at PCB 27
59 I place little to no weight on Ms Meyn’s affidavit evidence for the reasons set out above.
60 For the following reasons then I would refuse Ms Meyn’s application:
(i)my findings as to credit such that Ms Meyn’s evidence is not believable;
(ii)the inability to rely on those medical practitioners Ms Meyn calls in aid given they have based their opinions on incorrect assumptions of fact related to incomplete histories.
(iii)the failure to identify the injuries sustained in the motor vehicle accident;
(iv)the failure to properly identify the consequences said to flow from the alleged spinal injury sustained in the motor vehicle accident.
61 In all the circumstances I deny the plaintiff’s application. I will hear the parties on costs.
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