McCabe v Transport Accident Commission

[2021] VCC 1203

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-04585

STACEY FRANCES McCABE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:	eHearing
DATE OF HEARING:	23 August 2021
DATE OF JUDGMENT:	27 August 2021
CASE MAY BE CITED AS:	McCabe v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1203

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – paragraph (a) and (b) of the definition of “serious injury” – injury to the spine – scarring to the left side of forehead

Legislation Cited:      Transport Accident Act 1986, s93(17);

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Hooley v Transport Accident Commission [2019] VSCA 263

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W Middleton QC with Mr M Fogarty	Arnold Dallas McPherson Lawyers
For the Defendant	Mr A J McG Moulds QC with Ms B Myers	Solicitor for the Transport Accident Commission

HER HONOUR:

1On 11 June 2014, when she was 17 years of age, Ms McCabe was injured in a transport accident, when the car she was a back seat passenger in collided with a car travelling in the opposite direction (“the transport accident”).  In this accident, Ms McCabe suffered injury to her back, and also sustained a cut to her forehead. Ms McCabe has since had two children and undertaken some casual work in the hospitality industry, but she claims she suffers ongoing low back pain which impacts her life on a daily basis.

2In order for Ms McCabe to be entitled to claim common law damages for the injuries she suffered in the transport accident, the impairment to her spine must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act”). In the alternative, Ms McCabe must satisfy me that the scar on her forehead meets the definition of “serious injury” contained in paragraph (b) of the same section of the Act.

3Only Ms McCabe was called to give evidence.  Also in evidence were medical reports, clinical records and other material.  I have read these tendered documents, together with the transcript of the proceeding.  I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to, and explain, the conclusions reached in this judgment.

4For the reasons which follow, I am satisfied that the consequences to Ms McCabe from her spinal impairment can be described as “at least very considerable” such that she should therefore be granted leave to commence common law proceedings.

Ms McCabe’s life before the transport accident

5Ms McCabe left school after Year 10 and thereafter worked on a dairy farm.

6Mc McCabe stated that prior to the transport accident, she enjoyed horse riding and, when she had previously lived with her parents, she rode her own horse every day.  Ms McCabe said she also loved camping and fishing and would regularly go to Glendinning or Rocklands Reservoir.

The transport accident and its consequences to Ms McCabe

7Ms McCabe stated that, in the transport accident, she briefly lost consciousness.  She was then taken to Hamilton Hospital, where a laceration to her eyebrow was glued and x-rays were performed.  Ms McCabe was discharged the following day.

8Ms McCabe said that she thereafter experienced back and stomach pain.  

9Ms McCabe said that she was prescribed Tramadol for her pain.

10On 9 October 2014, Ms McCabe underwent an MRI scan which was reported as demonstrating single level disc degeneration at L4-5, with small central disc protrusion with mild indentation on the theca and questionable posterior displacement of the right L5 nerve.

11In late 2014, Ms McCabe commenced physiotherapy treatment with physiotherapist, Ms Lucy Manganiello, at Physio Freedom in Hamilton.  In a report dated 4 February 2015, Ms Manganiello noted that Ms McCabe reported high levels of pain throughout the central spine, as well as some numbness and weakness into the legs.  Ms Manganiello considered that her symptoms were musculoskeletal in nature and recommended that Ms McCabe see a specialist, and undergo a gym and swim program.

12In early 2015, Ms McCabe became pregnant, at which time she stopped taking Tramadol.  Instead Ms McCabe said that she tried to manage without painkilling medication, but when it was especially bad, she would take Nurofen.  Ms McCabe said that no doctor had expressly told her she could not take such medication whilst pregnant, but she herself did not want to take such medication during her pregnancy, as she worried for her unborn child.  Ms McCabe said that her pregnancy caused her increased back pain.

13In November 2015, Ms McCabe gave birth to her first child.  She had a second child in March 2017.

14From 16 April 2018 to 26 July 2018, Ms McCabe undertook some casual work at the Commercial Hotel in Hamilton.  Ms McCabe said that she worked behind the bar and did waitressing.  Ms McCabe said that over time her back pain worsened.  She said that being on her feet for a long time and carrying plates was very painful.

15From 13 August 2018 until 31 March 2019, Ms McCabe worked at the Hamilton and Alexander College as a kitchen hand in the school’s boarding house. Ms McCabe said that she found it difficult lifting heavy trays and struggled to work at larger functions, which went for many hours.  Ms McCabe said that, due to worsening back pain, she ultimately resigned from this employment and has not since undertaken any employment.

16In March 2019, Ms McCabe commenced attending upon general practitioner, Dr Saika Sabrin, at Hamilton Family Practice.  She arranged for an x-ray to be taken of Ms McCabe’s lower back on 28 March 2019, which Dr Sabrin stated demonstrated lumbar scoliosis with no disc space loss and subluxation, with no sign of ongoing injury or an old injury.

17In April 2019, Ms McCabe attended physiotherapist, Ms Stephanie Farquharson, at Flexx Physiotherapy in Hamilton.  Ms McCabe attended this clinic on three occasions, through until October 2019.  In a report dated 4 February 2021, Ms Farquharson noted that Ms McCabe stated that her symptoms were gradually worsening over time and that she was in pain most of the day, which made functional tasks difficult, including caring for her young children.  Ms Farquharson was of the opinion Ms McCabe suffered chronic lower back pain, on the background of what was potentially an unstable disc bulge and for which Ms Farquharson recommended a specialist review.  Ms Farquharson noted that over the period in which she treated Ms McCabe, her pain levels appeared to be gradually worsening.

18Ms McCabe said that she felt that the physiotherapy treatment made her back feel worse and therefore she did not continue to attend for further treatment.

19In June 2019, Ms McCabe was referred by Dr Sabrin to physician, Dr Nick Barraclough.  However, Ms McCabe said that she never attended the appointment with Dr Barraclough as she understood it was recommended that she see a neurologist instead.  Ms McCabe could not recall being referred to Barwon Health to see a neurologist or to undergo further medical imaging.

20Ms McCabe said that she attended an osteopath for treatment, but the manipulation performed on her was very painful and she said she did not reattend.

21In early 2020, Ms McCabe also attended a chiropractor approximately three times.  Ms McCabe said that treatment did not assist either, and that she has had no further treatment for her lower back since that time.

22Ms McCabe said that she has not consulted Dr Sabrin since April 2020 in respect of her lower back pain, as she felt that Dr Sabrin was not interested in helping her properly.

23In a report dated 18 February 2021, Dr Sabrin confirmed that Ms McCabe had attended upon her in respect of her back pain and that she had been referred to a physiotherapist and prescribed different pain medications.  Dr Sabrin noted that nothing had been effective in respect of her back pain.  It was noted that Ms McCabe had been referred to a specialist for further management, but that she “chose not to attend”.

24In a subsequent report dated 5 August 2021, Dr Sabrin was asked to comment on medico-legal opinions provided to her and whether she considered Ms McCabe’s back pain to be related to the transport accident.  Dr Sabrin stated that it was possible that Ms McCabe may have suffered soft tissue injury after the transport accident, but she was of the opinion that such soft tissue damage had resolved over time, such that the transport accident was no longer contributing to her current condition.

25Ms McCabe stated that she continues to suffer constant, fluctuating low back pain every day and that the pain is made worse with activity.   She stated that she experiences a constant, aching pain with flare-ups of severe back pain about two to three times a week.  On these days, she stated that she experiences a throbbing, burning pain in her low back with intermittent leg pain.  She also stated that at times, she experiences strong pins and needles sensations in both legs.

26Ms McCabe said that Dr Sabrin had prescribed different medications for her pain, including Celebrex, Lyrica, Tapentadol and Panadeine Forte.  However, Ms McCabe said these medications made her feel nauseous so she stopped taking them.  Instead, Ms McCabe said that she purchases Panadol and Nurofen from the supermarket and takes up to 24 of each tablet per week.  In addition, Ms McCabe said that she uses heat packs on her lower back and has hot showers and hot baths to assist in alleviating her back pain.

27Ms McCabe stated that her pain causes her difficulty in looking after her children, in terms of bathing and dressing them and picking them up and cuddling them.  Ms McCabe stated that getting her children in and out of their car seats and bending down to pick up their toys causes her increased pain.

28Ms McCabe stated that she is restricted in her ability to perform housework such as washing the clothes, hanging out washing, vacuuming, mopping the floors and making the beds because of her back pain.  She stated that she relies on help from her partner and his mother to help with caring for her children and heavier jobs around the house.  She said that she could only wash dishes in intervals for about five minutes at a time before taking a break.

29Ms McCabe stated that her social life has deteriorated and said that she likes to stay at home in her “own little bubble”.  She stated that she usually only leaves her house to take her children to school, kinder or play dates, or to go shopping.  Ms McCabe stated that sitting and standing for long periods at venues and driving long distances causes her increased back pain such that she generally avoids going to social events or going dancing.

30In January 2021, Ms McCabe was able to go camping with her children for two nights.  She stated that she took an air mattress to sleep on, but that she hardly slept due to back pain.  Ms McCabe said that after two days they went home, whereas their friends stayed on for a week.  Ms McCabe said that, if not for her back pain, she and her family would have stayed on too.

31Ms McCabe said that she is someone who “likes to push through…[and] hate[s] sitting at home feeling useless”.  Ms McCabe stated that she is concerned about her future employment prospects.  She stated that on the occasions that she has tried working since the accident, she had to stop because of her back pain.  Ms McCabe stated that she worries about her financial future and is now planning to undertake an online course in nail technology.  Ms McCabe said she will start this when her youngest child starts school next year.  However, she has some concerns about whether she will be able to do this sort of work with her back pain, particularly if the work requires extended periods of sitting down.

32Ms McCabe stated that before the accident she had wanted to work with animals, particularly horses, but does not believe that she could work with large animals now.

33Ms McCabe stated that she has broken sleep every night due to back pain and struggles to sleep for more than two hours at a time.  She stated that the disrupted sleep often puts her in a bad mood.  In cross-examination, Ms McCabe disagreed with the proposition that her young children contribute to her poor sleep, as they have both “always been good sleepers”.

34Since the accident, Ms McCabe stated that she has been an anxious driver, particularly on narrow country roads and avoids them if possible.  She stated that she gets increased back pain if she drives for long periods.

Medico-legal evidence

35In November 2019, Ms McCabe was examined by sports and industrial physician, Dr David Kennedy.  In a report dated 6 December 2019, Dr Kennedy detailed the circumstances of the transport accident and Ms McCabe’s clinical progress since that time.  At the time of the examination, Dr Kennedy noted that Ms McCabe complained of constant low back pain and stiffness, with such pain aggravated by bending, twisting and turning, as well as manual handling loads with pushing, pulling, lifting and carrying.  Dr Kennedy also noted a complaint by Ms McCabe of intermittent numbness into her legs, with restricted sitting and standing tolerances.  Dr Kennedy also noted that Ms McCabe had difficulty looking after her children, as well as performing domestic duties.

36On examination, Dr Kennedy noted that the thoraco lumbosacral spine had tightness and tenderness, with muscle guarding in the lumbosacral region.

37Dr Kennedy was of the opinion that as a consequence of the transport accident, Ms McCabe had sustained a significant injury to her lumbosacral spine, with damage to the L4-5 intervertebral disc with involvement at the L5 spinal nerve root.  Dr Kennedy considered that her injuries were consistent with the description of the transport accident and there were no obvious discrepancies between her current symptom presentation and the clinical findings on examination.  Dr Kennedy considered that Ms McCabe’s prognosis was guarded and that, on the balance of probabilities, she would continue to have problems with pain and restricted movements in her lumbosacral spine due to the injury sustained in the transport accident.

38In April 2021, Ms McCabe was examined by orthopaedic surgeon, Mr Gary Speck.  In his report dated 31 May 2021, Mr Speck detailed the history obtained from Ms McCabe, together with a summary of the clinical records and other reports provided to him.  On examination, Mr Speck noted there was some restriction in movement of the lumbar spine and some tenderness on palpation.

39Mr Speck then provided a synopsis in respect of Ms McCabe’s condition.  He stated that he considered her symptoms had subsequently improved, as “recorded by the general practice over six months”.

40I do not accept this as an accurate summary of the records of the medical clinic which Ms McCabe attended in the two years subsequent to the transport accident.  Although such clinical records were not tendered, in his report, Mr Speck summarised them, including the following attendances:

·        On 13 January 2015, it was noted that the plaintiff reported that her back pain was getting worse with “unbearable pain”.  It was noted that physiotherapy was not helping and she needed more Tramadol.

·        On 9 February 2015, it was noted that Ms McCabe’s lower back hurt while doing vacuuming, dishes and standing for any period of time.

·        On 3 May 2016, it was noted that Ms McCabe complained of chronic back pain for which she took Panadol.  It was noted that this had occurred since the transport accident and that her pregnancy worsened the pain.

41Therefore, with such attendances, it is unclear to me the basis upon which Mr Speck stated that Ms McCabe’s symptoms subsequently improved.  It also does not accord with Ms McCabe’s evidence that the pain has persisted since the transport accident and worsened over time.

42In his report, Mr Speck commented that the MRI scan of October 2014 revealed degenerative change within the disc which he stated was likely to have been pre‑existing and that “although uncommon disc desiccation is found in 17% of patients under 20 years of age”.  Mr Speck noted that he did not view the MRI film, but rather considered that the report indicated disc disruption rather than bulging, and that there was no report of nerve compression.  Further, given the absence of medical records with reports of pain from February 2017 and March 2019, Mr Speck concluded that Ms McCabe had suffered a soft tissue injury to her abdomen and lower back, but that her current presentation was one of chronic pain syndrome and not related to the transport accident.

43In March 2021, Ms McCabe was assessed in a telehealth appointment by neurosurgeon, Dr Michael Ow‑Yang.  In a report dated 17 March 2021, Dr Ow‑Yang detailed Ms McCabe’s history and treatment provided in respect of the injury suffered in the transport accident.  Dr Ow‑Yang noted that Ms McCabe complained of constant low back pain and stiffness, with such pain aggravated by bending, twisting, turning, lifting, pushing and pulling.  Dr Ow‑Yang also noted a complaint of intermittent numbness into legs, with her legs occasionally giving way.

44Dr Ow-Yang referred to the MRI scan taken in October 2014, and stated that, in his opinion, Ms McCabe had suffered an L4-5 disc injury and small central disc protrusion resulting in chronic L4-5 discogenic low back pain.  Dr Ow‑Yang also noted the facial scarring which Ms McCabe had suffered in the transport accident.

45Dr Ow‑Yang was of the opinion that Ms McCabe’s lower back injury and the resulting impairment resulted in her being unfit to work as a kitchen hand.  He considered that she had the capacity to perform suitable employment with a lifting capacity of up to 5 kilograms, with no repetitive bending or twisting and working at bench height.

46In a supplementary report dated 6 August 2021, Dr Ow‑Yang reviewed Mr Speck’s report and stated that he disagreed with Mr Speck’s conclusion.  Dr Ow‑Yang stated that he considered the MRI scan demonstrated a significant structural injury which was the cause of Ms McCabe’s chronic mechanical low back pain.  Dr Ow‑Yang was of the opinion that a soft tissue injury could not cause such ongoing low back pain over a seven-year period.  Further, Dr Ow‑Yang noted that there was no prior history of low back pain indicating the absence of any pre-existing symptomatic lumbar disc disease.  Therefore, Dr Ow‑Yang concluded that the mechanism of injury in the transport accident was sufficient to result in structural injury as noted in the MRI report.

Credibility and reliability

47Ms McCabe was an impressive, candid and genuine witness.  Ms McCabe answered questions directly and in a straightforward manner.  She did not seek to embellish any claimed consequences.  When Ms McCabe was asked about her capacity to garden, she readily stated that she hates gardening and it was not something she would do, even before her back injury.  Ms McCabe also conceded that, with young children, her opportunities for horse riding would be limited.

48The defendant made no criticism of Ms McCabe’s reliability as a witness, save for her evidence regarding the referral by Dr Sabrin for her to see a neurologist and for further medical imaging to be conducted.  However, I accept Ms McCabe’s evidence that she had never heard from Barwon Health.  Whether the reason for this was confusion on the part of Ms McCabe, or poor communication from Dr Sabrin’s clinic, or a combination of both, I consider Ms McCabe’s evidence on this to be genuine, and it did not cause me to doubt in any way her credibility and reliability as a witness.

Why the consequences to Ms McCabe are “very considerable”

49In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[1] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the court should have regard to what the plaintiff says about the pain, what the plaintiff does about the pain, what the doctors say about the extent and intensity of the plaintiff’s pain, and what objective evidence shows about the disabling effect of the pain.  The weight to be attached to the plaintiff’s account of pain depends largely upon an assessment of the plaintiff’s credibility.  President Maxwell noted that the court will make its own assessment of the plaintiff’s credibility based upon the evidence provided, and said that the court may also take into account the views expressed by examining doctors as to the reliability of the plaintiff’s accounts of pain.[2]

[1] (2010) 31 VR 1

[2]        (Ibid) at paragraphs [9]-[12]

50As stated previously, I consider Ms McCabe a creditworthy and reliable witness.  I have no hesitation in accepting her evidence in its entirety.  Ms McCabe’s credibility bears significantly on my assessment of her evidence regarding the longevity and account of her pain experience.

51As indicated above, I consider Mr Speck overstated the improvement of Ms McCabe in the six months after the accident.  Mr Speck’s opinion appears to be based on Ms McCabe’s symptoms resolving at some stage.  As I accept that her back pain has persisted since the transport accident, I prefer the opinions of Dr Kennedy and Dr Ow‑Yang to that of Mr Speck.

52The opinion of Dr Sabrin, in respect of causation, is of limited assistance to me, in part as she has only commenced treatment of Ms McCabe more than four years after the accident.  Further, I prefer the medical opinions of more qualified specialists when considering if the lower back pain, which I am satisfied has persisted since the accident, is related to a disc injury suffered in the transport accident.

53I accept Ms McCabe suffers the following consequences from her spinal impairment:

·        constant pain for which she requires painkilling medication on a daily basis;

·        restrictions in her ability to care for and interact with her children;

·        restrictions in her ability to perform domestic duties in her home;

·        restrictions in her ability to perform paid employment, such that it is necessary for her to avoid jobs which involve lifting more than 5 kilograms and repetitive bending and twisting;

·        interference with her sleep;

·        inability to go horse riding – although this is something that she would not be able to perform on regular occasions now.  For a young mother living in country Victoria who previously enjoyed this as a pastime, I accept that this is a consequence of some significance, both now and into the future.

·        restrictions on her ability to go camping, such that she is limited in the number of nights that she can stay away due to increased back pain from sleeping in a camp environment.  Again, for a young mother living in country Victoria who previously enjoyed this as a pastime, I accept that this is an ongoing consequence of some significance.

54In determining this case, I have considered that Ms McCabe is still very young. She was seventeen years of age at the time of the transport accident, and she has already endured seven years of pain in her back.  She will face such impairment consequences for decades to come.  As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:[3]

“… when judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period to which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”

[3][2009] VSCA 181 at paragraph [43]. Affirmed in the Court of Appeal decision of Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [51]

55In view of the foregoing, I am satisfied that, when judged by comparison with other cases in the range of possible impairment or losses, the consequences to Ms McCabe can be fairly described as “at least very considerable”.  I therefore grant Ms McCabe leave to commence common law proceedings in respect of the injuries she suffered in this transport accident.

56In circumstances where I am satisfied that Ms McCabe should be granted leave to commence such proceedings under sub-paragraph (a), it is not necessary for me to separately determine whether the scarring on her forehead is also “serious”.

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