McEvoy v Transport Accident Commission
[2015] VCC 431
•16 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-00921
| MEREDITH McEVOY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2015 | |
DATE OF JUDGMENT: | 16 April 2015 | |
CASE MAY BE CITED AS: | McEvoy v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 431 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Richards v Wylie (2000) 1 VR 79; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages in respect of the injuries and loss suffered by her by reason of the 19 July 2005 transport accident.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with Mr A D B Ingram | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr G A Lewis QC with Ms F S Spencer | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages with respect to the injuries suffered by her in a transport accident which occurred on 19 July 2005.
2 The injury the subject of the application involves a soft-tissue injury to the cervical spine. The impairment of function is that of the cervical spine.
3 In the proceeding, the plaintiff relies upon three affidavits, sworn 22 October 2012, 22 December 2012 and 18 March 2015 respectively.
4 In response to a query directed by myself to Senior Counsel appearing on behalf of the plaintiff as to the deficiencies in the plaintiff’s first two affidavits and the difficulty which arose in charting the consequences of the injuries as set out, the position taken on behalf of the plaintiff was that:
· The application was based primarily upon the material contained in the plaintiff’s affidavit sworn on 18 March 2015; and
· The previous affidavits, in particular the affidavit of 22 December 2012, contained “a lot of waffle” which was not helpful.
5 I accept that position and accordingly, in determining the issues which arise in this matter, in the absence of the parties having directed my attention to matters contained in the plaintiff’s first two affidavits, I will focus my attention primarily upon the content of the plaintiff’s third affidavit, her viva voce evidence and the probative medical evidence, unless the plaintiff’s earlier affidavits contain some matter of relevance.
6 In the application, the plaintiff relies upon an injury to the cervical spine, resulting in consequential symptoms to her right shoulder, the plaintiff’s position being that the consequences of the injury suffered to her cervical spine give rise to her primary current incapacity.
7 There is no issue that the plaintiff has had a history of experiencing significant problems with her right shoulder since the accident. It is put on behalf of the defendant:
· That the plaintiff’s right shoulder symptoms emanate from discrete pathology in the right shoulder;
· That the influence of the plaintiff’s right shoulder symptoms must be isolated when considering the consequences of the impairment of function in the plaintiff’s cervical spine; and
· That the evidence in this instance does not allow such a process to be undertaken, in that it fails to identify with sufficient clarity the discrete effect of each condition.
8 In the proceeding, the plaintiff gave viva voce evidence and was cross-examined. Otherwise the parties rely upon the material tendered by them which have been marked as exhibits in the proceeding.
9 In my opinion the first two affidavits relied on by the plaintiff in this proceeding largely constitute an abuse of process, in that their structure is such that they do little to identify the consequences to the plaintiff of the injuries and impairments listed in the plaintiff’s Particulars of Injury dated 11 July 2012 namely:
(a) A serious long-term impairment or loss of body function involving injury to the spine, in particular the cervical and thoracic spine;
(b) A serious long-term impairment or loss of body function involving injury to the right upper extremity, in particular the shoulder;
(c) A serious long-term impairment or loss of body function involving the left upper extremity;
(d) A serious long-term impairment or loss of body function involving injury to the right lower extremity, in particular the foot and knee;
(e) A severe long-term mental or severe long-term behavioural disturbance or disorder.[1]
[1]In this application the injuries particularised in paragraphs (b) through to (d) above are not relied upon
10 In making that statement, I am expressing no criticism of the plaintiff or the plaintiff’s current solicitors in the preparation of that material.
11 The following matters which are set out in the plaintiff’s first two affidavits are not in issue:
· The plaintiff was born in September 1965. She is married and has three children.
· Having completed her Year 11, the plaintiff obtained a Certificate III in Interior Decoration at RMIT in approximately 1998. She then undertook self-employment as an interior decorator and subsequently, took up a position as a director of a company (The Property People) which was involved in the preparation of houses to facilitate their sale. In that work, the plaintiff undertook activities including the furnishing and, to some extent, decorating, and to a limited extent, decorating those properties, so as to maximise the prospects of achieving a sale of the properties.
· The plaintiff had, prior to the subject transport accident, suffered from some neck and back discomfort, in respect of which she had attended Dr Trevor Junge, a chiropractor, for what she described as maintenance therapy.
· The effect of the 2005 transport accident was to cause the plaintiff symptoms, pain and disability in her neck and her right shoulder.
12 In her third affidavit, the plaintiff deposed that:
· She continued to suffer from constant neck pain, which fluctuated in intensity and severity. She described the presence of pain along the base of the skull, frequent headaches and a pain extending across her shoulders.
· She was currently employed as a contractor undertaking kitchen designs. Her workload involved consulting with two to five clients per week. She said that other contractors employed by the same agency saw ten to twelve clients a week but that she was not physically capable of increasing her workload due to her ongoing neck pain. The plaintiff said that her work required her to carry samples and to drive to various sites, and that these activities aggravated her symptoms.
· In management of her symptoms, she took between two and six Panadol Osteo each day; she had a prescription for Panadeine Forte but she limited her intake of that medication to two tablets, no more than two or three times per week, as Panadeine Forte caused her gastric complaints. She consulted a chiropractor, Peter Smith, and an osteopath, Bronwyn Molloy, once a month.
· She employed a cleaner to undertake the heavier domestic tasks in her house including mopping, vacuuming, cleaning the bathrooms and making the beds. She described her pain as impacting adversely upon her social and family life and her cooking, in respect of which baking was an activity she particularly enjoyed. She said she had given up water skiing.
· Her neck remained her greatest problem. While she continued to have symptoms in her right arm associated with activity, she was now able to use her right arm sensibly enough without having exacerbations of pain.
· She had previously employed medication to assist her to sleep but had abandoned this because the medication made her feel like “a zombie” the next day. She said her inclination towards intimate relations with her husband had diminished and this had caused considerable tension and frustration in her relationship with her husband.
13 In the course of her cross-examination, the plaintiff said that:
· She had consulted a chiropractor throughout 2003, and agreed that during 2003, she was receiving treatment for her thoracic spine. She described consulting her chiropractor, Dr Junge, as “a maintenance thing” for her back, and agreed that by October 2004, she was having treatment for her upper neck and mid neck area from Dr Junge. She accepted that she had aches and pains in her spine during 2003 and 2004 but said that those symptoms were not of such severity that she would have described the condition as being a problem.
· She had initially commenced a business as an interior decorator under the business name “Collective Interiors”. She had ceased working as an interior decorator in 2006, but for three years had continued consulting for Dulux as a colour consultant. This involved her undertaking on average two jobs a week, each involving approximately one hour, for which she was paid $140 for each job.
· She had commenced a consulting business with her husband under the name “The Property People” in which they jointly prepared houses for sale on behalf of property owners. The plaintiff said that this involved installing furnishings and other items in houses to improve the presentation of the house. She said that the duties she undertook in that work were physically light, as she employed an assistant to undertake the heavier aspects of the work. She said that she undertook the work on approximately two full days a week and that notwithstanding the assistance which she had, she found activities such as packing the car with doonas, pillows, trinkets and lamps difficult.
· She agreed that during the financial year ending 30 June 2010, the business made a net profit of $97,000 after her wages of $66,000 were met; that in the following year, the net profit of the business was $153,000 after the payment of her wages of $73,000 were met, and that the business was sold when a good offer was received for the business. The plaintiff denied that this was the major reason for the sale of the business.
· She agreed that she had travelled to Singapore with her son in 2006 to visit a friend of her son whose family had relocated to Singapore. During the trip, the plaintiff said that she spent much of her time on a couch or resting on a bed. The plaintiff said that in 2011, the family had travelled to Bali for a week and that in 2012, she had travelled with her sons to the United States, where her sons pursued their hobby of skateboarding, and that she had enjoyed that trip, which involved her being away for approximately two weeks.
· She described her current work as a contractor designing kitchens as involving work between Monday and Saturday. She said that she was limited in her ability to undertake the work because of her requirement to lift bags in and out of her car in the course of the work and that she would do a maximum of four or five consultations per week.
· It was put to the plaintiff that she had described her work to both Dr Sutcliffe and Mr Brearley as being full time. The plaintiff agreed, and explained that description in the following terms:
“The hours as I said varied. They can be full time. I choose not to work full time. … I took it on a full-time basis knowing it wasn’t – the hours – it was as it came in, nothing’s changed. It’s still as it comes in except I choose what I do now.”
· She said that she was able to cope with her present level of employment but that when not working, she spent the majority of her time resting because she was sore and tired. She said that she continued to work because she needed to do so for financial reasons.
· The plaintiff accepted that in the years following the transport accident, she had significant problems with both her neck and right shoulder. She said however, that her shoulder had improved in the last couple of years, describing the condition of her shoulder as being:
A: “… not in the same degree as my neck.
Q: It still presents you with considerable incapacity doesn’t it?---
A: My neck does.
Q: In your shoulder?---
A: My shoulder is not like it was. I’ve had a lot of treatment and it has improved. It’s my neck that has driven me nuts.
Q: It’s still a problem for you to reach overhead because of pain in your shoulder isn’t it?---
A: Correct.
Q: The abduction movement, that is lifting your arm from your side up above your head is still difficult for you isn’t it because of pain in the shoulder?---
A: Yes.
Q: It affects even such things as doing your hair, is that right?---
A: Yes.
Q: It would affect you tucking sheets into a bed?---
A: That’s what I’ve got a husband for.
Q: If you were doing it it would cause you pain of the shoulder wouldn’t it?---
A: It would cause me pain in the neck.
Q: And of the shoulder, wouldn’t it?---
A: Well yes, to a degree, but not like my neck.”
· The plaintiff was questioned as to the impact of her shoulder pain upon her ability to sleep. She said that whereas her shoulder symptoms were such that they used to cause her to wake in the middle of the night as she rolled over onto her side, this was no longer the case. The plaintiff explaining “… the pain is not anywhere near as bad as it was”.
· The plaintiff was taken to a number of histories she provided to medical practitioners in 2012 as to the severity of the symptoms in her shoulder. She said she agreed that she had provided those histories but said that her condition was no longer as severe as it had been at that time. She agreed that when she consulted her general practitioner he continued to treat her shoulder and that the medication she took was both for her shoulder and neck.
· She said that her ability to walk was confined to approximately twenty minutes before her neck and shoulder symptoms were aggravated.
14 In re-examination, the plaintiff said that following the accident:
· The symptoms in her cervical spine had remained about the same;
· Her right shoulder, which had been at times “dreadful”, had improved significantly, although she still had symptoms in the shoulder.
· Her need to take medication was primarily associated with her neck symptoms because they were always there, whereas her shoulder symptoms came and went. She said she sometimes employed medication for her shoulder but generally, it was for her neck.
15 In the course of cross-examination:
(i) No issue is taken as to the evidence given by the plaintiff that since discontinuing her interior decorating business in 2006:
§ The plaintiff worked on a part-time basis approximately two days per week undertaking light activities with The Property People.
§ After selling the Property People business the plaintiff worked in a full-time capacity as a sales representative for Suisse Vitamins, which employment she was forced discontinue because she could not cope with the driving involved.
§ In her current position the plaintiff works in a part-time capacity as a kitchen designer.
(ii) It was not put to the plaintiff that, excluding the influence of her shoulder pain, the plaintiff had a capacity to work additional hours other than those to which I have described.
Do the symptoms in the Plaintiff’s right shoulder stem from her cervical spine or by reason of separate pathology?
16 It is clear that for an extended period of time following the accident, the plaintiff suffered from significant symptoms both in her neck and right shoulder.
17 An issue arises as to the cause of the symptoms with which the plaintiff presents in her right shoulder. The outer boundaries of the medical opinion with respect to this issue involves:
· Mr Dooley, who opined that the plaintiff’s right shoulder symptoms emanate from the injury the plaintiff has suffered to her cervical spine; and
· A number of other doctors, who expressed a position to the contrary, namely that the plaintiff’s shoulder symptoms emanated from pathology in the right shoulder.
18 I am satisfied that it is probable, taking a view of the evidence as a whole, that the plaintiff’s right shoulder symptoms result from the combined effect of both her cervical injury and discrete pathology in the shoulder. The evidence however does not allow me to fix with any degree of certainty the extent to which the plaintiff’s shoulder symptoms are generated from either of the conditions. For this reason I am satisfied that in assessing the issues in this case, I should do so by excluding the influence which any symptoms arising from the plaintiff’s right shoulder have upon her current presentation.
Finding as to the nature of the injury to the Plaintiff’s cervical spine
19 There is no issue that an MRI scan of the plaintiff’s cervical spine dated 27 November 2009 describes the presence of the following pathology:
· At C3-4, early right-sided joint degeneration;
· At C6-7, “a small left paracentral disc protrusion just indenting the anterior thecal sac contour.”[2]
[2]PCB 29
20 For the reasons which I will develop below I am satisfied:
· That the injury with which the plaintiff presents as the result of the 2005 transport accident involves a soft-tissue injury to the cervical spine in the form of an aggravation of pre-existing degenerative changes in the cervical spine, particularly at the C3-4 and C6-7 levels, and that the pathology to which I have referred above adequately explains the ongoing symptoms with which the plaintiff currently presents in her cervical spine. The reports of Mr Brearley,[3] Dr Sutcliffe[4] and Dr Myers[5] are unequivocal and are, in my opinion, persuasive as to these issues. The reports of Mr Dooley,[6] which are unequivocal as to these issues and which I find to be persuasive in this respect, also support this finding, although for reasons which I will explain in due course, I do not find Mr Dooley’s opinion to be persuasive upon all the issues in respect of which he opines.
· The injury with which the plaintiff presents in her cervical spine involves an aggravation of a condition which was relevantly asymptomatic prior to the 2005 transport accident.
[3]PCB 36
[4]PCB 147
[5]PCB 147
[6]Commencing at DCB 15
The medical evidence
21 Numerous medical reports were generated by the plaintiff’s previous solicitors, most of which are outdated and provide no assistance to me in my task of assessing the consequences to the plaintiff at the present time of the injury the subject of this application.
22 Whilst such reports may be probative, in that they record some relevant aspect of the plaintiff’s presentation in respect of the transport accident which occurred some ten years ago, in this instance there is no issue in that those reports chart ongoing complaints by the plaintiff of significant symptoms in her neck and right shoulder which were a regular feature of the plaintiff’s presentation.
23 It is the plaintiff’s evidence that there has been little alteration in the symptoms and incapacity associated with the injury she has suffered to her cervical spine since the accident but that in recent years, the condition in her shoulder, although still present, has improved significantly. Whilst the defendant takes issue with the latter position, it is not suggested that the historical medical reports relied upon by the parties in any way suggest an alteration for the better in the symptoms present in her cervical spine.
24 In these circumstances I am satisfied that many of the reports, particularly those generated more than two years ago, have little relevance to the task required of me in this instance unless they contain a history or an opinion inconsistent with the plaintiff’s position as to the persistence and consequences of the impairment of function in her cervical spine which was caused by the subject transport accident and has persisted since that accident.
Did the Plaintiff present with a symptomatic pre-existing condition in her cervical spine which must be taken into account in assessing the consequences of the 2005 transport accident?
25 It is put on behalf of the defendant that the medical evidence is such that the plaintiff now presents with an aggravation of a pre-existing symptomatic condition in her cervical spine and that a Petkovski v Galletti[7] type analysis must be undertaken in this instance as to that injury.
[7][1994] 1 VR 436
26 In asserting that position, the medical evidence relied upon by the defendant is:
· That contained in the clinical records of Dr Trevor Junge, the plaintiff’s treating chiropractor; and
· The opinion expressed by Mr Michael Dooley, an orthopaedic surgeon, who has examined the plaintiff on numerous occasions on behalf of the defendant, who had access to the records of Mr Junge and on the basis of the content of those records opined:
“I therefore believe that on the balance of probabilities Mrs McEvoy was symptomatic spontaneously from degenerative disc disease of the cervical spine prior to the motor vehicle accident of 2005 with these symptoms having been established for a prolonged period of time prior to the motor vehicle accident, and consistent in their presentation. I believe it is reasonable to state that such symptoms would have continued whether or not the motor vehicle accident occurred.”[8]
[8]See Mr Dooley’s report dated 7 March 2013
27 To the contrary, in commenting upon the nature of the plaintiff’s pre-existing symptoms, Dr Junge, in a report dated 14 March 2013, states:
“In her affidavit of 22 December 2012 Ms McEvoy has attested to the fact that she has previously experienced ‘transient episodes of neck and back discomfort as well as headaches for which she periodically presented to her chiropractor for maintenance therapy’. As her pre-accident chiropractor I completely agree with this statement. Her complaints were for low grade lower back, minor neck pain and weekly headache. No shoulder, extremity, foot or knee problems were reported or found upon treatment or examination. …
I would suggest that the balance of probabilities (sic) that Mrs McEvoy’s injuries (in particular her cervical spine and shoulder) would not be in the symptomatic and incapacitating state it is presently in the absence of, or but for, the transport accident of 19 July 2005.
Therefore as an apportionment as to any previous injuries related to her transport accident, I would say that the balance of probabilities lies almost solely upon the transport accident.”
28 I am satisfied in the present circumstances that I should accept the first-hand opinion of Dr Junge as to the nature of the plaintiff’s presentation prior to the transport accident rather than the interpretation of Mr Dooley as to the nature of that presentation.
29 The opinion of Dr Junge in this regard is in turn consistent with the plaintiff’s evidence that the reason for her attendance for chiropractic treatment prior to the accident was for maintenance therapy in respect of symptoms which had such limited influence upon her life, level of activity or ability to work, such that they are not appropriately described as involving a pre-existing symptomatic condition.
30 For these reasons I accept the plaintiff’s evidence as to this issue and I am satisfied that the plaintiff did not present, prior to the subject accident, with a pre-existing condition, the consequences of which should be taken into account in assessing the symptoms and disabilities with which the plaintiff now presents by reason of the 2005 transport accident.
Does the Plaintiff present with an organically-based condition?
31 With the exception of Dr Kevin Fraser, all of the medical practitioners who have opined as to the plaintiff’s transport accident-related symptoms have accepted that the plaintiff has suffered a physical injury to her cervical spine, the organic effects of which are ongoing, the only issue of relevance being the severity of those symptoms and whether the plaintiff has suffered a discrete injury to her right shoulder.
32 Dr Fraser, who has authored two reports at the request of the defendant, opines that the plaintiff presents with non-organic features of a psychosocial nature.
33 Given the contrast between this opinion and the opinions of each of the other medical practitioners who have submitted medical reports in this proceeding, each of whom have opined as to the presence of a physical basis for the plaintiffs ongoing symptoms, I do not find the opinion expressed by Dr Fraser to be persuasive, particularly in the context of the expert assessment by the consulting psychiatrist, Dr Kaplan, which contains no suggestion that plaintiff presents with a serious psychiatrically-based condition.[9]
[9]Mr Brearley, in his report of February 2013, when commenting on Dr Fraser’s report, expressed the opinion that it was difficult to know whether the plaintiff was presenting with a Regional Pain Syndrome. He commented however that he thought that many of the plaintiff’s signs and symptoms were the result of physical injury and that physical injuries to the neck involving ligamentous structures are notoriously slow to heal. Whilst Mr Brearley commented that there could be some functional elements in the plaintiff’s presentation resulting from anxiety or from the plaintiff’s ongoing symptoms, I do not regard these comments by Mr Brearley as supporting in any way the opinion expressed by Dr Fraser.
The relevance of the 2010 transport accident
34 The plaintiff suffered a further transport accident in 2010.
35 Whilst the defendant, in closing submissions, took issue as to whether the plaintiff’s current presentation is such that it meets the threshold established by the narrative test which I am required to apply in this instance, it was not suggested by Senior Counsel on behalf of the defendant that the plaintiff’s current presentation was influenced in a significant way by the 2010 transport accident.
36 Further, the medical evidence establishes to my satisfaction that the 2010 transport accident had only a transient effect upon the plaintiff and has no influence upon her current presentation.
The Plaintiff’s reliability as a witness
37 The defendant points to the incorrect histories obtained by Dr Sutcliffe and Mr Myers to the effect that the plaintiff undertook her duties with the Property People for ten years as attesting against the plaintiff’s reliability and honesty generally.
38 But for these histories, which are clearly mistaken, I found the plaintiff’s evidence to be consistent and assessed her to be a generally reliable witness. Her demeanour as a witness impressed me. The plaintiff was readily prepared to make admissions which were potentially against her interest. In my opinion the plaintiff’s credibility is enhanced by her maintenance of consistent employment, notwithstanding the restrictions imposed upon her by her symptoms, this behaviour being consistent with that of a person seeking to minimise the influence of the accident upon her life.
39 Further, the plaintiff’s reliability as an historian and the genuine nature of her presentation was in no way questioned in the course of the numerous medical examinations she has undergone or the surveillance undertaken of her.
40 For these reasons I am satisfied that the plaintiff presents as a truthful and reliable witness.
The medical evidence from the Plaintiff’s treating practitioners
41 On the day of the accident, the plaintiff attended upon her general practitioner, Dr Bill Williams, complaining of heat and pain in her neck and shoulders, together with feelings of symptoms of a headache and feeling tired following the subject transport accident.
42 As at 29 September 2010, Dr Williams reported that the plaintiff presented with a classic whiplash injury. He opined that the aetiology of the condition with which the plaintiff presented involved musculo-ligamentous injuries to the neck and shoulders which had not healed and had continued to cause distress, pain and disability to a level which interfered with her capacity to undertake the physical demanding work of an interior decorator and that it was reasonable to conclude that her condition had stabilised and was likely to persist in the long term.
43 In a report dated 1 August 2012, Dr Williams states that he had continued to treat the plaintiff, who had been troubled since his previous report with ongoing neck and shoulder symptoms.
44 As at January 2013, Dr Williams opined:
· That the plaintiff’s right shoulder pain had become increasingly more dominant in the latter years, her November 2009 MRI scan demonstrating damage to the tendons of the right shoulder including tears to the supraspinatus and biceps tendons;
· That the persisting pain in the plaintiff’s right shoulder and neck had forced her to resign from her employment, resulted in a negligible ability for full-time, unrestricted manual or pre-injury employment, and that the consequences to the plaintiff of her injuries, both with respect to pain and disability, were likely to persist in the long term.
45 In a report dated 18 January 2013, Dr Williams opined that there was no question in his mind on the balance of probabilities that the plaintiff’s injuries, which he had in the body of his report identified as pain in her right shoulder and neck:
“… would not be in their current incapacitating state but for the transport accident of 19.07.05. The vehicle accident is clearly the main contributing factor to her long-term ongoing pain and disability. The origin and cause of her impairment can be traced directly to the physical injuries she suffered at the time of the motor-vehicle accident, and the pain which has developed as a consequence thereof.
In summary, Meredith suffered injuries to her spine and shoulder girdle in the vehicle accident on 19.07.05 which have caused her injuries resulting in long-term and persisting pain as a consequence of which she has been disabled to the point of having to terminate her business and suffering substantial deterioration in her enjoyment of life.”
46 In a report dated 9 February 2015, Dr Williams commented that the plaintiff’s capacity for full-time, unrestricted manual or pre-injury employment was negligible; that the injuries to the plaintiff’s shoulders and spine had had a serious negative impact on her ability to remain in employment, the persisting pain in her right shoulder and neck being such as to impair her work capacity, rendering her unable to perform all necessary duties in her current role as a kitchen interior decorator on a full-time basis. He commented at that time that it was unlikely that the plaintiff would ever return to her pre-injury capacity in occupational or social terms.
47 It is put on behalf of the defendant that the reports by the plaintiff’s treating medical practitioners, in particular Dr Williams, Ms Molloy, and Mr Smith, are such that they do not differentiate between the impairment associated with the injury occasioned to the plaintiff’s cervical spine and that occasioned to her right shoulder. I largely accept that position.
48 As is often the case, reports generated by treating medical practitioners describe the consequence of a traumatic event in a global sense and do not descend to the particularity required to enable an analysis to be undertaken as to the discrete consequences of a particular injury as is required by reason of the artificial structure created by the Transport Accident Act 1986 (“the Act”).
49 For this reason, in the absence of viva voce evidence being provided by the medical practitioner, an interpretive analysis of broad statements made by treating practitioners is often required for the purpose of allowing an analysis to be undertaken of the consequences of discrete injuries or impairments.
50 In this instance it is the unanimous position of the three practitioners responsible for the plaintiff’s primary management, Dr Williams, Ms Molloy and Mr Smith, that the plaintiff presents with symptoms in her neck and right shoulder which impose severe restrictions upon her life and lifestyle. None of these practitioners however identify clearly the discrete impact of each of these conditions. In my opinion however, the tenor of their reports makes it clear that each of these practitioners regard the individual symptoms emanating from the plaintiff’s:
§ cervical spine; and
§ right shoulder
as being a significant cause of the disabilities with which the plaintiff presented as described in their respective reports.
51 I am satisfied that the reports of each of these three treating practitioners:
· are consistent with the plaintiff’s evidence that her neck condition has remained fairly constant;
· are in no way inconsistent with the evidence given by the plaintiff that the injury occasioned to her cervical spine in the 2005 transport accident is responsible for the symptoms and disabilities described by her in her most recent affidavit and her viva voce evidence.
52 In her report of 16 March 2015, Ms Molloy comments as to the nature and effect of the injury to the plaintiff’s cervical spine;
“I believe Mrs McEvoy’s pain is directly related to the injury she sustained in the motor vehicle accident on 19th July 2005. Excessive flexion then extension of the neck at speed creates strain in the neck and upper thoracic spine muscles, bones and nerves. This is referred to as whiplash and is associated with symptoms including neck and back pain, shoulder pain, pins and needles in the arms and legs and headaches.
Mrs McEvoy’s injuries and pain in her cervical and thoracic spine and her severe and regular headaches are classic whiplash symptoms and from her initial consultation she claimed she had never experienced these pains previously. I have noted that more recently her headaches have become more frequent and intense.”
53 Mr Smith, in his report of 22 March 2015, adopts the comments made by him in his report of 22 February 2013 in which he described the plaintiff as having sustained extensive injuries to her cervical spine, commenting that those injuries were significant and permanent, stating:
“In regards to her cervical spine injury, it is my opinion that by surgically repairing the right shoulder, it may alleviate stress placed upon the cervical and thoracic spine which may aid in the recovery of her cervical spine disc bulge. However, after a lapse in chiropractic rehabilitation from 20 April 2012 to 27 September 2012, her condition deteriorated significantly suggesting that full recovery and long-term relief from the pain derived from her injuries is poor, and further commenting that the plaintiff continued to experience frequent moderate/severe headaches, sub-occipital pain and moderate/severe cervical pain and stiffness.”
54 Dr Williams, in his report of 9 February 2015, commented in a more general sense as to the issue:
“Meredith suffered injuries to her spine and shoulder girdle in a vehicle accident on 19.07.05 which have caused her injuries resulting in long-term and persisting pain as a consequence of which she has been disabled to the point of having to dramatically reduce her work output.”
55 I am satisfied that I should interpret the reports of Dr Williams, Ms Molloy and Mr Smith, when considered in the context of the plaintiff’s evidence which I accept, as supporting the position that the plaintiff’s cervical symptoms are in themselves of such significance as to restrict the plaintiff in her ability to work full time in her chosen occupation and to interfere in her general lifestyle in the way described by her in her most recent affidavit, by generating symptoms which are constant and prone to being exacerbated by activity. In making that statement, I do so taking into account the symptoms caused by reason of the injury occasioned to the plaintiff’s cervical spine in the transport accident when considered independently of any symptoms emanating from the condition in her right shoulder.
The relevant consulting reports
56 Mr Kenneth Myers, consultant general surgeon, has opined as to the plaintiff’s presentation in no fewer than seven reports between 30 November 2010 and 2 April 2014.
57 In his report dated 14 January 2013, Mr Myers opined:
· That but for the July 2005 transport accident, the plaintiff’s cervical spine would not be symptomatic or incapacitating;
· The plaintiff’s cervical pathology represents a very significant medical problem for her which gave rise to significant consequences for the plaintiff’s social, recreational and domestic activities and employment activities
· That the plaintiff’s current disability resulted from her July 2005 transport accident and not a transport accident of 1 December 2010 which caused only a temporary aggravation of her pre-existing symptoms;
· That on the balance of probabilities, the plaintiff’s neck would remain in permanent compromise, the mechanism of injury involving an aggravation of degenerative changes in the cervical spine.
58 Mr Myers expressed virtually identical views as to the nature of the condition in the plaintiff’s right shoulder and the consequences associated with that condition.
59 In doing so, Mr Myers made it clear, in my opinion, that he assigned equal significance to each of the transport accident-related conditions in the plaintiff’s cervical spine and her right shoulder as being independently responsible for causing the relevant impacts upon the plaintiff’s social, recreational, domestic and employment activities.
60 Each of these statements by Mr Myers are, in my opinion, consistent with the tenor of the reports of the plaintiff’s treating practitioners and underscore my findings as to the reports by those practitioners upon the issue of the significance of the injury occasioned to the plaintiff’s cervical spine upon her symptoms and capacity for activity.
61 In Grech v Orica Australia & Anor,[10] the Court of Appeal recognised the fact that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.
[10](2006)14 VR 602
62 The issue for me in this instance is to fix the consequences to the plaintiff arising from the 2005 transport accident-related injury to her cervical spine, when considered independently to the consequences to the plaintiff of her right shoulder condition.
63 It follows that it is irrelevant that the plaintiff’s right shoulder injury may generate similar or identical consequences to those generated by the plaintiff’s cervical injury, if I am satisfied that the effect of the latter injury, when considered independently of any influence of the right shoulder condition, is responsible for those consequences.
64 In a report dated 11 February 2013, Mr Myers took issue with the opinion expressed by Dr Kevin Fraser, Mr Myers maintaining the position expressed by him in his previous report.
65 In his report dated 2 April 2014, Mr Myers commented that the plaintiff reported:
(i) That her neck was her worst problem, with pain:
“not sharp across the top of the neck and into the head, constant but with varying degrees of pain”;
(ii) As to her right shoulder that:
“Movements are restricted and in relation to pain, it is there but not as bad as the neck, depending on how much I have to do through the day.” [11]
[11]This history by the plaintiff is consistent with the plaintiff’s evidence as to the current relative impacts of the cervical condition and her right shoulder condition on her life and lifestyle and, in my opinion, debunks the defendant’s position that the plaintiff’s evidence as to the improvement in her right shoulder condition is effectively a recent invention by her and is unreliable.
66 At that time, Mr Myers opined:
· That the plaintiff presented with an aggravation of intervertebral disc disease in the cervical spine and damage to the rotator cuff structures of the right shoulder;
· That her current disability was attributable to the 2005 accident; that it emanated from physical injury without psychological contribution and that the plaintiff’s condition was such that she would be unable to cope with unrestricted manual or pre-injury employment.
67 I am satisfied that Mr Myers, in expressing that opinion, was commenting upon the effect of the injury occasioned to the plaintiff’s cervical spine in the transport accident.
68 Mr Brian Dooley has assessed the plaintiff on numerous occasions between June 2007 and February 2015.
69 On each occasion he opined that the plaintiff presented with symptoms in her neck and shoulders emanating from a soft-tissue injury caused to the plaintiff’s cervical spine as the result of the 2005 transport accident and that the condition in the plaintiff’s cervical spine was responsible for the symptoms in her right shoulder. In that sense, Mr Dooley’s opinions in no way supports the position taken on behalf of the defendant that the plaintiff has failed to establish the injury to her cervical spine as being the primary cause of her current disability given the presence of her shoulder condition.
70 In his most recent reports, Mr Dooley opines:
· That the plaintiff presents with a continuation of symptoms which pre-existed the accident;
· That he would have expected the plaintiff to present only with intermittent cervical spine pain and intermittent shoulder girdle pain, and that the plaintiff’s symptoms of ongoing headaches and neck pain were caused by her psychological reaction to her injury, which he excluded when expressing that opinion;
· That the plaintiff retains the capacity to work as an interior decorator or kitchen consultant.
71 I do not find Mr Dooley’s position that the plaintiff presents with a continuation of symptoms which pre-existed the accident to be persuasive for the reasons which I have previously mentioned
72 I am satisfied that in expressing the opinions in his report of October 2014[12] as to the plaintiff’s symptoms and her capacity for employment, Mr Dooley did so on the basis of the opinion he expressed at that time:
[12]This is Mr Dooley’s most recent report which deals with issues relevant to the proceeding. Mr Dooley’s latter report comments only upon the defendant’s surveillances evidence which Mr Dooley considered to be irrelevant.
· that he would have expected the plaintiff to present only with intermittent cervical spine pain and intermittent shoulder girdle pain; and
· that the plaintiff’s symptoms of ongoing headaches and neck pain were caused by her psychological reaction to her injury.
73 When opining as to the plaintiff’s capacity for work in his most recent report, I am satisfied that that Mr Dooley excluded the influence of the plaintiff’s psychological reaction to her injury, the significance of which falls outside his area of specialty.
74 I find the position taken by Mr Dooley’s in his October 2014 report that it was his expectation that the plaintiff’s symptoms would now be intermittent, to be unpersuasive, in that it is inconsistent with the position taken by Mr Dooley in his previous reports.
75 In August 2011, Mr Dooley authored a report[13] in which he commented that:
[13]DCB 13
· The plaintiff presented as a sensible and genuine historian, with ongoing neck and shoulder girdle pain which she managed by employing Panadol and Tramal;
· The majority of the plaintiff’s ongoing symptoms related to the organic injury she had sustained, but that some of her ongoing symptomology was related to her psychological reaction to her pain;
· At the time of this assessment some six years after the transport accident, the plaintiff’s condition had stabilised and it was his expectation that the plaintiff would note some ongoing neck and shoulder girdle pain.
76 The statement by Mr Dooley in his August 2011 report that the plaintiff’s condition had stabilised, together with the absence of any suggestion that the plaintiff’s symptoms would improve such that they would be reduced to being present only intermittently, is, in my opinion, clearly inconsistent with his comments in his October 2014 report.
77 Further, I do not find Mr Dooley’s opinion that the plaintiff presents with a psychological reaction to her situation and that this in any way influences her capacity for employment to be persuasive given:
· The specialist opinion of Dr Kaplan, psychiatrist, who, in his report dated 9 June 2014, adopted the statement made in his previous report of November 2012 that the plaintiff’s emotional condition did not impact adversely upon her capacity for employment, and made no suggestion that the plaintiff’s emotional state impacted upon the severity of her symptoms.
· The contrary opinion expressed by Dr Williams, the plaintiff’s general practitioner, on both of these issues, who, in his reports of January 2013 and in his most recent report of February 2015, comments:
“There is no question in my mind that on the balance of probabilities Meredith’s injuries would not be in their current incapacitating state but for the transport accident of 19 July 2005. The vehicle accident is clearly the main contributing factor to her long term ongoing pain and disability. The original cause of her impairment can be traced directly to the physical injuries she suffered at the time of the motor vehicle accident and the pain which has developed as a consequence thereof.[14]
Meredith suffered injuries to her spine and shoulder girdle in the vehicle accident on 19 July 05 which have caused her injuries resulting in long term and persisting pain as a consequence of which she has been disabled to the point of having to dramatically reduce her work output. … Meredith is likely to go on suffering the consequences of her injuries – pain, disability and restricted activities – in the long term.
I think it is unlikely that she will ever return to her pre-injury capacity in occupational or social terms.”[15]
[14]Plaintiff’s Court Book 156, report dated 18 January 2013
[15]Plaintiff’s Court Book 158, report dated 9 February 2015
78 For the reasons which I have set out above, I prefer the medical evidence of the plaintiff’s treating practitioners and Mr Myers to that of Dr Fraser and Mr Dooley as to the relationship between the transport accident and the symptoms and incapacity with which the plaintiff presents as the result of the injury to her cervical spine.
Conclusions
79 It was put in final submissions on behalf of the defendant that for all intents and purposes, the Dulux work which the plaintiff undertook involved the equivalent of working as an interior decorator. Having regard to the description by the plaintiff of the nature of her duties, which involved colour consulting for 2 hours a week, I do not accept that position. Further, I was not taken to any evidence which would, in my opinion, contradict the plaintiff’s assertion that she was required to abandon her career as an interior decorator by reason primarily of the condition in her cervical spine.
80 It is clear that the plaintiff continues to receive treatment from both her general practitioner, Dr Williams, her chiropractor, Mr Smith, and her osteopath, Ms Molloy, for neck and shoulder symptoms.
81 Whilst I am satisfied that at the present time, the plaintiff suffers from symptoms in her shoulder, I accept her evidence that her primary disability now arises from her cervical spine. I further accept the plaintiff’s evidence that notwithstanding the presence of continuing symptoms in her right shoulder which require ongoing treatment, her primary problem at the present time involves symptoms emanating from her cervical spine. I am satisfied that those symptoms, independently of any condition present in her left shoulder, are such that they account for the symptoms and disabilities described by the plaintiff in her third affidavit.
82 For the reasons set out above, I am satisfied that the injury to the plaintiff’s cervical spine is such that:
(i) It precludes the plaintiff from engaging in her vocation as an interior decorator;
(ii) It restricts the plaintiff to undertaking only part-time work, her capacity for which involves her working two or three days a week on average. Although the plaintiff is able to generate some $60,000 from her current work, this income is generated, given the restricted hours which the plaintiff works, by the plaintiff exercising a capacity for work which is less than 60 per cent of the capacity she would have been capable of exercising but for the injury to her cervical spine. I am satisfied that this loss alone represents a very considerable consequence to the plaintiff, accepting, as I do, her evidence that she has an economic reason for working and being satisfied that the prime reason for the plaintiff reducing her hours of work stems from the symptoms emanating from the injury to her cervical spine;
(iii) It requires the plaintiff to use over-the-counter medication to control her pain on a daily basis and prescription medication to supplement that pain control on a regular basis two or three times a week;
(iv) It restricts her in her ability to drive and to undertake modestly strenuous activity, her symptoms being such that they restrict the plaintiff in undertaking tasks as simple as baking;
(v) It has adversely impacted in a significant way upon her intimate relationship with her husband;
(vi) It caused the plaintiff to experience the psychological sequelae described in the report of Dr Kaplan which I am satisfied are relevant, in that they come within the parameters of relevant symptoms in accordance with the decision of the Court of appeal in Richards v Wylie.[16]
[16]Richards v Wylie (2000) 1 VR 79
83 In assessing whether the consequences associated with the plaintiff’s injury are such that they are appropriately described as being “more than significant or marked”, and as being “at least very considerable”, I am required to assess the consequences which the plaintiff’s injury has occasioned to her and determine where the facts of the case sit in the broad spectrum of cases. The task which I am required to undertake has been described as one which involves “a value judgment in which matters of fact and degree and of impression are operative”,[17] and one in which I am required to take into account “not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[18]
[17]Stijepic v One Force Group Aust Pty Ltd and Anor [2009] VSCA 181
[18]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
84 For the reasons set out above, I am satisfied that the impact of the transport accident-related impairment of function of the plaintiff’s cervical spine is such that it is appropriately described as being “more than significant or marked” and as being “at least very considerable”, such that it satisfies the definition of “serious injury” as employed by the Act.
85 In these circumstances, I am satisfied that the plaintiff is entitled to the leave which she seeks in this proceeding,
86 Accordingly, I order that the plaintiff have leave to commence a proceeding claiming damages in respect of the injuries and loss suffered by her by reason of the 19 July 2005 transport accident. I will reserve to the parties liberty to apply as to the precise wording of this order.
87 Given the history of this matter, I wish to hear Senior Counsel upon the issue of costs.
- - -
0
4
0