McGuire v Schiller
[2012] VCC 1852
•29 November 2012 (Revised)
| THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05245
| ANTHONY JOHN MCGUIRE | Plaintiff |
| v | |
| SUSAN SCHILLER | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2012 | |
DATE OF JUDGMENT: | 29 November 2012 (Revised) | |
CASE MAY BE CITED AS: | McGuire v Schiller & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1852 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Transport accident – injury to the neck – whether the consequences were “serious”
LEGISLATION CITED: Transport Accident Act 1986, s93(4)(b)
JUDGMENT: the plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with with Mr P Clarke | Robinson Gill Lawyers |
| For the Defendant | Mr G Lewis SC with | Wisewould Mahony Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 4 November 2011 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”) to bring a proceeding to recover damages for injuries suffered by him arising out of a transport accident which occurred on 17 June 2009.
2 Mr P Jewell SC appeared with Mr P Clarke of counsel for the plaintiff and Mr G Lewis SC appeared with Ms M Tsikaris of counsel for the defendant
3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a court must not grant leave under ss(4)(d) unless the court is satisfied that the injury is a “serious injury”.
4 The definition of “serious injury” relied upon by the plaintiff is under ss(17):
“(a) serious long term impairment or loss of a body function.”
5 The injury suffered by the plaintiff for which leave is sought is an injury to the neck.
6 The following evidence was adduced at the hearing of the plaintiff’s proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 8-91 and 94: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 1-16: Exhibit 1.
The Background Facts
7 The plaintiff was born in 1969. He is now fifty-three years of age. The plaintiff left school after completing Form 3. He commenced and completed a motor mechanic apprenticeship, after which he essentially worked in that industry. Prior to the occurrence of the transport accident, he was employed by Ringwood Mazda. He commenced working for the employer in 2002.
8 On 17 June 2009, the plaintiff was driving in the left lane on the Maroondah Highway, Ringwood. He was waiting to turn left into the driveway of Ringwood Mazda. When he was almost stationary, he heard the sound of brakes, following which a car collided into the rear of his car.
The Aftermath
9 The plaintiff attended his place of work following the occurrence of the transport accident. Within a short time he experienced pain in his lower back. He saw Dr O’Hanlon, general practitioner, who advised him to rest. He subsequently experienced pain in his neck with a sensation of tingling and numbness in his hands. An ambulance was called, which took him to the Box Hill Hospital.
10 The clinical notes of the Box Hill Hospital reveal that the plaintiff reported pain in his neck. There is a reference to pain at a level in the plaintiff’s neck which is difficult to decipher, and there is also a reference to tingling in his fingers on pressure. I assume the reference to pressure means pressure applied during examination of the plaintiff’s neck. Otherwise, the notes reveal that an overall examination, including an x-ray of the plaintiff’s neck, did not reveal any particular abnormality. The plaintiff was discharged with analgesics, a recommendation that he have physiotherapy, and that he see his general practitioner.
11 The plaintiff's lower back pain resolved. His neck pain did not. He subsequently suffered persisting neck pain and headaches. The plaintiff was unable to work for six weeks following the occurrence of the transport accident. He then returned to work on a graduated return which saw him eventually return to lighter duties full-time.
The Plaintiff's Medical Treatment
12 The plaintiff first saw Dr O’Hanlon on 17 June 2009. Dr O’Hanlon's clinical notes reveal that the plaintiff was having significant problems with his neck. The plaintiff was referred to have a CT scan, which was taken on 20 June 2009. The radiologist reported that it demonstrated moderate disc degenerative changes with posterior spondylosis at C3-4 and C5-6. The neurocentral and the apophyseal joints demonstrated arthritic change.
13 On 7 August 2009, the plaintiff saw Dr O’Hanlon complaining that after doing half a day’s work, his neck pain worsened, and that he was unable to extend his neck at all. Dr O’Hanlon referred the plaintiff to have a further CT scan, which was taken on 10 August 2009. The radiologist reported that it demonstrated degenerative disc changes at C5-6 with moderate spinal stenosis and narrowing of the intervertebral foramen on the right at C3-4 and the left at C5-6.
14 On 13 August 2009, the plaintiff saw Dr O’Hanlon with increased symptoms in his neck and numbness and a hot feeling in his left arm and numbness across the posterior area of his scalp. Dr O’Hanlon referred the plaintiff to Dr Ly, neurologist. The plaintiff saw Dr Ly between 17 August 2009 and 1 March 2010. Dr Ly referred the plaintiff to have an MRI scan, which was taken on 25 August 2009. The radiologist reported that it demonstrated multilevel disc degeneration in the mid and lower cervical region resulting in mild/moderate multilevel central canal compromise and moderately severe bilateral mid and lower cervical exit for a foramen stenosis.
15 The plaintiff told Dr Ly that he was suffering pain in his neck with intermittent tingling and pain radiating from his neck to the outer aspect of his left arm and hand. It occurred three to four times per week, lasting ten to fifteen minutes each time. The plaintiff also told Dr Ly that he suffered headaches, which were described as tightness over the vertex which developed into headaches around his forehead, as if he was wearing a tight crown. He told Dr Ly that the headaches were associated with the neck pain.
16 Dr Ly diagnosed cervical radiculopathy associated with multilevel disc degeneration and possible tension type headaches. He then said that the whiplash type injury suffered by the plaintiff could have aggravated underlying cervical radiculopathy, but there was likely to be other causes for the onset of that condition. It is not clear to me what he thought those other causes were. However, Dr Ly noted that the plaintiff's neck and left arm pain had settled with conservative treatment, comprising wearing a soft collar and careful use of Ibuprofen and Diazepam.
17 Dr Ly advised the plaintiff to avoid vigorous neck movements and heavy lifting or heavy impact work. He was of the opinion that because the plaintiff's symptoms were settling, that surgery was not indicated and would continue to be not indicated where there was no evidence of myelopathy. He did not believe that the plaintiff had evidence of myelopathy. Lastly, he added that surgery would likewise not be indicated unless there was a progression of the plaintiff’s neurological symptoms.
18 Dr O’Hanlon's clinical notes reveal that he saw the plaintiff on 12 November 2009, and then did not see him again for treatment of his neck until 17 March 2011. The clinical notes of that date reveal that the plaintiff suffered a flare-up of neck pain. He was given a prescription for Naprosyn and Panadeine Forte on a short-term basis. The note also reads “will take more time off work next week if required”. The inference I draw from that note is that in or around March 2011, the plaintiff had taken time off work due to the flare-up in neck pain.
19 The next occasion the plaintiff saw a medical practitioner was on 10 October 2011. On that occasion, he saw Dr Evers, general practitioner, who works from the same clinic as Dr O’Hanlon. The clinical notes reveal that the plaintiff suffered an exacerbation of neck pain which started a few days before that consultation. He was given a further prescription for Naprosyn. The plaintiff next saw Dr Evers on 12 October 2011. The clinical notes reveal that his neck pain was not improving. He wanted to try Prednisolone because non-steroidal anti-inflammatory medication was not giving him any relief. The clinical notes do not reveal any further attendances by the plaintiff on Dr Evers or Dr O’Hanlon.
20 Dr O’Hanlon provided two medical reports dated 9 October 2010 and 12 August 2010. Both reports are exquisitely short and are not overly informative, except that the first report confirms what is contained in Dr O’Hanlon's clinical notes. He noted that the plaintiff suffered an aggravation of pre-existing cervical disc degeneration, and that he was making slow progress with physiotherapy. In Dr O’Hanlon’s second report, he noted that the plaintiff had a recurrence of neck pain in March 2011 and again on October 2011, and that on both occasions the pain subsided fairly quickly. He was of the opinion that the plaintiff was susceptible to further attacks of neck pain and that he would be prone to flare-ups. He described the plaintiff as being neither totally or partially incapacitated, but considered that further episodes of neck pain would result in his employment opportunities being quite limited.
21 The plaintiff admitted quite freely that he has not obtained any significant medical treatment recently. He admitted that he is not taking any prescription medication. I will return to his reasons for not using prescription medication later in these reasons. He has not had physiotherapy since about 2010.
The Other Medical Opinions
22 The plaintiff was examined by Mr Brownbill, neurosurgeon, on 23 March 2011. The plaintiff told Mr Brownbill that he suffers cramping neck pain which comes and goes and fluctuates in severity, that the neck pain comes on every few weeks, but that he can go for a month without pain (that was not the plaintiff's evidence – I will return to what he said later in these reasons), that he suffers persistent headaches in his occipital region which is like wearing a tight hat, and that he drops things from his hands when there was numbness present, presumably numbness referred from his neck.
23 After examining the plaintiff and perusing some documentation he had been provided, Mr Brownbill was of the opinion that the plaintiff suffered an aggravation of degenerative changes in his cervical spine which had given rise to neck pain, nerve root irritation and intermittent sensory disturbance in his arms. Mr Brownbill then expressed the following opinion, which I will set out in full:
“5On probability his present neck and arm symptoms will continue in a fluctuating manner overall unchanged, however there is a likelihood that degenerative changes that occur in the cervical spine with the normal ageing process will occur at an earlier stage, and at an increased rate than would otherwise have been anticipated in the absence of the aggravating injury of 17th June 2009, with the earlier onset of pain increase.
6He does not require surgery. If in the future, any signs of radiculopathy or myelopathy develop consideration would need to be given to surgical decompression however, I consider that course of events as being unlikely.
7He states that he is working full time performing his full pre-accident mechanical duties. It is prudent for him to avoid heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. If his symptoms of pain increase further, then it may be necessary for him to restrict the work physical activities to avoid the actions I have referred to above.”
24 Mr Brownbill examined the plaintiff on a second occasion on 24 March 2011. The plaintiff told Mr Brownbill that he has pain posteriorly at the centre of his neck often radiating to the right, that it fluctuates and is present all the time, worsening with physical activity, and that he has tingling in both hands, moreso in the left hand. Otherwise, Mr Brownbill adopted the opinions he expressed in his first report.
25 Mr Hart, orthopaedic surgeon, examined the plaintiff on 18 July 2012. The plaintiff told Mr Hart that he had intermittent neck pain which occurred on turning to the right and looking upwards, which were movements he tried to avoid, that he suffered intermittent paraesthesia in both upper extremities lasting for short periods only, and that he suffered constant headaches in the frontal region of his head radiating in a band around his head to the occipital region.
26 Mr Hart expressed an opinion which is very much consistent with the opinion expressed by Mr Brownbill. He appears to agree with Mr Brownbill regarding the plaintiff's prognosis in saying:
“The plaintiff's prognosis is guarded. He has significant degenerative changes in the cervical spine and these symptoms have persisted. He has learnt to cope with them by avoiding particular movement of his neck, which aggravate the pain.
He has not developed a radiculopathy, but there is significant narrowing at the C5-6 and if the condition there were to progress that he may require further specialist consultation.”
The Plaintiff's Evidence
27 The plaintiff swore two affidavits on 14 September 2011 and 6 November 2012. Mr Lewis cross-examined the plaintiff to test the plaintiff's evidence that he has suffered the consequences as described in his affidavits.
28 I have read the plaintiff's affidavits carefully. I have read the transcript of the plaintiff's evidence and the addresses by Mr Jewell and Mr Lewis. Having done so, I am satisfied that the plaintiff has suffered a serious long-term impairment or loss of the function of his neck.
29 The plaintiff gave his evidence in a simple, straightforward and believable fashion. There was no attack on his creditworthiness, nor his reliability of any substance, but rather the attack was centred upon whether the consequences for which he contends bear up against the relevant test. I accept the plaintiff's evidence contained in his affidavits and in his oral evidence.
30 What is clear from the medical evidence is that the plaintiff complained of persistent neck pain; and later persistent sensory disturbance in his arms (the description given by Mr Brownbill), and persistent headaches. In summary, the plaintiff described the consequences of the impairment of function of his neck as follows:
· Persistent pain in his neck, which worsens when he extends his neck to look upwards and when he moves his neck laterally.
· Persistent headaches. The plaintiff placed his hand with outspread fingers over the top of his head to demonstrate the extent to which he experiences pain in his head. What I observed him do was to describe an area commencing around his hairline at the upper portion of his forehead extending around his head and over the top of his head. Such area was aptly described by Mr Brownbill like wearing a tight hat, and by Dr Ly like wearing a tight crown. It was the same area described by the plaintiff.
· Sensory disturbance in his arms which, according to the history he gave to Mr Brownbill, has resulted in him dropping things from his hands.
· On the sporting and recreational front, the plaintiff is no longer able to play indoor soccer on Friday nights and social games of cricket. He does not run because the jarring causes more pain in his neck. He no longer goes fishing with his brother-in-law in his brother-in-law’s boat. He enjoyed driving as a recreation. He does not drive significant distances. Amongst the longest distance he has driven is from Doncaster East, where he lives, to Werribee, whereas he used to drive to Geelong, Wodonga and to similar destinations.
· On the domestic front, the plaintiff rarely mows his lawns. He does not prune the trees in his garden. He does not give assistance to his female partner by doing much more than washing the dishes. For example, he does not mop the floors. Despite being a mechanic, he does not service the family cars.
· On the work front, he is no longer able to undertake extensive mechanical work on cars, such as four-wheel-drive cars. He now does light work, elevating a car onto a hoist. He changes the oil and the oil filter and checks for any defects. He elevates the car on the hoist just high enough so that he does not have to extend his neck to look upwards; rather, he has his head facing forward and raises his eyes to look up. He lowers the car on the hoist to a comfortable height so that he can work in the engine bay of the car to fill it with engine oil, and to fill other receptacles with water et cetera. The most arduous activity he has done is to rotate tyres on small cars.
· The plaintiff has suffered flare-ups, although relatively infrequent, in the last twelve months which have resulted in him taking time off work. My impression was that he has not taken all that many days off work, but the significance of absence from work seemed to me to be related to the frequency of flare-ups of sufficient magnitude that time off work was necessary for him to recover from the flare-ups.
· The plaintiff purchased a motorcycle which he rides to work. He has made one longer trip on his motorcycle. The journey to his place of work is about 15 minutes. He finds riding a motorcycle means that he can use the side mirrors to avoid the blind spots in a car which would require him to turn his head laterally to observe other cars on the road.
· Although the plaintiff is not having any medical treatment at present, he has an intolerance to medication which causes him sufficient side-effects for him to make the decision not to use medication which might have assisted him in ameliorating neck pain, sensory disturbance in his arm and headaches.
31 I have no hesitation in accepting that the plaintiff suffers from a degree of impairment of the function of his neck which has resulted in him suffering the consequences which I have summarised above.
32 Mr Lewis submitted that I should be cautious in accepting aspects of the plaintiff’s evidence. I see no reason why I need to exercise such caution. As I have already observed, I have no hesitation in accepting the plaintiff’s evidence in whole for the reasons already referred to.
33 Furthermore, Mr Lewis submitted that one of the significant markers in determining whether the victim of a transport accident has suffered a serious injury or not is the nature and extent of medical treatment. It is true that the plaintiff has had little medical treatment in recent years. The plaintiff does not see Dr O’Hanlon, or any of his colleagues, for medical treatment at present. He has not had the necessity to return to see Dr Ly. He has not had physiotherapy treatment for some time.
34 While the submission made by Mr Lewis has merit, it is but one of many factors which need to be weighed up in an assessment of the whole of the evidence. The assessment of the consequences contended for by the plaintiff involves elements of fact, degree and value judgement. It also involves making an assessment of what the plaintiff has lost, but in doing so, I can be informed of what he has lost by what he has retained. The latter was stressed by Mr Lewis in his submissions. He submitted that the plaintiff has retained a capacity to function at a level pointing to the consequences being of some significance, but not serious.
35 I think the presence of persistent pain, sensory disturbance in the arms, and headaches, together with the extent to which the impairment caused by those matters interferes with the plaintiff's capacity to engage in social, domestic, recreational and vocational pursuits is more than significant or marked, but very considerable. Returning to the statutory test, I find that the impairment of the function of the plaintiff’s neck is long-term and has consequences for him which are serious.
36 My reasoning in reaching that conclusion is that the plaintiff's neck pain, headaches and sensory disturbance became established problems for him at an early stage. The lack of medical treatment does not persuade me that they went away or diminished. I accept his evidence that they persisted. I also accept his evidence that he has consequences of the degree which I have described above. All in all, my value judgement is that all of these factors satisfy the test of seriousness.
Conclusion
37 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law.
38 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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