Mesiti v TAC
[2012] VCC 1882
•7 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03041
| Pauline Mesiti | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
---
JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 & 21 November 2012 | |
DATE OF JUDGMENT: | 7 December 2012 | |
CASE MAY BE CITED AS: | Mesiti v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1882 | |
REASONS FOR JUDGMENT
---
Catchwords: Serious injury application – Transport Accident Act 1986 (Vic) – s93(17)(a) – serious long-term impairment of the spine- aggravation of pre-existing, largely asymptomatic degenerative changes in the lumbar spine – injury to the cervical spine
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F. Ryan | Advice Line Injury Lawyers |
| For the Defendant | Mr J. Gorton S.C. with Mr S. Gladman | Transport Accident Commission |
HER HONOUR:
1 The 56 year-old plaintiff applies under s 93(17)(b) of the Transport Accident Act 1986 for leave to issue proceedings for the recovery of damages in respect of an injury to the spine sustained in a transport accident on 11 January 2008. She says that as a result of the transport accident she has suffered a permanent impairment of the function of the spine comprising ongoing back and neck pain requiring medication. The ongoing back pain and particularly the neck pain have necessitated treatment by way of physiotherapy, made it impossible for her to continue working as a journalist, affect her sleep and interfere with a range of domestic and leisure activities. She says that in terms of pecuniary disadvantage and pain and suffering, the consequences of her impairment of the spine are more than considerable when compared with other cases in the range of possible impairments of the spine.
2 The defendant says that the application should be dismissed for a number of reasons. Firstly, the defendant says, there was no permanent injury to the lower back resulting from the transport accident. In this regard, the defendant relies on evidence that she suffered longstanding spondylolisthesis prior to the transport accident; did not complain of low back pain at the time of the accident; made only one complaint to her general practitioner about low back pain in the three years after the accident; deposed to the fact that her lumbar symptoms after the transport accident were about the same as they were before it; and suffered a severe aggravation of her lumbar symptoms after an incident in November 2011 when she was getting out of a car. Secondly, the defendant says, that because the incident in November 2011 resulted in a serious exacerbation of her lumbar symptoms, this unrelated lumbar spine injury could not be aggregated with any cervical spine impairment flowing from the transport accident. Thirdly, the defendant says that even if one assesses the consequences flowing from the cervical spine impairment alone, the Court should not be satisfied that the plaintiff’s injury is serious. In this regard, the defendant relies on a number of factors: much of the plaintiff’s evidence deals with the back and neck pain together and many of the restrictions she complains of would have been affected by her back pain in any event; there has been some exaggeration of the impact of the transport accident; she declined the treatment option suggested by Dr Jensen; she is only taking over the counter medication but can work full-time in a good job earning a significant amount more than she earned as a journalist, socialise (including over the internet), drive and watch the football (albeit from home).
3 For the reasons which follow, I consider it appropriate to grant leave in the terms sought by the plaintiff.
Chronology
4 The plaintiff lives with her sister and niece. She completed high school and then a Diploma of Commercial Shipping. She then worked in various administrative positions. In the 1980’s she suffered lower back pain and was diagnosed with spondylolisthesis. In 1995 she commenced work for the Herald and Weekly Times as an edition controller and in 2000 she completed a cadetship with Fairfax.
5 At the time of the transport accident the plaintiff was employed as a Grade III journalist and was a police and emergency services reporter for a regional area.
6 On 11 January 2008 a car which failed to stop collided with the back of the plaintiff’s vehicle. The plaintiff’s neck was twisted to the right and she suffered immediate severe pain in her neck and an aching pain in her lower back. She drove home and then attended Williamstown Hospital Emergency Department where she complained of neck pain. X-rays were taken and she was sent home. She had a few weeks off work then returned to work part-time before returning to normal duties. She had difficulties managing her work.
7 She attended her general practitioner, Dr Gost on 15 and 23 January 2008 in relation to her symptoms. She was prescribed Tramal and referred for physiotherapy for her neck and lower back pain. Dr Gost referred her to Dr Michael Poon, neurologist, in May 2010 and he referred her to Dr Steven Jensen in June 2010. She had an MRI of the cervical spine on 9 June 2010 which was reported as revealing “very minor disc bulge” at C4-5 and C5-6 but “no significant vertebral canal or foraminal stenosis”.[1]
[1]Plaintiff’s Court Book (PCB) p 28.
8 On 22 August 2010, the plaintiff resigned from Fairfax as a result of back and neck pain and headaches.[2] She was out of work until January 2011, when she commenced work as an electorate officer for a Member of Parliament.
[2]PCB p 9.
9 In November 2011, the plaintiff suffered a flare-up of lower back pain when getting out of a car. She had a CT scan of the lumbar spine on 3 November 2011 which was reported “bilateral L5 spondylolisthesis results in a grade 2 anterolisthesis of L5 on S1 and is associated with severe degenerative disc disease and marked bilateral L5 foraminal narrowing”.[3]
[3]PCB p 29.
The hearing
10 The plaintiff, the plaintiff’s niece and Associate Professor Kenneth Myers gave evidence and were cross-examined. The parties also relied on the contents of their respective Court Books. I have considered all of the material relied upon by the parties.
Plaintiff’s evidence
11 The plaintiff’s evidence as outlined in her affidavits may be briefly summarised. I note that at times she refers to “spinal injury”, and at others, to neck pain and/or back pain. She stated that although she had some back symptoms and physiotherapy in the 1980’s when she was diagnosed with spondylolisthesis, she had no treatment for her back from about 2002 until the transport accident. At the time of the transport accident she experienced severe pain in the neck, and an aching pain in her back. The following day she felt severe neck and back pain with referred pain into the left leg. Her doctor, Dr Gost, referred her for physiotherapy with Ms Keasberry who administered a number of treatments as well as a home exercise program. She had breaks in her physiotherapy treatment due to work pressures. She was referred by Dr Gost to Dr Steven Jensen, for management of her chronic pain condition, and he suggested nerve blocks but the plaintiff was afraid to undergo them in the absence of a guarantee of success.
12 Due to her “spinal injury”, the plaintiff was unable to sustain the driving required for her role as a police and emergency services reporter servicing a large geographical area. She suffered increased neck symptoms in May 2010 when staff numbers decreased and she had to spend more time in the office over a computer. She was taking up to eight Panadol tablets per day. She was unable to manage her job and resigned in August 2010. She felt obliged to quit journalism, which was a great loss to her, as she had planned to keep working as a journalist for the rest of her working life. Prior to the transport accident, she felt she had the potential to seek promotion. Due to her “neck and back injuries”, she was unable to seek alternative employment involving much computer work.
13 In January 2011 she found alternative employment as an electorate officer for a State Member of Parliament. The office is not busy, there is not much computer work, and she can move around at will. She is not financially disadvantaged by her current employment but has no job security and no scope for advancement.
14 Prior to the transport accident, she used to bike ride daily, play golf monthly, go bowling once or twice per month and attend AFL football regularly. After the transport accident, she could not ride her bike because of her restricted neck movements. She has tried bowling and golf once but was unable to continue.
15 In November 2011 she suffered a “very severe flare-up of my spinal symptoms” when getting into a car. She required intensive physiotherapy two or three times per week and continues to have physiotherapy. Since that time, her back condition has been much worse. If her “spine” is “playing up”, she is able to work from home, and she is grateful that her employer is accommodating.[4] However, her job is not as stimulating as that she had as a journalist.
[4]See the Plaintiff’s Further Affidavit sworn 18 September 2012, PCB p 13, paragraph 19.
16 She has constant neck pain which causes headaches and occasional nausea. Sometimes “pain in the spine” keeps her awake at night. She takes between six and eight Panadol per day “on a bad day”. She remains unable to do heavy housework which requires bending. She employs a cleaner. Her niece drives her to work. She walks occasionally. She socialises less than she used to before the transport accident. She no longer attends AFL matches to watch her team.
17 In cross-examination, the plaintiff said she used to take sleeping pills occasionally prior to January 2008 but now takes one tablet each night. In relation to her prior history of back problems, the plaintiff said that she did not think to mention it in her claim form because it had been so long since her back had given her any trouble. She agreed that the Williamstown Hospital notes recorded a complaint of neck and upper back pain on the day of the accident, and said she recalled telling them she had a sore back. She did not recall telling them she was sore in the upper back only. She agreed that Dr Gost’s notes make no mention of a complaint of lower back pain on 15 January 2008 but his note of a visit on 23 January 2008 records a complaint of lower back pain from the transport accident.
18 The plaintiff agreed that whereas in her first affidavit she stated that by December 2010 her lower back symptoms had improved to their pre-accident level,[5] in her second affidavit she stated that her lower back was much worse since November 2011. She agreed that she had told Mr King in November 2009 that her lower back pain had improved to its pre-accident level and that she told Mr Myers and Dr Stark in 2012 that her lower back pain was an ongoing problem, preventing her from gardening and from driving, standing or walking for long periods. However, she insisted that her neck pain also affected these activities. She said that she could not play golf, or do housework because of neck pain and back pain.
[5]PCB p7, paragraph 14.
19 She said that she had no certificates for time off work between the date of the transport accident and her resignation from Fairfax in August 2010 because she had an understanding editor who put on her on duties which involved less driving. She agreed that she had not applied for promotion while at Fairfax but said that if a position had been advertised for a chief of staff position in a local paper she would have applied. She agreed that she is earning about $20,000 more per annum in her current position than she was earning as a journalist. However, she said that her current job is only guaranteed for another two years. She agreed that she is coping well in her current job, but cannot sit for long due to her neck pain, back pain and headaches. She has discomfort driving for more than an hour. She agreed that she had attended some football matches in the past three years although her ticket had sometimes been used by others. Prior to the transport accident, she would attend nearly all the home games and some interstate games. She agreed that she is on Facebook a lot, but actually socialises less than before the transport accident. She says she takes painkillers every day: at least four each day on the weekend, and between four and eight tablets each day at work.
20 In re-examination, she said that she had treatment on and off for lower back pain in the ten years before January 2008 but had never required time off work. She said that she first experienced lower back pain a few days after the transport accident. She said that between January 2008 and December 2010 when she swore her first affidavit her back pain had been up and down, but for short periods it was back to pre-accident levels. She said that she is now taking a sleeping pill every night to help her sleep because when she lies down she feels neck and back pain.
Lay evidence
21 The plaintiff’s niece swore an affidavit in which she noted that she has lived all her life with the plaintiff and that prior to the transport accident she was an active, athletic person who played golf regularly and was a keen bike rider. She held regular dinner parties and went out to dinners and clubs. She was a fanatical supporter of her AFL football club. She used to go bowling. She went to gym. She had minor back problems but these did not prevent her from doing anything.
22 After the transport accident, she continues to suffer from pain and headaches. She can no longer assist to prepare dinners and social gatherings at home. She often leaves family gatherings early because of pain and headaches. She cannot do any heavy cleaning or weekly grocery shopping. When she has bad neck pain the plaintiff has severe headaches and “lives off Panadol”.
23 In cross-examination, the plaintiff’s niece agreed that she did not know the level of the plaintiff’s pain or whether her difficulties were due to back or neck pain or both. She insisted that prior to the transport accident the plaintiff was normal. She said that after the transport accident the plaintiff had back pain and was taking Panadol but did not know whether the plaintiff’s back pain was more severe after November 2011.
24 A family friend of the plaintiff for the past ten years stated that prior to the transport accident she went bowling regularly with the plaintiff and other friends and saw her socially on weekends.[6] The plaintiff regularly attended AFL matches. She stated that since the transport accident she observed the plaintiff being regularly restricted in her neck movements and that the plaintiff has complained of severe headaches due to her stiff neck. The plaintiff no longer visits her at home; she does not stay out long for social occasions; she no longer goes to the football. When the friend visits the plaintiff, the plaintiff stays on the couch.
[6]See the Affidavit of Paola Luca, PCB p 19.
Evidence of treating practitioners
25 Dr Gost provided three reports. In his first report[7] he noted that she presented to him on 15 January 2008 a few days after the transport accident complaining of ongoing headache. Dr Gost diagnosied “hyperextension/flexion injury to the neck with musculo-ligamentous strain”. He prescribed Tramal and gave her time off work. On 23 January 2008 he noted a complaint that she was “no better with ongoing neck and lower back pain”. He referred her for physiotherapy. He noted further attendances in March and April 2008 complaining of neck pain and headache and a request from her for a CT scan in July 2009. On 29 May 2009 he noted that there had been some improvement although she was considering a change of jobs “as she felt the time spent on a keyboard was adversely affecting her neck symptoms”.
[7]Report dated 2 July 2009: See PCB p 23.
26 On 27 June 2011, Dr Gost noted an attendance in June 2011 with a complaint of daily neck pain and headaches, with physiotherapy only providing short term relief.[8] He noted the referral to Dr Jensen and deferred to his specialist opinion. On 27 July 2012, Dr Gost noted that the plaintiff had frequently mentioned her neck pain on her recent attendances. In the light of the lack of improvement to date, along with the short-term relief obtained from physiotherapy and chiropractic, he did not anticipate any further improvement in her condition.
[8]PCB p 25.
27 Another doctor at the same clinic, Dr Kohn, reported to TAC on 7 November 2011 that the plaintiff “has a history of severe low back pain and left sciatica” which “was previously aggravated by her MCA in 2008” and that she “currently has an exacerbation of these problems” requiring physiotherapy.[9]
[9]PCB p 27.
28 The plaintiff’s physiotherapist, Ms Cheryl Keasberry reported on 26 June 2009 that in the transport accident the plaintiff suffered a left cervical musculo-ligamentous injury and aggravated her lumbar spondylolisthesis with associated discogenic symptoms.[10] She noted that the plaintiff had constant neck pain, disturbed sleep as well as problems sitting or standing for more than an hour due to neck and back pain, and inability to carry 5 kgs or more without pain. She described the treatment provided to the plaintiff’s low back and neck. She noted that the plaintiff had become able to manage the pain and headaches better during breaks in therapy. She felt that her symptoms had improved but continued to fluctuate. On 12 December 2011, Ms Keasberry reported that in the transport accident the plaintiff sustained “left-sided cervical radiculopathy of C5-6 and lumbar spondylosis with associated discogenic symptoms”.[11] The plaintiff had not been to see her since September 2010 but had been managing her muscular tightness and pain with self management strategies, home exercises and a gym/swim program. She noted increased pain in November 2011, and recommended clinical pilates.
[10]PCB p 30.
[11]PCB p 32.
29 The pilates instructor, Rosalind Walker, reported on 9 December 2011 that the plaintiff had a “longstanding history of low back pain” but suffered an exacerbation of that low back pain in the transport accident as well as head, neck and shoulder pain.[12] Ms Walker provided joint and soft tissue mobilisation, ultrasound, acupuncture and hydrotherapy. She noted that there had been some improvement in the plaintiff’s back symptoms.
[12]PCB p 34.
30 Dr Michael Poon, neurologist, reported on 14 May 2010 and 25 June 2010 that he saw the plaintiff in relation to her complaint of her chronic neck pain following the transport accident but felt that the 2008 CT showed “very minor disc degenerative disease” and there was nothing requiring surgical treatment.[13]
[13]PCB p 37.
31 The plaintiff’s current treating physiotherapist, Ms Annie Percy, reported on 29 October 2011 that she had been treating the plaintiff once or twice per month in recent months in relation, relevantly, to constant neck pain, headaches and low back pain. The plaintiff reported difficulties with driving, sitting for more than an hour, gardening and desk/computer work. She noted that “at her best”, the plaintiff had ongoing neck and shoulder pain, mild low back pain, but experiences regular ‘increases to the intensity, area and frequency of symptoms”.[14] She concluded that the plaintiff was likely to experience “cervical and lumbar pain and dysfunction for the remainder of her life”, with ongoing underlying symptoms with regular exacerbations requiring physiotherapy.
[14]PCB p 63.
Medico-legal opinions
32 Dr Steven Jensen reported on 23 August 2011 that in the transport accident the plaintiff “suffered predominantly mechanical cervical spine dysfunction, much worse on the left side that was leading to persistent headaches that I felt were most likely cervicogenic headaches”. He noted that she had an earlier back injury but “this had not been aggravated in any significant way” by the transport accident. He had discussed the possibility of interventional injections with her and had obtained TAC approval but noted that she did not wish to proceed with this treatment modality. He felt that given she was still suffering significant symptoms and that there was no significant psychosocial overlay, her condition was likely to be permanent.[15]
[15]PCB p 39.
33 On 18 September 2009, Mr Kevin King, orthopaedic surgeon, reported[16] taking a history that prior to the transport accident, the plaintiff suffered mild bouts of back ache which were “very infrequent and did not interfere with her capacity to work as a journalist”. She reported to him that at the time of the transport accident she experienced the following injuries:
1. A violent jolting jerking strain to her twisted head and neck – she was immediately conscious of very severe pain in the neck.
2. As a lesser injury she was conscious of a jolting jerking strain to the lumbo-sacral spine with an aggravation of her pre-existing usually mild back ache and with some radiation to the left buttock and thigh.[17]
[16]PCB p 41.
[17]PCB p 42.
34 Mr King noted that the plaintiff reported little improvement over the first twelve months but some improvement in the previous six months. She was no longer having physiotherapy and was taking up to eight Panadol tablets per day, and was managing working full time, “with an occasional day off because of flare-ups of neck pain”.[18] She complained of constant pain and stiffness in the neck of moderate severity at rest but aggravated by exertion. The neck pain was severe most of the time if she did not take Panadol. She also complained of constant headache, which was quite severe without analgesia; occasional mild ache in both shoulders and mild intermittent lower back pain, occurring in bouts every few weeks. He noted “this low back pain has reached the pre-accident level”.[19]
[18]Ibid.
[19]PCB p 43.
35 Mr King concluded:
This previously fit and active 52 year old journalist had always been well apart from a mild intermittent lumbo-sacral back ache over the years due to a spondylolisthsis, was involved in what would appear to have been a major two vehicle rear end collision on 11-01-08. From her clear account of what happened it must be assumed that her cervical spine and to a much lesser extent her lumbo-sacral spine were exposed to a significant degree of generalised trauma- particularly in the neck region where her head was twisted at the moment of impact. Injury to cervical discs and associated ligamentous structures at multiple levels at the moment of impact would more than adequately explain her initially severe and disabling neck pain and occipital headache and would explain her now improving but nonetheless quite significant residual neck pain and stiffness and the constant occipital headache – partially controlled by analgesics.
She...has been left with, on clinical grounds, an impairment of cervical spine function due to injury equivalent to approximately a 25% loss of function in the cervical spine.
She would appear to have sustained some damage to lumbar discs and associated ligamentous structures and aggravated the changes associated with a pre-existing only mildly symptomatic spondylolisthesis. As far as I can gather from her clear history the low back ache has now largely subsided and is currently at the level that persisted prior to the car accident. She therefore does not seem to have sustained any long term aggravation of the lower back condition.[20]
[20]PCB p 44.
36 The plaintiff’s complaint that in the past 13 months her symptoms of neck pain, headache and low back pain had persisted with the neck pain and headaches becoming slowly worse due to long periods at her desk with head bent. Her low back pain had also become worse than it was before the car accident. She had ceased work in August 2010 and reported “some mild decrease in her symptoms with rest since then”.[21] There were new symptoms of tingling and numbness in the index, middle and ring fingers “corresponding approximately to partial lesions of C6, C7 and C8”. He noted no evidence of “any sort of psychological overlay and no evidence of exaggeration”.[22] He felt that she was unfit to return to her pre-injury duties but may be able to return part-time if the “present slow improvement” continued. He felt that her condition had stabilised.
[21]PCB p 48.
[22]PCB p 50.
37 On 12 June 2012 Mr King reported that the plaintiff told him her neck pain and headache were persisting at the same level as when he saw her previously but that there had been a “slow increase in the severity of her previously mild lumbosacral backache and this is now almost as troublesome to her as the neck pain”.[23] He felt that the neck symptoms “seem to date entirely from the car accident on 11.01.08” but that there were previous problems with backache “which were aggravated to some extent by the car accident”.[24] He felt that she should be able to manage her current lighter work into the foreseeable future. He concluded that “all of her neck symptoms are related to the injuries sustained in the car accident on 11.01.08”.[25] The problems with her back would appear to be related to a pre-existing spondylolisthsis of longstanding, previously only mildly symptomatic, but aggravated to some extent by superadded trauma at the time of the car accident on 11.01.08. He again noted there was no evidence of any psychological overlay. He recommended symptomatic treatment only with analgesics.
[23]PCB p 53.
[24]PCB p 56.
[25]PCB p 56.
38 On 23 January 2012, Mr Kenneth Myers, general surgeon, reported a history from the plaintiff of “a long history of low back pain from known spondylolisthesis” prior to the transport accident.[26] He noted that after the incident of November 2011 the plaintiff’s low back pain improved but “she still has severe pain in the neck”. He noted her complaints: daily headaches, ongoing pain in the neck and back, worse in the neck, though severe in the back again since last November, sciatica in the past down the left leg but not in recent weeks.
[26]PCB pp 58-59.
39 Mr Myers agreed with the opinions of Mr King of 2009 and 2010 referred to above. He felt that there would be no improvement in the neck or low back and that she may eventually require surgery for the spondylolisthesis.
40 Dr Tony Kostos, rheumatologist, reported on 19 January 2011 that the plaintiff complained of constant left neck pain, constant headaches and constant low back pain with left buttock and posterior thigh pain radiating down to the knee.[27] He noted “a long history of low back pain for many years which she claims has been attributed to ‘spondylolisthesis’…at the time of the accident the spondylolisthesis wasn’t giving her a great deal of pain but she stated that this condition is now ‘pretty bad again’.”[28]
[27]Defendant’s Court Book (DCB) p 1.
[28]DCB p 3.
41 Dr Kostos stated that “As in the majority of cases of neck and back pain, it is impossible to make a diagnosis as to the cause of pain”.[29] He did not believe that her headaches could be attributed to her cervical spine problems. He repeated this conclusion in his second report dated 23 February 2011.[30] He stated that there was no evidence of radicular, somatic or neuropathic type pain or of localised cervical or mechanical facet joint dysfunction. He would support cervical spine medial branch blocks if administered strictly in accordance with protocols.
[29]DCB p 5.
[30]PCB p 7.
42 In his third report dated 20 August 2012, Dr Kostos noted the occurrence of the incident in November 2011 when the plaintiff’s back and neck “went”.[31] She had been having physiotherapy fortnightly before the flare-up in November, but after the flare-up the frequency of treatment to the back and neck increased to three times weekly.
[31]DCB p 9.
43 Dr Stark reported on 13 September 2012 that he received a history from the plaintiff of no neck trouble prior to the transport accident. In relation to the back she told him she had had “previous trouble with her back as a result of spondylolisthesis but with treatment this had improved and she was not greatly troubled by it”.[32] He concluded that as a result of the transport accident the plaintiff had suffered a “soft tissue injury to the cervical spine and an aggravation of her lumbar spine condition which includes spondylolisthesis and left sided sciatica”. He also concluded:
Her description of her lower back symptoms suggests that she had, in fact, made a reasonably good recovery from the accident but that there was a further flare-up in November 2011; it is difficult to say how much the accident has contributed to the susceptibility to such a flare-up. I suspect that the accident has made a finite but relatively minor contribution.
[32]PCB p 63A.
44 Dr Stark noted that the ongoing back and neck symptoms led her to leave her job as a journalist and that there had been a significant change in her domestic and leisure activities, particularly in relation to golf, bike riding and attending the football.
Legal principles
45 In cases involving aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident. In an aggravation case, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[33]
[33]Petkovski v Galletti [1994] 1 VR 436, 444.
46 It was common ground that the reasoning of the Court of Appeal in Altona Bus Lines and Anor v Lococo[34] could be applied to the lower back injury in this case. That is, where one body function is injured in two separate incidents, the first injury may be found to be serious if the additional consequences which became manifest in the subsequent injury were consequences of the original injury and were taken into account in isolation to determine that the first injury produced a “serious long-term impairment of body function”.
[34][2002] VSCA 159.
47 On this basis, it is open to me to consider the contribution that the back injury sustained in the transport accident made in producing the serious long term impairment of the body function of the lumbar spine.
Findings and reasons
48 I found the plaintiff to be a straightforward witness. I accept her evidence. In particular, I accept her evidence that she had no back problems for years prior to the transport accident, that she suffered back pain at the time of the accident and subsequently, that her lower back remained symptomatic after the transport accident but that it has been much worse since the unrelated November 2011 incident. I am satisfied that in the transport accident she suffered injury to both her lower back and cervical spine. The injury to the lumbar spine was an aggravation of pre-existing degenerative changes (see Mr King, Mr Jensen, Ms Keasberry, Dr Kostos, Dr Stark, Mr Myers) which never returned to their pre-accident level but were substantially worsened by an unrelated incident in November 2011. The injury to the cervical spine was a trauma to the neck resulting in mechanical cervical disc dysfunction causing cervicogenic headaches (Dr Jensen, Ms Keasberry, Mr King, Mr Myers, Dr Stark).[35] As at that date of the hearing, the back symptoms caused her pain and restriction along with the sequelae of the cervical spine injury.
[35]Only Dr Kostos opined that the plaintiff’s headaches were not caused by the cervical spine problem. The weight of the expert opinion, which includes that of a neurologist, Dr Stark, which I accept, is to the effect that the headaches are cervicogenic in their origin.
49 The expert evidence as to the contribution of the lumbar spine injury (by way of aggravation of pre-existing degenerative changes) to the plaintiff’s current lumbar spine impairment was largely (from Mr King, Dr Stark and Mr Myers) to the effect that notwithstanding the subsequent exacerbation experienced in November 2011, the aggravation caused by the transport accident was contributing to some extent to her current lumbar spine impairment. Only Dr Jensen felt that there was no specific aggravation of her lumbar spine condition in the transport accident. I prefer the evidence of Mr King, Dr Stark and Mr Myers in this regard, which is supported by the plaintiff’s treating physiotherapist.
50 I am therefore satisfied that in the transport accident the plaintiff suffered injury to her lower back and cervical spine. Leaving aside any subsequent aggravation in her lower lumbar spine in November 2011, I am satisfied that the consequences of the lower back injury, taken together with the injury to the cervical spine, produced a long-term impairment of the body function of the spine.
51 I accept the plaintiff’s evidence as to her pain and restrictions flowing from the injuries to the lower back and cervical spine sustained in the transport accident. Prior to the transport accident she was able to work full-time in a busy job as a journalist, drive long distances, sit unrestricted, bike ride each day, attend the football very regularly, socialise freely, play golf and attend gym regularly. She was not taking any analgesic medication. She had the prospect of promotion to a more senior position in her field.
52 As a result of the injuries she sustained in the transport accident, she has been taking up to eight Panadol per day during the working week. She suffers constant cervicogenic headaches as well as neck pain and lower back pain. The physical restrictions flowing from the injuries led her to leave journalism and find alternative employment that is much less physically demanding. However, she has lost her vocation as a journalist and is upset by this. There is little or no promotional opportunity or job security in her current role, which is not demanding nor particularly satisfying. Moreover, she is unable to sit or drive for periods longer than an hour or use a computer for long periods. She cannot do much household work. Her sleep is affected by pain and she now takes a sleeping pill every night.
53 I consider that, as at the date of the hearing, the consequences of the plaintiff’s long-term impairment of the spine in terms of pecuniary disadvantage and pain and suffering are more than considerable when compared with other cases in the range of long-term impairments of the function of the spine.
54 Even if I were to leave aside completely the sequelae of the transport accident which relate to the lumbar spine and consider only the impact of the cervical spine injury, I am satisfied on the evidence before me (concerning the constant headaches, need for medication, inability to due long periods of keyboard work, limitations on driving, riding and cleaning, and the loss of vocation) that the consequences of the long-term impairment of the cervical spine in terms of pain and suffering and pecuniary disadvantage are more than considerable when compared with other cases in the range of long-term impairments of the function of the cervical spine.
Conclusion
55 Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect to the injury to the spine resulting from the transport accident on 11 January 2008.
0