Messina v TAC

[2010] VCC 142

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT WANGARATTA
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-04371

SALVATORE MESSINA	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Wangaratta
DATE OF HEARING:	3 and 4 March 2010
DATE OF JUDGMENT:	18 March 2010
CASE MAY BE CITED AS:	Messina v TAC
MEDIUM NEUTRAL CITATION:	[2010] VCC 0142

REASONS FOR JUDGMENT

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Catchwords:  Serious injury application – Loss of sense of smell – Whether resulting from a transport accident – Assessment of the extent of the impact in the transport accident and its relevance to the issue of causation – Section 93 Transport Accident Act 1986

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. S. Monti	Nevin Lenne & Gross
with Mr G. Pierorazio
For the Defendant	Mr W. R. Middleton SC	Solicitor to the Transport
with Ms J. M. Forbes	Accident Commission
HIS HONOUR:

1           Salvatore Messina was driving his motor vehicle in Wyndham Street, Shepparton on 1 February 2008 when it was struck in the rear by another vehicle. The plaintiff suffered a whiplash injury, as a consequence of which he claimed ongoing symptoms in his neck and loss of the sense of smell.

2           The defendant submitted that:

a.	any injury to the plaintiff’s neck was relatively minor and would not meet the statutory definition of serious injury;
b.	the plaintiff’s loss of the sense of smell did not relate to the collision. It was conceded, however, that if the loss of the plaintiff’s sense of smell were found to have been caused by the collision, the injury would meet the statutory definition of serious injury.

3

Transport Accident Act

The plaintiff seeks leave pursuant to s.93 of the 1986 for application raises the following issues for determination:

a.	the extent of the impact resulting from the collision;
b.	whether the plaintiff’s loss of the sense of smell was caused by the collision;
c.	whether the plaintiff’s neck injury satisfies the test for serious injury.

Circumstances of the collision

4           On 1 February 2008 at about 11.30am, the plaintiff was driving his Nissan Utility south in Wyndham Street, Shepparton. The car in front braked and the plaintiff braked and almost stopped his own vehicle. The vehicle immediately following collided with the rear of the plaintiff’s vehicle. The plaintiff said that before the

collision he had been travelling at about 50kph. He estimated the speed of the other
vehicle at the time of the collision at 40-50kph although he admitted in cross
examination that he “couldn’t tell” what speed the other vehicle was travelling just
before the impact.

5           The plaintiff said that before the collision, he heard a screech of brakes from the other vehicle and that the impact with his vehicle was “forceful” and caused the back of his head to heavily strike the headrest and rebound. The plaintiff said that “the impact was forceful enough to cause the keys of my vehicle to come out of the ignition”. He said that he immediately felt “a lot of pain particularly in my neck and I had tingling in both arms and both legs”. After speaking with the other driver and later to police, the plaintiff drove to the Goulburn Valley Hospital to have his injury attended to.

6           The other driver, Ms Kathleen Mancini, provided a statement to an insurance investigator on 11 May 2009. In the statement, later confirmed as accurate in an affidavit, the driver said that about 50 or 60 metres before the collision she had driven through an intersection controlled by traffic lights. She said, “I am unable to recall if I

had been stationary at the High Street traffic control signals or whether I had been

travelling with a free run through the traffic signals”. The other driver said that, “Prior

to impact I would have been travelling no more than about 10kph as I was in a stream
of traffic…the vehicle in front of me had braked, I immediately braked but was very
close to the…utility and struck the rear of the vehicle but not a heavy impact…I must
have glanced away from the traffic directly in front of me as we were going so slow. I
did not actually suffer any injury nor feel any specific jolt on impact, the noise was

minimal”.

7           The other driver said that her vehicle “sustained damage to the left hand front side of

the front spoiler/bumper near the front number plate. I did not notice any damage to

the Datsun Utility as it was the tow bar of his vehicle that wore the impactsound of tyres screeching and a loud bang”. He did not see the collision as he “was required to turn to observe the incident”. He thought that “the traffic flow had been and was slow”. This latter comment and Mr Trounson’s comments on the damage to the two vehicles can be given little weight as they appear to be based upon supposition rather than direct observation.

”. Mr Athel

8           There are photographs of the front of the other car which show minor damage to the left hand side of the number plate and the adjacent area of the front bumper/spoiler. The plaintiff’s vehicle was a 1979 model. The cost of repairing the damage totalled $2,071.99 and a tax invoice indicates that this sum was paid by an insurer. The parts

replaced included a tail lamp, part of the rear bumper bar and the tow bar. The
plaintiff said that the damage to his vehicle was a “pushed-in tow bar and bumper
bar”. He said the tow bar was “made of solid steel”.

9           The issue of the extent of the impact is of some significance. On the basis of the other driver’s statement to the insurance investigator and the photographs of the damage to her vehicle, an examining medical practitioner, Mr Michael Silverstein, described the collision as “only a trivial accident,” and on that basis expressed

conclusions about the likelihood that the plaintiff’s loss of his sense of smell (or
anosmia) related to the collision.

10         Whilst Mr Silverstein and other medical practitioners have the expertise to give evidence about the mechanism of injury, in my view they have no expertise to assess the extent of the impact of a collision from photographs of damage to the motor vehicles or subjective (and conflicting) statements from the participants. In the present case, there is a difference in the description of the collision between the plaintiff and the other driver. The plaintiff’s version is supported by the independent witness, Mr Trounson, although his evidence can only be of limited value because it was not based on direct observation. I consider that I should also accept that the plaintiff’s vehicle was not relevantly damaged prior to the collision and that the impact was sufficiently heavy to have damaged the steel tow bar assembly. The plaintiff’s claim in respect of this damage was presumably investigated by his insurer before the repairs were paid for.

11         In the absence of expert evidence from persons who have the necessary experience or qualifications to draw conclusions from the damage to the two vehicles, and because of the conflicting statements of the drivers and the witness to the aftermath of the collision, it is not appropriate in my view to reach any definitive conclusion about the extent of the impact.

12         The plaintiff said that the impact was sufficient to cause his keys to fly out of the ignition and for him to immediately suffer symptoms to his neck as a result of his head striking the headrest and rebounding. His actions immediately thereafter, of attending the hospital, are consistent with his perception that he had been involved in a collision sufficiently serious to cause him injury.

Cause of the plaintiff’s anosmia

13         The plaintiff first attended his general practitioner on 4 February 2008 complaining of “neck pain, chest pains, confusion, pins and needles”. He thereafter regularly attended his general practitioner and was referred for specialist examination by a neurosurgeon, Mr David Wallace, who first saw the plaintiff on 12 May 2008. Although Mr Wallace saw the plaintiff again on 16 June 2008, he had noted after the first examination that “there was no neurological abnormality in the cranial nerves, upper limbs nor lower limbs,” and after the second examination, that he “could not

find any obvious neurological abnormalities other than some slight unsteadiness on

heel/toe gait, and on Romberg’s Test”. The plaintiff stated in his affidavit in support of the application that, “When I saw Mr David Wallace on 12 May 2008, he performed a

test upon me by putting something under my nose which was in a jar to smell and I

certainly could not work out what it was”.

14 that the plaintiff “has also noticed that he has anosmia/hyposmia”. As a
consequence, the general practitioner, Dr Bruce Sterling, referred the plaintiff to Mr
Tim Baker, an ear, nose and throat specialist, for his opinion on the plaintiff’s anosmia

When the plaintiff attended his general practitioner on 29 July 2008, it was recorded reported to Dr Sterling that the plaintiff’s “injuries are likely to be related to cerebral

concussion with his anosmia due to shearing of the olfactory nerves following the whiplash. I have explained to him that depending on the severity of the injury, it is

possible that this may not recover”. In the meantime, Mr Wallace had seen the plaintiff again on 13 August 2008 and upon examination “confirmed that he has

bilateral anosmia which I think dates from his accident. I think he is unlikely to get his

sense of smell back”.

15 explained the absence of a report of anosmia following the first two examinations, to

In a later report to the plaintiff’s solicitors dated 3 September 2009, Mr Wallace that the anosmia “was, with near absolute certainty present at the time of his first meeting with me, but recorded inaccurately”. Mr Wallace also noted that he would “attribute his anosmia to his motor vehicle accident of 01.02.2008 [as] the type of

injury he suffered at the accident where his head was hyperextended was one in
which the frontal lobes of the brain are lifted off the olfactory bulbs and the olfactory
nerve rootlets are torn at the time. Anosmia after trauma is five times as common
after a blow to the back of the head than to the front of the head, and a
hyperextension injury such as this of some force, is not an uncommon cause of

anosmia”.

16         The following further comments have been made by examining doctors about the plaintiff’s anosmia:

a.	Dr David Elder, a specialist in occupational and environmental medicine, examined the plaintiff at the request of the defendant on 23 July 2008. Dr Elder noted that the plaintiff “has a loss of smell although this is not complete”. He concluded that the plaintiff’s injuries and current symptoms “have an organic basis attributable to the transport accident”.
b.	Mr Geoffrey Klug, a neurosurgeon, saw the plaintiff at the request of the defendant on 23 June 2009. He took a history that the plaintiff’s vehicle “was struck forcibly in the rear by another vehicle” and that “ever since the accident

there has been some impairment of his sense of smell. He told me that initially
after the accident he believed he could smell but that subsequently this

perception was gradually lost”. Mr Klug carried out a neurological examination and noted that, “as regards the cranial nerves he stated that he was unable to

define odours placed beneath either nostril. He told me that he had a vague

sensation of some perception but could not identify any possible smell”.

Mr Klug noted that “the only neurologic abnormality I could detect appeared to

be anosmia. I find it hard to clearly define the relationship of such to the road
traffic accident. Interestingly I obtained a history that such was only noted
some time after the accident. Certainly the early documents provided did not
indicate this complaint. I would have to be of the opinion that a soft tissue
injury of the cervical spine would be a very unusual cause of such a complaint
which invariably results from some avulsion of the branches of the olfactory
nerve in the base of his skull above his nose. In regard to the prognosis of this

complaint, I feel that such is guarded. Overall I think it is unlikely that he will

regain this facility”.

Dr Klug repeated his opinion “that a whiplash type injury of the type suffered

by this person would be a very rare cause of anosmia due to the postulated
mechanism, namely avulsion of the olfactory nerve rootlets. I feel it is not
possible to completely exclude such an association but I feel that such is very
tenuous. As indicated, this person provided me with a history that he only
noticed this complaint some time after the accident which raises the possibility
that it was not a direct consequence of the injury. If the olfactory avulsion
occurred at the time of the incident the loss of sense of smell would have been

noted immediately”.

c. plaintiff on 23 June 2009 at the request of the defendant. Mr Silverstein noted

Mr Michael Silverstein, an ear, nose and throat specialist, examined the detect smell to a variety of odours, both strong and weak”. In a later report, Mr Silverstein stated that, as the plaintiff could detect taste but not smell, “this

would mean that there is not complete damage to the olfactory system, i.e. the

sense of smell”. It is not clear, however, whether this statement by Mr Silverstein is in the context of an evaluation of permanent impairment pursuant to the AMA guides, which only appear to measure impairment of the

olfactory nerves if there is a “taste disorder”.

Mr Silverstein also stated, “I would agree with Mr Klug that it would be an

extremely rare event associated with significant trauma to the head either by
whiplash injury or by fracture that this could have occurred. I realise there
may have been an incident and this can occur with mild injury although I
would consider it to be extremely rare. On reviewing the actual findings of the
photographs and the statement by Kathleen Mancini, it would appear to me
that this was only a trivial accident and this would even further diminish the

probability that there would be an impairment in regard to the anosmia”.

d. Dr Phillip Mutton, a consultant occupational physician, saw the plaintiff at the request of the defendant on 30 November 2009. Dr Mutton’s diagnosis was “cervical whiplash injury. He claims onset of anosmia which is difficult to

comprehend, given the mechanism of injury”. Dr Mutton noted, “Mr Messina

sustained an injury in a low velocity motor vehicle accident. He was struck
from behind by a vehicle that failed to brake adequately when he himself
stopped suddenly. There was only minor impact to both vehicles and both
vehicles could be driven away by the drivers following. I note also that
investigations failed to identify significant impact or damage on either
vehicle…It is likely he suffered a soft tissue injury to the cervical spine and
aggravated pre-existing cervical spondylosis. I have difficulty relating his

anosmia to the transport accident”.

17         The matters raised by Mr Silverstein and Mr Klug, which apparently led to their conclusions, were primarily that:

a.	the impact of the collision was minimal;
b.	a whiplash injury, as suffered by the plaintiff, was unlikely to result in damage to the olfactory nerves;
c.	the delay in the plaintiff reporting loss of smell indicated a cause other than the motor vehicle accident.

18         Mr Wallace, the plaintiff’s treating neurosurgeon, was cross examined at the hearing. Neither Mr Klug nor Mr Silverstein gave oral evidence. Mr Wallace was a very impressive witness. The critical parts of his evidence were as follows:

a.	he had “seen many hundreds of cases of anosmia after trauma”;
b.	he explained the mechanism of injury as follows – “When the head goes

backwards and hits an object the brain [which]…is floating in fluid…moves inside the skull and lifts. If it lifts more than a few millimetres, the olfactory nerve rootlets tear from out of the olfactory bowl on each side…These rootlets

get torn and they never repair. They don’t have the capacity to repair”;

c. although “the loss of sense of smell is immediate…more often than not the

patient doesn’t know it’s happened and if they do complain of anything, days weeks or months later, and it’s usually weeks or months at the earliest and it could often be in a year of two…they complain they’ve lost their sense of taste

rather than smell”;

d. he disagreed “totally” that a whiplash type injury of the type suffered by the plaintiff would be a very rare cause of anosmia and said, “It can happen very

simply with…a straight impact backwards against a hard object. There doesn’t

have to be a great force”;

e. the loss of the sense of smell can be quite devastating “even though all taste buds are all still working”.

19         Mr Klug expressed his opinion on the premise that the alleged cause of the anosmia was “a soft tissue injury of the cervical spine” whereas Mr Wallace explained the mechanism by reference to the plaintiff striking the back of his head on the headrest, noting that “anosmia after trauma is five times as common after a blow to the back of

the head than to the front of the head and a hyperextension injury such as this one of

some force is not an uncommon cause of anosmia”. Mr Silverstein described the collision as “only a trivial accident”, on the basis of the photographs and other driver’s statement. He said that, “significant trauma to the head either by whiplash injury or by fracture” would ordinarily be required before this injury would occur.
20	a great force example of a small boy fainting and, as he toppled to the floor, banging the back of

Mr Wallace considered that there did not have to be “” and gave an and Mr Klug conceded the possibility of anosmia resulting from a motor vehicle accident as described by the plaintiff (as interpreted by them having regard to other material available) although they regarded such a consequence as “very tenuous” (Mr Klug) or “extremely rare” (Mr Silverstein).

21 the sense of smell was recorded by the general practitioner on 29 July 2008 and by
Mr Wallace on 13 August 2008. Although Mr Wallace in his report to the plaintiff’s
solicitors considered that on the first two examinations in May and June 2008 he must

The motor vehicle collision occurred on 1 February 2008. The first report of loss of oral evidence was that he could not “with all honesty say whether I tested the sense of smell or not. I suspect I didn’t”. He stated that the omission was “either of recording or of failing to examine his sense of smell”.

22         It appears that the relationship between the sense of smell and the sense of taste is a complex one and it is likely that the loss of the sense of smell is reflected in an impaired sense of taste. The realisation that this has occurred and the relating of the symptoms to the trauma sustained in a motor vehicle accident does not, in my view, seem likely to be something which would be readily apparent to a lay person. In this regard I am more persuaded by the views expressed by Mr Wallace, which he said were based upon his considerable experience.

23         It is difficult in the circumstances of this case to imagine that there would have been any supervening factor between February and July which involved trauma to the plaintiff sufficient to permanently affect his olfactory nerves. During this period, the plaintiff was either unable to work because of the problems associated with his neck injury or, when he was working, would have been careful to ensure that he restricted his activities so as not to exacerbate his symptoms.

24         The conclusion reached by Mr Wallace was independently reached by the treating ear, nose and throat specialist, Mr Baker. In the circumstances, I consider the overwhelming likelihood is that the plaintiff’s anosmia was caused by the motor vehicle collision. Defendant’s Senior Counsel, Mr Middleton SC, conceded that if I reached this conclusion it was appropriate to make a finding of “serious injury”.

Plaintiff’s neck injury

25         Because of the conclusion I have reached in relation to the plaintiff’s anosmia, it is not necessary for me to form a view on whether the plaintiff’s neck injury satisfies the statutory test of “serious injury” in order for the plaintiff to have the required leave to bring a proceeding for damages. In the circumstances, it is appropriate that the views I express on the plaintiff’s neck injury should be limited.

26         On 1 February 2008, when the plaintiff presented at the Goulburn Valley Hospital, his condition was described as “neck whiplash injury”. On 4 February, his general practitioner noted the plaintiff’s “neck pain, chest pains, confusion, pins and needles”. These symptoms continued for some time and the plaintiff was unable to pursue his employment as a fruit picker. The general practitioner’s diagnosis was of “whiplash

injury resulting in a C6/7 disc lesion. This causes – dizziness and headaches
especially on looking up (neck extension), persistent tinnitus, dysthesia (upper limbs),

anosmia due to shearing of the olfactory nerves”.

27         In March 2009, Dr Sterling considered that the plaintiff was “not able to return to his

pre-injury employment certainly in the medium term. He has been a contract fruit
picker and orchard hand. He is unable to wear heavy fruit bags around his neck and
he is unable to look at anything above his horizontal line of vision. It may be possible
to perform some of the tasks such as pruning while using a cherry picker for
elevation. He could return to work on reduced hours but not fruit picking or other

physically demanding work”. Dr Sterling generally encouraged the plaintiff to attempt
to return to work and the plaintiff seems to have made every effort to do so and for
extended periods worked long hours although with some difficulty and at times his
symptoms required him to cease work.

28         It appears that the plaintiff’s neck injury, and the headaches he says he suffers as a consequence, can be particularly disabling and require him to avoid activities which exacerbate his problems. This has meant that, apart from his ability to work he has also been limited in his domestic tasks and recreational activities. There are,

however, different views expressed by the examining doctors:

a. Mr Robert Dickens, an orthopaedic surgeon, examined the plaintiff at the request of the defendant on 22 June 2009. Mr Dickens considered that the plaintiff had “sustained an injury to his cervical spine [that] was an aggravation

of that underlying pre-existing pathology. He now has ongoing neck symptoms

with some restrictions of mobility but without radiculopathy”. Mr Dickens’ view

was that the plaintiff’s medical condition in the neck has “impacted on his

activities of daily living and occupational activities [and] he should avoid those

activities that cause acute exacerbation of his current neck symptoms”;

b. Dr Mutton diagnosed “cervical whiplash injury” and noted, “It is likely he

suffered a soft tissue injury to the cervical spine and aggravated pre-existing

cervical spondylosis”. He noted the plaintiff’s complaint in November 2009 of “increasing symptoms in terms of dizziness and tingling sensations” although Dr Mutton said he did “not believe these have an organic basis” and did “not relate them to the transport accident”;

c.	Mr Klug, after his examination on 23 June 2009, stated that, “It is almost
certain this person was suffering from pre-existing cervical spondylosis and that the accident under consideration probably led to an aggravation of such and that such aggravation has played a role in the emergence of symptoms

which have persisted to some extent up until the present time”.

29         The plaintiff did pruning work between about May and September 2009 although he said that, “Towards the end I couldn’t put up with the pain”. Dr Sterling noted on 4 September 2009, that the plaintiff “really cannot tolerate the pain and neurological symptoms associated with the pruning and farm work”, and in December 2009, that the plaintiff was “frustrated at not being able to work as he used to” noting that he was “unable to pick fruit. Employment agency has not come up with anything as yet”.

30         The plaintiff has always worked in manual labour type work and has limited education. I do not consider, however, that any purpose is served by expressing an opinion as to whether the consequences of the plaintiff’s neck injury satisfy the description of “very considerable” when compared with the whole range of impairments of body function.

Conclusion

31         As a result of the findings I have made in relation to the plaintiff’s anosmia, he will have leave to issue a proceeding for damages in respect of the motor vehicle accident on 1 February 2008.

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Certificate

I certify that these 13 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 18 March 2010.

Dated: 18 March 2010

Caroline Dawes

Associate to His Honour Judge Anderson