Michelmore v Mathloulakis
[2014] VCC 1808
•7 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00052
| JULIE MICHELMORE | Plaintiff |
| v | |
| JOHN MATHLOULAKIS | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 and 27 October 2014 | |
DATE OF JUDGMENT: | 7 November 2014 | |
CASE MAY BE CITED AS: | Michelmore v Mathloulakis & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1808 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – injury to the right shoulder – evolution of symptoms consistent with the diagnosis of Complex Regional Pain Syndrome Type I – whether the underlying condition was aggravated by work performed by the plaintiff – whether the consequences of the condition were “serious” – credit
Legislation Cited: Transport Accident Act 1986, s93
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr D O’Brien | Vincent Verduci & Associates |
| For the Defendants | Mr P D Elliott QC with Ms R Kaye | HWL Ebsworth |
HIS HONOUR:
Introduction
1 By an Originating Motion filed on 7 January 2011, the plaintiff seeks the leave of the Court pursuant to s93 of the Transport Accident Act 1986, to bring a proceeding to recover damages for injuries she suffered in a transport accident which occurred on 26 June 2005.
2 The plaintiff claims that she has suffered a serious long-term impairment or loss of the function of her right upper limb under paragraph (a) of the definition of “serious injury”.
3 Mr A Ingram appeared with Mr D O’Brien of Counsel for the plaintiff. Mr P D Elliott QC appeared with Ms R Kaye of Counsel for the defendants.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· Dr P Blombery, vascular physician, gave evidence and was cross-examined;
· Associate Professor K Myers, vascular surgeon, gave evidence and was cross-examined;
· The plaintiff tendered a photocopy of a photograph of a binding device: exhibit A;
· The plaintiff tendered her Court Book (“PCB”) pages 17-21, 26-32(h), 36(a)-51(b), 57-106(p), 123(a)-123(29), and from the defendants’ Court Book (“DCB”) pages 5-18 and 28(a)-28(f): exhibit B;
· The defendants tendered their Court Book pages 1-4, 28(g) and 44-82: exhibit 1.
The transport accident
5 On 26 June 2005, the plaintiff was a rear seat passenger in a motor vehicle driven by a friend. It was struck by another motor vehicle which resulted in the motor vehicle in which the plaintiff was a passenger suffering extensive damage.
6 The plaintiff believes that she was unconscious for some time. She was probably not unconscious for as long she believes. She was dazed and confused. She experienced pain in her right shoulder, back and rib cage. She later became aware of bruising.
7 An ambulance was called to the scene of the transport accident. The plaintiff declined to be taken to a hospital. She preferred to return to her home.
The Plaintiff’s injuries
8 The plaintiff went to the Angliss Hospital in Ferntree Gallery the day following the transport accident. She underwent a CT scan of her neck. She was subsequently treated by Dr Broomhall, who I assume is a general practitioner. She was referred to have physiotherapy treatment. She was prescribed Voltaren to treat the pain she was experiencing. She undertook swimming which she found beneficial. She joined a gymnasium, presumably to undertake exercises.
9 The only medical evidence of treatment obtained by the plaintiff contemporaneously with the transport accident is a very short report of Dr Van Haaster, general practitioner. The plaintiff saw her on 20 July 2005. She complained of neck pain and dizziness. On examination, the plaintiff’s neck was tender in the midline. Dr Van Haaster referred the plaintiff to have an x-ray which did not disclose any abnormality. She referred the plaintiff to an osteopath for treatment.[1]
[1]PCB 40. The x-ray is at PCB 37
10 The plaintiff, her husband and their children were living in Monbulk at the time when the transport accident occurred. They moved to Warragul, probably in early 2006.
11 Following her move to Warragul, the plaintiff saw Dr Thompson, general practitioner. She first saw him on 9 October 2007. She described ongoing pain in the right posterior lateral area of her neck and in her left lateral chest wall. On 27 March 2008, she saw him again describing the same pain, but also right interscapular pain. She saw him subsequently on 10 September 2008, and then on 27 April 2009 when she described pain in her right interscapular region and in the area of her left lateral ribs. She told him that the pain was worse at night and was waking her several times each night. It was at that point that Dr Thompson referred the plaintiff to Dr Boers, rheumatologist.[2]
[2]PCB 42
12 The plaintiff first saw Dr Boers on 9 November 2009. She described having persistent left lateral rib pain and interscapular pain since the transport accident. On examination, he found altered sensitivity to light touch. She told him that the pain she experienced first thing in the morning was “quite excruciating”. On examination, he found soft-tissue tenderness and “point” tenderness around the 10th rib on the left side, the anterior axillary line, some periscapular tenderness on the right side, and also “point” tenderness around the sixth rib.
13 Dr Boers referred the plaintiff to have a bone scan.[3] On review of her on 21 January 2010, it was discovered that the plaintiff had a fractured left rib, thought to have been caused by the transport accident. Dr Boers described the plaintiff’s pain as “pain amplification and chronic pain issues” which he considered would best managed by a combination of physiotherapy, hydrotherapy and multidisciplinary pain management.[4]
[3]PCB 39
[4]PCB 48 and 49-50
14 Dr Boers reviewed the plaintiff on two further occasions in between August 2010 and 9 July 2012. He noted that she had diffuse fibromyalgic tender points with fatigue, listlessness and poor concentration. It would appear that he referred her to have other investigations which were unremarkable.[5] In a report to the plaintiff’s solicitors dated 12 September 2013, he considered that the plaintiff had not suffered a specific injury. He considered that she had developed a Chronic Pain Syndrome with regional pain issues.[6]
[5]PCB 51
[6]PCB 51(a)
The claimed injury
15 It is convenient to pause at this point because it was not until Dr Blombery and Associate Professor Myers were engaged to examine the plaintiff on a medico/legal basis that a proper diagnosis was made of the condition affecting the plaintiff’s right upper limb.
16 Before turning to the evidence of Dr Blombery and Associate Professor Myers, it is necessary to set out some of the evidence of the plaintiff.
17 By the time the plaintiff last saw Dr Boers it was obvious that the plaintiff was complaining of significant pain affecting her neck, right shoulder and the left side of her chest. The constellation of symptoms recorded by Dr Boers led him to conclude that the more appropriate diagnosis was that the plaintiff had developed a Chronic Pain Syndrome with regional pain issues.
18 The diagnosis made by Dr Boers appears to be borne out by the treatment provided to the plaintiff by Dr Thompson. In his report dated 27 February 2012, he traced the treatment he provided the plaintiff from 13 July 2009 through to 23 February 2012, when he referred the plaintiff back to Dr Boers because the plaintiff was complaining of disturbed sleep. I assume her disturbed sleep was due to the pain the plaintiff was experiencing in her neck, shoulder and chest. Dr Thompson considered that the plaintiff had sustained significant trauma to her chest and back in the transport accident which had resulted in chronic pain. He considered that the pain had been amplified over the ensuing years, resulting in fibromyalgic pain and costochondritis. He also considered that she had developed a Post-Traumatic Stress Disorder characterised by a number of clinical features.[7]
[7]PCB 43-45
19 The plaintiff swore five affidavits in which she described the pain she has experienced in her neck, right shoulder, chest and arm since the transport accident. In summary, she described her pain as follows:
· Attempts at exercise produced pain in her upper spine and right shoulder, extending into her chest.[8]
[8]PCB 29
· At times, the pain is almost unbearable.[9]
[9]PCB 29
· She has difficulty sleeping. She cannot sleep on her left side because her ribs hurt. She cannot sleep on her right side because her back and shoulders hurt. If she sleeps on her stomach the pain is unbearable, and I assume that she was referring to the pain in her neck, shoulder and chest.[10] The plaintiff’s reference to “her back”, as described by her is a reference to the interscapular region of her right shoulder.[11]
[10]PCB 32(c) and 32(g)
[11]Transcript 20
· She finds that having her right arm hanging at her side is less painful. If she does too much with her right arm she experiences aching in her back and her right shoulder.[12]
[12]PCB 36(b)
· She suffers pain and restriction of movement in her right arm and shoulder. Both become cold and swollen.[13]
[13]PCB 32(g)
· The pain in her back and chest is with her all day every day and never goes away. She has a similar level of pain in her ribs and chest as well.[14]
· She has attempted to undertake exercise as advised by her treating medical practitioners. She described attempts at trying to do so in these terms: “[The pain] nearly kills me.” Other treatment such as physiotherapy and massage do not help and have “nearly killed me”.[15]
[14]PCB 32(d)
[15]PCB 32(d)
20 As a consequence of the increasing pain which the plaintiff has experienced since the transport accident, she has been unable to engage in a level of domestic, social and recreational activities, and her work.
21 The plaintiff was cross-examined at some length about the level of pain she experiences and the extent to which it disables her. It was not my impression that she altered her evidence, in any material way, to the summary I have made of her evidence above.
22 One aspect of the plaintiff’s evidence which became important to the defendants’ case was work which the plaintiff performed in about April 2012. I propose to set that out in full, in order to analyse it and determine what I should make of it given the cross examination on that subject. In her affidavit sworn 24 October 2012, the plaintiff said:
“3Approximately 6 months ago, the staff member who bound workbooks left and I was asked to bind a book every now and again. Within the last month, my employer has acquired a lot of new business and I have been asked to bind all the workbooks for new and existing clients. These books range from 20 to 280 pages and each page needs to be hole punched, which I attend to. I have only been able to hole punch 20 pages at a time.
4Recently I had to bind approx. 30 books over a period of a couple of days and since I attended to this, my right arm has lost strength, it is very cold and weak. My shoulder also feels a lot worse and is more painful. This binding task is now part of my regular duties as the lady who would normally do this has left and they are not replacing her.
5While binding these books I can only manage a couple at a time as my shoulder and my arm ache and my arm tingles because it is cold. I need to take a break from it every 10 minutes also however my arm has remained cold and anything repetitive now hurt my back, shoulder and arm more than ever. This includes simple jobs such as putting on makeup as my arm needs to be held in one position for a period of time. Wiping the bench also clauses my shoulder to ache and it seems that anything repetitive now hurts.”[16]
[16]PCB 36 (a)-36 (b)
23 Mr Elliott referred the plaintiff to a history which she gave to Mr Goldwasser, orthopaedic surgeon. He examined her on three occasions. On the second occasion he saw her on 16 May 2013, she told him:
“… However, about two months after seeing me in July 2012, she became more aware of some changes, which were occurring in her hand. She noticed it more after an episode at work when she was bookbinding. This was not strenuous work but not her usual duties and involved pulling down on a handle approximately 15 times while she did these duties for about an hour. At the end of the hour she stopped because of increasing pain in her shoulder and she became aware of swelling and coldness in her right hand. She did not persist with that work, although there was more of that type of work available.”[17]
[17]PCB 106(a)-106(b)
24 The matters deposed to by the plaintiff in her affidavit and the history recorded by Mr Goldwasser were central to the submission made by Mr Elliott that the coldness, swelling and colour changes in the plaintiff’s right hand occurred at around the time when she was performing the bookbinding work in April 2012, said to be confirmed by the history she gave to Mr Goldwasser.
25 Mr Elliott submitted, in the alternative, that if I accepted that the plaintiff had some symptoms of the condition before April 2012, that the work she performed at that time aggravated the underlying condition. If that was so, then the consequences of the aggravation cannot form part of my consideration whether the plaintiff has suffered a serious injury or not. The submission was essentially that the plaintiff suffered worsening symptoms after April 2012, and a reduction in her capacity to work, which are consequences of the aggravation and not of the original injury.
26 The plaintiff repeatedly said that she had suffered coldness in her right hand from a very early time following the transport accident. She was pressed on the issue by both Mr Ingram and Mr Elliott. She said that she recalled that the coldness in her right hand began at around the time she was working at the Grange Deli and Café. She worked there from April 2006 to January 2009. She said:
Q:“Before Dr Blombery examined you had you ever been aware of any temperature variation from one hand to the other?---
A:The temperature yes, but not the swelling, I could just always feel it was always colder.
Q:When did you begin to feel the right hand was colder than the left hand?---
A:It was quite some time ago, I was still at the Grange, at the deli because I used to put a heat pack on it when I came home at night which is 2000, so when I first moved to Warragul and started working there.
Q:With what frequency when you came home from work would you be putting the heat pack on?---
A:Every night, it was terrible, I used to have to elevate my arm and put a heat pack on up here.
Q:Did you ever use a heat pack anywhere except on the back part of the shoulder?---
A:Here now.
Q:Did you ever use a heat pack anywhere else apart from that?---
A:No, I used to just put it up on my shoulder.
Q:At any time subsequent to that time have you ever used it?---
A:Since then?
Q:Yes?---
A:Yes, down my arm, my hand.
Q:When did you start using a heat pack on your arm, firstly or your hand, secondly?---
A:I couldn’t recall to be honest.
Q:Were you working at your current employment when you started doing that?---
A:I don’t know, could have still been back at the Grange because I was using the heat pack then but I can’t – I’m not sure, it would be a few years now at least a few years.
Q:Was it before or after the time Dr Blombery first examined you?---
A:Before.”[18]
[18]Transcript 83-84
27 The conclusion I have reached about what occurred in 2012 is contrary to the submission made by Mr Elliott that what occurred amounts to an aggravation. The affidavit is equivocal in describing precisely what the plaintiff was doing. It is because she complained of further pain and symptoms of swelling and colour change that suggests that she must have put her right shoulder under some strain to produce symptoms which she had previously not experienced. However, what she deposed to in the affidavit and what she told Mr Goldwasser must be seen in the context of what she was actually doing.
28 The plaintiff gave a number of explanations about the operation of the bookbinding device. It was only after two devices were brought into the Court that what she actually did was better understood. Finally, a photocopy of a photograph of the device she actually operated was produced.[19] With the use of the devices brought into Court, the plaintiff described how it was operated. Firstly, she would place paper into what appears to be a paper tray at the front of the device. The device has an arm which is in a resting position in the photograph. It is raised and brought down. That process punches holes in the paper. The paper is then removed and placed on the top of the device where the binding occurs.
[19]Exhibit A
29 In the course of describing that process the plaintiff said that she placed the paper into the tray with both hands. The use of the arm was operated with her left hand. The hole-punched papers were removed with both hands. The fixing of the binding occurred using both hands.[20] Now that I have set out the plaintiff’s evidence about what she was doing in April 2012 it is convenient to turn to the relevant medical evidence.
[20]Transcript 35-36, 85-87 and 94-95
30 The plaintiff saw Dr Blombery on 18 October 2012. It is important to set out the whole of the complaints made by the plaintiff to put Dr Blombery’s opinion into context. He recorded that she told him the following:
“ When I saw her, she complained of ongoing pain which was present twenty-four hours a day in her right shoulder, right shoulder blade, right side of the chest and down the right arm. There was also pain in the left lateral side of the chest and across the upper sternum and anterior chest. She said she often had to shake her right arm as the right arm developed tingling and became cold and blue in appearance. She could have severe pain in the right arm intermittently. The pain kept her awake at night and she said she had to get up approximately 6 times each night to try and relieve the pain. On the day that I saw her, she said the pain in the right side of her body had been as severe as it ever had been.”[21]
[21]PCB 123(b)
31 On examination, Dr Blombery found the following:
“ On examination, she was a pleasant woman who presented in a genuine way. The right hand was 1.5-2° cooler than the left and blue in appearance on the right forearm was bluer than the left. Reflexes in the upper limbs were intact and symmetrical. There was no tenderness in the right arm. She was tender on pressure over the posterior aspect of the scapula and the right posterior and lateral ribs up to the mid anterior chest. There was no tenderness over the left posterior scapula but there was some tenderness over the left lateral lower ribs. There was a full range of movement of the right shoulder although she could only just abduct to 150° and as a full range of movement of the left shoulder. There was a full range of movement of the neck.”[22]
[22]PCB 123(c)
32 Dr Blombery then expressed the following opinion:
“ I think a lot of the pain in her chest is caused by non-specific pain syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well is in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.
She also has quite significant changes in temperature and colour of the right arm on a historical basis as well as on examination indicating that she has features of complex regional pain syndrome type I or, as it used to be known, reflex sympathetic dystrophy complicating the soft tissue injury to the right shoulder area. She fulfils the basic and research criteria of the International Association for the Study of Pain for the diagnosis of complex regional pain syndrome type I.”[23]
[23]PCB 123(c)
33 Dr Blombery considered that the plaintiff’s prognosis for recovery was “extremely poor”. He considered that she would not respond to certain forms of treatment. He considered that she needed to be treated by multidisciplinary therapy for chronic pain. He considered there would not be any significant change in her level of disability into the foreseeable future. He considered that the transport accident was responsible for the development of the condition he diagnosed.[24]
[24]PCB 123(c)
34 Dr Blombery examined the plaintiff again on 15 May 2014. On examination, he found the following:
“ On examination, she was genuine in her presentation. The right arm was blueish/red in appearance, the left [scil right] hand was 2.5° cooler than the left. She had not been immobilising the hand before and had been using it in a fairly normal way. The right-hand was more sweaty than the left hand. There was a full range of movement of the right hand, wrist and elbow. There was a full range of movement of the shoulder and also it was a little difficult to internally rotate the shoulder. She was very tender on pressure over the medial aspect of the right scapula but not more distantly.”[25]
[25]PCB 123(bb)
35 In the balance of the report he provided after examining the plaintiff on 15 May 2014, he made a number of relevant observations which I will summarise as follows:
· Complex Regional Pain Syndrome Type I is an organic disorder of nerve pathways and is not a psychological disorder.
· The disability affecting the plaintiff’s right upper limb is organic in nature.
· He considered that the plaintiff had suffered significant consequences in terms of pain and suffering and loss of enjoyment of life because of the condition.
· The condition fluctuates. It is possible for a person with a condition to be examined on one occasion with no differences in temperature and colour, but present with evidence of those abnormalities on another occasion.
· The plaintiff gave a history of noting coldness in her right arm “fairly soon” after the transport accident, and noted colour changes at a later stage. He did not consider that history to be contrary to making a valid diagnosis that the condition was caused by the transport accident.[26]
[26]PCB 123(cc)
36 I have set out Dr Blombery’s opinion in significant detail because it became a focus of the attack by the defendants that the condition is not causally related to the transport accident, and that if it is, then it was significantly aggravated by bookbinding work the plaintiff performed in about April 2012.
37 Dr Blombery was cross-examined at some length by Mr Elliott. A summary of the relevant parts of his evidence adduced during cross-examination is as follows:
· The plaintiff told him that her right arm had been cold since the occurrence of the transport accident.[27]
[27]Transcript 103, 104, 105, 115-116
· If a person has an injury to the shoulder then the condition tends to occur in the distal part of the arm, that is, the extremity of the limb.[28]
[28]Transcript 103
· He would not expect to find the physical changes consistent with the condition in and around the shoulder.[29]
[29]Transcript 103
· The autonomic disturbance of the condition fluctuates from time to time as will changes in temperature and colour and other changes which are consistent with the condition.[30]
[30]Transcript 105
· He would expect there to be a temporal link between the transport accident and the onset of the symptoms of the condition. If the condition came on after seven years that would be unusual.[31]
[31]Transcript 106
· He did not get a history from the plaintiff of what Mr Elliott later submitted was an aggravation of the condition in April 2012. He said that the plaintiff had a painful right shoulder since the transport accident. She then engaged in “a bit more activity” with her right shoulder in April 2012 which brought on the symptoms of autonomic disturbance which led to a diagnosis of Complex Regional Pain Syndrome complicating the right shoulder injury.[32]
[32]Transcript 107-110, but particularly at 110, and 115
· He did not get a history that the coldness in the plaintiff’s right hand came on when the plaintiff was working as a waitress at the Grange Deli and Café in April 2006.[33]
[33]Transcript 116-117
· If there was ongoing pain in the shoulder since the transport accident and changes in temperature and colour in the hand then there is a cause and effect association with the transport accident.[34]
· The work the plaintiff did in April 2012 appears to be an aggravation of the underlying condition. He later said that whether it constitutes an aggravation was a “possibility”.[35]
[34]Transcript 120 and 122
[35]Transcript 121
38 Associate Professor Myers evidence was very much to the same effect as Dr Blombery’s. He examined the plaintiff on 21 January 2013. He recorded that she told him the following:
“ Her main ongoing problem relates to the pain in the right shoulder, extending down through the whole of the right arm. She states that there is constant, relentless pain in the arm which prevents her from sleeping at night. She stated there was coldness and swelling of the arm, present all of the time, extending right down the arm. She is unable to do any repetitive work with the arm such as carrying objects. She cannot even put on her safety belt or hang the washing.”[36]
[36]PCB 123(7)
39 On examination, Associate Professor Myers found the following:
“ There was a full range of abduction and flexion of the right shoulder but approximately 50% restriction in the range of rotation movements. The whole of the right arm and hand were obviously oedematous and clearly discoloured blue and cold compared to the normal pink, warm left extremity.”[37]
[37]PCB 123(7)
40 Associate Professor Myers then expressed the following opinion:
“ Your client now obviously has features of Complex Regional Pain Syndrome Type I, formerly known as reflex sympathetic dystrophy. This is on the basis of pre-existing fibromyalgia. This is a genuine physical condition commonly associated with soft tissue injury. Highly competent clinicians failed to observe features of this in the early stages of development of her problems and it now appears to become apparent only by the time that she saw Dr Blombery and now myself.”[38]
[38]PCB 123(9)
41 Associate Professor Myers added that the fact that other clinicians had not detected features of Complex Regional Pain Syndrome Type I was consistent with the condition evolving over time.[39] There appears to me to be some force in that opinion, because after Dr Boers was exposed to the opinions of Dr Blombery and Associate Professor Myers, he was in a position to review his treatment of the plaintiff, and whether what he detected clinically was consistent with the condition or not. In a short report dated 26 May 2014, he said:
“ I reviewed Julie today. I have reviewed my correspondence and examined her again today. Certainly she is dealing with a Complex Regional Pain Syndrome and chronic pain. None of these issues were apparent before the motor vehicle accident. She has been seeing a number of Specialists, as per my previous suggestions. They are much more qualified in this area than myself. The overlap between fibromyalgia and complex regional pain syndrome is certainly there but I think other specialists would be in a better situation to comment about this delineation than myself.
With the passage of time there has been more evolving vascular changes and swelling to cement the diagnosis of complex regional pain but you can certainly see the evolution of this diagnosis from my correspondence.”[40]
[39]PCB 123(9)
[40]PCB 51(b)
42 Associate Professor Myers gave other evidence of significant importance when he was cross-examined:
· There is a latency period in the development of Complex Regional Pain Syndrome Type I. It is variable. It frequently requires another episode to trigger it off.[41]
[41]Transcript 145-146
· The condition is persistent, but its symptoms can be variable. Once the condition is established it does not go away.[42]
[42]Transcript 148
· The usual latency period is in the order of two to four years. He was not troubled by the fact that the symptoms suffered by the plaintiff were outside that period.[43]
[43]Transcript 152
· If he wanted a patient to be examined for temperature variation, he would send the patient to Dr Blombery because, in his opinion, Dr Blombery is a world authority and “the best in Melbourne”.[44]
[44]Transcript 155
· It is a common mistake by clinicians not to look for the symptoms of the condition.[45]
[45]Transcript 155 and 157
· It is virtually always the case that the injury is out of proportion to the severity of the symptoms of the condition. The vascular changes occurred slowly due to complex interactions within the brain.[46]
· He agreed with Dr Blombery’s description of that the bookbinding work in April 2012 aggravated the condition.[47] The plaintiff was destined to come to the symptoms of the condition.[48]
[46]Transcript 155-156
[47]Transcript 169
[48]Transcript 172
43 Mr Ingram expended quite some time referring me to the histories, examinations and opinions of a number of medical practitioners who examined the plaintiff on a medico-legal basis. I do not propose to traverse their evidence at all because it seems to me that in the end Mr Elliott did not contest that the plaintiff suffered an injury as a result of the transport accident, and that the plaintiff now has a valid diagnosis of the condition based upon the opinions of Dr Blombery and Associate Professor Myers. Furthermore, Mr Elliott did not expend much time at all referring me to any of the opinions of those medical practitioners. It seems a relatively pointless exercise for me to do so given the way the real issues in the proceeding surfaced.
44 In the end, the central issues were twofold - firstly, whether the book binding work constituted an aggravation of the underlying condition, and secondly, irrespective of whether it did or not, are the impairment consequences of the injury to the plaintiff’s right upper limb serious?
Aggravation/causation
45 I am not satisfied that the plaintiff suffered an aggravation of the condition as a result of the book binding work she did in April 2012.
46 The aggregate of the evidence of Dr Blombery and Associate Professor Myers is that the condition is a slowly evolving condition. It has a latent period of development which can be two to four years. However, the seven-year period between the transport accident and April 2012 is not outside the period that both Dr Blombery and Associate Professor Myers considered to be within the range of time for its development.
47 There is a flaw in the submission made by Mr Elliott that it was seven years before symptoms emerged consistent with the condition. That submission was based upon there being no symptoms consistent with the condition between the transport accident and April 2012. I do not accept that there were no symptoms. I accept the plaintiff’s evidence that by at least the time she commenced working at the Grange Deli and Café, she was experiencing temperature change in her right hand. I also accept that she was suffering from increasing pain, which is evidenced from the histories recorded by Dr Thompson and Dr Boers.
48 Dr Blombery was convinced that the temperature change in the plaintiff’s right hand was a symptom consistent with the development of the condition. That being so, I accept that by at least April 2006, the plaintiff was demonstrating symptoms consistent with the development of the condition which became more manifest towards the end of the treatment provided by Dr Thompson and Dr Boers. This was evident in the most obvious fashion when she was first examined by Dr Blombery. He was in little doubt that the change in temperature of the plaintiff’s right hand was a symptom in the evolution of the condition. Therefore, there really is no issue about the condition evolving within the latency period referred to by Dr Blombery and Associate Professor Myers.
49 However, both Dr Blombery and Associate Professor Myers have chosen to describe the book binding work of April 2012 as a trigger or an aggravation. What is clear from the evidence is that some other event was likely to occur which would be part of the evolution in the production of the other symptoms which are consistent with the development of the condition.
50 I think the evidence of Dr Blombery and Associate Professor Myers is akin to circumstances which often arise in personal injury trials. For example, a worker suffers a discal injury in the spine which causes pain, and pain radiating into a lower limb. The worker is engaged in some relatively innocuous physical activity which promotes the discal injury to a full-blown prolapse. It cannot be validly argued that the relatively innocuous physical activity is an aggravation in the meaning given to that at law. It could validly be described as a likely and foreseeable progression of a pre-existing injury.
51 I think that what happened to the plaintiff is that she suffered an injury to her right shoulder which produced pain and disablement. She developed a temperature change in her right hand at an early point in time. The temperature change was consistent with the evolution of the condition. There was a strong likelihood that it would continue to evolve to what it is now. All that could be said of the book binding work she did in April 2012 was that it was a relatively innocuous activity. I listened to the plaintiff’s evidence carefully about what she did, and I observed her demonstration in the witness box with a binding device. It could hardly be described as placing any material stress or strain on her right upper limb. If there was any arduous activity involved in using the binding device, it was undertaken with her left hand.
52 I am not satisfied that what occurred with the book binding work in April 2012 amounts to an aggravation in the sense commonly understood at law. I think that resonates in the evidence of the plaintiff, Dr Blombery and Associate Professor Myers.
The Plaintiff’s consequences
53 In addition to the consequences which I summarised in paragraph 19, the plaintiff has suffered interference with her social, domestic and recreational pursuits and her work. Additionally, she said:
· She is no longer able to wash clothes properly. She requires assistance. She is not able to carry a full basket of wet clothing to the clothesline.
· She has difficulty changing the linen on a bed, and making a bed.
· She finds performing gardening work difficult.
· She has difficulty cleaning the oven.
· She is not able to move heavy furniture around her home without assistance.
· She has difficulty scrubbing the bath tub.
· She has difficulty lifting heavy weights and engaging in repetitive activities.
· She has had difficulty engaging in social and recreational activities with her family.
· She has difficulty going for leisurely walks. She tried Zumba (dance involving aerobic elements) for six weeks but had to stop.
· She could not tolerate gym work. Her attempt to engage in gym work resulted in her needing physiotherapy and massage treatment.
· She purchased a new mattress for her bed in the hope that it would provide her with some relief. It did not achieve that end.
· Sitting for too long and putting on a seatbelt in a car causes pain, and performing toileting with her right upper limb is difficult.[49]
[49]The summary is taken from the plaintiff's affidavit that PCB 32(b)-32(c)
54 Mr Elliot cross-examined the plaintiff regarding her capacity to function in a day-to-day sense and in her work. It was not my impression that there was any material demonstration that the plaintiff is able to function any better than what she described in her evidence.
55 The plaintiff was in full-time work with her present employer, Sympac. She was employed as a personal assistant to the managing director. She has been employed in that occupation since January 2009. She was working 38 hours a week until recently, when her hours were reduced to 22 hours per week. The plaintiff said that the work she was doing had become “too hard” and that was principally because she was not sleeping well at night.[50]
[50]Transcript 17-18
56 Dr Haifi, general practitioner, now treats the plaintiff. He is aware that the plaintiff suffers from the condition. He considered that the condition carried with it a poor prognosis especially if the plaintiff continued to use her right upper limb on a daily basis for long hours. It would appear that it was on that basis that he advised the plaintiff to reduce her hours to 20 to 23 hours per week.[51] Dr Haifi examined the plaintiff at around the time when he certified her as fit for reduced hours. He found weakness on flexion, extension, abduction, adduction and rotational movements of the right shoulder. He found weakness and pain in right hand grip and flexion and extension of the right wrist. He also found intermittent swelling, altered skin colour of the right upper limb and in the fingers of the right hand. Those symptoms are the very symptoms which Dr Blombery and Associate Professor Myers referred to as the evolving symptoms of the condition.
[51]PCB 123(27)
57 There was a hint in the cross examination that the reduction in hours of the plaintiff’s work has coincided with the trial of this proceeding as if her reduction in hours is a contrivance. I do not accept that proposition. It is entirely contrary to the evidence of Dr Blombery and Associate Professor Myers, and also the certification made by Dr Haifi. It occurs to me that the evidence demonstrates that as the condition has evolved it has worsened, as has the plaintiff’s capacity to function, including her capacity for work, which has reduced across the board.
58 The plaintiff is not undergoing much medical treatment at the present time. The medical and paramedical treatment she has had in the past has essentially ceased. She takes little or no medication because of a sensitivity to medication. She sees Dr Haifi, but is otherwise undergoing no other treatment. Dr Blombery considered that the plaintiff needed multidisciplinary therapy for chronic pain. He considered that the treatment within his specialty was unlikely to assist the plaintiff because it is treatment most effective within twelve months of the onset of symptoms.[52] Associate Professor Myers considered that the plaintiff required nerve blocks or Ketamine infusions, which appears to be the very treatment which Dr Blombery said would be less effective now.[53]
[52]PCB 123(d)
[53]PCB 123(9)
59 Although a number of specialists have expressed the opinion that the plaintiff should have treatment for chronic pain through a multi-disciplinary approach, none of them have suggested that it will cure the condition or mitigate its impact upon the plaintiff. In any event, treatment provided by Dr Thompson and Dr Boers shows that the plaintiff had medical and para-medical treatment which made no impression on the evolution of symptoms of the condition. I accept the plaintiff’s evidence that she found manual therapy to be unhelpful. The evidence suggests that the plaintiff has had a range of medical treatment which has been unsuccessful.
Are the consequences “serious”?
60 By the time Mr Ingram and Mr Elliott commenced their addresses the range of issues in this proceeding had been reduced quite dramatically. There was no issue that the plaintiff suffered an injury in the transport accident. There was no issue that the injury resulted in the plaintiff developing the condition. There was really no issue that the evidence of Dr Blombery and Associate Professor Myers was the real medical evidence which I needed to evaluate.
61 That left only two issues which I referred to in paragraph 46. I have dealt with the work which the plaintiff performed in April 2012 and whether the same constitutes an aggravation in the sense understood at law. That then leaves the issue of whether the consequences contended for by the plaintiff of the impairment of the function of her right upper limb are “serious”.
62 I accept the plaintiff’s evidence as I have summarised it in paragraphs 19 and 55. Although I was somewhat sceptical that the plaintiff could possibly be suffering from such a significant degree of pain. I am no longer sceptical. None of the plaintiff’s treating medical practitioners have doubted her creditworthiness and reliability. Many of the medical practitioners who have examined her on a medico-legal basis have considered that she is entirely creditworthy and reliable.[54] Indeed, there is very little in any of the medical evidence to suggest that there is any conduct on the part of the plaintiff which was calculated to mislead examining medical practitioners into believing that she is more disabled than she actually is. I am therefore fortified in accepting the plaintiff as a creditworthy and reliable witness.
[54]Mr Dickens, orthopaedic surgeon, at PCB 8 and 14; Dr Fraser, rheumatologist, at DCB 28(c); Mr King, orthopaedic surgeon, at PCB 86 and Mr Goldwasser, orthopaedic surgeon, at PCB 106(c)
63 The summary of the consequences demonstrate very clearly to me that the plaintiff suffers persistent intractable pain in her right upper limb. It would appear that the pain is often severe. The level of pain has reduced the plaintiff’s capacity to use her right upper limb in ordinary every day manual functions. Although she did not strike me as being an overly physically active person, she nonetheless suffers interference with the domestic, social and recreational pursuits, which I have summarised. Indeed, it would appear that it is almost every aspect of the plaintiff’s day-to-day life that is affected by the impairment of the function to her right limb. She appears to be doing light secretarial type work, and has now arrived at the stage where she is only partially fit to do that work and has been properly medically certified as being fit to do between 22 to 23 hours per week.
64 One of the measurements of whether consequences are serious or not is determining what the plaintiff has lost, but what she has lost can be informed by what she has retained. She does not appear to have retained all that much. She certainly has a quality of life with her husband and her children. She still sees friends and family. She is able to work, although at a reduced capacity and in reduced hours.
65 When I balance what the plaintiff has lost against what she has retained it occurs to me that the loss of function of a vital limb to the extent described by the plaintiff is a dramatic and substantial loss. It is made all the more dramatic and substantial because, according to Dr Blombery and Associate Professor Myers, it is not a condition from which she is likely to recover. She is a relatively young woman. She was born in 1965. She is forty-nine years of age. She will have the symptoms of pain and will endure the loss of enjoyment of life for the foreseeable future. It is a gloomy picture.
66 In the end, and for the reasons I have set out above, I consider that what the plaintiff has lost easily satisfies the test of seriousness. I have arrived at that conclusion after giving consideration to like impairments.
Conclusion
67 On the basis of the foregoing, I therefore grant the plaintiff leave to bring a proceeding at common law to recover damages for injuries which she suffered in the transport accident.
68 I will now hear the parties on the orders to be made and what cost orders should follow.
Afterword
69 I must make some observations about the Court Book filed by the solicitors for the plaintiff. It is possibly the worst court book I have received over the time I have been on the Court. It has a number of features which judges in charge of the Damages and Compensation List have worked tirelessly to eliminate to make Court Books a vital component to the expeditious and cost-effective hearing of serious injury applications.
70 I cannot accept that it was otherwise than a simple exercise for the solicitor for the plaintiff to put the affidavits in chronological order, to put the treating medical reports in one section, and the medico-legal reports in another section, and to have paginated the Court Book properly. The Practice Note informs solicitors that such things as statements of claim, notices of appearance, notices of hearing and orders are not to be included in the Court Book. They should not have been included.
71 As it stands, it would appear that the solicitor prepared a Court Book and when additional materials came to hand, they were interposed and given different numbering. For example, page 123 comprises almost one third of the Court Book. I am perplexed as to why a simple numbering process could not have been employed.
72 I do not propose to allow the solicitor for the plaintiff to recover all of the costs for the preparation of a Court Book which is so seriously flawed.
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