Mitchell-Cook v TAC
[2021] VCC 1639
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03654
| WANDA MITCHELL-COOK | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 4, 5 and 6 October 2021 | |
DATE OF JUDGMENT: | 19 November 2021 | |
CASE MAY BE CITED AS: | Mitchell-Cook v TAC | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1639 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY
Catchwords: Transport accident – previous serious injury application – pre-existing injuries – aggravation – identification of injury – impairment consequences – pain and suffering – pecuniary loss.
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Johns v Oaktech Pty Ltd [2020] VSCA 10
Judgment: Leave granted to the plaintiff to commence a common law proceeding for injuries suffered in an accident on 25 April 2016
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr C Farinaccio | Shine Lawyers |
| For the Defendant | Mr I McDonald QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1This is a “serious injury” proceeding brought pursuant to the Transport Accident Act (Vic.) 1986 (“the Act”) in respect to injury alleged to have been suffered in a transport accident. An immediate feel for the issues in this proceeding can be obtained by referring to the plaintiff’s tendered chronology[1] that totals 26 pages.
[1] Exhibit P3
2Suffice to say, some “serious injury” applications are relatively straightforward, where issues to deal with causation, identification of compensable injury and the like are not in dispute. On the other hand, some “serious injury” applications are not so straightforward, particularly where there is a large volume of material and multiple unrelated events and injuries that need to be sifted through. This proceeding falls very much in the latter category.
A brief background and complex history
3The plaintiff’s chronology speaks for itself but, briefly, by way of introduction, the plaintiff, Ms Wanda Mitchell-Cook, is now a 67-year-old divorced lady and mother of three adult children. She has a background qualification in nursing. She also has an extensive history of accidents and injuries, as set out in the plaintiff’s chronology. A few key background events and dates are as follows:
· 1985, low back injury while nursing;
· 1986, develops dependency on painkilling medication;
· 1990, undergoes gastric stapling surgery;
· 4 September 1992, undergoes multilevel lumbar fusion and decompression, performed by Mr Roy Carey, orthopaedic surgeon;
· 18 August 2006, involved in a motor vehicle accident;
· 27 November 2006, involved in further motor vehicle accident;
· 3 April 2010, involved in third motor vehicle accident;
· 2 October 2011, involved in fourth motor vehicle accident;
· 23 and 24 February 2012, serious injury application brought in respect of motor vehicle accidents of August and November 2006;
· 2 March 2012, serious injury application dismissed;
· 2012, suicide attempt while living in Sydney, requiring hospital admission and detox;
· Late 2015, develops right shoulder pain;
· 6 January 2016, right shoulder ultrasound;
· 12 January 2016, right shoulder Cortisone injection;
· 16 January 2016, x-ray right shoulder;
· 6 April 2016, right shoulder ultrasound and depot injection;
· 9 April 2016, general practitioner attendance with prescription of Targin and Endone;
· 25 April 2016, further motor vehicle accident.
4Pausing there, the motor vehicle accident of 25 April 2016 is the accident that brings this proceeding before the Court. The plaintiff alleges that she has suffered a serious injury within the meaning of s93(17)(a) of the Act either by way of injury or aggravation of injury to spine, in particular the neck, on the right side, and/or injury to the right shoulder.[2] The plaintiff relies upon the physical consequences of such injury.
[2]Transcript (“T”) 8, Lines (“L”) 10-12
5The matter proceeded in the “usual way”. The plaintiff relied on an affidavit sworn by her on 28 April 2021,[3] in support of this application. That affidavit exhibited affidavits previously sworn by her in the earlier serious injury application, being affidavits sworn 3 June 2010,[4] 24 August 2011[5] and 22 September 2011.[6]
[3]Plaintiff’s Court Book (“PCB”) 11
[4]PCB 33
[5]PCB 44
[6]PCB 47
6The plaintiff gave oral evidence and was cross-examined as to the contents of her affidavit. The parties otherwise tendered relevant medical reports, clinical records, and relevant documents. I have considered the transcript of the plaintiff’s oral evidence and the tendered evidence, but I shall refer to it only to the extent necessary in these reasons.
The previous serious injury application
7Before proceeding further, it is convenient to briefly discuss the previous serious injury application and Reasons for Judgment of his Honour Judge Carmody dismissing that proceeding.
8In respect to that serious injury application, the defendant submitted that it was of little, if any, relevance to this proceeding and, at its highest, would prevent either the plaintiff or the defendant arguing that she had a “serious injury” as defined in s93 of the Act, due to the two motor vehicle accidents in August and November 2006, as at 2 March 2012. No issue estoppel arises which would prevent the defendant from arguing that the plaintiff had:
(a) injury and/or impairment consequences flowing from those two accidents that were the subject of that proceeding;
(b) any events thereafter, including the subsequent motor vehicle accident in April 2010;
(c) earlier impairment consequences that were at least “marked” or “significant”, for example chronic pain requiring the long-term use of prescription/controlled medication.
9I accept, as does the plaintiff, that no issue estoppel arises in respect to the decision of his Honour Judge Carmody, save that his Honour found the plaintiff did not have a serious injury. Therefore, other than of general interest and for the conclusion that as of 2 March 2012 the plaintiff did not have a “serious injury” from motor vehicle accidents occurring in August and November 2006, the earlier “serious injury” application does not determine any of the relevant issues now before the Court, such as injury and/or extent of injury suffered either before or after the earlier serious injury application.
10Further, in any event, a considerable amount of water has flowed under the bridge since the motor vehicle accidents in 2006 and since the earlier serious injury application.
The credit of the plaintiff
11As has been said many times, when it comes to an assessment of the “seriousness” of a claimed injury, the credit of the plaintiff is an important issue and an important starting point.[7]
[7]Johns v Oaktech Pty Ltd [2020] VSCA 10
12In this proceeding, the defendant did not submit that the plaintiff’s credit had been impugned to the extent that her evidence cannot be accepted. However, credit was raised in the broad sense of the reliability of her evidence in the context of the volume of material before the Court and the complicated medical history pre- and post-accident.
13The plaintiff presented as a quarrelsome witness. Frequently, she would tend towards argument rather than providing answers to questions, but my assessment of her was that she gave evidence consistent with her personality, her general approach to answering questions and consistent with someone in significant pain.
14Broadly, I am satisfied that she gave evidence as best as she could but, by the same token, given the multiplicity of accidents, events and injuries in her life and her generally indirect approach to answering questions, this is a proceeding in which the objective evidence needs to be carefully analysed to see whether it supports the broad thrust of the plaintiff’s evidence and how her case is put.
The accident
15As mentioned, on 25 April 2016, the plaintiff was involved in an accident (“the accident”). In her affidavit sworn 28 April 2021,[8] the plaintiff said she was driving her Kia hatchback along Warrigal Road in Oakleigh when another vehicle, without any warning, hit the middle of the passenger side of her car. She then describes how she drove a short distance forward and turned into the driveway of the carpark of the Anglican church on the corner of Dandenong Road and Warrigal Road, Oakleigh.
[8]PCB 11
16The circumstances of the accident assumed prominence in cross-examination.
17The accident occurred when the offending vehicle turned left from a turning lane on Dandenong Road into Warrigal Road. The plaintiff had effectively commenced a U-turn to travel a short distance back along Warrigal Road to turn into a unit to enter a property near the church, where she was living at the time with her son.[9] It was put to her, effectively, that at the time of the accident she was travelling quite slowly, which she denied,[10] and that the offending vehicle clipped the rear left side of the plaintiff’s vehicle in what was suggested to be a very minor collision. The plaintiff disagreed with that suggestion.[11]
[9]T23, L25
[10]T23, L27
[11]T24, L25
18Photographs of the plaintiff’s vehicle and the damage sustained in the accident were tendered.[12] The photographs showed that the rear passenger door had been pulled away from the body and roof line of her car.[13]
[12] Exhibit D1
[13] T26, L14-19
19It is unnecessary to set out in full the cross-examination regarding the circumstances of the accident. Her evidence about the accident was hard to follow and, in some respects, implausible, particularly as to speed and the method of the U-turn that she performed shortly before the accident. But, obviously a collision of some force occurred, as depicted by the objective damage to her car. The cross examination highlighted the unreliability of her evidence but it did not establish that the accident was so minor that injury could not have been suffered by her.
The right shoulder injury
20The plaintiff’s case was opened on the basis that she had complaints of right shoulder pain predating the accident, that involved the bursa and tendon strains. Whereas the specific injury the plaintiff relied on to the right shoulder from the accident was injury to the acromioclavicular joint, with acromioclavicular joint widening, and irregularity of the capsule, as reported by ultrasound taken after the accident on 5 May 2016.[14]
[14]PCB 370
21However, in closing submissions, the plaintiff conceded that an earlier radiology of the right shoulder had been undertaken on 16 January 2016, but reported by an amendment made 31 March 2016,[15] which revealed there to be mild joint space widening of the acromioclavicular joint. Therefore, it was conceded that the widening of the acromioclavicular joint was a pre-existing condition.
[15]DCB 28
22I do not propose to say much about the right shoulder in the circumstances. The plaintiff had a history of right shoulder symptoms and was symptomatic for shoulder pain shortly before the accident. A right shoulder ultrasound performed 6 January 2016[16] revealed pathology in the supraspinatus tendon and mild subacromial bursitis, for which the plaintiff required an ultrasound-guided right shoulder bursal injection on 8 January 2016.[17] A further x-ray performed 16 January 2016[18] reported mild degenerative changes of the greater tuberosity at the insertion of the rotator cuff and, of course, the amended radiology of 31 March 2016 reported the osteoarthritic degenerative change and widening of the acromioclavicular joint. In that setting, the plaintiff has had ongoing shoulder symptoms not dissimilar to those experienced before the accident.
[16]DCB 531
[17]DCB 530
[18]DCB 529
23I am not satisfied that there has in fact been any aggravation of the underlying condition in the right shoulder, but if there has been, I am certainly not satisfied that such aggravation is, of itself, “serious”, as the plaintiff is required to establish.[19] The clinical records reveal symptomatic pathology in the shoulder before the accident, with no obvious change to the pathology, or the pattern of symptoms, after the accident. That is enough to dispose of this aspect of the proceeding insofar as it is based on injury to the right shoulder, without having to deal with the mountain of medical material. The plaintiff clearly has a shoulder injury and impairment, but it predates the accident, and any aggravation from the accident is simply not sufficient to produce a “very considerable” consequence.
[19]Petkovski v Galletti [1994] 1 VR 436
The spine
(i) the lower back
24The plaintiff relies, in the alternative, upon injury to the spine, articulated by her Senior Counsel as “particularly the neck, on the right-hand side”.[20] But dealing firstly and briefly with the lumbar spine, the plaintiff has a very long history of problems with her lower back. She required a fusion procedure to at least two levels of the lower lumbar spine in September 1992 and thereafter had lower back pain from time to time.
[20]T8, L10-11
25The plaintiff had continuing symptoms in her lumbar spine after the accident. Ultimately, Mr Patrick Chan, neurosurgeon and spinal surgeon, performed what he describes as an extension of decompression and fusion to L2-4 levels from previously fused L4-S1 levels on 14 September 2018.[21] When he reviewed her on 27 May 2019, she had much improved and no longer required analgesia for her back. At that time, Mr Chan described the prognosis for the back as good.[22]
[21]PCB 335
[22]PCB 336
26It does appear that the plaintiff had a good result from the surgery with Mr Chan. In her affidavit, she describes how the lower back improved and she was grateful how the left leg and left foot problems, and right leg and groin pain, also improved. She says that by early 2019 she was off all opioid medication and, in fact, described her life looking brighter, spending about a month in Cambodia from mid-April to mid-May 2019 (albeit with some ongoing neck problems).[23]
[23]PCB 21
27The plaintiff acknowledged that any claim isolated to the lumbar spine would need to be presented as an “aggravation” and that the lumbar surgery performed by Mr Chan has been, at least to some extent, successful.[24]
[24]T8, L19-28
28The plaintiff has a long and complicated history of lower back pain. Firstly, I am not satisfied she suffered any further injury to the lumbar spine in the accident, but even if she did, I am not satisfied that such “aggravation” is of itself serious, either because such aggravation was only minor and because, in any event, the surgery performed by Mr Chan has largely been successful so that, in isolation, the lumbar spine does not produce a “very considerable” consequence, whether looked at as an aggravation or not, which was conceded on her behalf.[25]
[25] T 188, L1-3
(ii) the neck
29The plaintiff complained of pain in her neck in the years prior to the accident. As far back as 2 April 2007 there was radiologically reported degenerative disease in her cervical spine.[26] She attended her general practitioner (and other doctors) on several occasions over many years with complaints of neck pain. In that setting, the question then is whether she suffered injury or aggravation of the underlying degenerative disease/pre-existing condition in the accident and if so, whether such is productive of a “very considerable” consequence.
[26] DCB 599
30The defendant highlighted that in the three years before the accident, the plaintiff had attendances on her longstanding general practitioner, Dr Henrietta Libhaber, with complaints of neck pain. The defendant referred to entries in the clinical notes of Dr Libhaber – and cross-examination of the plaintiff based on those notes – to highlight that there were complaints of neck pain to the general practitioner. For example, on 12 April 2013, Dr Libhaber recorded pain in the neck and lumbar area, as well as the right hip. At that attendance, the plaintiff was prescribed strong painkillers, including Endone and Norspan.[27] In December 2014, Dr Libhaber arranged an MRI scan of the plaintiff’s neck at a time when the plaintiff was still taking strong painkillers, including Endone.[28] On 20 January 2014, Dr Libhaber noted the plaintiff had acupuncture and massage of her neck while on holiday in Singapore, with the pain improved.[29]
[27]PCB 274
[28]DCB 263
[29]DCB 262
31On 21 December 2013, Dr Libhaber wrote to the TAC regarding a range of injuries said to have been suffered in a transport accident on 3 April 2010 and for which the plaintiff was still being treated but included whiplash. Dr Libhaber wrote that “in retrospect the neck issue never really settled continues to be a major issue made worse by this accident”.[30] Then on 7 August 2014, Dr Libhaber wrote an application for a permit to continue to treat the plaintiff with Schedule 8 drugs and described the plaintiff as suffering from a chronic pain syndrome.[31] At about that time, the plaintiff was in fact referred by Dr Libhaber to Dr Daniel Lee, a rheumatologist, who noted the plaintiff had a complex problem.[32]
[30]DCB 645
[31]DCB 647
[32]DCB 648
32Pausing, the plaintiff in cross-examination accepted that she was experiencing pain in her back and neck around the time she attended Dr Lee.[33]
[33]T93-94
33Pausing again, on any view, the plaintiff had been symptomatic in her neck from time to time before the accident. On that basis, I do not accept that any claimed injury to her neck need not be analysed as an “aggravation” injury.
34In any event, by September 2014, the plaintiff had to attend an addiction specialist, Dr John Chow, for review of her medication.[34]
[34]DCB 643
35Then, in December 2014, Dr Libhaber again recorded neck pain.[35]
[35]DCB 294
36On 2 June 2015, the plaintiff attended Dr Libhaber requesting a report in respect to her back and a second report to “state that her neck issue is due to the motor vehicle accident (one of the earlier accidents).[36] There was then continuing prescriptions of Endone, and an attendance in November 2015 for right shoulder pain, although there was also a note of neck symptoms, osteopathic treatment and considerable improvement with that treatment.[37] Further attendances on Dr Libhaber in early 2016 appear to relate either to the shoulder or the back. There were ongoing prescriptions of strong painkilling medication.
[36]DCB 591
[37]DCB 593
37The plaintiff was then involved in the accident, following which she attended Dr Libhaber on 26 April 2016. The note of Dr Libhaber recorded, among other things, that “[r]ight neck and occipital area sore from seat belt and the jar”.[38]
[38]DCB 318
38The plaintiff re-attended Dr Libhaber on 28 April 2016[39] who recorded neck symptoms, among other complaints. On 2 May 2016[40] Dr Libhaber recorded the neck locking up on the left side due to the right being sore and other complaints. The doctor notes that the plaintiff was then turning her whole body when she needs to look to drive and that she “cannot turn neck”.
[39] DCB 318
[40] DCB 319
39Thereafter, the notes record ongoing complaints of pain in various body parts, in the right shoulder and low back, but also in the neck. As an example, on 18 July 2016 the notes record the “neck is still painful on the right”[41]. On 4 November 2016[42] it was recorded that there was ongoing right shoulder pain “to elbow and radiating to neck”.
[41] DCB 326
[42] DCB 333
40By 23 November 2016 the plaintiff was referred by Dr Libhaber to Dr Judith Frayne, neurologist, for assessment of various conditions, but including what Dr Frayne records as “worsening of her pre-existing neck”.[43]
[43] PCB 263
41Next, on 13 April 2017 the plaintiff attended Dr Victor Wilk, Musculoskeletal Physician at the referral of Dr Libhaber. Dr Wilk’s opinions are of some significance in the context of the long and complicated history because he had in fact seen the plaintiff back in June 2010 for a range of ailments including neck pain. By report dated 14 October 2017[44] Dr Wilk set out matters of history, his examination findings and treatment provided. He described his assessment to include “probably aggravation of past neck”[45] and recorded treatment by way of anaesthetic injection into the right shoulder joint and of mid thoracic pain.
[44] PCB 292
[45] PCB 293
42Dr Wilk continued to treat the plaintiff during 2017, 2018 and 2019. On 23 November 2017 under sedation, he injected local anaesthetic into the plaintiff’s neck, which he followed up with a further injection into the neck on 27 March 2018.[46] By report dated 13 June 2018 he again comprehensively set out the plaintiff’s history and his treatment since the accident. He said again that in his opinion the accident aggravated, amongst other things, pre-existing injuries to the right side of her neck.[47]
[46] DCB 299
[47] DCB 301
43The next relevant opinion from Dr Wilk is set out in a report dated 25 March 2020.[48] For the ongoing neck pain Dr Wilk had performed a radiofrequency neurotomy on her upper facet joints on 31 May 2019. Unfortunately, the needle was misplaced and pierced the right postero-lateral spinal cord at the C2 level (“the cord injury”). Post that procedure the plaintiff was noted to have numbness and a lack of proprioception and power in the right arm. His report then sets out the treatment, including inpatient treatment, for the damage caused by the needle piercing the spinal cord. Ultimately, he candidly says that there was an inadvertent injury to the right postero-lateral spinal cord at the C2 level, leading to pain and loss of function of the right arm. He described neck pain after the accident as a “likely aggravation of underlying spondylosis”. He also described the result from the complication following the radiofrequency neurotomy, as resultant loss of function of the right arm, fine control, and general power.[49]
[48] PCB 311
[49] DCB 314
44There is no dispute that when undergoing a radiofrequency neurotomy for neck pain on 31 May 2019 the plaintiff suffered an adverse event when the needle pierced her spinal cord. Equally, there is no debate she has ongoing consequences form that adverse event, as described by Dr Wilk and others. To illustrate this point, I refer to the opinions commissioned by the defendant from Mr John Laidlaw, neurosurgeon in reports dated 3 May 2021[50] and 10 May 2021.[51] In his first report Mr Laidlaw obtained a history of the cord injury. He recorded that the plaintiff now had some gross motor movement back but no fine motor movements and had paraesthesia in the whole of the right arm.[52] He ultimately opined that the cord injury had caused impairment of the neurological function of the right upper limb, “particularly affecting right upper limb sensation and fine movements”[53] but he did not accept that the plaintiff’s ongoing complaints of right upper limb pain could be attributed to the cord injury.
[50] DCB 19
[51] DCB 130
[52] DCB 37
[53] DCB 64
45Mr Laidlaw discussed the issue of pain from the cord injury in detail in his second report. He said, “I am not suggesting that this inadvertent cord lesion might have helped Wanda’s pain, only that I think it unlikely to have caused or aggravated pain”.[54]
[54] DCB 139-140
46It is convenient at this point to acknowledge Mr Laidlaw’s opinion that the effects of the accident had largely resolved by 13 June 2016 (based on his review of medical records) and that the symptoms for which the radiofrequency procedure was performed were not the result of the accident.[55]
[55] DCB 142
47In his first report Mr Laidlaw expressed his opinion that the accident had resulted in an exacerbation of the plaintiff’s pre-existing neck, back, shoulder, upper limb, lower limb, and anxiety/depression symptoms.[56] He also recorded that the plaintiff was not prepared to discuss various issues with him, especially past psychological issues.[57]
[56] DCB 65
[57] DCB 66
48But Mr Laidlaw changed his opinion in his second report. For the purpose of the second report, Mr Laidlaw was provided with the notes from Doctors On Centre for the period 16 March 2015 – 24 November 2020, together with photographs of the plaintiff’s damaged car.[58] He was asked to review that material and to provide a further report, seemingly directed to whether that material caused him to alter the opinions expressed in his first report as to the injuries, if any, that the plaintiff suffered in the accident. To put that request in context, at the time of his first report he had access to clinical notes, including 150 pages of notes/records from Dr Libhaber’s clinic (Doctors On Centre).[59] But apparently he only had access to notes until 23 March 2015.[60] In his second report he reviewed the full set of notes and said that “the GP notes indicate that Wanda did have significant symptoms affecting her neck, back, shoulder and upper limbs in the year before the 2016 MVA”.[61] He then said that:
“It is noteworthy that 6 weeks after the MVA, on 13/6/2016 the GP notes that Wanda’s symptoms were less and her analgesic requirements were similar to before the accident. This suggests that it is likely that the physical effects of the MVA had largely resolved at that time, and that Wanda’s ongoing symptoms were largely a result of her pre-accident condition”.[62]
[58] DCB 132
[59] DCB 69
[60] DCB 62
[61] DCB 132
[62] DCB 137
49This crux of this proceeding is whether the cord injury occurred during treatment for an accident-related aggravation injury to the plaintiff’s neck. The plaintiff objectively had an adverse outcome from the cord injury. In her affidavit she describes very limited motor skills and while some improvement in hand function, very limited in its use.[63] She sets out the restrictions from that condition and the treatment she has required and was not challenged about those restrictions and impairments. In my opinion, the described loss of full use of the non-dominant right hand is a “very considerable” pain and suffering consequence. The question then is whether the cord injury was suffered due to an accident-related treatment or, as Mr Laidlaw opines and the defendant submitted, an unrelated condition.
[63] PCB 23 at [49]
50Having considered a large body of material, I do not accept Mr Laidlaw’s opinion on ‘causation’. In my view the whole of the evidence reveals consistent complaints of neck symptoms after the accident and through until the treatment with Dr Wilk. I take particular note of the opinions of the practitioners who treated the plaintiff before and after the accident, in particular her long-term general practitioner and Dr Wilk. As Mr Laidlaw himself notes, the plaintiff is a difficult historian, and this is a complex case. While his opinion is thorough and considered, it is in my view against the weight of the evidence.
51Further, Mr Laidlaw does not explain how the entry of 13 June 2016 [sic][64] sits with the attendance on Dr Libhaber on 18 July 2016 when it is recorded “neck is still painful on the right”[65] and similar complaints thereafter, which support the conclusion of an injury to the neck, affecting the right side, as relied on by the plaintiff as the accident-related injury, notwithstanding earlier complaints of neck pain.
[64] There is no entry for 13 June 2016 – I assume Mr Laidlaw meant 3 June 2016 at DCB 324
[65] DCB 326
52While I am mindful of the unreliability of much of the plaintiff’s evidence, on this issue as to whether her symptoms had by 3 June 2016 returned to her pre-accident level, she ‘stuck to her guns’ when cross examined about that note. When suggested to her that she was experiencing less pain and discomfort by 3 June 2016, she said “Unfortunately that was – I thought it was, but it wasn’t the case”.[66] That evidence is supported by the notes.
[66] DCB 165, L16-17
53I am also fortified in my rejection of Mr Laidlaw’s opinion on causation by a consideration of the other medico-legal opinions that are available.
54Dealing firstly with the remaining medico-legal opinion obtained by the defendant, Dr Anthony Menz, orthopaedic surgeon, provided a report dated 7 April 2021.[67] In that report, Dr Menz concluded that, in the accident, the plaintiff “reaggravated her right shoulder, her cervical spine and her lumbar spine”.[68] He was then asked whether the plaintiff’s current symptoms and functional status were explained by injuries diagnosed as resulting from the transport accident. He said he believed the injuries from 2016 have now resolved:
“… and her ongoing symptoms are related to the pre-existing pathology within her right shoulder and she did have significant problems pre-accident with her right shoulder.”[69]
[67]DCB 5
[68]DCB 11
[69]DCB 12
55He then commented on the neck as follows:
“She continues to complain of significant cervical spine problems and has had a major complication of radiofrequency neurotomy causing permanent damage to the function of her right upper limb. This is not motor vehicle accident related. She continues to have poor function of her right shoulder and I believe this is also associated with the nerve damage to her right upper limb.”[70]
[70]DCB 12
56The opinion from Dr Menz is difficult to reconcile. He diagnosed the plaintiff as suffering an aggravation to her neck. He specifically comments that the right shoulder injury had, in his opinion, resolved, but does not specifically address whether the aggravation to the neck had also resolved. His report appears predicated on an assumption that the cord injury had overtaken any accident-related neck injury and that the cord injury is not accident related. Strictly speaking, the cord injury is not accident related but, of course, if it was suffered during treatment for an accident-related condition, then it is a relevant consequence. Ultimately, taken as a whole and setting aside his opinion about the cord injury, Dr Menz supports the plaintiff on the primary issue of the aggravation of the underlying neck condition.
57The plaintiff relies on medico-legal reports from Mr Garry Grossbard, orthopaedic surgeon. He has provided five reports. In the first of those reports, dated 28 September 2017,[71] he fairly said that it was difficult to unpack the contribution of the plaintiff’s previous incidents and three previous motor accidents regarding her neck and back injury. He noted there was a long history of neck issues but said that there had been an exacerbation of neck and back pain.[72] In his next report, dated 17 February 2021,[73] he discussed the cord injury and the plaintiff still struggling with her right hand.[74] In his third report of 25 February 2021, he opines that the plaintiff will have ongoing issues with pain, weakness and restricted motion affecting the right upper limb.[75]
[71]PCB 69h
[72]PCB 73
[73]PCB 77
[74]PCB 78
[75]PCB 81
58Next, Dr Ales Aliashkevich, neurosurgeon, has provided several reports at the request of the plaintiff’s solicitors. In his first report, dated 25 January 2021,[76] a comprehensive report that rivals Mr Laidlaw’s report for the length of it, Dr Aliashkevich, after a comprehensive review of a lot of medical evidence, diagnosed chronic right arm weakness and altered sensation.[77] He said that the nature of the plaintiff’s problems was very complex, which is an understatement. However, in a considered and comprehensive report, he said:
“I consider on the balance of probability the stated traffic accident on 25/4/2016 as the dominant contributor to the T5 endplate fracture and as a materially contributing factor to exacerbation of a pre-existing degenerative condition of the cervical and lumbosacral spine to a degree greater than minimal. It would appear that her T5 endplate fracture had healed by now, and her complex multilevel chronic back problems substantially improved after the L2–L4 fusion surgery on 19/9/2018.”[78]
[76]PCB 154
[77]PCB 239
[78]PCB 241
59In respect to prognosis, Dr Aliashkevich said the prognosis was poor and the plaintiff suffered from significant neurological and psychological problems related to the cervical spinal cord injury.[79]
[79]PCB 244
60For completeness, I note that the plaintiff relied upon further medical reports, including those from Mr Chan, the plaintiff’s treating neurosurgeon, but those reports do not add much to a discussion about the plaintiff’s neck injury, save that he notes a further exacerbation in the accident[80] and the unfortunate cord injury, which he confirms has resulted in right upper limb weakness.[81]
[80]PCB 335
[81]PCB 336
Summary
61As should be evident from these reasons, this is a complex and complicated case, not helped by the approach of the plaintiff to giving evidence and, for that matter, to providing a history to medico-legal examiners.
62A consideration of the whole of the evidence tends, in my view, to the conclusion that there was an aggravation of the plaintiff’s neck symptoms by way of aggravation of underlying degenerative change, which persisted through until the referral and treatment with Mr Wilk. That treatment caused the cord injury with an ongoing adverse outcome, namely weakness and loss of use of the right hand. There was no real challenge from the defendant about that injury, rather, the challenge was whether it was causally related to the accident. I conclude that it is, and that, it produces “very considerable” pain and suffering.
63I note that the plaintiff relied both on pain and suffering consequences and on loss of earning capacity consequences. There is sufficient evidence of the cord injury and impairment from it to determine that the plaintiff has “very considerable” pain and suffering, but there is insufficient evidence to determine whether that injury now produces loss of earning capacity consequences, bearing in mind that the plaintiff has a range of other conditions which would impact on her ability to undertake work, but I accept that the loss of fine motor skills would make it difficult for her to do repetitive activity with the right hand, such as keyboarding and the like, which is a consequence that may be combined with the other pain and suffering consequences. But of itself, I am not persuaded that the evidence supports a conclusion of a “very considerable” loss of earning consequence. However, it is unnecessary to say more in the circumstances of the conclusion I have reached regarding the pain and suffering consequences.
64Therefore, for the reasons given, leave is granted to the plaintiff to commence a common law proceeding for injuries suffered in the accident of 25 April 2016.
65I shall hear from the parties as to consequential orders.
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