Mott v Transport Accident Commission

[2010] VCC 84

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT WARRNAMBOOL

Case No. CI-08-01847

DOROTHY RUTH MOTT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	24 & 25 February 2010
DATE OF JUDGMENT:	5 March 2010
CASE MAY BE CITED AS:	Mott v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2010] VCC 0084

REASONS FOR JUDGMENT

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Catchwords: Transport Accident Act 1986 – s.93(4)(d) – application for leave to bring proceedings for damages – motor vehicle accident – multiple injuries including injury to cervical spine, being principal injury relied upon – inability of plaintiff to continue farming – plaintiff now in alternative employment and earning increased income on basis of tax returns – disentangling of injuries – particular impact of loss of ability to engage in farming – whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC	Tait Leishman Taylor
with Mr I Fehring
For the Defendant	Mr P Scanlon QC	Solicitor to the TAC
with Mr P Jens

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HIS HONOUR:

General background

1 This application for leave to bring proceedings for the recovery of damages is brought by the plaintiff pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”).

2          The plaintiff seeks such leave in respect of injuries suffered in a motor vehicle accident which occurred on 10 May 2002 (“the accident”). The Particulars of Injury document filed on behalf of the plaintiff lists numerous injuries suffered, but it was made clear at the outset that the plaintiff was relying only upon injury to the cervical spine and to the right shoulder, and by the conclusion of the matter it was conceded that the plaintiff would struggle to discharge the burden of proof insofar as the injury to the shoulder was concerned. Essentially it was the injury to the neck on which the application was based. I agree that the burden of proof was not discharged in relation to any other injuries, although some remain relevant on the basis of their possible contribution to symptoms and restrictions affecting the plaintiff.

3 Bearing in mind the relevant provisions of the Act (as opposed to those contained in the Accident Compensation Act 1985) the relevant test is that contained in cases such as Humphries v Poljak [1992] 2 VR 129 – that is, the “very considerable” test as formulated by the majority of the Full Court of the Supreme Court of Victoria in that case. My attention was also directed to the decision in Ninkovic v Pajvancek [1991] VR 427. Furthermore, unlike the situation which prevails in relation to the Accident Compensation Act, I am not required to consider the situations in relation to pecuniary loss damages and pain and suffering damages separately, and neither do I have to consider matters such as the formulae and requirements found in s.134B(38) of the Accident Compensation Act. Rather, as was stated in Ninkovic, I am to determine whether there is a serious long-term impairment which has a

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serious consequence for the plaintiff in the form of disablement from work or interference with enjoyment of life. There was no argument but that the plaintiff bears the burden of proof.

4          Mr D. Brookes SC with Mr I. Fehring of counsel appeared on behalf of the plaintiff. Mr P. Scanlon QC with Mr P. Jens of counsel appeared on behalf of the defendant. In fact, Mr Jens conducted the case on behalf of the defendant. The plaintiff gave evidence and was cross examined. The balance of the evidence was documentary in nature and was tendered by consent, this being a very sensible and cost effective manner in which to run an application such as this. Counsel for each party made detailed and very helpful submissions.

Factual background

5          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in anyway determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

6          The plaintiff was a singularly impressive witness. The impression made by the plaintiff in the witness box, together with some of the material in evidence, causes me to agree with the summation of Mr Brookes that the plaintiff is honest, hardworking and courageous. Indeed, Mr Jens also referred to the courage of the plaintiff, as well as stating in his closing address that “of course” I would not conclude that the plaintiff was a dishonest person.

7          I also found her evidence to be largely reliable. Mr Jens pointed to a couple of instances which he claimed demonstrated a lack of reliability, although readily conceding that this was not because of any intention to mislead. I do not agree that these instances indicated an overall lack of reliability. The mistake made by the plaintiff in relation to the date of death of her father in the context

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of when she had undertaken a carer’s course was acknowledged by her, and seemed to me to be no more than the result of some confusion created by the combination of attempting to recall a distressing event and the pressure of cross examination. Overall, I formed the view that the plaintiff was doing her best to answer questions honestly and that her evidence in relation to key issues, such as consequences of injury and general factual matters, was reliable. In addition, Dr David Weissman, consultant psychiatrist, examining on behalf of the defendant, referred to the plaintiff as being very pleasant, polite and co-operative. Mr David Brownbill, consultant neurosurgeon, examining the plaintiff on behalf of her solicitors, referred to her as being alert and co-operative without embellishment. I agree with these descriptions of her.

(ii)       The plaintiff’s background, training, employment and health prior to the injury

8          The plaintiff is aged 49 years, having been born on 22 May 1960. She is effectively separated from her husband. She has four daughters aged between 14 and 21 years. Three of these still reside with her, the eldest having only recently moved out.

9          The plaintiff, who is an only child, was raised on a 750 acre farm at Caramut, which could be described as being between Warrnambool and Lake Bolac. This farm was established by the plaintiff’s father, he having been a returned serviceman who set up the farm as a soldier settler after World War II. As shall be discussed, matters to do with the farm and the plaintiff’s attachment to it and to the farming life were the centre of considerable attention.

10        The plaintiff was educated to Year 11 level at Hamilton Secondary College and then commenced an apprenticeship in agriculture and wool classing. Her father became ill, so that, as well as continuing and completing her apprenticeship, she took over the running of the farm whilst also working as a wool classer.

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11        The plaintiff’s husband, whom she married in 1988, was a farm labourer and truck driver, although, as stated by the plaintiff, he was not really a “farm boy”. Subsequently, he became an interstate truck driver.

12        Between the birth of the children, the plaintiff worked as a sheep farmer, a share cropper, a wool classer and for a local newspaper. Whilst there was some confusion about it, it seems that her father died in 1991 after a lengthy illness. Before his death, he transferred ownership of the farm to the plaintiff and she remained the sole registered proprietor until its ultimate sale.

13        In approximately 1999 the plaintiff completed a course in order to become a Personal Care Attendant, and ultimately worked in this capacity at the Lake Bolac Bush Nursing Centre as well as continuing to run the farm. The plaintiff gave evidence that, in addition to any financial consideration, she wanted to do this course so that she could look after her mother (originally in this regard she referred to her parents, plural, but, given the date of her father’s death, this could not have been correct as she conceded. For the reasons already stated, I do not regard this error as having any particularly significant adverse impact upon her credibility or reliability).

14        The farm was originally of some 750 acres, with sheep and cropping being the principal farming activities. For some time prior to the accident, the plaintiff had utilised share farmers, particularly in relation to the cropping. She carried on various activities relating to the sheep herself and also performed maintenance work such as fencing, windmill and trough maintenance, general repairs and the like. She also developed an interest in genetics and its use in sheep farming. She had discussions concerning the establishment of a breeding program and the building up of a stud flock.

15        During the 1990s, and on a date concerning which the plaintiff was uncertain, she sold some 400 acres of the farm. This was due to financial pressures, and in particular following the obtaining of what the plaintiff described as bad

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advice from a local bank manager. The nature of this advice was not entirely clear, but it involved the taking out of a loan for some farming business and for another business to help supplement income. The end result was that the loan was very hard to service. This also seems to have occurred at a time when the plaintiff’s third daughter was ill, but it was not suggested by the plaintiff that this had any bearing on the sale.

16        Thus, as at the date of the accident, the plaintiff was working on a part-time basis, up to 24 hours per week, as a personal carer at the Lake Bolac Bush Nursing Centre and was endeavouring to keep the farm, now reduced to 350 acres, operational. She continued to carry out tasks of maintenance, and ran some sheep. The balance of work done on the property involved share farming activities, and these seem to have included, by this time, both cropping and sheep farming.

17        I accept that the plaintiff’s health was good prior to the accident. She has always been overweight, and she did suffer some lower back pain associated with menstrual periods. However, I accept that she was otherwise fit and healthy and engaged in various activities in addition to raising her family, carrying out her work on the farm, and working as a personal carer. She had separated from her husband in 1999 although some contact continued. As at the time of the accident, her four daughters would have ranged in age from 6 to 13 years. Whilst the farm produced income, the tax material available for the years 2001 and 2002 would indicate that it ran at a modest profit or at a loss.

(iii) The injuries

18        The plaintiff suffered injuries when involved in the accident. The accident was a two car collision, the impact being on the right side of the plaintiff’s vehicle, which was written off. It is alleged that the other driver failed to comply with a “give way” sign.

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19        The plaintiff suffered widespread bruising and various injuries in the collision. She was taken by ambulance to the Ararat Hospital where she was kept overnight. As a result of persisting pain, she attended at the Hamilton Medical Group on 17 May 2002, where she saw Dr Walker. That doctor noted bruising down the right side with tenderness to palpation over the sternum and second cervical vertebrae, and recommended analgesia and physiotherapy, particularly for the neck. The plaintiff continued to see Dr Walker and Dr Forster at the same clinic. On 15 October 2002 Dr Forster referred the plaintiff to Associate Professor Terence O’Brien, neurologist. The plaintiff’s principal complaint to Professor O’Brien was of continuing neck pain with a feeling of mild burning and itching over the lateral borders of both forearms and arms, worse on the left, and of intermittent pins and needles down the leg. Professor O’Brien formed the view that the plaintiff’s problems were most likely resulting from soft tissue injuries, but he organised an MRI scan. This was performed on 7 November 2002. It showed a small posterolateral disc protrusion to the right at the C4/5 level, abutting the right C6 nerve root without displacement of the nerve root. There was also mild foraminal stenosis at C4/5 on the right. No other disc protrusions or stenosis was noted.

20        Professor O’Brien informed the plaintiff that surgery was not an option, and that she would be best treated conservatively with physiotherapy and pain relief. His conclusion, as stated in his report of 23 December 2003, was as follows:

“In summary, it appears that Dorothy has soft tissue cervical strain ‘whiplash’, following a motor vehicle accident. The prognosis is that the symptoms should fairly improve with time, although many patients are left with chronic neck pain.”

21        A report of Dr Robertson, also of Hamilton Medical Group, dated 14 November 2003 refers to the plaintiff seeing Drs Walker and Forster with ongoing problems of pain and parasthesia, particularly over the lateral borders of the forearms and arms and intermittently down her neck. It is stated that at

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that time her major problem currently was pain and parasthesia of the right leg, although this did not seem to coincide with the plaintiff’s recollection. In any event, the situation became more complicated at this time due to a concern on the part of Dr Walker that the plaintiff may be suffering from Paget’s Disease in the sacrum. The plaintiff was referred to Mr Forbes, an orthopaedic surgeon in Mt Gambier, who reviewed her in February 2004. The letter of referral from Dr Walker to Mr Forbes was placed in evidence by the defendant. No material from Mr Forbes was placed in evidence by the plaintiff, and this was the cause of some comment by Mr Jens.

22        It is quite apparent from the letter of referral (Exhibit 2) that this occurred in the context of a possible diagnosis of Paget’s Disease. The letter contains no reference to any cervical injury. I accept the submission of Mr Brookes that Mr Forbes was being asked by Dr Walker to express a view as to whether the plaintiff was suffering from Paget’s Disease, and if so whether it was related to the motor vehicle accident or due to a degenerative process.

23        The letter of referral does contain what could almost be described as a throw away line to the effect that Mr Forbes might also look at the plaintiff’s knees. I accept the submission of Mr Jens that, if the plaintiff was being troubled by cervical symptoms, the words “and neck” may have been included after the word “knees”. I am prepared to draw an inference, in accordance with the decision with O’Donnell v Reichardt [1975] VR 916 that evidence from Mr Forbes would not have assisted the plaintiff’s case. However, I am also of the view that the basic reason for the referral related to the possible existence of Paget’s Disease and its cause. The weight which should be attached to the inference drawn seems to me to be limited.

24        That the plaintiff suffers from some lower back problems and symptoms seems to me to be beyond dispute. The existence of Paget’s Disease, along with the lumbar spine problems, clearly has the potential to be relevant when consequences, restrictions and limitations are being considered. It is to be

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remembered that it is the impact of the injury to the plaintiff’s cervical spine which is to be considered, injury to the lumbar spine having been specifically abandoned. I shall return to a discussion of this subsequently.

25        I would also point out that initially the plaintiff had intense treatment by way of medication for the Paget’s Disease, but such treatment has not continued. In relation to the plaintiff’s ongoing treatment otherwise, she now lives in Mt Gambier and attends the Ferrers Medical Clinic. A report from Dr Cruickshank of that clinic and dated 3 February 2010 refers, briefly, to the plaintiff’s history including physiotherapy and analgesics, and concludes that, “She continues to experience neck pain, radiating to both arms”. The most recent affidavit of the plaintiff refers to ongoing frequent and severe pain in the back, neck and shoulders and to the fact that she continues to take a mixture of paracetamol and codeine as required. In her evidence, she stated that she took Panadeine Forte, Mobic (an anti-inflammatory) and Seretide. Physiotherapy does not seem to have been of great benefit to her, and she has discontinued it.

26        The plaintiff has been seen by a number of examiners for medico-legal purposes. Mr John Bourke, orthopaedic surgeon, saw her on behalf of her solicitors on 23 April 2004. At that time she had recently been seen by Mr Forbes, as noted by Mr Bourke. Mr Bourke expressed the view that the MRI scan of the cervical spine of 7 November 2002 showed multi-level disc degeneration with a mild disc bulge on the right side. He also viewed films of the lumbar spine, these being taken on 28 January 2004 and showing narrowing in particular at the L5/S1 disc. He raised the possibility of Paget’s Disease at the level of the sacro-iliac joints. Relevantly, he diagnosed a soft tissue injury to the cervical spine with soft tissue injury to the lumbar spine with evidence of mild radiculopathy into the right lower limb. He felt that the prognosis was that she would be likely to have symptoms related to her neck

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and lower back in the longer term, these being in part related to the accident.
He also diagnosed a soft tissue injury to the right shoulder.

27        Mr David Brownbill, consultant neurosurgeon, has seen the plaintiff at the request of her solicitors on two occasions. He first saw her on 17 May 2005. He diagnosed “ … soft tissue damage to structures about the cervical spine (with probable intervertebral disc damage) giving rise to neck pain which continues in a fluctuating manner and which may be anticipated to continue indefinitely”. Mr Brownbill also expressed the view that, on the information provided, the plaintiff had suffered soft tissue damage to structures about the lumbar spine which has effectively resolved. He stated that she was not able to perform farm activities but was working two days a week as a certificated nurse with the local bush nursing centre and required assistance with household duties.

28        When Mr Brownbill next saw the plaintiff on 18 March 2009, she was taking up to six tablets of Panadeine Forte a day with right-sided neck pain present every second day and headaches present constantly. He repeated that, as a result of the soft tissue damage sustained, the plaintiff had not been able to continue with her activities as a self-employed farmer. Otherwise, in general, he repeated the conclusions which have been set out above.

29        On 6 March 2009 the plaintiff was seen at the request of her solicitors by Mr Stanley Schofield, orthopaedic surgeon. He expressed the opinion that the plaintiff had suffered significant loss of her normal physical activity as a result of the accident and referred to persisting symptoms of neck injury with restricted movement, and to the fact that the MRI scan in 2002 showed evidence of disc injury. He was also aware of the multi-degenerative changes in the plaintiff’s lumbar spine and referred to her weight and pre-accident physical activities in this regard. He felt that further MRI scans of the cervical and lumbar spine were warranted.

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30        The plaintiff has also been seen on two occasions by Mr Michael Shannon, orthopaedic surgeon, at the request of the defendant. He initially saw her on 11 August 2004. The history that he took at that time was that, whilst she had suffered extensive bruising, her major pain at the time of the accident was pain in the neck extending down the spine and that she also had pain in the right leg. He diagnosed a lateral flexion injury to the cervical spine with aggravation of degenerative change and, whilst he felt there was some exaggeration, he thought that the plaintiff appeared to have some restriction of neck movement and that she had an accident-related impairment. His second examination was on 16 June 2009. On that occasion he found little change, with ongoing symptoms in her neck and back consistent with minor degenerative change aggravated by the accident. He also commented upon her obesity.

31        The plaintiff has been seen by other examiners for injuries which are no longer relied upon, namely those of a psychiatric nature, urinary incontinence, and some bursitis of the right shoulder. Whilst histories taken received some attention, essentially these reports take matters no further. The histories taken by the examining psychiatrists are of some assistance in relation to the distress expressed by the plaintiff concerning her ability to engage in farming, and there shall be mention of this subsequently.

32        I am of the view that, in the accident, the plaintiff suffered injury to the cervical spine. This situation seems to have been best summarised by Mr Brownbill to the effect that the plaintiff suffered soft tissue damage to structures about the cervical spine with probable intervertebral disc damage. Mr Schofield’s view is to similar effect. Their opinions seem in accord with what has been demonstrated by the MRI scan. I accept them.

33        Insofar as the injury represents the aggravation of pre-existing cervical disc degeneration, it is the aggravated condition which I am to consider. I accept in this regard that the plaintiff was previously free of symptoms in the cervical

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spine and suffered no restrictions or limitations emanating from it. Accordingly, I am of the view that, insofar as she had pre-existing, symptomless degenerative changes, it is the condition as aggravated by the accident that causes any consequences from which she now suffers.

(iv)      Other developments since the accident

34        After the accident the plaintiff not only continued to receive treatment from her general practitioner and by way of physiotherapy, but she also commenced Tai Chi classes and swimming. Indeed, she moved on to giving some instructions in Tai Chi to elderly and disabled patients. In late May 2002 she recommenced work at the Lake Bolac Bush Nursing Centre on light duties. She experienced considerable difficulties in carrying out any of the type of work which she had previously performed on the farm.

35        In July 2003 the plaintiff commenced a Division II nursing course through the TAFE college at Mt Gambier, completing such course in June 2004. Thereafter she commenced a Certificate IV in Health and Fitness by correspondence. By July 2004 she was a qualified Division II nurse, and worked at the Lake Bolac Bush Nursing Centre two days per fortnight together with call-ins.

36        In May 2007 the plaintiff sold the remaining 350 acres of the farm, this being done through an estate agent. She received $500,000 by way of purchase price, the farm being mortgaged for under $100,000 at that time. The plaintiff and her daughters effectively used this money to purchase a house on a small property of some seven acres in Mt Gambier. The plaintiff has obtained work at the Mt Gambier Hospital. She works as a nurse on nightshift, pointing out that day shift duties are heavier in nature and involve more manual handling of patients. The plaintiff is currently working 32 hours per week. Her gross earnings for the financial year 2008/09 were $51,295. In the previous financial year, she earned in excess of $42,000 from her work at the Mt Gambier Hospital. The plaintiff readily agreed with Mr Jens that such figures

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were by far the highest two years of income which she had earned in her
lifetime.

37        The plaintiff gave evidence that she had done the carers course and worked as a carer at Lake Bolac effectively as something for herself – that is, something outside her role as a mother and farmer, although obviously the income from the caring work, whilst not great, would have been useful. Her evidence was that she undertook the upgrading of her qualifications in relation to nursing, this being done after the accident, for the following reason: “The purpose was to try and have another career, because I couldn’t – it was something that I could do”. However, in the same passage of cross examination, she stated that “ … my first career and my love was my farm”.

38        The plaintiff was cross examined at some length concerning the greater opportunities that existed in Mt Gambier for her and for the education of her children when compared with the situation at Caramut. Again, the plaintiff agreed with this proposition, but also stated that, if the accident had not occurred, the children could have completed their secondary education at Lake Bolac College, there being a bus service between Caramut and that school. They would then have gone away for any tertiary education. Another development is that, comparatively recently, the plaintiff has had a pool installed at her house, this being of use to her in relation to her condition as well as being of benefit to the family.

Ruling

39

I am of the view that the plaintiff has discharged the burden of proof in this matter. Clearly, if the type of consideration in relation to pecuniary loss required by the Accident Compensation Act had to be carried out, the plaintiff would have found it impossible to discharge the burden of proof in that regard. On the evidence of her tax returns and the summary provided, it is clear that she is now earning considerably more income than she was prior to the accident. However, that is not the test pursuant to the Act.

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40        It may also be that the educational and employment opportunities for her daughters are now greater since the plaintiff has left the farm. This certainly has the potential to be relevant to decisions which she has taken, and particularly in relation to the sale of the farm and the reasons for it. Such considerations might also have relevance to arguments centring upon the plaintiff’s quality of, and enjoyment of, life, and also her employability. However, the fact that the plaintiff and her family may, in some respects, be better off as a result of the move to Mt Gambier is not the end of the matter.

41        I am satisfied that the plaintiff has been deprived of her capacity to engage in farming and work on the farm which she had owned and upon which she had been brought up. True it is that her lower back problem, which extends to her hips, and mainly the right hip, and upon which reliance is not placed, would have made the carrying on of her farming activities very difficult. However, what I am discussing and determining are the consequences of the injury to the neck and the effect of that injury upon her ability to farm. In other words, there may be a number of factors hampering or preventing the plaintiff in respect of her ability to farm. What I must examine is the role of the injury upon which reliance is placed.

42        In this regard, it was pointed out by Mr Brookes that, in a clever cross examination, Mr Jens, whilst dealing with the difficulties which the plaintiff encounters in relation to her back, did not actually question her as to whether her neck injury caused her to be unable to farm. In other words, he did not go the further step and asked the plaintiff whether, if she had no lower back problem, she would otherwise have been able to carry on with the farm.

43        In short, in my view the plaintiff’s evidence in relation to the neck injury causing her inability to continue on the farm remains unchallenged. I would refer to the following answers of the plaintiff to questions asked in re- examination:

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“And if you did try to do some of the physical work on the farm, did it affect any parts of your body when you were trying to do that? Did you get pain anywhere?---I got a lot pain and a lot of the times I just couldn’t do the work, it was impossible. I had no strength, so if tried to do fencing or anything like I just couldn’t do it with the pain and with the loss of power that I had.

All right. Where did you have pain if you tried to do the work, what part of your body?---I would have it in the neck and the shoulder, down my spine. And if I was doing things that involved climbing or that, I just couldn’t do it because of my legs and my hips.

Now, that sort of pain you have just described in your neck and going into your shoulders, et cetera, do you get any of that pain on lifting?---Yes, I do.”

“If you didn’t have any pains in your neck, et cetera, what would you be doing in terms of income is concerned?---I would like to think that I was working as much as I am now outside, if not fulltime.

Yes?---But I would also still have a farming interest, definitely.”

“And in terms of having sheep on your property, did you have to do any – this is prior to the accident – any physical work in terms of giving birth to the babies or crutching or anything like that?---No, I used to do all our drenching, dipping. I had shearers come in to shear, but I would do the odd bit of crutching, getting the dags away, taking – I basically did lamb marking, mulesing, all of that I would do myself. It was the shearing was something that - - -

Sorry, you said drenching, what was the second thing you said?
---Drenching, mulesing, marking.

Yes. Do those jobs, did they place any pressure on your neck, on your cervical spine?---There would have been lifting involved, yes.

And did you try any of those jobs after the accident?---I did.

And what effect did it have on you?---I couldn’t do it because of the pain.

Yes. And just tell His Honour where the pain was?---It was around the top of my neck here, predominantly, and it would go down, depending on what sort of job it was that I was trying to do.”

44        I would also refer to the following extract from the report of Mr Brownbill dated 17 May 2005:

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“On the history provided, this lady suffered soft tissue damage to structures about the cervical spine (with probable intervertebral disc damage) giving rise to neck pain which continues in a fluctuating manner and which may be anticipated to continue indefinitely. On the information provided, this lady suffered soft tissue damage to structures about the lumbar spine which has effectively resolved.”

“She is not able to perform farm activities but is working two days a

week as a certificated nurse with the local bush nursing centre.”

45        In his further report of 19 March 2009, he repeats his observations concerning the cervical spine and the resolution of the problem with her lumbar spine and then observes as follows:

“As a result of the soft tissue damage sustained, she has not been

able to continue with the activities as a self employed farmer.”

46        Mr Brownbill seems to be the only specialist – indeed the only doctor – who has specifically addressed this issue. Mr Michael Shannon, examining on behalf of the defendant, found that the plaintiff had some restriction of neck movement and thought that she had an accident-related impairment, also expressing the view that there was some exaggeration of physical signs, but otherwise simply noted that the plaintiff stopped work on the farm and in her part-time job. It should be pointed out that Mr Shannon’s report is dated 16 August 2004. Similarly, the report of Mr John Bourke is now approaching six years of age and, apart from referring to a soft tissue injury to the cervical spine which, along with the long back injury, was going to create symptoms in the longer term, contains only a reference to the fact that the plaintiff had currently not returned to her previous work as a wool classer or doing sheep farming and share cropping. Thus, Mr Brownbill’s is the only recent report of relevance and the only one to address this issue. His opinion appears to coincide with the evidence of the plaintiff and, as stated, I regard her as a witness of truth. Regardless of the situation in relation to the lumbar spine (and I appreciate that Mr Brownbill states that this has largely resolved in any event), in my opinion the injury to the plaintiff’s neck and the symptoms and

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restrictions resulting from it are sufficient to prevent the plaintiff from carrying
out farming work and caused her to sell her farm.

47        I might point out at this stage that Mr Jens referred to the disentangling of injuries which I would be required to do. As is apparent, I am satisfied that the consequences of the injury to the cervical spine are sufficient to satisfy the “very considerable” test. In relation to the other injuries, Mr Brownbill has described the injury to the lumbar spine as having effectively resolved. Mr Shannon has stated that he doubts that the plaintiff has sustained a significant injury to her back. Both have examined the plaintiff comparatively recently. The urinary incontinence is not a major problem – see the report of Mr Donald Moss, consultant urologist. Dr Murray Grave, musculoskeletal physician, treated the plaintiff in 2006 in respect of her right shoulder injury, but has reported that, as at the last occasion on which he saw the plaintiff, she had obtained significant relief in relation to her right shoulder following an injection of anaesthetic steroids, and had a full range of active and passive movement. Thus, the bursitis in the shoulder, as distinct from any referred cervical pain, would currently not appear to be of any great moment. In relation to any psychiatric condition, Dr Weissman, reviewing the plaintiff on 16 June 2009, described her psychiatric prognosis as being relatively good and expressed the view that, whilst her symptoms were not trivial or insignificant, they were not moderate, moderately severe or severe. The impression conveyed by her in the witness box was not one of a person showing any obvious signs of psychological or psychiatric disturbance. Whilst, as stated, she was tearful at times, generally she was composed, logical and impressive.

48        In summary, in my view the disentanglement process is not particularly difficult and the consequences which I have considered are those resulting from the injury to the cervical spine.

49        I am also of the view that being involved in farming meant a great deal to the plaintiff. The fact that this was a farm established by her father, and on which

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she was raised, has added to the sense of loss and distress experienced by her when she was forced to sell the farm. This is particularly so as she had been reared on it, had worked on it, and it had been transferred to her as an only child by her father during his lifetime. In cross examination, the plaintiff stated that she “…believed my first career and my love was my farm” when it was put to her that she could not have survived on the farm financially, her response was “I would have survived – I would have tried to survive on the farm, yes”. In re-examination, she repeated that her first love in life was farming, also stating “I like working outside, I love working with animals, and it was just a way of life. It’s all I knew”. She stated that, had she not been injured, she would have had outside work, but was interested in genetics involving sheep. She further stated that, if she did not have the pains in the neck and the like, she would have continued working, but also with a farming interest in livestock of some kind. In her affidavit of 19 November 2008, she has described the general background of the farm and how it was transferred to her name when she finished her agricultural apprenticeship, as she was keenly interested in the farm.

50        The plaintiff has also described in that affidavit, and to medical examiners, her distress at being on the farm after the accident and not being able to do the things that she would normally do and wanted to do. To Dr Albert Kaplan, consultant psychiatrist who saw the plaintiff at the request of her solicitors on 31 May 2004, (well before the sale of the farm) she commented that she loved the farm work, that she had been unable to work on the farm since the accident and was forced to sell her stock and lease the farm to share farmers, and Dr Kaplan recorded that the plaintiff was distressed that she was no longer able to farm. To Dr Carol Burton, clinical neuropsychologist who saw the plaintiff on 22 April 2005, she described her frustration at her inability to do physical work around the farm. In his report of 19 March 2009, Mr Brownbill also took a history of the plaintiff’s stress and frustration in relation to the farm, and Dr Michael Epstein, consultant psychiatrist, reported on 8 August 2005

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concerning the plaintiff’s love of farm work. Dr David Weissman, consultant psychiatrist, who saw the plaintiff at the request of the defendant on 11 August 2004, recorded the plaintiff’s frustration concerning the fact that she could not physically do the work on the farm and had sold her stock. I appreciate that reliance is not placed upon psychological or psychiatric injury, but have referred to what had been noted by, amongst others, consultant psychiatrists because their reports recite the plaintiff’s consistent description of her distress and frustration in relation to her inability to farm.

51        The plaintiff has described her feelings in relation to her inability to farm and the sale of it in paragraph 6 of her affidavit of 19 November 2008, including the observation that it was heartbreaking to see the farm falling into disrepair. Further, when she was giving her evidence, I noted that almost every time there was discussion concerning the sale of the farm, the plaintiff became distressed and tearful. There was no suggestion from anyone that this reaction was anything but genuine, and essentially it only occurred in the context of discussion of her inability to farm and the sale of the property.

52        In summary, I am quite satisfied that the loss of the ability to farm with the resultant sale of the property has been a great blow to the plaintiff and she sees the disappearance of this part of her life as an enormous loss. Of course, as I have found, the injury to the neck has caused this. Without taking into account any other factors, this consequence alone would seem to me to be sufficient to satisfy the test.

53        I turn now to the other consequences of the injury to the cervical spine over and above the inability to continue farming.

54        I have no reason to doubt what is contained in the affidavits of the plaintiff in this regard. She experiences frequent and severe pain in, inter alia, her neck. Twisting, bending and stooping during the performance of her nursing duties aggravates her pain. Her sleep is poor. Her neck is not only painful, but stiff,

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and any activities requiring significant use of her arms are restricted. She can no longer engage in activities such as camping, boating and assisting at the speedway. She takes Panadeine Forte and Mobic for her pain. As she said in re-examination, she gets pain in her neck going to her shoulders on lifting. When asked specifically about the effect which her neck pain has on her life, she replied as follows:

“It makes it hard. I work, that’s about all I do. I don’t pursue a lot of interests because I can’t because of the pain and limitation, it makes me feel very vulnerable. And I exist, I don’t live. I exist.”

55        Mr Brownbill has stated that the plaintiff’s fluctuating neck pain may be anticipated to continue indefinitely. He was prepared to make an impairment assessment pursuant to the AMA guide, permanent impairment being a pre- requisite for this. Mr Shannon, in his more recent report, has stated that the plaintiff’s neck condition has stabilised. The brief report from her current general practitioner, Dr Cruickshank, simply states that the plaintiff continues to experience neck pain radiating to both arms, his report in this regard being dated 3 February 2010. Bearing in mind the additional fact that it is now approaching eight years since the accident, and taking into account the views of Mr Brownbill and Mr Shannon, I am quite satisfied that the plaintiff’s impairment and the consequences of her injury are long-term, permanent and will persist for the foreseeable future.

56        I am also satisfied that, bearing in mind that the plaintiff has been enduring the pain and symptoms referred to above for almost eight years and that they are likely to persist for the balance of her life, she has satisfied the “very considerable test” even leaving to one side her inability to farm. When all the consequences are combined, it seems to me that she has comprehensively discharged the burden of proof.

Conclusion

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57        The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for damages. I shall hear the parties as to any ancillary orders that are required.