Musgrove v Transport Accident Commission
[2013] VCC 856
•13 May 2013
| 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-12-02459
| RACHEL MUSGROVE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 May 2013 | |
DATE OF JUDGMENT: | 13 May 2013 | |
CASE MAY BE CITED AS: | Musgrove v Transport Accident Commission | |
| MEDIUM NEUTRAL CITATION: [First revision 28 June 2013] | [2019] VCC 856 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury cervical spine – causation – nature and
extent.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 435; O’Donnell v Reichard [1975] VR 916; Spence v Gomez [2006] VSCA 48; Richards v Wylie [2000] 1 VR 79; Dahl v Grice [1981] VR 513; Forder v Hutchinson [2005] VSCA 281
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC with Mr Schultz | Maurice Blackburn |
| For the Defendant | Mr D Masel SC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 19 April 2007. On that occasion, the plaintiff was stationary at a roundabout and a following driver collided into the rear of her stationary vehicle.
2 The injuries relied on in this application are essentially impairment to the cervical spine with resultant problems of pain and sensory difficulties relating to the left arm and left shoulder. The plaintiff accepts that she had pre‑existing degenerative changes in the cervical spine and asserts that such changes were rendered symptomatic by the accident.
3 Relevantly, the plaintiff had had an earlier motor vehicle accident in August of 2005. As a result of that car accident, a CT scan was performed and, in essence, no particular abnormalities were detected on that occasion. She has alleged that she had minimal treatment consisting of one consultation with her general practitioner but otherwise no long‑lasting effects. It was contended that certainly she was not suffering any symptoms as at the date of the accident of 2007.
4 The defendant contends that this was an unreliable history in that she had indicated in a TAC Claim Form that she was unable to look for work for approximately twelve months following that accident.[1]
[1]See Exhibit 5
The legislative Scheme
5 Under s93(4)(d) of the Act, a person whose impairment is assessed at less than 30 per cent can seek leave to bring proceedings for recovery of common-law damages. Under s93(6), a court must not give such leave unless it is satisfied that the injury is a “serious injury”. “Serious injury” is defined by s93(17) as meaning:
“(a) a serious long‑term impairment or loss of a body function … .”
The plaintiff relies on paragraph (a) of the definition.
Guiding Principles
6 The principles governing an application of s93 were summarised in Spence v Gomez,[2] as follows:
“(a)Standard of proof: an applicant for leave to bring proceedings must establish on the balance of probabilities that he/she suffered a serious injury (as defined) as a result of the transport accident;[3]
(b)Meaning of ‘serious injury’: it is the Judge’s opinion as to the seriousness of the impairment or loss, determined by comparison with other cases in the range of possible impairments or losses, which is decisive.[4] To be ‘serious’, the injury must be capable of being fairly described at least as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[5]
(c)Pre-existing conditions: where there is aggravation of a pre-existing condition, the applicant must establish what injury was caused by the accident. An analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury, and the additional impairment must itself constitute serious long-term impairment of a body function.”
[2][2006] VSCA 48 per Maxwell P at paragraph [8]
[3] See Petkovski v Galletti [1994] 1 VR 436 at 436 per Brooking JA
[4]See Humphries & Anor v Poljak [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
[5]See Humphries & Anor v Poljak (supra) at 140
7 The defendant in this action has taken three basic defences:
(i) Causation;
(ii) Range of impairment; and
(iii) Credit of the plaintiff.
(i) Causation
8 It is clear that the plaintiff has had medical “problems” prior to this motor vehicle accident. An examination of the clinical record from her general practitioner[6] would reveal the following:
[6]See Exhibit 1
· 26 August 1997, complaining of dizziness for some months;
· 5 January 2001, an increase in chronic dizziness and tingling in arms/hands;
· February 2001, light-headed, tingling in arms, tightness in chest, ECG performed;
· 13 August 2003, poor balance, blurred vision, apparently related to “sore ears”;
· 12 February 2005, long‑term tinnitus.
9 The second group of clinical symptoms commences with a motor vehicle accident occurring in August of 2005. The plaintiff attended her general practitioner on 23 August 2005, having had a CT scan performed on 22 August 2005, which was reported on 22 August 2005. Thereafter, there were a number of visits to the general practitioner, approximating fifteen in number. Possible relevant attendances are as follows: 14 September 2006, “vertigo still”; 1 December 2006, “unsteadiness”.
10 Subsequently, the plaintiff experienced the motor vehicle accident in question, was treated at the Dandenong Hospital and thereafter, by her general practitioner. She saw the latter for the first time on 26 August 2007 and gave the history of the motor vehicle accident “last week”.
Radiological Evidence
(a) A CT scan taken 22 August 2005, conclusions essentially normal.
(b) A CT scan of the cervical spine taken 19 June 2007, minor posterior disc bulges at C4‑5 and C5-6.
(c) A CT scan of the cervical spine taken 11 November 2009, moderate osteophyte formation and disc space narrowing seen at C5‑6 and also some disc space narrowing at C4-5. There was no evidence of disc protrusion.
(d) An MRI scan of the cervical spine taken 6 August 2010, C4‑5 asymmetrical left‑sided disc bulge mildly effaces the cervical cord on the left; C5‑6, there is asymmetrical left‑sided disc osteophyte complex. It mildly effaces the anterior cervical cord, greater on the left. Conclusion, lower cervical spondylosis involving C4‑5 to C6-7. These changes are most prominent at C5-6. At C-5 asymmetrical left‑sided disc osteophyte complex mildly effaces the anterior cervical cord, greater on the left. At C4‑5 asymmetrical left-sided disc bulge also effaces the anterior cervical cord, greater on the left.
(e) A CT scan of the cervical spine taken 31 May 2012, degenerative changes with disc osteophyte bulges at C5-6 and C6-7, indenting the thecal sac with neural foraminal compromise.
(f) An MRI scan of the cervical spine dated 1 June 2012, C4‑5, C5‑6 and C6‑7 spondylotic disease, mainly charactered by uncovertebral joint degeneration with disc osteophyte complexes.
Medical opinion regarding causation
11 The defendant in this case relies first on the report of rheumatologist, Dr Kevin Fraser, dated 7 February 2013.[7] Dr Fraser notes the radiological findings, as referred to above, but considered that any musculoligamentous strain suffered as a result of the whiplash injury in 2007 had long ago resolved and:
“… to the extent that it is organically based, her ongoing pain and stiffness is due to age‑related degenerative changes, as documented in the CT and MRI scans referred to previously.”[8]
[7]Exhibit 4
[8]Exhibit 4 at page 2
12 In his opinion, there was no significant functional incapacity as a result of the previously noted degenerative changes and he considered the plaintiff fit for her pre‑injury work as a cleaner or any other form of work for which she was otherwise suited.
13 The defendant also relies on a treating neurologist, Dr Matkovic, who reported on two occasions, most recently on 7 March 2011.[9] On that occasion, he took a history that her neck pain was getting worse and that she considered she was suffering nerve pain from the neck to the fingers. Dr Matkovic noted the cervical MRI scan on 6 October 2010 showed “a left‑sided disc osteophyte complex at C5‑6 with mild narrowing of the foramen”. There was no other comment on any radiology. In conclusion, he thought she had a migraine that was responsible for visual disturbance. He also stated:
“The cervical MRI raised the possibility of left C6 nerve root irritation, but examination did not disclose any evidence of myelopathy or radiculopathy. Instead there was functional overlay. The left upper limb weakness is not due to paralysis. As she has such severe symptoms in her left upper limb, an opinion from the neurosurgeon would not be amiss.”
[9]Exhibit M
14 The desirability of an opinion from a neurosurgeon was echoed by treating rheumatologist, Dr Michelle Leech, who in an undated referral, sought a neurosurgical opinion from Mr Craig Timms.[10] Mr Timms reported to the general practitioner on 8 October 2012. Relevantly, he stated:
“Her recent MRI scan shows that she has a degenerative disc with some minor bulging at L4‑5 but more so at the level of C5‑6 with inflammatory modic changes. I think this is probably where her neck pain and arm symptoms are coming from. It was noted on her most recent MRI scan that she has a mild chiari malformation which was evidence on the last MRI scan, but I think it is quite mild and hence was not even commented upon.
With regard to her cervical spine symptoms I think a prolonged course of building her neck strength and flexibility with physiotherapy, massage and pilates is likely to improve her. If it does not, then there is a chance that surgery may improve it but this remains a last resort. Today I have explained how we do a discectomy and fusion of the cervical spine and given her some information to read about it. From my point of view, I think persisting with physiotherapy, exercise and simple analgesics is likely to be the main point of benefit.”
[10]Exhibit O and Exhibit N respectively
15 A further report from a neurosurgeon was sought from Mr David Wallace on 11 March 2013.[11] Mr Wallace considered as follows:
[11]Exhibit U
“Her MRI scan of 6 October 2010 showed loss of signal at C4‑5 and C5‑6 where there was an anterior prolapse at C5‑6, posterior bulges at C2‑3 and C6‑7 and a tiny non‑relevant chiari malformation.
Her MRI scan of 1 June 2012 performed at Monash MDI Radiology showed loss of cervical lordosis and similar findings to those mentioned above and there was some end‑plate oedema at C5‑6. There was nerve root canal narrowing at C5‑6 and there was slight beaking anteriorly at C5‑6.”
In his Opinion section he stated:
“This lady suffered an injury to her shoulder and neck and to her lumbar spine in the abovementioned traffic accident. Her clinical course since that time is outlined above. I believe she has suffered a cervical disc injury and that her principal problems in the neck relate to her soft tissue injury of the cervical spine and not to the incidentally discovered chiari malformation.”
16 The defendant, itself, sought an opinion from a neurologist, Prof Stephen Davis, whose report of 26 February 2013 was tendered into evidence by the plaintiff. Professor Davis took a history, inter alia, of an earlier accident in 2005 where the plaintiff had recalled having neck and shoulder pain. She told him she did not really take time off work and that the symptoms resolved after a week. This history was consistent with the clinical record of only attending her general practitioner on one occasion with respect to the motor vehicle accident, but perhaps inconsistent with the TAC Claim Form where she said that she was unable to look for work for a year after that accident.
17 In any event, when Professor Davis saw her, she was still having constant severe pain at the base of the skull and into the neck, and she had restricted neck movements. He thought she had left brachial neuralgia which radiated from her left shoulder and down the left arm into the left hand. She had generalised tingling in the left hand and she felt that the left arm was generally weak. The plaintiff felt that physiotherapy had been helpful with the strength of the arm but when she would wake she was aware of complete numbness in the left arm. She was having constant daily headaches and more severe migraine-type headaches every two days. The plaintiff herself did not believe that she could commit to work at the present time given the range of symptoms. She was previously having physiotherapy but would be keen to get back to it, as well as hydrotherapy. Professor Davis opined as follows:
“(1)She had a whiplash-type injury to the cervical spine and has had a protracted Pain Syndrome centred on the cervical spine with pain radiating down the left arm. There was an earlier mild whiplash type injury in 2005 which rapidly settled. She states that she was basically asymptomatic before this accident.
(2)She now complains of chronic pain in the neck and the left arm with symptoms suggesting brachial neuralgia but no objective signs of cervical radiculopathy. She also complains of low back pain, chronic daily headache radiating up in the neck and likely migraine headaches.
(3)She has quite severe cervical spondylosis and I would consider that symptoms have been precipitated by the 2007 accident but without objective signs …
…
(8)To summarise, I think that the significant cervical spondylosis has been rendered symptomatic by the accident but there are no objective neurological signs and I agree with conservative management.”
18 The state of the medical evidence is divided, as already indicated, but there is sufficient evidence available to establish a prima facie case of causation by way of the rendering symptomatic of underlying degenerative changes in the cervical spine. I will return to this matter later.
(ii) Range
19 The plaintiff has sworn three affidavits in this proceeding, on 20 December 2011, 13 March 2013 and 15 April 2013.[12] In her first affidavit, she swears she was born on 10 August 1974 and she completed Year 11 studies at secondary college. She has two adult children but is otherwise a single mother. Her work history has included managing an apple orchard in Nar Nar Goon and working in merchandising at Myer. In addition, she has studied a graphic design course at South Eastern TAFE College and is still involved in painting, basically as a hobby.
[12]Exhibit B
20 Her employment history since finishing at the apple orchard included various part‑time jobs, which she managed while she was busy raising her children. She attests that in November 2006, she began work cleaning display homes and windows for Elisanne Home and Property Services. She worked part‑time for that company –
“… usually about 18 or so hours per week.
It was physically demanding work but I enjoyed it. I was still involved in that employment when the collision occurred.”
21 In cross‑examination, she conceded that her hours of work were likely to be on average a lot less than 18 and closer to 8 hours per week. This was the first of a number of credit issues raised by the defendant. Further, she swore that “My medical history is unremarkable”. In support, she referred to her previous motor vehicle accident, originally thought to be in 2006, but later corrected to 2005, at which she had suffered a neck injury. She said that pain that she suffered after that earlier transport accident was treated with simple physiotherapy “for a short period of time”:
“My symptoms then settled and I did not experience any ongoing difficulties.”
22 A third credit issue is that the plaintiff, in a later document, stated that she had been looking for work for twelve months. It was further put to her that her medical history referred to earlier could in no way be considered “unremarkable”. The plaintiff had considerable difficulty remembering most of the clinical attendances referred to above; and I will return to this issue in the section relating to credit.
23 Further, the plaintiff swore that before the collision in April 2007, she would have described herself as “"very fit and healthy”; she found her employment physically demanding; she was jogging most days, attended a gymnasium several times a week and participated in aerobics classes. She enjoyed keeping fit so much that she planned to do a six‑month course to become qualified as a personal trainer.
24 Further, before the collision, she often went out dancing with her friends, she enjoyed going bushwalking and going for long walks, playing games outside with her children, and horse riding. She described herself as “houseproud”. She managed all the chores around her home, including the heavier chores, without difficulty. All in all, before the collision, she said that she led a “happy, busy, fulfilling and active life”.
25 The plaintiff related a program of physiotherapy and other conservative treatment consisting of strong analgesia. She also developed nightmares about the collision and experienced a great degree of fear and anxiety. She returned to employment in March 2009, cleaning for a local motel. She said, however, she was unable to cope with the more physical demands of the job, so in January 2010, she was forced to cease that work. She also swore that in that job she was given assistance by other staff with the heavier aspects of the work.
26 In 2010, she attempted some light work at a beauty salon. However, after only about two weeks, it became apparent to her that she was unable to cope with the physical demands involved in a beautician’s work. She has continued conservative treatment with a number of general practitioners and physiotherapy treatment as she moved from Pakenham to Wonthaggi. Further, in September 2010, she tried to work in a local cinema, selling tickets. She only performed two, three‑hour shifts and ultimately was not able to cope, she says, with the physical demands of that work.
27 Conservative treatment continued, including returning to the Dandenong Hospital because of severe headaches, ongoing problems with her left arm and severe neck pain. The defendant points out that no report has been received from the Dandenong Hospital supporting these contentions and raises the usual inference ascribed to O'Donnell and Reichard.[13]
[13][1975] VR 916
28 In her first affidavit, the plaintiff contends that the pain in the neck continues to radiate up into her head, causing headaches that can be severe at times. Most mornings she wakes with a headache. The headaches continue to be associated with dizziness. There is little that she can do to cope with the headaches except to lie down, rest and take medication. She also says that the pain since the collision has been aggravated by any activity which involves using her arms, particularly using them above shoulder height. In fact, the more active she is, she says, the more pain that she suffers.
29 Various movements, she states, are particularly troublesome, particularly lifting movements and pushing and pulling movements and the like. Having to sit in one position for a long period of time, including driving, or having to stand for an extended period of time also increases the pain that she suffers. In addition, holding her head in one fixed position for any significant time also increases the pain, such as when she tries to sit at a desk or use a computer or such other activities.
30 A short period of film was shown where the plaintiff was observed apparently eating a sandwich at a seaside resort, and she was apparently able to rotate her neck to the right somewhere between 60 to 90 degrees and somewhere between nought and 30 degrees to the left, according to my observations. I do not consider that this surveillance is at any marked variance with the findings on examination by any of the doctors. The plaintiff continues with her symptoms as follows:
“My sleep also continues to be interrupted by pain. Some nights I can sleep through. However, from time to time I'll wake several times during the night because of pain. As a result, I often feel tired and fatigued in the days that follow.”
31 The plaintiff also records that she has suffered depression since the collision and she has become particularly sad and miserable when the pain she suffers is very bad or when she thinks about all that she has lost as a result of the collision, particularly the physical capacity that she has lost.[14] As this is a transport accident, these matters are entitled to be taken into account under the principles of Richards v Wylie.[15]
[14]See the plaintiff’s first affidavit at paragraph 36
[15](2000) 1 VR 79
32 Since the accident, the plaintiff says that she has suffered a loss of confidence and she no longer feels that she is able to look for work. She has not been able to return to jogging or to go to the gym or to do any aerobic classes. Indeed, she says, her level of fitness has plummeted since the collision and she has put on an excess of body weight. She has also been unable to return to horse riding, and she sees much less of her friends compared to before the collision. She further states:
“From time to time the pain that I suffer is such that my daughter also has to help me get dressed and wash and brush my hair.”[16]
[16]See the plaintiff’s first affidavit at paragraph 40
33 The plaintiff continues to take various medications, including Voltaren, Nurofen Plus, Panadol Osteo and Lexapro. She tries to avoid stronger analgesics because they make her sleepy and “dopey” and interfere with her capacity to function. In her subsequent affidavits, she attests to her condition not improving, and she has undertaken physiotherapy courses with Ms Christine Miles at Wonthaggi and recites how she has been referred to Mr Timms, a neurosurgeon. She sums up her current situation as:
“The more I try to do or the more active I try to be, the more pain I suffer.”
34 In her final affidavit, the plaintiff relates to her hobby of painting, which has been revealed on her Facebook page and upon which she was cross‑examined. In the six years since her accident, she says she has produced about 20 to 25 paintings, three of which she has sold to friends for about $150 each. She says the size of the paintings are about 30 centimetres by 30 centimetres in dimension. In cross‑examination, it was put to her that in fact the dimension was more like “two‑pillow‑widths” across, which would have to be more than 30 centimetres. It was also put to her that she was still using an easel in contrast to that which she had sworn.
35 The prima facie state of the evidence with respect to range would lead me to conclude that the plaintiff has established the very considerable test as outlined by legislation and that it can only be qualified by matters of credit referred to by defence counsel.
(iii) Credit
36 The defendant raised a number of matters in credit, some of which could reasonably be regarded as more relevant than others. First, the plaintiff concedes that the “usual 18 or so hours per week” in the subject employment at the time of the accident is probably inaccurate and closer to 8 to 10 hours per week. Secondly, it would be hard perhaps to regard her medical history prior to April 2007 as “unremarkable”. But, of course, that history has a clinical context, as referred to above.
37 Thirdly, the fact that she stated she was unable to look for work for twelve months after the 2007 motor vehicle accident is probably at odds with her account that she recovered within a week after the accident, as referred to above. Fourthly, describing herself “as very fit and healthy” before the accident was postulated as misleading by the defence. However, there was no cross‑examination or other evidence which suggested that she was not able to jog for most days or was attending a gymnasium several times a week and was participating in aerobics classes, as sworn. Further, the clinical picture referred to above, in my view, does not gravitate against this evidence.
38 The lack of a report from the Dandenong Hospital, although not going directly to the plaintiff’s credit, does raise the inference that any such report would probably not have assisted the plaintiff in her case. However, this has to be balanced with the other evidence to which I have referred. In particular, the plaintiff has struck me as a well‑motivated person after the accident in trying to return to work and attempting a number of positions, and I accept her evidence that she has been restricted because of the neck pain referred to above.
39 At the end of the day, I feel that in assessing the plaintiff in the witness box, I would make the following comments. First, when apparent inconsistencies were put to her about her clinical record, she answered them in a way I considered was forthright and non‑evasive; that is, she accepted her record as being inconsistent with her memory but remained firm that her memory had not been altered by the putting of the clinical record.
40 I accept defence counsel’s submission that there is a degree of unreliability about her memory and her clinical record prior to the subject motor vehicle accident. However, when looking at the objective evidence of the clinical picture both before and after the accident, it would appear to me that there is ample corroboration that before the subject motor vehicle accident, the plaintiff was essentially able to lead a full, active life; such, that is, in making the comparison before and after, as I am required to do pursuant to the principles of Petkovski v Galletti, I consider that the consequences referred to above have pertained since the motor vehicle accident and not before.
41 The two entries of 1 December 2006 of unsteadiness and the one of 14 September 2006 of vertigo do not appear to have necessitated a constant clinical attention since the motor vehicle accident in August of 2005, and indeed, before same. The reference to tinnitus on 12 February 2005 is not accompanied by unsteadiness or neck pain; and indeed, a clinical consultation before that, on 13 August 2003, seems to relate to sore ears, causing poor balance and perhaps some blurring of vision. No doctor opines that these symptoms or any of them are related to underlying degenerative changes which putatively have been aggravated by the accident.
Conclusion
42 In the circumstances of this case, I am satisfied the plaintiff has discharged the onus of proof in proving that the aggravation and its extent, caused by the motor vehicle accident in question, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and certainly more than significant or marked.
43 Leave will be granted to the plaintiff pursuant to s93(4)(d) of the Act to bring common-law proceedings to recover damages for the neck injury she suffered arising out the transport accident on 12 April 2008.
44 Perhaps as a final comment, it was contended by defence counsel that the medical evidence to be relied upon in terms of the history did not satisfy the necessary level of proof, in the sense that the symptoms complained of, at best, could be described as “consistent with” the underlying degenerative change, as distinct from being caused thereby. Insofar as that contention has some weight, I rely on the proposition that where medical evidence goes no higher than that an event is capable of being a possible cause of an observable medical condition, it may still be inferred upon the totality of the evidence that the event was a cause of the condition.[17]
[17]See generally Spence v Gomez (supra) at 26; Forder v Hutchinson [2005] VSCA 281 at 47 and generally Dahl v Grice [1981] VR 513 at 520-22
45 I will hear the parties as to any consequential orders or costs.
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