Nienkemper v TAC
[2020] VCC 877
•25 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02213
| SUSAN NIENKEMPER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2020 | |
DATE OF JUDGMENT: | 25 June 2020 | |
CASE MAY BE CITED AS: | Nienkemper v TAC | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 877 | |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – s93 – rear end collision when car driven by plaintiff stationary – injury to cervical spine and two upper limbs – paragraph (a) of the definition of “serious injury” – Richards v Wylie (2001) 1 VR 79 – credit of plaintiff – ongoing psychiatric problems before and after accident – disentanglement – whether burden of proof satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Ms S Bailey | Arnold Thomas & Becker |
| For the Defendant | Mr I McDonald SC with Ms V Katotas | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986 (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s93(17) of the Act. Insofar as any psychological or psychiatric consequences of the injury are concerned, these are not relied upon. However, I appreciate that such matters can be taken into account in the way employed in Richards & Anor v Wylie (2000) 1 VR 79. The test to be applied is that to be found in Humphries & Anor v Poljak [1992] 2 VR 129.
2 The plaintiff relies upon injuries sustained in a motor vehicle collision which occurred on 5 February 2015, when the stationary vehicle in which she was sitting was struck in the rear by a four wheel drive vehicle. This shall hereinafter be referred to as “the accident”. The injuries relied upon were described at the outset as being the aggravation of previously asymptomatic degenerative changes in the cervical spine and also the rendering symptomatic of arthritis in the right and left wrists. The body parts relied upon are the cervical spine and the two upper limbs. These shall hereinafter be referred to as “the neck injury”, “the right arm injury” and “the left arm injury”. In this regard, I would refer to Transcript (hereinafter referred to as “T”) 1 and 2.
3 There was no challenge in relation to the occurrence or the nature of the accident. There was no claim as such for economic loss – see T8. The position of the defendant is that the plaintiff suffered a minor whiplash injury, with a possible injury to the right wrist. There was a significant issue as to whether the plaintiff had suffered any injury to the left wrist – see T7.
4 In relation to her mental condition, the plaintiff suffered significant distress psychologically as a result of a conflict in the context of certain work of hers, this resulting in legal proceedings. This shall hereinafter be described as “the FODMAP dispute”, FODMAP being a company of which the plaintiff was a director and which created a certification logo in relation to the packaging of food. I mention it at this stage because it did receive some attention.
5 Mr V Morfuni QC with Ms S Bailey of counsel appeared on behalf of the plaintiff. Mr I McDonald SC with Ms V Katotas of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background prior to the accident
6 The plaintiff is aged 45 years, she having been born in 1974. She completed her secondary schooling and then attained the degree of a Bachelor of Applied Science at Deakin University, where she was Dux. She then completed a Masters of Nutrition and Dietetics, also at Deakin University. She obtained the qualification of an Accredited Practising Dietitian. Whilst studying, originally she also worked part-time as the assistant manager of a fitness centre. Whilst studying for her Masters, she worked part-time as a menu monitor at a hospital. In December 1997, she obtained a full-time graduate position at Monash Medical Centre (hospital) as a dietitian and provided management to patients in the wards, as well as in some outpatient clinics, where she also presented seminars. She also commenced dietetic private practice.
7 Without going into these matters in too much detail, given that economic loss is not being claimed, the plaintiff also worked at Box Hill Hospital. In addition, she completed a PhD at Monash University whilst working part-time. The plaintiff has written cookbooks and performed cooking demonstrations. After completing her PhD, she worked on a part-time basis at Monash University as a Senior Lecturer and Researcher, this being in addition to her private practice, the writing of cookbooks and the like. She also appeared in a television program focussed on gluten-free cooking.
8 In 2012, the plaintiff moved from Monash University to Latrobe University as a senior lecturer, whilst still continuing her private practice. In 2013, the FODMAP enterprise appears to have commenced. In 2015, the plaintiff ceased her work with FODMAP and effectively returned to private practice and working at Latrobe University. She has also been involved in a dispute with Monash University, this being associated with the FODMAP dispute.
9 The plaintiff is a married woman and lives with her husband.
(b) The state of the plaintiff’s health prior to the accident
10 In 2000 and 2008, the plaintiff had some episodes of depression related to the breaking down of the relationship with her then husband. This depression resolved when the marriage ended in 2008.
11 In 2002, the plaintiff developed a mild hand tremor. She was later diagnosed with a right adrenal adenoma and Cushing’s Disease. The tumour was excised in July 2010 and the condition resolved. In July 2013, the tremor returned. On this occasion, the plaintiff was found to have a left adrenal adenoma, but not Cushing’s Disease. She has been left with a minor tremor in the left hand, which does not significantly affect her day to day life or her ability to work.
12 In 2007, the plaintiff suffered a right knee injury which resulted in a knee reconstruction. There are no significant ongoing problems in relation to that.
13 In approximately December 2015, the FODMAP dispute arose. It resulted in legal proceedings, which ultimately resolved at mediation. There were also related civil proceedings with the plaintiff’s former business partner, and that case also settled at mediation. These disputes were upsetting for the plaintiff. They caused her to stop working. She underwent treatment and counselling and took antidepressant medication. Treatment continues.
(c) The plaintiff as a witness
14 A considerable attack was made on the credit of the plaintiff. For example, there was focus upon paragraph 44 of her initial affidavit in which she said essentially that she and her husband had moved to the Whitsundays area in Queensland in February 2017. She swore that this was because she was limited in her ability to negotiate city traffic due to her injuries and, for example, had a fear of driving in such traffic. However, in her affidavit of 16 January 2020, this is expanded upon and, in essence, amended. In her most recent affidavit, the plaintiff has sworn that moving to a place with less traffic was one of the considerations when she was deciding to move. However, the interstate move was largely prompted by a desire to avoid the stressors associated with the dispute with Monash University and with her previous business partner.
15 The plaintiff worked at Latrobe University from approximately February 2015 to September 2015. In paragraph 47 of her original affidavit, the plaintiff referred to stopping work completely in December 2015, stating in essence that between February 2015 and December 2015 she continually experienced pain and discomfort from injuries sustained in the motor vehicle accident. The clear suggestion is that the reason for stopping work related to the injuries suffered in the accident. However, in her affidavit of 16 January 2020, the plaintiff has sworn that the primary reason for ceasing work with Latrobe University in September 2015 was her mental health. She has set out accident-related problems which arose and there is effectively a correction of what was sworn in the initial affidavit. There are a couple of other expansions upon material contained in the first affidavit.
16 In her third affidavit, the plaintiff has also sworn that she had not gone into great detail concerning matters relating to her dispute with Monash University because of a confidentiality agreement which she had understood would prevent her from discussing the dispute. However, this is not an excuse for attributing blame to the accident, whilst remaining silent about the mental health issue and the dispute with Monash University.
17 It is not uncommon for the Court’s attention to be drawn by a plaintiff or by counsel for a plaintiff to simple errors relating to a birth date, an address and the like. However, corrections of the sizeable nature contained in the affidavit of 16 January 2020 are a different thing again and certainly focus attention upon the plaintiff’s care and credit as the deponent of the initial affidavit. Further, the plaintiff in this case is obviously a highly intelligent woman with tertiary qualifications.
18 The bottom line is that some substantial question marks have arisen in relation to the reliability of the plaintiff. The situation is further complicated by reason of the mental health problems which she has suffered.
(d) The injuries, their treatment and diagnoses
(i) The neck injury
19 Following the accident, the plaintiff and her husband, who was a passenger in the vehicle, followed the tow truck to the repair shop and then went on to the Austin Hospital. The history obtained by Austin Health is to the effect that the plaintiff went home after the accident, but then commenced to feel more unwell.
20 The history given at the hospital also referred to the plaintiff initially having central/midline tenderness and having felt a “snap/crack”. At the hospital, she was complaining of left eye blurriness, double vision and nausea. On examination she had no limb weakness, tingling or altered sensation in the limbs. She had a frontal headache. No injury of a major nature seems to have been detected. An x-ray of the thoracic spine was normal. There also appears to have been a CT scan of the cervical spine undertaken on the same day. The clinical notes associated with it state that the plaintiff had been involved in a motor vehicle accident at 2.30pm and now had cervical pain.
21 The conclusion of the radiologist was that the CT scan revealed no evidence of cervical spine fracture. The discharge date is shown as being the same day as the accident and the visit to the hospital. Whilst the clinical notes from the hospital are quite extensive, I can find no reference in them to injury to or complaints concerning either wrist.
22 It is apparent that the plaintiff attended her general practitioner, Dr Elise Harrison of the Blackburn Clinic, on 9 February 2015. Dr Harrison took a history of the accident. The plaintiff’s complaint was that her neck was stiff, but improving. The clinical notes reveal that Dr Harrison then saw the plaintiff on a few occasions about unrelated matters, but she recorded on 8 May 2015 that the plaintiff’s whiplash was ongoing, but less widespread and severe. Apparently the plaintiff was seeing an osteopath.
23 The plaintiff first saw Ms Sarah Holland, osteopath, on 11 March 2015. She appears to have been treated by that osteopath until 22 January 2016. When first seen, the plaintiff was complaining of a catching sensation at C7 on forward cervical flexion. She was also suffering from headaches. Stress also seemed to play a role in these. When she saw Ms Holland, the plaintiff was not taking any form of pain relief.
24 The diagnosis of Ms Holland was of an acute C2-3 right facet sprain with associated muscle guarding. With treatment, the frequency of the plaintiff’s headaches diminished somewhat, but never fully ceased. Ms Holland commented that it was of note that the plaintiff’s external stress was the result of legal proceedings with her former business partner.
25 In April 2015, Ms Holland treated the plaintiff for pain in the right wrist. Improvement with treatment was neither consistent nor long-lasting. At times, the wrist would lock. In June 2015, the wrist pain had also gone to her right thumb. There will be more detailed discussion of the plaintiff’s wrist injuries subsequently. Ms Holland made the observation that, by July 2015, she had noted a rapid decline in the plaintiff’s mental health and stability. By October 2015, the plaintiff reported that she was feeling suicidal and was seeking professional help. She was having headaches daily and not sleeping well. Her neck pain was still present, as was a nagging jaw pain.
26 By December 2015, the plaintiff was reporting more severe symptoms in the neck. Ms Holland recommended an MRI. I note that one was carried out at the request of Dr Harrison on 20 January 2016. The conclusion of the radiologist was that there were mild multilevel cervical degenerative changes, which Ms Holland described as being consistent with the plaintiff’s symptomatic presentation.
27 At her final appointment with Ms Holland in January 2016, the plaintiff reported that her headaches were still present, but that the dizziness previously reported had resolved. She also felt that her energy levels were increasing.
28 The diagnosis of Ms Holland was of chronic multilevel cervical degenerative joint disease and cervicogenic headaches, which are described as being predisposed to by the whiplash injury sustained in the accident. She described various restrictions in relation to the plaintiff’s activities. The plaintiff was treated briefly by Ms Alexandra Conely of the same practice from March 2017 until the plaintiff moved to Queensland.
29 Dr Graeme Symington, neurologist, saw the plaintiff by way of referral from Dr Harrison and reported on 10 February 2016. The basis of the referral seems to have been a persistent headache problem. The plaintiff stated that she had never suffered from headaches prior to the accident, but now had headaches, which could be intense, on a daily basis. She also had persistent pain primarily in the left side of the neck, radiating to the parietal region.
30 Dr Symington noted that the plaintiff had a poor sleep pattern. She was under stress. She was involved with a court case relating to bullying at work. Dr Symington had previously seen the plaintiff in 2002 because of essential tremor caused by a right sided adrenal adenoma. She asserted that the tremor had been cured by the removal of the adenoma, but had recurred in the last couple of years.
31 On examination, Dr Symington noted that the plaintiff was highly anxious and clearly stressed. His diagnosis was that the plaintiff primarily had a cervicogenic headache condition, but her headaches may have been multifactorial, because she was under very considerable stress, had a poor sleep pattern and had menstrual dysfunction. He was hopeful that the headaches could be suppressed with migraine prophylactics and had prescribed Sandomigran. He was to review the plaintiff after a four week trial. However, there is no further material from Dr Symington.
32 The plaintiff and her husband moved to Queensland in 2017. In May 2017, the plaintiff began seeing Ms Karen Prince-Popovich, osteopath, who has a practice near the Whitsundays. In relation to the plaintiff’s neck, Ms Prince-Popovich commented in a report of 13 July 2017 that the plaintiff’s neck was very stiff in relation to flexion, extension, rotation and lateral flexion. I note that the plaintiff told Ms Prince-Popovich that, in the collision, she had been concussed and whiplashed, as well as suffering other injuries. Whether she was in fact concussed appears doubtful.
33 Ms Prince-Popovich provided a more lengthy report on 14 November 2019. In it, she stated that, upon examination, she found that the plaintiff’s cervical spine was very restricted on active and passive movements. She felt that the plaintiff’s signs and symptoms corresponded closely with myofascial pain syndrome. Ms Prince-Popovich observed that she has been treating the plaintiff fortnightly, whenever the plaintiff is in the Whitsundays. She also commented about sleep disturbances. She considered the plaintiff’s signs and symptoms to be consistent with a whiplash injury. She thought that the restrictions already present in the plaintiff’s life would be permanent.
34 Finally, there are reports from Dr Katheryn Cunneen, general practitioner, who is also based at the Blackburn Clinic. Her initial report is of 19 June 2017. This particular report is rather general in nature and is in fact addressed to the defendant. In any event, Dr Cunneen concluded that it was likely that the injuries to the plaintiff’s neck and upper back were permanent. A brief and undated letter from Dr Cunneen to the defendant related to funding for treatment of the plaintiff’s accident-related injuries. There is reference to ongoing issues with neck and wrist pain, but also to the fact that there had been a gap of more than six months in relation to osteopathic treatment. The plaintiff had ceased seeking such treatment due to the fact that she was suffering from severe depression and anxiety.
35 Dr Cunneen provided a more detailed report to the plaintiff’s solicitors on 27 October 2019. This report is essentially based upon Dr Harrison’s notes, investigation reports and specialist correspondence. In fact, Dr Cunneen saw the plaintiff on only one occasion in relation to the accident, that being on 12 June 2017. She observed that there was no record of the plaintiff having neck pain or headaches prior to the accident, and accordingly believed such injuries to be caused by it. She also observed that, prior to and after the accident, the plaintiff was going through an intensely stressful time concerning an unrelated legal issue.
36 Dr Cunneen said that the plaintiff had severe depression, anxiety and sleep disturbance, and believed that this would have been a contributing factor to the plaintiff’s headaches and pain. When she did see the plaintiff, the plaintiff was not able to work and was socially withdrawn, this being due to poor mental health relating to a stressful and prolonged legal dispute unrelated to the accident. It would appear that Dr Cunneen saw the plaintiff on other occasions, but the only occasion upon which she saw the plaintiff in regards to her transport accident was on 12 June 2017. As Dr Cunneen had only seen the plaintiff once between March 2016 and June 2017 in relation to the injuries sustained in the transport accident, she did not feel that she was in a position to comment on the effects of it. Dr Cunneen concluded by observing that, as the symptoms were still existing four years after the accident, it was unlikely that there would be any significant improvement.
37 Dr Alexandra Conely, registered osteopath, has treated the plaintiff and provided a report dated 31 July 2017 to the defendant. Dr Conely seems to have been associated with the same clinic as Dr Holland. Dr Conely had commenced treating the plaintiff on 6 March 2017, so that she had been providing such treatment for approximately 4 ½ months as at the time of her report. The initial complaint of the plaintiff seems to have related solely to pain in the lower neck and upper back and in relation to headaches. It is specifically stated that no neurological referrals into the upper extremities were noted. The diagnosis of Dr Conely was of multi-level cervical degenerative joint disease with associated C2/3 facet arthropathy, leading to cervicogenic headaches predisposed to by the whiplash injury sustained in the accident. Dr Conely did go on to note that, through questioning, the plaintiff did refer to bilateral wrist pain as an injury caused by the motor vehicle accident. When rating the injuries in order of severity, Dr Conely, as did Dr Holland, rated bilateral wrist pain at the bottom of the list of injuries. Dr Conely also noted that the plaintiff had reported a good post-treatment response when reassessed at the end of osteopathic treatment, stating that she reported feeling much better with less pain and had an increased range of movements of the neck. Whilst she thought that an updated MRI would be advisable, Dr Conely had not referred the plaintiff to a specialist. She considered that the lack of regular osteopathic treatment at her clinic was blocking recovery, but also stated that stress and lifestyle may be contributing factors to recovery. Dr Conely was hopeful that, with a consistent and regular approach to osteopathic treatment, the plaintiff would have a greater improvement in her condition. However, her neck pain may result in permanent impairment, given the findings of degeneration throughout the neck and upper back. Proper management was required.
38 The plaintiff has been seen for medico-legal purposes. At the request of her solicitors, she saw Mr David Slattery, orthopaedic surgeon, on 21 November 2019, Mr Slattery reporting some four days later. The plaintiff complained of constant neck and upper back pain on both sides of the neck, which she described as getting worse over time. The neck pain was described as normally being 5-6 out of 10, although when it flares up, it could reach 8 out of 10.
39 The pain was exacerbated by any jerking or abrupt movements, lifting, bearing down, looking up and down, reading a book and the like. The plaintiff told Mr Slattery that she was being treated currently with ultrasound, laser therapy, dry needling, traction and manipulation by her osteopath. She takes four Panadol Osteo tablets per day, using a spray and taking Nurofen at times. She also described some difficulties when driving and in performing heavier manual tasks such as ironing, lifting, mopping and the like. She could no longer assist as she used to with the sailing of a yacht, but this seems to be due to a combination of wrist and neck pain. Upon examination, Mr Slattery found no paraspinal muscle atrophy, but paraspinal and midline tenderness and guarding.
40 The diagnosis of Mr Slattery was of musculoligamentous neck pain, against a background of degenerative cervical spinal changes. He considered it likely that the accident had triggered underlying degenerative changes in the cervical spine and that this had resulted in musculoligamentous neck pain, which had continued. He also thought it likely that there had been a significant contribution to her neck and bilateral wrist pain from her underlying psychological issues, but would defer the quantification of this to a specialist psychiatrist. He considered the cervical spinal injury to have stabilised, also being of the view that the prognosis was guarded. It was likely to continue to give the plaintiff pain for the foreseeable future and could deteriorate as the degenerative changes progress. He thought that a course of dedicated physiotherapy, rather than osteopathy, would be useful and may provide longer lasting relief.
41 In describing the plaintiff’s restrictions in relation to social, domestic, recreational and employment activities, Mr Slattery has largely dealt with the injuries jointly rather than separately. He did observe that it was hard for her to read for prolonged periods due to her neck pain, although difficulty using a computer was due to wrist pain.
42 Mr Slattery reported for the second time on 16 January 2020, without having seen the plaintiff again. However, he had been forwarded the report of an MRI carried out in Melbourne, although requested from Queensland, on 17 December 2019. He noted that the conclusion of the radiologist was that, at C5-6, there was mild degenerative disc disease and a posterior disc bulge which caused no significant spinal canal narrowing. He thought that this reaffirmed his previous opinion that the plaintiff was suffering from a degenerative cervical spine, which had been triggered to become symptomatic by the accident. He thought that she needed activity modification, medications, physiotherapy and chiropractic treatment and that she might also benefit from the opinion of a spinal surgeon for consideration of surgical intervention. She had a guarded long-term prognosis due to the degenerative changes.
43 The defendant has also had the plaintiff examined for medico-legal purposes. Dr David Elder, consultant in relation to occupational medicine, saw the plaintiff at the request of the defendant on 11 December 2017. A principal object of this examination appears to have been an Impairment Assessment. In relation to the plaintiff’s neck pain, she said it had given rise to significant headaches, this precipitating a visit to a neurologist (presumably Dr Symington). The plaintiff was preferring not to take medications and was finding that osteopathy helped. She complained of continuing pain and decreased mobility of the neck, especially in rotation. It still gave rise to headaches, but not of the migrainous type. She was taking long-acting Paracetamol and occasional Voltaren, but it is not spelled out as to whether this was for neck pain or for the combined pain of neck and wrists.
44 The plaintiff’s description of difficulties encountered when sailing seemed to focus upon the wearing of splints, as did difficulties in the garden, so that presumably this related to wrist pain. Her description of interference with activities of daily living seems to have focussed to a considerable extent on wrist problems.
45 Dr Elder did think that there was some abnormal illness behaviour. He diagnosed mechanical neck pain with no clinical evidence of radiculopathy. He thought that the prognosis was for ongoing symptoms. He considered the plaintiff’s condition to be stable within the meaning of the Guides.
46 Dr Gregory Nutting, consultant orthopaedic surgeon, saw the plaintiff at the request of the defendant on 18 November 2019, reporting on 2 December. A considerable part of the lengthy history taken by Dr Nutting is focussed upon the wrist injuries or else gives a somewhat general description of pain and restrictions. The plaintiff did say that she had never had any arm symptoms related to her neck. However, she suffered a lot of pain and decreased range of motion in the neck. She used a “lightning bolt” description. Usually, the plaintiff cannot have a headache without having a sore neck. She avoids sudden movements. Cervical discomfort associated with insomnia meant that she has difficulty sleeping comfortably.
47 Dr Nutting diagnosed a musculoligamentous injury to the cervical spine. Whilst the plaintiff had persisting headaches, he was of the view that this identifies as a non-neurological type diagnosis. The plaintiff told Dr Nutting that the injuries that she had are not the reason for her being unable to work as a dietician. They are a consideration, but the psychological aspect of what happened at the university is the main reason for her not being able to return to her former life.
48 In terms of prognosis, Dr Nutting was of the view that the cervical condition needed a more direct physical approach to her muscular support, as there is no neurological deficit under consideration. He thought that her overall prognosis depended upon her psychological problems. There is clearly no indication for any cervical intervention. Overall, he thought that the plaintiff had recovered from the physical aspects of the accident. Psychological considerations were the critical issue.
49 Clearly this is a case where psychological or psychiatric factors have had a large impact upon the plaintiff. I shall turn to this topic shortly. Equally obviously, it would appear that a significant proportion of this impact is associated with employment disputes and associated litigation.
50 I am satisfied that the plaintiff suffered an injury to her neck in the accident. In two MRIs, not quite two years apart, the radiologists have come to almost similar conclusions, namely that there are mild degenerative changes or disc disease in the spine and particularly at C5-6. Mr Slattery, examining for medico-legal purposes, has referred to a degenerative cervical spine. Dr Nutting, also an orthopaedic surgeon, has diagnosed the injury as being musculoligamentous in nature. The plaintiff’s more recent osteopath, Ms Prince-Popovich, has referred to her having myofascial pain syndrome, also referring to a whiplash injury. This is not necessarily a diagnosis at variance with what has been stated by the orthopaedic surgeons. In any event, the injury has perhaps been best summed up by Mr Slattery, who has referred to musculoligamentous neck pain against a background of degenerative cervical spinal changes. Of course, the MRIs have revealed that the degenerative disc disease in the spine is mild.
51 I accept that the plaintiff did not have symptoms emanating from her cervical spine prior to the accident. There is no suggestion of any prior complaints.
52 I am also satisfied that the consequences of the accident, insofar as the cervical spine is concerned, are long-term within the meaning of the Act. The plaintiff has now had neck symptoms for a period in excess of five years. Mr Slattery has referred to the plaintiff’s long-term prognosis as being guarded. Dr Elder, examining on behalf of the defendant, was prepared to make an impairment assessment, an ingredient of which is permanence. Dr Nutting thought that the plaintiff needed a more direct physical approach to her muscular support and that her prognosis depended upon her psychological problems. Ms Prince-Popovich thought that it looked “pretty clear” that the pain, stiffness and headaches that had been constant since 2015 will remain “to a lesser or greater degree”, this depending upon a fairly strict management of the plaintiff’s activities and on multilevel intensive therapy. Dr Cunneen, general practitioner, only saw the plaintiff in relation to her neck problems on one occasion, but had access to the records of the clinic of which she is a member. Her conclusion was that, as the plaintiff has continued to have symptoms (in her neck and wrists) for over four years after the accident, it is unlikely that there will be any significant improvement. On balance, I am prepared to find that the consequences of the injury to the cervical spine are long-term within the meaning of the Act.
53 Consequences of a psychological or psychiatric nature also require some discussion, particularly as there is reliance upon Richards v Wylie. Of course, there has been a substantial impact upon the plaintiff’s mental health by matters concerning her employment and litigation. Accordingly, issues of disentanglement arise.
54 I am far from persuaded that any mental health problems from which the plaintiff suffers are linked substantially to the accident or to its physical consequences, and in particular to symptoms emanating from the cervical spine.
55 Dr Cunneen has referred to the fact that, prior to and after the accident, the plaintiff was going through an intensely stressful time because of an unrelated legal issue. She had severe depression, anxiety and sleep disturbance. Dr Cunneen believed that this would have “likely been” a contributing factor to the plaintiff’s headache and pain. Dr Cunneen also stated that, during the time in which she treated the plaintiff, she was not able to work and was socially withdrawn, due to poor mental health related to a stressful and prolonged legal dispute that was unrelated to her transport accident. Her mental health status was restrictive in relation to the plaintiff’s social, recreational and employment activities.
56 In her most recent affidavit, the plaintiff has described at some length her mental health prior to the accident. As earlier discussed, she was nowhere near as forthcoming concerning such matters in her original affidavits.
57 The only medico-legal report from a consultant psychiatrist is that of Dr Nicholas Ingram, who examined the plaintiff at the request of the defendant. He reported on 11 December 2017. He thought that the majority of the plaintiff’s depression was related to her employment dispute and court case, but a component was related to the accident and her subsequent physical limitations. However, he added the proviso that it might be easier to have a clearer idea of the prognosis for the psychological symptoms relating to the accident when the other issues that had been leading to her depression were resolved. He did not think that her psychological symptoms were severe enough to have an impact upon the plaintiff’s ability to work, although they did lessen her ability to enjoy her domestic and leisure activities.
58 Of course, Dr Ingram, in making these observations, did not distinguish between the injury to the cervical spine and that to the wrists. It is also worth noting that, in taking her psychiatric history, Dr Ingram recorded that the plaintiff felt anxious about the situation with her previous employer and the litigation. However, she thought she had become more irritable, which related to pain in her neck and arms and her limitations. She had felt annoyed that she had become less independent because of her hand and neck pain.
59 The overall impression from the available evidence is that the bulk of the plaintiff’s mental health issues, and certainly the more substantial ones, do not relate to the accident. Her most recent affidavit is certainly a lot more forthcoming concerning her mental health history and the basic cause of the problem, namely the employment dispute. It is difficult to isolate mental health problems arising from the cervical spine, but even if the injury to the wrists is added, it seems to me that the plaintiff’s problems in this regard to a very large extent emanate from the employment dispute and litigation. For the purposes of Richards v Wylie, some small allowance can be made, but it is of no great magnitude.
(ii) Injury to the wrists
60 Whilst there will be occasional references to the left upper limb in the following paragraphs, there was not put before me a great deal of material concerning it. I made a comment concerning this during the conduct of the matter – see T69. Attention was focused much more upon the neck and right upper limb. Even if the arms or lower arms are to be treated as a unit, the contribution of any injury to the left wrist would seem to me to be small indeed. I shall discuss this in a little greater detail subsequently – see paragraph 74.
61 On 31 August 2015, Dr Harrison noted that the plaintiff had ongoing pain to the right wrist following the motor vehicle accident in February. She was tender to the base of the thumb, and Dr Harrison noted that there would be an x-ray undertaken to ascertain whether there has been a missed fracture.
62 On 31 August 2015, an x-ray was performed. The conclusion of the radiologist was that there was subtle lucency in the chondral region of the distal scaphoid which might represent a previous injury. A CT or MRI would be of value. On 1 September 2015, a CT scan was performed, with the radiologist reporting back to Dr Harrison on that day. The findings were consistent with a previous impaction injury and a mild degree of osteoarthritis. No fracture was identified.
63 From the report of Dr Cunneen, taken from the Blackburn Clinic records, it is apparent that the plaintiff was seen by a hand surgeon, Mr James Thomas, in October 2015, he apparently being of the view that the plaintiff was suffering from a flare-up of osteoarthritic changes, presumably in the right wrist, it having been the subject of a CT scan. It is also apparent that she only saw Mr Thomas on the one occasion.
64 A report dated 19 October 2015 from Mr Thomas to Dr Harrison, then the plaintiff’s general practitioner, was put in evidence by the defendant. His report is almost entirely focussed upon the right hand and wrist. He found some mild crepitus with movement of the carpometacarpal joint of the thumb. He also viewed the radiology. His opinion was that the plaintiff had flared some early osteoarthritis change in the accident. Splinting and oral anti-inflammatories (Mobic) were suggested. Mr Thomas also stated that “The next port of call would be an image guided cortisone injection”. However, it would appear that this never occurred, as the plaintiff did not see Mr Thomas again. In addition, she only took Mobic for a few months.
65 Indeed, it would appear that there has been no prescription of medication in respect of the plaintiff’s neck or wrists for years – see T32. She has had no Cortisone injections. The plaintiff said that her psychiatric trauma has dictated her health priorities.
66 On the one occasion that Dr Cunneen saw the plaintiff in relation to the relevant physical injuries, she listed a number of activities which she had difficulty doing due to the pain in her wrists. These included opening jars, boxes, doors and the like, as well as doing up buttons, making the bed and other activities. Dr Cunneen does not distinguish between the right and left wrists.
67 Ms Holland, osteopath, treated the plaintiff from March 2015 until January 2016. That included treatment of the right wrist, although the left wrist does get a passing mention as showing improvement in December 2015. In relation to the last consultation in January 2016, there is a reference to headaches and an increase in energy levels, but no mention of the wrists. In December 2015, the right wrist had still been very tender to palpation and with movement. I note that Ms Holland, when listing the injuries arising from the accident in order of severity, put bilateral wrist pain as last, behind neck, upper back and headaches.
68 Dr Alexandra Conely, registered osteopath, saw the plaintiff for what would seem to be a limited period in 2017. She reported to the defendant on 21 July 2017. She took a history of wrist pain. However, her attention and treatment appear to have been directed almost entirely to the plaintiff’s cervical spine. She also put bilateral wrist pain as last in order of severity of injuries arising from the accident.
69 The plaintiff complained of wrist problems, and particularly in relation to the right wrist, to Mr Slattery. On examination, he found no swelling of the wrists. However, there was tenderness of both wrists and crepitation found in each. He diagnosed arthritis in the right wrist and likely arthritis in the left. However, whilst believing that the accident exacerbated underlying degenerative changes in the right wrist, he described the nature of the left wrist injury as being unclear.
70 Mr Slattery regarded the condition of the right wrist to be stabilised, although also considering it likely that the plaintiff would come to surgical management of it. He recommended the obtaining of up-to-date imaging and review by a hand surgeon. There is no evidence that either of these has occurred. The absence of up-to-date imaging made it unclear to Mr Slattery as to the extent to which her wrists would improve with further management, although he anticipated that there would be some ongoing restrictions.
71 As stated, the plaintiff’s solicitors forwarded to Mr Slattery the MRI of 17 December 2019, but nothing further concerning the wrists appears to have occurred.
72 Dr Elder, examining on behalf of the defendant, took a history of bilateral wrist pain and noted that the right wrist does click on circumduction. No swelling of the wrist was evident. Examination of the wrist revealed neither swelling nor muscle wasting. There was a diminished range of motion. He found modest whole person impairment in each upper limb.
73 Dr Ingram was carrying out a psychiatric examination for the defendant, but I note that, in the medical history taken, the plaintiff complained only of symptoms in the right hand and in relation to the opening of jars or bottles or lifting heavy pots. She seems to have made no complaint concerning her left wrist or arm.
74 Dr Nutting, also examining on behalf of the defendant, took a history of sharp aches in the right wrist, but less intense discomfort in the left. He commented upon the absence of radiological investigations since 2015. He thought that x-rays and specialist opinion would be appropriate. He did not think that the hands currently had any assessable impairment.
75 I say now that the injury to the left wrist falls a long way short of satisfying the statutory test, either when viewed separately or, if it can be so seen, as part of the lower arms as one unit. There appears never to have been any radiological investigation of the left wrist. Mr Slattery, orthopaedic surgeon examining at the request of the plaintiff’s solicitors, stated that the nature of the left wrist injury is unclear and, in the absence of a diagnosis, could not say whether it had stabilised. When the plaintiff initially saw Ms Holland on 11 March 2015, there seems to have been no mention of the left wrist. Indeed, there seems to have been little reference to it until, in December 2015, it is recorded that the left wrist was improving. The treating hand surgeon, Mr Thomas, makes only a fleeting reference to the left wrist in his letter to Dr Harrison. The treating general practitioner, Dr Harrison, referred the plaintiff for radiological investigation of the right wrist only. Dr Elder, examining on behalf of the defendant, referred to her as having mild bilateral wrist pain. There was no crepitus of the left wrist. To Dr Ingram, similarly examining, the plaintiff complained of ongoing symptoms related to the right hand, making no particular reference to the left.
76 In summary, I am of the opinion that the plaintiff has fallen a long way short of establishing that the statutory test has been satisfied in relation to injury to the left upper limb, viewed individually or as part of the arms as a unit, not that this latter proposition was specifically argued in detail. I shall not refer further to the left wrist injury.
77 In relation to the right wrist, I am satisfied that the plaintiff did suffer an injury. The radiological investigations, and in particular the CT scan of 1 September 2015, indicate change and mild narrowing consistent with a previous impaction injury and a mild degree of osteoarthritis. As stated, there is no report from the treating hand surgeon, other than a letter to Dr Harrison. That letter, or report, was on 19 October 2015. Mr Slattery has diagnosed the rendering symptomatic of prior sub-clinical degenerative change. I accept this.
78 I also accept that, whilst some degenerative change was present prior to the accident, it was not symptomatic. Any symptoms and restrictions from which the plaintiff now suffers are consequential upon the accident.
79 I am also satisfied that the consequences of the right wrist injury are permanent within the meaning of the Act in that they will be long-term. Dr Slattery has referred to a guarded prognosis and Dr Elder was prepared to make an assessment of permanent impairment. The observations above in relation to the plaintiff’s psychological or psychiatric condition and any consequences thereof, these observations being made in the context of the neck injury, are equally applicable when discussing the right upper limb injury.
(e)Other developments since the accident and the plaintiff’s credibility
80 The history of events since the accident is complicated by the fact that the plaintiff’s original affidavit of 18 January 2019, which is of some 79 paragraphs, apparently has needed much extensive explanation and alteration, which is contained in the third affidavit of 16 January 2020. The second affidavit of 14 September 2019 has needed only two clarifications. In any event, these problems relating to the affidavits not only make the obtaining of a clear history more difficult, but also reflect poorly upon the credit of the plaintiff. I have difficulty in accepting what she has sworn in her third affidavit to the effect that she did not go into too much detail in relation to her dispute with Monash University and her former business partner previously because she was bound by a confidentiality agreement, which she believed prevented her from discussing the disputes. I would refer to paragraph 2(b) of the affidavit of 16 January 2020. I take it that this refers to the settlement of her legal proceedings. This is hardly a satisfactory explanation for swearing that it was her fear in traffic and pain from use of her neck when driving that caused the plaintiff to leave Melbourne and move to the Whitsundays, when it is plain that the reason for so moving was related largely, if not almost entirely, to her dispute with Monash University. That is just one example.
81 In any event, the following would appear to be the sequence of events.
82 The plaintiff’s mental health problems arising from her workload, FODMAP, and the ongoing legal issues with Monash University worsened in approximately September 2014.
83 Remembering that the accident occurred on 5 February 2015, in September 2015 the plaintiff was referred to a psychiatrist. It now appears that this was related to her dispute with Monash University. The plaintiff originally swore that, following the accident, she returned to work in February 2015, the same month as the accident. She ceased that work, which was at Latrobe University, in September 2015. However, what is now clear is that such cessation was primarily due to the stresses associated with the dispute with Monash University. That does not even merit a mention in the first affidavit. There is only reference to continual pain and discomfort arising from the injury sustained in the accident.
84 As stated, in February 2017 the plaintiff and her husband moved to Queensland, and more specifically to Cannonvale, in the vicinity of the Whitsundays. She continues to reside there. In her first affidavit, the reason for this clearly is sworn to be due to the plaintiff’s fear of driving, along with pain and illness arising from using her neck and sudden braking in heavy traffic. I have referred to this above. It is apparent from the third affidavit that this was neither true nor correct, to employ the language of the oath used for affidavits, and certainly not the whole truth. The principal reason for the move to the Whitsundays was to avoid the stressors associated with the dispute with Monash University and with her previous business partner, which stressors were largely Melbourne-based. What was contained in the first affidavit is not just misleading, but downright false.
85 Since the plaintiff has been in Cannonvale, she has received treatment from a general practitioner, Dr Hinschen. In her third affidavit, she has sworn that this is “mostly” in respect of her mental health, which “has been my priority for the last couple of years”. Whilst the attendances upon Dr Hinschen were referred to in the second affidavit, and in the same short paragraph as reference to the attendances upon the osteopath, Ms Prince-Popovich, there is no mention of the matters to which I have just referred – namely that the attendances related to mental health. In that second affidavit, there is reference to an attendance upon Dr Tsolova, psychiatrist, on a monthly basis. It is only in the third affidavit that it is added that these consultations are primarily for depression arising from the dispute with Monash University and with her former business partner. It is also of note that the plaintiff specifically swore in evidence that the move to the Airlie Beach area was “to escape my psychological trauma and triggers” – see T41-2.
86 In relation to her sailing activities, the plaintiff effectively said that she organised her orthopaedic appointments around sailing – see T36. In late 2019, she went on an extended cruise with her husband in their yacht for two months, although originally it was planned to be for three. There were a number of reasons for shortening the trip. The plaintiff claimed that her neck and wrists had been sore without treatment and that this was one of a number of factors in deciding to return. The yacht in question was purchased in Melbourne and apparently transported to Airlie Beach, near Cannonvale. The plaintiff and her husband had previously been part-owners of and sailed a yacht at Dromana. Her husband is an expert sailor.
Ruling
87 I am of the opinion that the plaintiff has failed to discharge the burden of proof in relation to both the neck injury and the wrist injuries. Before turning to the individual injuries, I would advance the following summary of matters to do with the plaintiff’s credit.
88 The false, incomplete and misleading information contained in the first affidavit of 18 January 2019 has done substantial damage to the plaintiff’s credibility. To a lesser extent, this is also true of the second affidavit of 14 September 2019. An attempt has been made to salvage the situation in the third affidavit of 16 January 2020 and in oral evidence. However, the fact remains that the plaintiff was prepared to swear affidavits as being true and correct when they either were not or they were substantially misleading.
89 At the risk of repetition, a prime example is that of the reason for the move to Queensland. Paragraph 44 of the first affidavit is unequivocal. I have referred to it at some length earlier. The sole reason for the move was given as the plaintiff’s inability to negotiate city traffic because of her injuries, with particular reference to the neck injury, problems with braking and the like. By the time of the affidavit of 16 January 2020, this had been modified to the extent that the move was “largely prompted” as a result of the stressors associated with the Monash University and previous business partner disputes. By the time of cross-examination, this had become “I left Melbourne to escape my psychological trauma and triggers” see T41-2. This is effectively confirmed by the note of Dr Cunneen of 8 March 2017 to the effect that the move was associated with reducing exacerbations of anxiety due to “nil triggers”. There was also reference to the fact that, when in Melbourne, the plaintiff had contact with dieticians “or industry, lawyers, causes panic attacks”.
90 As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance.”
91 In the present case, the credit of the plaintiff has been damaged substantially. I have borne that in mind.
92 I turn now to the individual injuries.
(i) The injury to the cervical spine
93 This injury has received comparatively little treatment from medical practitioners since its occurrence in excess of five years’ ago. Since the plaintiff moved to Queensland approximately three years’ ago, she has primarily seen Dr Hinschen, general practitioner, at the Whitsunday Family Practice, on a regular basis. The records of her attendance upon Dr Hinschen commenced on 22 May 2017. That is described in the records as being a prolonged appointment. A very detailed history appears to have been obtained and much of it relates to mental health, the dispute with Monash University and the like. Towards the end of the notes, there is recorded “MVA and subsequent chronic pain”. Long appointments with Dr Hinschen on 13 June 2017 and 27 June 2017 contain no references to relevant physical injuries. There are lengthy discussions concerning mental health, stress, possible litigation and the like. The same could be said for prolonged consultations on 11 July 2017, 8 August, 10 August, 29 August, 12 September, 20 September, 16 November and many more.
94 On 19 December 2007, there is much discussion of mental health. There is a heading “Physical Health”, but the only note under it is a reference to prior adrenal adenoma presentation. I will not go through each of these examinations in detail, but save to say that there are many of them and, as far as I can see, they contain no reference to the injuries under discussion in this case, save for an entry of 4 October 2018. This was another prolonged appointment and it is almost exclusively about mental health problems and the like. It is interesting that, when a major depressive disorder is being discussed, there is reference to the fact that the plaintiff is now unable to enjoy the things that were the strength in her relationship with her husband “sailing etc”. Severe insomnia is also listed under the heading of “Diagnostic Features” of the major depressive disorder. Extreme fatigue is also so listed. While the reason for the visit is summarised as being severe depression/anxiety, there is a reference to the motor vehicle accident and worsening neck pains since, including left-sided shooting pains from the base of the skull up the left side of the head. Subsequent consultations, whilst dealing at length with mental health, contain no reference that I could find, or to which I was directed, to neck or wrist problems. There is reference to ongoing night terrors, but this is in the context of mental health problems.
95 I would add that there was patently a referral for an MRI of the cervical spine in December 2019, but the notes put in evidence cease about a month before that.
96 I appreciate that the plaintiff has been attending an osteopath, Ms Prince-Popovich, in respect of her neck, but it is of interest that the plaintiff only appears to have mentioned the neck injury and the accident to her treating general practitioner on two occasions, with no specific injuries recorded in relation to the earlier consultation.
97 The plaintiff has only had one treating specialist for her neck, namely Dr Symington, and he saw her on one occasion, or two at the most. It is not entirely clear. He seems to have been concentrating particularly upon her headaches and indeed described them as being multifactorial. He referred, inter alia, to the fact that the plaintiff was under very considerable stress. It would be fair to say that the plaintiff has had minimal specialist treatment for her neck injury.
98 Nor has there been a great deal of significance revealed by radiological investigation. An MRI of 20 January 2016 revealed mild multilevel cervical degenerative changes. That of 17 December 2019 showed mild degenerative disc disease at C5-6 and no neuro compressive lesion.
99 When the plaintiff was still residing in Victoria, she does not seem to have seen general practitioners concerning her neck and the accident on many occasions. Between March 2016 and June 2017, she only saw Dr Cunneen in relation to these matters on one occasion, although she made approximately 30 visits to the Blackburn Clinic during that period.
100 In recent times, and indeed when the plaintiff was still residing in Victoria, the overwhelming bulk of her treatment has been from osteopaths. Overall, this treatment has provided only short-term relief or benefit. Ms Prince-Popovich, in her report of 14 November 2019, has observed that the benefits of each session do not seem to last the whole two weeks. However, this seems to be the treatment which the plaintiff prefers in relation to her cervical spine, although still seeing general practitioners for her psychiatric, anxiety and stress problems relating to the other disputes. Even then, there was a gap between April 2016 and January 2017 when the plaintiff had no osteopathic treatment.
101 In any event, this whole issue of treatment, the type thereof or the lack thereof, has to be seen in the context of a person whose credibility has been damaged.
102 Further, I do not accept that any interference with the plaintiff’s lifestyle has arisen primarily from her neck injury. Such interference that has occurred because of it, even if significant or marked, certainly is not very considerable. Any enjoyment associated with employment, her cooking and her nutritional activities almost solely came to an end because of her psychological or psychiatric condition. The litigation in which she was involved may well have played a role in this. When the truth about the reason for the move to the Whitsundays finally emerged, it was due to matters not to do with the accident. It is quite clear that, as the plaintiff described it, the psychological trauma was “the highest focus of my health at the time” – that is, before the move to Queensland. I would refer to T35.
103 Even if one placed greater emphasis upon the preference given to osteopathic treatment, the plaintiff stated that “I try and keep the appointments regularly as possible around sailing” – see T36. I am not suggesting that the plaintiff should have no enjoyment in her life, but comments such as this may give some indication of her priorities and the level of incapacitating pain and restrictions suffered. Added to that, the plaintiff and her husband went on a two month cruise on their yacht in late 2019. It may be that the duration of the cruise was cut from three months, but there were a number of factors involved in the early return. It is another matter that militates against the existence of “very considerable” consequences.
104 In addition, I am not satisfied that the interference with the plaintiff’s day to day activities attributable to the neck injury is of sufficient magnitude to satisfy the test. Her inability to work is the result of her mental condition. Particularly after Cyclone Debbie struck the Airlie Beach area, the plaintiff did a lot of gardening, albeit with some difficulty which may or may not have been attributable to the neck injury.
105 In summary, I am of the opinion that the plaintiff has not discharged the burden of proof in relation to the neck injury.
(ii) The injury to the right wrist and lower arm
106 I am also of the opinion that the plaintiff has not discharged the burden of proof in relation to this injury. The consequences are not of sufficient magnitude to satisfy the statutory requirements and those set out in the authorities, particularly in Humphries.
107 Much of what has been said above concerning the level of treatment of the plaintiff’s neck injury also applies to the injury to the right wrist. The MRI of 1 September 2015 essentially revealed mild joint space narrowing consistent with a previous impaction injury and now a mild degree of osteoarthritis. No fracture was identified. No subsequent radiological investigations seem to have been carried out.
108 The plaintiff only saw a hand specialist on one occasion. Mr Thomas thought it likely that she had early osteoarthritic change related to the injury. He referred to treatment by way of splinting, anti-inflammatories and, if these measures were inadequate, an image-guiding Cortisone injection. Apparently, the plaintiff never returned to his care. The available clinical records show that, in her only discussion with her current general practitioner, Dr Hinschen, she referred only to neck pain and headaches. There was no reference to wrists.
109 Further, the plaintiff has been able to engage in the activities previously discussed, including the move to Queensland, the cleaning up and work done after Cyclone Debbie, the sailing activities and the like. My earlier observations concerning treatment of her cervical condition being primarily by way of osteopathy and temporary relief are equally applicable to the right upper limb.
110 Further, given the radiology, the treatment and the circumstances generally, much depends upon the credit of the plaintiff. As stated, that credit has been damaged.
111 The plaintiff has failed to discharge the burden of proof in relation to injury to the right upper limb.
(iii) The left upper limb
112 As earlier stated, the plaintiff has failed to discharge the burden of proof in relation to the left upper limb.
(iv) The upper limbs as a unit
113 Reliance upon this concept was neither opened in detail on behalf of the plaintiff or relied upon in closing. In any event, the plaintiff would have failed to discharge the burden of proof in relation to it had it been argued.
Conclusion
114 The plaintiff is unsuccessful. She has failed to discharge the burden of proof. Her application is dismissed. I shall hear the parties in relation to any further orders that are required.
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