Nimmo v Transport Accident Commission
[2020] VCC 1306
•28 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-00461
| RAECHEL ANNE NIMMO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 17 August 2020 | |
DATE OF JUDGMENT: | 28 August 2020 | |
CASE MAY BE CITED AS: | Nimmo v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1306 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the neck – causation – pre-existing spinal impairment – subsequent unrelated injury – aggregation – separation of consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Philippiadis v Transport Accident Commission [2016] VSCA 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Carbone v Toyota Motor Corporation Australia Limited [2017] VSCA 249
Judgment: Application unsuccessful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms A R C Spitzer | Maurice Blackburn Lawyers |
| For the Defendant | Mr P D Elliott QC Ms J E Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 On 21 March 2008, Ms Nimmo was a passenger in the rear seat of a taxi which was struck by another vehicle. Ms Nimmo claims that in this accident she suffered an injury to her cervical spine, which has resulted in neck stiffness, frequent headaches, and symptoms in her right arm which she described as being like a “dead arm”.
2 In order for Ms Nimmo to be entitled to claim common law damages for this accident, she must satisfy me that she suffered an injury to her spine, the impairment of which satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986 (“the Act”).
3 The Transport Accident Commission (“the TAC”) disputed the claim on the basis that soon after the accident, Ms Nimmo’s symptoms had substantially resolved and her right arm symptoms, which arose approximately three years later, are unrelated to the accident. In the alternative, the TAC submitted that Ms Nimmo’s claimed consequences cannot be described as “at least very considerable”.
4 Ms Nimmo was called to give evidence and was cross-examined. Also in evidence were numerous medical reports and clinical records. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am not satisfied that the consequences to Ms Nimmo from the spinal impairment she suffered in this transport accident, can be described as “at least very considerable”. I therefore dismiss her claim.
Ms Nimmo’s life before the transport accident
6 Ms Nimmo was born in July 1972 and is forty-eight years old. She has a son who is seven years old.
7 Ms Nimmo completed Year 12 at Bathurst High School before undertaking an Advanced Certificate in Office Administration at TAFE. She subsequently worked in numerous roles and provided secretarial, administrative and accounts support. Ms Nimmo then undertook full-time study and obtained an Advanced Diploma of Arts - Electronic Design and Digital Imaging. Subsequent to this, Ms Nimmo obtained employment as a Commonwealth public servant and worked for several years in numerous roles associated with marketing, design and communications.
8 In July 2006, whilst working in Canberra as a public servant, Ms Nimmo sought treatment from Enhance Healthcare, a chiropractic clinic. In her patient admission card, Ms Nimmo stated that she sought treatment of neck and shoulder pain, constant headache, pain at the base of her skull, and lower back pain. Ms Nimmo stated that she had suffered such complaints for approximately eighteen months, and she described her pain as “dull and constant”. Ms Nimmo also stated that sometimes she experienced shoulder and right arm ache, and she took half to one Mersyndol tablet per day. It was also noted that Ms Nimmo previously had x-rays of her neck, lung and shoulder.
9 When asked about this record in cross-examination, Ms Nimmo said she could not recall much from this time but accepted the contents of the patient admission card as accurate.
10 The records from this clinic indicated that Ms Nimmo attended for six treatments over the period 8 July 2006 to 14 September 2006. On the last appointment, it was noted that Ms Nimmo was feeling “out”. When this was put to Ms Nimmo in cross-examination, she said she did not know what this referred to.
11 Ms Nimmo said she did not recall receiving any further chiropractic treatment, but that she continued to get semi-regular massage treatment of her upper back, every six weeks or once every few months. She said there was a place in Canberra where she received such treatment, but she could not recall whether such treatment was before or after she went to the chiropractor.
12 In 2007, Ms Nimmo moved to Melbourne and obtained employment as a general manager for a graphic design studio. She said this work involved managing the studio, staff management and undertaking strategic work for the business. Ms Nimmo worked full time in this role. In the financial year ended 30 June 2008, Ms Nimmo earned $104,447.
13 Ms Nimmo said that when she moved to Melbourne in 2007, she believed she sought out a massage therapist for treatment to her neck and upper body but could not recall when this occurred.
14 Ms Nimmo said that prior to the transport accident, she enjoyed yoga, which she did on a daily basis, as well as socialising with friends. Ms Nimmo said her main hobby was photography and she took photographs most weekends.
The transport accident and its claimed consequences to Ms Nimmo
15 On 21 March 2008, Ms Nimmo was involved in a transport accident whilst a passenger in a taxi. Following the accident, she returned home by taxi and as it was Easter, she had some time off work. Ms Nimmo said that over the course of the next few days, she developed a headache, neckache and back pain.
16 On 25 March 2008, Ms Nimmo attended on general practitioner, Dr Belinda Minc, at the Airlie Women’s Clinic. Dr Minc recommend that Ms Nimmo take Panadol and use a heat pack for pain relief. Dr Minc also arranged for Ms Nimmo to undergo an x-ray of her cervical spine. This demonstrated normal disc height, and no significant abnormality was detected.
17 Ms Nimmo said she thereafter underwent physiotherapy, and also received massage therapy, acupuncture and commenced doing Pilates. Ms Nimmo said despite such treatment, her neck stiffness persisted.
18 Over the following months, Ms Nimmo attended the Airlie Women’s Clinic on a further three occasions and complained of left-sided neck and shoulder pain. In October 2008, the records indicate that Ms Nimmo sought a referral to an osteopath, but she said she could not recall getting such treatment.
19 Ms Nimmo said she continued to work full time, although struggled to concentrate as a result of her neck pain. Her income in the year following the accident indicated a reduction of income to $85,333.
20 In February 2009, Ms Nimmo was prescribed anti-depressant medication by Dr Minc, who noted Ms Nimmo also had a past history of depression.
21 Ms Nimmo said that despite weekly massage treatment, she continued to suffer migraine headaches “on and off”.
22 In December 2009, Ms Nimmo re-attended the Airlie Women’s Clinic, where Dr Marni Rosenberg, general practitioner, noted her whiplash symptoms had “seemed to resolve” but that over the previous three weeks, Ms Nimmo had noticed a recurrence of her neck pain. Dr Rosenberg noted that on examination, there was right-sided muscle spasm, and reduced range of motion in her cervical spine. At that time, Ms Nimmo was advised to continue with physiotherapy, take paracetamol and apply heat packs. Dr Rosenberg also referred Ms Nimmo for a CT scan.
23 On 11 December 2009, Ms Nimmo underwent a CT scan of her cervical spine. It was reported as demonstrating degenerative disc changes at C3-4, and the remaining disc levels were reported as normal.
24 In January 2010, Dr Jodi Gostin, general practitioner, from the Airlie Women’s clinic, wrote a report to the TAC, in which she noted that Ms Nimmo had benefited from physiotherapy treatment. In this report, Dr Gostin noted that Ms Nimmo had recently reported an exacerbation of neck pain. As Dr Gostin was unable to state whether this subsequent episode of pain was related to the transport accident or was attributable to other factors, Dr Gostin referred Ms Nimmo for an opinion from a musculoskeletal physician.
25 In February 2010, Ms Nimmo was examined by musculoskeletal physician, Dr Robert Gassin. In a letter dated 15 February 2010, Dr Gassin reported that Ms Nimmo said her neck pain was severe for approximately one week after the transport accident and that she experienced restricted neck movement for up to one year thereafter. On examination, Dr Gassin noted that Ms Nimmo had a full range of cervical, thoracic and shoulder movement, but was tender to palpation in the upper and mid-cervical regions, centrally and bilaterally.
26 Dr Gassin considered it difficult to ascertain the exact source of Ms Nimmo’s pain, and that the changes seen on the CT scan could be considered normal for a woman her age. Dr Gassin recommended Ms Nimmo take Panadol Osteo for her pain.
27 On 29 March 2010, an MRI scan was taken of Ms Nimmo’s cervical spine. It was reported as demonstrating a broad-based central disc protrusion at C3-4, a mild central disc bulge at C4-5 but no other remarkable findings.
28 In August 2010, Ms Nimmo commenced receiving treatment from physiotherapist, Mr Rob Capaldi. When Ms Nimmo first attended, Mr Capaldi noted she reported neck stiffness and restriction of movement which was occasionally severe, as well as regular headaches. It was noted that at that time, Ms Nimmo took paracetamol on most days, plus occasional Mersyndol.
29 On 1 April 2011, Ms Nimmo attended upon Dr Nicole Urbach, general practitioner, at the Airlie Women’s Clinic and complained of tingling in her right hand that had started to travel up her arm. Dr Urbach arranged a CT scan of her cervical spine. This was taken on 8 April 2011 and demonstrated minimal degenerative change at C3-4 and C4-5, as well as a right posterolateral disc protrusion at C5-6, with probable compromise of the right C6 nerve.
30 Given the results of the CT scan, Dr Urbach then referred Ms Nimmo to neurosurgeon, Mr Craig Timms. In her letter of referral dated 11 April 2011, Dr Urbach noted Ms Nimmo’s history of being involved in a transport accident in 2008 and that there was initial disc bulging at the level C2-3. Dr Urbach noted Ms Nimmo had recently started to get tingling sensations down her right arm and that a CT scan showed a disc bulge at C5-6. Dr Urbach observed that “there is seemingly no account for why this has happened now”.
31 In May 2011, Ms Nimmo was examined by Mr Timms. In a letter dated 26 May 2011, Mr Timms noted that after the transport accident, Ms Nimmo had suffered neck pain and headaches and “of late symptoms down the right arm”. On examination, Mr Timms noted a reasonable range of movement of the neck, but some stiffness and mild weakness in the pincer grip of her right hand. Mr Timms recommended an up-to-date MRI scan be performed.
32 On 17 June 2011, an MRI scan was taken of Ms Nimmo’s brain and cervical spine. This was reported as demonstrating a moderately large right posterolateral/proximal foraminal soft disc protrusion at C5-6 and this compressed the right C6 nerve.
33 In September 2011, Ms Nimmo attended upon neurosurgeon, Mr David Brownbill, for a medico-legal examination. In cross-examination, Ms Nimmo accepted that at the time of this examination, she reported to Mr Brownbill that she suffered pain in her right upper arm, which had commenced about three to four weeks prior to this appointment. She also accepted that she complained of tingling in her right forearm, extending down to her index and middle fingers, and that this had been present for several months.
34 On 18 October 2011, Mr Capaldi, physiotherapist, provided a medical report in respect of the treatment he had provided Ms Nimmo. Mr Capaldi noted that, at that time, Ms Nimmo was able to continue her normal work duties, albeit with regular pain and the use of pain-relieving medication. Mr Capaldi noted that in April 2011, Ms Nimmo developed pain and paraesthesia in the right C6 dermatome. Mr Capaldi related Ms Nimmo’s symptoms to the findings of a C5‑6 disc bulge with nerve root compression. Mr Capaldi considered it reasonable to assume that Ms Nimmo’s current issues probably stemmed from the transport accident, although he acknowledged that he had not treated Ms Nimmo since two-and-a-half years after the accident. I note that in this report, Mr Capaldi understood that prior to the transport accident, Ms Nimmo suffered occasional “tightness” in her neck and lower back.
35 In October 2011, Ms Nimmo attended upon Dr Emily Schilbach, general practitioner, at the Airlie Women’s Clinic and reported that she had had two migraines in the last six months and related this to the transport accident. At this time, Ms Nimmo was prescribed Relpax medication and was referred for further physiotherapy.
36 In early 2012, Ms Nimmo left her position with the graphic design studio and obtained employment with RMIT, as a marketing co-ordinator. She said this was a full-time role and the work involved graphic design and marketing plans. At about the same time as Ms Nimmo started in this new role, she discovered she was pregnant. On commencing maternity leave, Ms Nimmo said it was her intention to return to this employment. In the financial year ended 30 June 2012, Ms Nimmo earned $105,199.
37 Ms Nimmo gave birth to her son in late August 2012. Soon after, Ms Nimmo travelled to her hometown of Bathurst for family support. After a short period of time, she decided to remain there on a permanent basis, so in early 2013, Ms Nimmo returned to Melbourne to gather her belongings and resigned her employment at RMIT. Ms Nimmo said her move to Bathurst was due to her injuries, and the restrictions they placed on her.
38 In August 2013, Ms Nimmo obtained a position as general manager for an architect’s office in Bathurst. She said she worked four days a week in this role.
39 In August 2014, Ms Nimmo was referred to neurosurgeon, Dr Benjamin Jonker. In a letter dated 6 August 2014, Dr Jonker noted that Ms Nimmo reported she had been involved in a transport accident in 2008 and had suffered headache and neckache since that time. On examination, Dr Jonker noted there was a reduced biceps jerk in her right arm and a sensory deficit in the right C6 dermatome. Dr Jonker recommended Ms Nimmo initially be treated with a right C6 nerve injection. Dr Jonker stated that the indication for surgery would be if Ms Nimmo’s C6 radiculopathy caused her significant functional limitation. In relation to Ms Nimmo’s neck pain and headaches, Dr Jonker recommended she consult pain management specialist, Dr Nathan Taylor.
40 In October 2014, Ms Nimmo changed jobs and commenced a new position as a marketing officer for Charles Sturt University. Ms Nimmo said this was a full-time role, and she struggled with work pressures and neck pain.
41 On 28 January 2015, Ms Nimmo attended upon Dr Taylor, who noted that Ms Nimmo suffered persistent cervical spine pain and headaches since a transport accident in 2008. Dr Taylor also noted Ms Nimmo had developed some symptoms in her right C6 dermatome. Dr Taylor noted Ms Nimmo had tried a range of treatments, including acupuncture, massage, Pilates, yoga and physiotherapy, but that despite such treatment, her symptoms have progressed. Ms Nimmo said Dr Taylor prescribed Lyrica, which she took for only a short time due to adverse side effects.
42 In March 2015, Dr Taylor administered a medial branch block, which Ms Nimmo said provided some benefit.
43 In May 2015, Ms Nimmo said she moved jobs to take on a position as a practice manager for a firm of solicitors in Bathurst. This involved working four days per week.
44 In August 2015, Ms Nimmo underwent a radiofrequency denervation performed by Dr Taylor. She said after the procedure she had no feeling in her neck.
45 In November 2015, Ms Nimmo was reviewed by Dr Taylor, who noted that she had not had considerable relief following the radiofrequency denervation. It was noted there had been some reduction in Ms Nimmo’s neck pain and her range of motion had considerably improved, however, she continued to suffer from headaches.
46 Ms Nimmo said by December 2015, she considered that she had become “much worse” over the previous two years. She said her headaches were still bad and she had a “dead arm” feeling in her right arm.
47 In April 2016, Ms Nimmo was reviewed by Dr Taylor, who noted there was some improvement in Ms Nimmo’s headaches, that the numbness in her neck and shoulder region had resolved and her radicular symptoms were minor and stable. Dr Taylor recommended that Ms Nimmo trial Topiramate and Gabapentin medication.
48 In May 2016, Ms Nimmo underwent a rectal injection due to a fissure which she related to her codeine intake.
49 In July 2016, Ms Nimmo was reviewed by Dr Taylor, who noted she continued to suffer from right-sided occipital headaches and was troubled by right-sided neck pain with radicular symptoms in her right arm. Due to the symptoms in her right side, Dr Taylor recommended a further MRI scan be performed.
50 On 5 August 2016, Ms Nimmo underwent an MRI scan of her cervical spine. It was reported as demonstrating a small diffuse disc bulge at C5-6, with some underlying degenerative change causing moderate-severe neural foraminal narrowing on the right, and mild neuro foraminal narrowing on the left.
51 On 11 August 2016, Dr Taylor provided a medical report to Ms Nimmo’s solicitors. In that report, he noted that Ms Nimmo had presented to him with persistent mechanical cervical spine pain, with some radicular symptoms, as well as symptoms consistent with occipital neuralgia. Dr Taylor stated he understood Ms Nimmo’s symptoms began after the injury and that she had no previous symptoms which would be consistent with a pre-dated cause. Therefore, Dr Taylor considered it “safe to assume” her symptoms were a result of the transport accident.
52 In September 2016, Ms Nimmo underwent an occipital nerve block. At a review soon thereafter, Dr Taylor noted Ms Nimmo had some reduction in her headaches and improvement in the range of motion in her neck.
53 In June 2017, Ms Nimmo was again reviewed by Dr Taylor, who noted that she had a bad migraine for the previous two weeks and recommended she undergo a further occipital nerve block. Ms Nimmo said these injections only provided her with short-term relief.
54 In May 2018, Ms Nimmo was again reviewed by Dr Taylor, who noted she was continuing to complain of debilitating headaches, as well as increasing low back pain.
55 Also in May 2018, Ms Nimmo was reviewed by neurologist, Dr Emma Blackwood. In a letter dated 25 May 2018, Dr Blackwood noted that Ms Nimmo complained of chronic daily headache bilaterally in the occipital region. It was noted that the headache could radiate to the bilateral frontal region and then become a very severe headache. At that time, it was noted that Ms Nimmo was taking Mersyndol Forte and paracetamol, and occasionally Endone.
56 Dr Blackwood noted that Ms Nimmo denied a significant history of headache prior to the accident. Dr Blackwood was of the opinion that Ms Nimmo had suffered significant neck muscle tension due to the whiplash injury she suffered in the transport accident and this contributed to her migraine. On her understanding that Ms Nimmo had not suffered headaches prior to the accident, Dr Blackwood was of the opinion that Ms Nimmo’s headaches were related to the accident.
57 Also during 2018, Ms Nimmo attended upon physiotherapist, Mr John Roberts. Mr Roberts noted Ms Nimmo complained of monthly migraines emanating from constant pain in the base of her skull. Mr Roberts also noted Ms Nimmo’s complaints of symptoms in her right forearm and hand and a constant ache in her lumbar spine. On examination, Mr Roberts noted her cervical range of movement was severely restricted in all directions.
58 Ms Nimmo is currently employed at Marathon Health as a Marketing and Communications Manager. In this position, she works five days per week, six hours per day. There was no evidence as to Ms Nimmo’s current earnings. I note in the financial year ended 30 June 2018, she earned $62,478.
59 Ms Nimmo said she suffers from chronic pain and restricted movement in her neck. She said she has an almost constant dull headache, which is worse in the mornings. Ms Nimmo also said she has pins and needles in her right arm, and a “dead arm” feeling in that arm.
60 Ms Nimmo said she cannot turn her head properly to the left side and has not been able to turn it with full movement since the transport accident. She said that whilst she has had varying improvement, it does not seem to last.
61 In addition, Ms Nimmo said she suffers lower back spasms which make it difficult for her to sit and stand for long periods.
62 Ms Nimmo said she currently takes Palexia, 50 milligram slow release, once per day. She has recently commenced taking a new natural compound called Palmitoylethanolamide. In addition, Ms Nimmo said she takes Endone every few nights, as well as Mersyndol, on average one to two tablets each day, and Panadol, on average eight tablets per day.
63 Ms Nimmo said she recently received treatment from an osteopath but felt this treatment made her condition worse.
64 Ms Nimmo said she sees a psychologist occasionally via Zoom.
65 Ms Nimmo is proposing to go back to see Dr Nathan Taylor, her former pain specialist, in September. She intends to ask him about the option of being treated with a spinal cord stimulator.
66 Ms Nimmo said she currently has massage treatment every fortnight.
67 Ms Nimmo said she is able to manage some of her housework, but also has a cleaning lady and gardener to assist. Further, she said she has her groceries delivered to her home as she cannot manage to carry the groceries a short distance.
68 Ms Nimmo said her sleep is disturbed as a result of the pain.
69 Ms Nimmo said she avoids being social as she tends to sleep a lot on the weekend. However in cross-examination, Ms Nimmo said she does still socialise with her family and on weekends goes to watch her son play sport.
70 Ms Nimmo said she is limited in how often she can walk her dog due to her neck and back pain.
Medico-legal evidence
71 In December 2015, Ms Nimmo was examined by orthopaedic surgeon, Mr Peter Wilde. In a report dated 8 December 2016 (sic), Mr Wilde detailed Ms Nimmo’s past history which included “intermittent neck pain for years related to stress and had previously attended massage therapists to release her muscles”. Mr Wilde then noted the circumstances of the transport accident and that, the following day, Ms Nimmo felt her neck was stiff and sore, especially on the left side. It was then noted that, since that time, Ms Nimmo complained of chronic relapsing neck pain and at various times the pain had been very severe. Mr Wilde noted the pain moved from the left side, where it was initially, to the right side. In 2011, Ms Nimmo experienced significant pain down her right arm.
72 At the time of her examination, Ms Nimmo complained to Mr Wilde of pain across her neck, especially on the right side, and travelling down her right arm. On examination, Mr Wilde noted restriction in the cervical movements, but found no neurological findings.
73 Mr Wilde examined the reports of the radiology taken since the transport accident, including the CT scan of December 2009, the MRI scan of March 2010, the MRI scan of the brain and cervical spine in June 2011, and the MRI scan of the cervical spine taken in May 2014.
74 Mr Wilde stated that, in his opinion, Ms Nimmo had sustained an injury to the C5-6 disc on a background of cervical spondylosis. Mr Wilde considered the transport accident “likely produced the disc annular tear on the right at C5/6, which evolved into a frank disc protrusion over two or three years”. Mr Wilde then considered that over time, the disc nuclear material had reabsorbed and thus by the time of the examination, the radiculopathy had resolved.
75 Mr Wilde was of the opinion that Ms Nimmo was coping with her full-time work as an office manager and did not require assistance with personal or domestic care.
76 In April 2019, Ms Nimmo was examined by orthopaedic surgeon, Associate Professor Leon Kleinman. In a report dated 16 April 2019, Associate Professor Kleinman detailed Ms Nimmo’s past background and recorded she had no previous history of neck problems or injuries and denied ever suffering from migraine headaches prior to the transport accident. When this aspect of Associate Professor Kleinman’s report was put to Ms Nimmo in cross-examination, she said she could not recall what she had told Associate Professor Kleinman, but accepted, if that is what he had recorded, it is probable that is what she said to him.
77 Associate Professor Kleinman then detailed the circumstances of the transport accident and that, on the weekend following, Ms Nimmo developed pain on the right side of her neck and occipital headache. Associate Professor Kleinman noted that Ms Nimmo reported she began to regain movement in her neck but was left with ongoing pain in the base of her skull, and occasional headaches. Associate Professor Kleinman detailed the complaints which Ms Nimmo made at the time of the examination, which included waking up every morning with pain at the base of her skull, suffering occasional cervico-occipital frontal headaches, a stiff neck, and intermittent numbness and tingling in her right arm, as well as pain in her lower back if she sits or stands for prolonged periods.
78 On examination, Associate Professor Kleinman noted there was a limitation in the movement of Ms Nimmo’s neck, such that her left lateral rotation was limited to 50 degrees. He considered there was generalised tenderness to palpation over the back of her neck and there was some “protective spasm” in the cervical extensor muscles, particularly on the left. Associate Professor Kleinman then noted the numerous radiology reports and reviewed the CT and x-ray taken of Ms Nimmo’s cervical spine in April 2019.
79 Associate Professor Kleinman stated that in his opinion, Ms Nimmo had sustained a soft tissue injury to her neck and possible damage to the C3-4, C4‑5 and C5-6 discs of her cervical spine in the accident. He stated she had developed stiffness in her shoulders secondary to the pain in her neck. At that time, it was noted Ms Nimmo was working 55 hours a fortnight in her role at Marathon Health, and he considered her injuries had substantially reduced her work capacity.
80 Associate Professor Kleinman recommended future treatment should involve the use of analgesics as necessary, and intermittent physiotherapy and massage treatment. In relation to her need for care in the home, Associate Professor Kleinman considered Ms Nimmo would benefit from assistance with a cleaner and gardener.
81 In respect of Ms Nimmo’s long-term prognosis, Associate Professor Kleinman stated that she suffered from post-traumatic degenerative changes in her neck which will continue to progress as she ages, with increasing pain and stiffness in her neck. He commented that such pain and stiffness, together with headaches, all affect her ability to continue working and performing her domestic duties.
82The defendant relied upon medical opinions it had obtained from consultant radiologist, Dr Anthony Kam. In his first report dated 17 June 2019, Dr Kam provided an opinion as to whether the transport accident was a cause of the changes seen in the radiology of Ms Nimmo’s right side from March 2010 to May 2014. Dr Kam considered that based on the reports and information provided to him, Ms Nimmo had developed a moderately large C5-6 level disc protrusion during the period 29 March 2010 and 17 June 2011. On the information provided to him, Dr Kam did not consider any of the reported radiological changes were related to the transport accident; however, Dr Kam stated he considered it important that he review the actual radiological images.
83In a report dated 3 June 2020, Dr Kam provided a further opinion in this matter, having reviewed the following images:
·X-ray of the cervical spine dated 25 March 2008
·CT scan of the cervical spine dated 11 December 2009
·MRI scan of the cervical spine dated 27 March 2010
·CT scan of the cervical spine dated 8 April 2011
·MRI scan of the brain dated 17 June 2011
·MRI scan of the cervical spine dated 17 June 2011
·MRI scan of the cervical spine dated 19 May 2014.
84Dr Kam stated that in his opinion, the MRI images of the cervical spine dated 27 March 2010 showed minor disc contour change and uncovertebral joint osteophytes at C3-4 and C4-5 levels, which did not result in compression of the cervical cord or exit nerve roots. Dr Kam noted that the CT images of 8 April 2011 showed similar findings.
85Dr Kam then stated that in his opinion, the MRI images of the cervical spine dated 17 June 2011 also showed minor disc contour change and uncovertebral joint osteophytes at C3-4 and C4-5 levels which did not result in compression of the cervical cord or exit nerve roots. Dr Kam noted that right posterolateral/ proximal foraminal disc osteophyte identified at C5-6, compressed the right C6.
86Based upon those radiological reports and images, Dr Kam was of the opinion that a C5-6 level disc osteophyte had developed during the time interval between 29 March 2010 and 17 June 2011. Dr Kam stated on the evidence provided to him, there was no evidence to support the detected radiological change – and in particular, the development of the C5-6 disc osteophyte and the progression in the spine – to be related to the transport accident. Dr Kam stated that, in his experience, the radiological changes as shown at C3-4, C4-5 and C5-6 level are “extremely common and do not necessarily indicate prior trauma. Such changes are commonly seen on imaging and often develop as part of aging”.
87Dr Kam also reviewed the latter medical imaging and was of the opinion there was no change in the radiology from 17 June 2011 to 19 May 2014.
88In a supplementary report dated 14 August 2020, Dr Kam noted he had been provided with an MRI report and images of Ms Nimmo’s cervical spine taken on 19 May 2014, an MRI cervical spine report dated 5 August 2016 and a CT cervical spine report dated 4 April 2019. Based upon that further imaging, Dr Kam did not alter the opinion he had expressed in his previous reports.
89In July 2019, Ms Nimmo was examined by neurosurgeon, Mr Myron Rogers. In a report dated 3 July 2019, Mr Rogers noted the history of the transport accident and the symptoms which Ms Nimmo reported soon after, which included the development of pain on the left side of her neck and also a reduced range of movement in her neck. Mr Rogers then noted the treatment which Ms Nimmo received in the following year including physiotherapy, acupuncture and massage.
90At the time of the examination, Mr Rogers noted that Ms Nimmo complained of a constant headache which she stated commenced in the occipital region and radiated bilaterally over the vertex of the forehead. It was also noted that Ms Nimmo complained of a dead forearm. Mr Rogers noted the symptoms in Ms Nimmo’s right forearm and fingers developed approximately twelve months after the accident, but Ms Nimmo could not be certain about the timeline.
91On examination, Mr Rogers noted there was mild tenderness to palpation over the occipital and nuchal regions bilaterally and in the upper intrascapular region. Mr Rogers noted there was no underlying muscle spasm, but he considered the range of movement in Ms Nimmo’s neck was restricted, particularly on rotation to the left and lateral flexion bilaterally.
92Mr Rogers was of the opinion that Ms Nimmo had sustained a soft tissue injury to her cervical spine without any neuralgic sequelae. Mr Rogers was of the opinion that this type of injury would resolve within a relatively short time and not persist for eleven years.
93In relation to the symptoms which Ms Nimmo complained of in her right arm, Mr Rogers stated if the transport accident had resulted in an injury to the C5-6 disc, then this would have been evident on the MRI scans prior to 2011. Mr Rogers suggested this may have been seen with an annular tear or other degenerative pathology. To provide a further opinion on this, Mr Rogers considered it important that he view the medical imaging directly, instead of depending on the radiology reports.
94At that time, Mr Rogers considered Ms Nimmo had developed a Chronic Pain Syndrome, as in the multiple neurologic examinations performed since the accident, there had been no abnormality demonstrated.
95In a supplementary report dated 10 July 2020, Mr Rogers commented further in relation to Ms Nimmo’s injury, having viewed the same imaging as that provided to Dr Kam. Mr Rogers then stated, having viewed such imaging, the conclusions reached in his previous report did not change.
Causation
96The defendant disputed Ms Nimmo’s claim that the transport accident was a cause of the injury to her C6 disc.
97In support of her claim that this injury was related to the transport accident, Ms Nimmo relied upon medico-legal opinions from Mr Wilde and Associate Professor Kleinman.
98Associate Professor Kleinman was of the opinion that in the transport accident, Ms Nimmo sustained a soft tissue injury to her neck and possible damage to the C3-4, C4-5 and C5-6 discs of her cervical spine. However, in offering this opinion, I note that Associate Professor Kleinman was not aware of the symptoms which Ms Nimmo had experienced in 2005 and 2006. Further, his report did not explain the delay in the onset of Ms Nimmo’s right arm symptoms and how these were able to be attributed to the accident. Further, Associate Professor Kleinman did not explain how the changes seen in the medical imaging in April 2011 were related to the transport accident. Therefore, in determining the cause of Ms Nimmo’s injury, I gain little assistance from this report.
99Mr Wilde was of the opinion that the prolapse at C6 was likely to be related to an annular tear at that level, suffered in the transport accident. However, I note that Mr Wilde did not review the actual imaging of scans taken in December 2009 and March 2010.
100In contrast, the TAC relied upon medico-legal opinions from Mr Rogers and Dr Kam, both of whom had examined the medical imaging. Neither doctor related the C6 disc prolapse to the transport accident. Further, upon reviewing the imaging taken prior to April 2011, neither doctor noted any evidence of an annular tear or degenerative changes. Therefore, Mr Wilde’s presumption that it would have been seen on the earlier imaging to explain the progression to a disc prolapse, is questionable. Mr Wilde was not given the opportunity to review the radiological images, so it is unclear whether his opinion on this would have changed if he had.
101I accept the defendant’s submission that Dr Taylor’s assumption that Ms Nimmo’s symptoms were a result of the transport accident, is unreliable in circumstances where he was not aware of the symptoms which Ms Nimmo had experienced in 2005 and 2006. Further, Dr Taylor does not appear to be aware that Ms Nimmo’s complaints of right-sided paraesthesia symptoms were not experienced until at least two-and-a-half years after the transport accident.
102I gain little assistance from Mr Capaldi’s opinion. Mr Capaldi is not medically qualified, nor did he have a complete history as to the extent of Ms Nimmo’s symptoms in 2005 and 2006.
103In early 2010, Dr Gostin and Dr Gassin were both uncertain as to the cause of the further exacerbation of Ms Nimmo’s neck pain. As neither doctor saw Ms Nimmo after the C6 prolapse was diagnosed, neither offer an opinion whether the transport accident was a cause of the prolapse.
104Dr Urbach was uncertain as to the reason for the onset of right-sided symptoms in 2011 and in her letter of referral to Mr Timms, did not appear to relate it to the transport accident.
105Mr Timms and Dr Jonker did not comment on whether the transport accident was a cause of Ms Nimmo’s condition.
106In closing submissions, Mr McGarvie reminded me that this should not be a case of trial by radiologists. That is indeed true. As was previously noted by Ashley JA in Grech v Orica Australia Pty Ltd & Anor,[1] such an application is not to be a trial by doctors’ opinions, but rather the matters a plaintiff needs to establish are to be resolved upon all the evidence before the court.[2]
[1](2006) 14 VR 602
[2](ibid) at paragraph [35]
107In taking a whole evidence approach, I consider the following factors highly relevant to the determination of causation in this matter:
· In 2005 and the first half of 2006, Ms Nimmo suffered constant pain in her neck, with headaches and some symptoms in her right arm;
· There was a delay of almost three years from the time of the accident to the onset of right arm symptoms;
· The medical imaging prior to April 2011, did not report any abnormality at C6 and, in particular, no annular tear.
108The inter-relationship, if any, between Ms Nimmo’s pre-existing complaints, the transport accident and the subsequent development of a prolapse, is unclear. On the evidence before me, Ms Nimmo has failed to satisfy me that the C6 disc prolapse is related to the transport accident.
Separation of the claimed consequences from unrelated impairment
109Notwithstanding my finding that Ms Nimmo’s disc prolapse is unrelated to the transport accident, I accept Ms Nimmo suffered some form of soft tissue injury in the transport accident, which caused her fluctuating but relatively consistent neck pain and headaches. As such, I can consider the consequences arising from this, but whilst doing so, I must disregard the consequences arising from the C6 prolapse, which I consider is unrelated.
110 The matter is further complicated by Ms Nimmo’s pre-existing impairment, which I must also disregard in my assessment of this claim. I am satisfied that in July 2006, Ms Nimmo had suffered constant neck pain and headaches for at least an eighteen-month period. I note that she also reported pain into her right shoulder and arm. Ms Nimmo obtained chiropractic treatment and took Mersyndol medication. I note that after six chiropractic sessions, Ms Nimmo continued to receive massage therapy on a semi-regular basis, which she estimated was every six weeks or once every few months. Ms Nimmo also said she still suffered some tension headaches.
111 In Philippiadis v Transport Accident Commission,[3] it was noted that:
“Where a transport accident is said to cause an aggravation of an existing injury, the aggravation must satisfy the definition of ‘serious injury’ in the sense of producing a serious long-term impairment or loss of a body function. In assessing whether the definition is satisfied it is impermissible to take into account the cumulative effect of the pre-existing injury and the aggravation. Rather, an analysis must be made of the extent of impairment of the relevant body function before and after the relevant injury to determine the extent of the additional impairment that was caused by the injury. Where, as in the present case, there is more than one accident which is said to aggravate an existing injury, the aggravation resulting from each accident must be considered separately to determine whether it satisfies the definition of ‘serious injury’.”[4]
[3][2016] VSCA 1
[4](ibid) at paragraph [27]
112 In this case, although there was not a subsequent accident, in circumstances where I am not satisfied that the transport accident was a cause of the C6 prolapse, I must disregard the consequences arising from that prolapse.
113 Thus, for Ms Nimmo to succeed in her claim, I must disregard the pre-existing impairment in her spine, as well as the subsequent impairment arising in approximately April 2011 when she suffered from the unrelated C6 prolapse.
114 The period between the time of the transport accident and April 2011, provides the clearest picture in which to assess the consequences to Ms Nimmo from the aggravation of her spinal impairment.
115 I accept that in the year after the transport accident, Ms Nimmo reduced her working hours to approximately four days per week, and that this was reflected in a reduction of her earnings of approximately $20,000. However, I note that Ms Nimmo subsequently resumed full-time duties and in the following two years, her remuneration returned to a similar level as to what it had been before the accident. Therefore, as at that time, there was no evidence of long-term pecuniary disadvantage arising from her aggravated spinal impairment.
116 In relation to a need for medical treatment in the three years following the accident, I note that Ms Nimmo received the following treatments:
Physiotherapy
March 08- Feb 09 – 8 times
March 09-Feb 10 – 4 times
March 10-Feb 11 – 10 times
Massage therapy
March 08 -Feb 09 – 11 times
March 09-Feb 10 – 11 times
March 10-Feb 11 – 4 times
Acupuncture
March 08-Feb 09 – 4 times
March 09- Feb 10 – 0 times
March 10- Feb 11 – 0 times
Pilates
March 08-Feb 09 – 2 times
March 09-Feb 10 – 0 times
March 10 – Feb 11 – 0 times.
117 On Ms Nimmo’s evidence, prior to the transport accident, she received semi-regular massage therapy. I am satisfied that due to the neck pain and headaches Ms Nimmo suffered as a consequence of the accident, she required a modest amount of additional massage treatment, over and above the treatment she would have received if not for the transport accident. I am also satisfied that Ms Nimmo required twenty-two physiotherapy sessions, four acupuncture treatments and two Pilates sessions over this three-year period.
118 On the evidence before me, Ms Nimmo was prescribed Endep on one occasion prior to April 2011, and that otherwise her doctors recommended she use paracetamol and heat packs for pain relief as needed.
119 I note that Ms Nimmo was referred to one specialist in this period – Dr Gassin – who only recommended Panadol Osteo for pain relief.
120 The consequences to Ms Nimmo after April 2011, were much greater. She was referred to numerous specialists, including several neurosurgeons, a neurologist and a pain management specialist. Ms Nimmo trialled a range of prescription medications including Lyrica, Gabapentin and Palexia. Ms Nimmo also underwent denervation and ablation injections.
121 There is no medical opinion which differentiates the effects of the neck injury suffered in the transport accident and the effects of the unrelated C6 prolapse. There is no delineation as to whether the treatment Ms Nimmo received and medication she took after April 2011, was for the soft tissue-related neck pain and headaches, or the symptoms relating to her C6 prolapse, or a combination of both. The absence of such treatment prior to April 2011, suggests the treatment was more likely required due to a worsening of Ms Nimmo’s condition due to the C6 prolapse. However, there is simply no medical opinions on this.
Consideration of what Ms Nimmo has retained
122 In addition to disregarding her unrelated impairment consequences, in assessing Ms Nimmo’s claimed consequences arising from the transport accident, I must consider what she has lost, as well as what she has retained.[5] I note the following:
[5]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
· She has retained her capacity to work. As stated previously, although in the year immediately following the accident, Ms Nimmo’s gross annual income reduced by approximately $20,000, in the following three years, Ms Nimmo earned annual income equivalent to the amount she had earned before the accident. In the year prior to commencing her maternity leave, Ms Nimmo earned $105,199.
Since having her son, Ms Nimmo has worked full time, or near full time, with her current role being 30 hours per week. I am not satisfied that her reduced hours arise as a consequence of her neck impairment, but consider they are more likely a reflection of her caring responsibilities for her young son.
I accept that since the accident, Ms Nimmo’s employers have offered her flexibility in respect of a standing desk and an ability to work from home when needed. With such flexible arrangements, Ms Nimmo has failed to satisfy me that she has suffered any ongoing pecuniary disadvantage from her neck impairment which she suffered in the transport accident.
· Ms Nimmo is still able to take her son to school and collects him most days. She is able to take him to sporting events on weekends.
· Ms Nimmo is able to undertake most of the essential housework, although she does have the help of a house cleaner and a gardener. It is uncertain whether her need for house cleaning and gardening assistance has arisen subsequent to 2011 and whether it is required due to the impairment arising from her C6 prolapse.
· Ms Nimmo still socialises with her family and some friends in the local area.
· Ms Nimmo complains that she cannot hold a camera strap over her shoulders due to her ongoing pain or hook camera equipment around her neck or back. However, I note she was able to complete an online photography course in approximately 2013. I also note that Ms Nimmo subsequently set up a photography blog, on which she posted some photographs she had taken, in unpaid jobs that she did. She said she has not done anything with the blog in several years. I consider this claimed consequence of very limited significance.
Conclusion
123 In determining this case, I must make a comparison to other cases in the range of possible impairments. Whether an applicant has established the requisite ‘serious injury’ consequences, is a question of impression which is influenced by elements of fact, degree and value judgment.[6]
[6]Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 at paragraph [66]
124 In assessing this claim, I considered Ms Nimmo a genuine and stoic plaintiff. She made numerous concessions in her evidence and I considered her a creditworthy witness. Notwithstanding my sympathy for her predicament in suffering an unrelated disc prolapse, I am not satisfied that the consequences to her, arising from the transport accident related impairment, can be fairly described as very considerable. In such circumstances, I must dismiss her claim.
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