Noser v TAC
[2022] VCC 1226
•9 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-01352
| Frances Noser | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | Ginnane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 November 2021, 7 and 8 February 2022 | |
DATE OF JUDGMENT: | 9 August 2022 | |
CASE MAY BE CITED AS: | Noser v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1226 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Causation – aggravation injury – onset of neuroglial claudication - spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Humphries v Poljak [1992] 2 VR 129.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr T Nathanielsz on 5 November 2021 Mr T Monti QC with Mr T Nathanielsz on 7 & 8 February 2022 | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms D Manova on 5 November 2021 Mr A Moulds QC with Mr S Pinkstone on 7 & 8 February 2022 | Transport Accident Commission |
HIS HONOUR:
1This Serious Injury Application was heard via Zoom with the consent of the parties. The plaintiff was then represented by Mr T Monti QC and Mr T Nathanielsz of counsel. The defendant was represented by Mr A Moulds QC and Mr S Pinkstone of counsel.
2The plaintiff was involved in a transport accident on 24 February 2017. This is not contested. The accident occurred at the intersection of Dandenong Road and Chadstone Road. A police note and a police collision report were tendered respectively by the plaintiff and defendant. I informed the parties that I considered the collision report of little if any probative worth given that the defendant did not contend that the accident could not have resulted in injury of the type the plaintiff claims and, in addition, there was no expert evidence adduced, for example, of crush force or similar, that would have permitted me to reach any determination one way or the other about the dynamics of the accident had it been necessary. Also a submission put by Mr Monti in the course of his final address, the substance of which was reflected in certain questions he put to Mr Speck in cross examination that sought to paint a very dramatic picture of the accident and what the plaintiff experienced when it occurred, was not based on facts in evidence. It lacked probative value and was something of a distraction from the essential issue for determination in this application which is causation.
3The plaintiff seeks the grant of a serious injury application pursuant to s93(4)(d) of the Transport Accident Act 1986.
The application and the injury relied upon
4The Application was pursued pursuant to sub-section (a) of the definition of serious injury being injury to the plaintiff’s cervical spine. The Particulars of Injury were expressed as:
“Aggravation of degenerative changes in the cervical and lumbar spine, including lumbar spondylosis, severe canal stenosis and neurogenic claudication.”[1]
[1]Exhibit P17.
Plaintiff’s evidence
5The plaintiff relied upon the following evidence in support of her application:
·Affidavit of James Flynn affirmed 8 July 2021;[2]
[2]Exhibit P2, Plaintiff’s Court Book (‘PCB’) PCB 21-25.
·Particulars of Injury;[3]
[3]Exhibit P17.
· Police note dated 24 February 2017;[4]
[4]Exhibit P16.
Medical Material
· Reports of Professor Bittar dated 23 January 2020,[5] 17 June 2021[6] and
5 November 2021,[7] with MRI screen shot dated 6 Nov 2019;[8][5]Exhibit P3, PCB 26-31.
[6]Exhibit P3, PCB 32-36.
[7]Exhibit P3, PCB 176-177.
[8]Exhibit P3.
· Reports of Dr Akil dated 29 October 2019[9] and 16 August 2020;[10]
[9]Exhibit P4. PCB 174-175.
[10]Exhibit P4, PCB 190-191.
· Reports of Dr Tan dated 19 August 2021,[11] 26 October 2021[12] and
4 February 2022;[13][11]Exhibit P5, PCB 115-126.
[12]Exhibit P5, PCB 127-129.
[13]Exhibit P5, PCB 186.
· Clinical note of Dr Leow dated 24 February 2017;[14]
· Report of Dr Leow dated 4 October 2019;[15]
· Reports of Dr Nesarajah dated 17 October 2019[16] and 2 November 2021;[17]
· Clinic note of Dr Nesarajah dated 21 Sept 2019;[18]
· Letters from Arpitha Shastry dated 17 July 2019[19] and 25 April 2019;[20]
· Clinic note of Arpitha Shastry dated 20 April 2019;[21]
· Letter of Ms Howe dated 24 September 2020;[22]
· Clinical note of Ms Howe dated 4 November 2019;[23]
· Clinical note of Dr Morley dated 7 June 2019;[24]
· CT Scan dated 7 April 2019.[25]
[14]Exhibit P6, Defendant’s Court Book (‘DCB’) 19.
[15]Exhibit P7, PCB 51-55.
[16]Exhibit P8, PCB 56-57.
[17]Exhibit P8, PCB 178-179.
[18]Exhibit P9, DCB 68.
[19]Exhibit P10, PCB 59.
[20]Exhibit P10, PCB 60-61.
[21]Exhibit P11, DCB 93-94.
[22]Exhibit P12, PCB 103-105.
[23]Exhibit P13, DCB 84.
[24]Exhibit P14, PCB 130-131.
[25]Exhibit P15, PCB 113-114.
Lay evidence
6The plaintiff swore three affidavits.[26] She adopted their contents. They comprised her evidence in chief. She was cross-examined.
[26]Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 9-14, Second affidavit of Frances Noser sworn 18 October 2021 PCB 17-20 and Third affidavit of Frances Noser sworn 5 February 2022 PCB 187-189.
Expert oral evidence
7The plaintiff adduced and relied on oral evidence of Professor Bittar.
Defendant’s evidence
8In opposing the plaintiff’s application the defendant relied on the following evidence:
Medical Reports
·Wantirna Community Rehabilitation Centre Client Care Plan dated
11 November 2008;[27][27]Exhibit D1, DCB 7-9.
·Wantirna Community Rehabilitation Centre Group Completion Report dated 11 March 2009;[28]
[28]Exhibit D2, DCB 10.
·Reports of Gary Speck dated 14 December 2020,[29] 26 July 2021,[30]
26 October 2021,[31] and 4 February 2022;[32][29]Exhibit D8, PCB 65-80.
[30]Exhibit D8, PCB 89-96.
[31]Exhibit D8, PCB 97-102.
[32]Exhibit D8, PCB 180-185.
Clinical Records
· Dandenong Super clinic notes;[33]
Miscellaneous
· Letter of instruction from TAC to Professor Richard Bittar dated
29 November 2019;[34]· Letter of instruction from Maurice Blackburn Lawyers to Professor Richard Bittar dated 12 December 2019;[35]
· Letter of instruction from Maurice Blackburn Lawyers to Professor Richard Bittar dated 20 May 2021;[36]
· Victoria Police Collision Report dated 5 March 2020.[37]
[33]Exhibit D3, DCB 20-83.
[34]Exhibit D4, DCB 105-108.
[35]Exhibit D5, DCB 114-120.
[36]Exhibit D6, DCB 121-122.
[37]Exhibit D7, PCB 165-173.
Expert oral evidence
9The defendant relied on the oral evidence of Mr Gary Speck.
Preliminary
10Otherwise than the police collision report, I have considered all of the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff, the submissions and addresses of counsel, and the transcript of the proceeding.
11As far as the medical material is concerned, I intend to refer only to such parts of the records and reports as is necessary to assist me in the resolution of the issues and to sufficiently expose my reasoning.
The issues – in the broad
12Ordinarily the inquiry called for in an application for the grant of a serious injury certificate as a result of the transport accident, necessarily includes whether the consequences of the injury suffered by the plaintiff that “relate to pecuniary disadvantage and/or pain and suffering” satisfy the “very considerable” test.[38] If the consequences of the plaintiff’s injury are such that, when judged by comparison with other cases in the range of possible impairments or losses, it can be fairly described as at least “very considerable”, and certainly more than “significant or marked,” then she is entitled to succeed.
[38] See Humphries v Poljak [1992] 2 VR 129, 140.
13In this application the TAC opposes the grant of relief because it says the plaintiff has not proved that the car accident caused her to suffer an injury by way of an aggravation of a degenerative spine. Furthermore, and in the alternative, if the question of causation is determined favourably to the plaintiff, then the TAC does not concede “range” such that if the plaintiff suffered aggravation to her spine as a result of the transport accident, it is not when assessed with the range of like impairments an injury that it very considerable.
The issues - refined
The plaintiff’s pre accident history
14In around 2007 the plaintiff developed a tingling in her left foot. This resulted in her experiencing an altered sensation when she walked. She also experienced back pain. She was referred to Wantirna Community Rehabilitation Centre and undertook physiotherapy. The physiotherapist ultimately hypothesised there was an issue with the ergonomics of the plaintiff’s car. The plaintiff purchased a different vehicle. The issue resolved. For a period of time the plaintiff also benefited from podiatry treatment.
15Prior to the accident the plaintiff presented with a medical history including Diabetes Type 2, hypertension and high cholesterol. These are controlled by medication. She was diagnosed with De Quervain’s syndrome[39] in around 2011 when she experienced pain in her wrist. It has resolved.
[39] A painful condition affecting the tendons on the thumb side of the wrist.
The transport accident
16On 24 February 2017, the plaintiff was stationary in her car. She was intending to turn right from Dandenong Road into Chadstone Road. When the arrow turned green she entered the intersection and was struck by an oncoming vehicle which failed to stop. The airbag did not deploy.
17The plaintiff said that after the accident she was in shock. Police arrived. They wanted to summon an ambulance. The plaintiff declined the offer. The plaintiff could walk but was experiencing some pain in her back and neck. She took a taxi home. Her husband drove her to see a doctor at Wellness on Wellington. The practice recorded her attendance that afternoon with some pain in her jaw, neck and back.[40]
[40] Exhibit P6, DCB 19.
Dr Leow GP Wellington Wellness report 4 October 2019[41]
[41] Exhibit P7.
18By letter dated 4 October 2019 addressed to the plaintiff’s solicitors, Dr Leow furnished details of the plaintiff’s attendance at Wellington Wellness on the afternoon of the accident. The attendance record explained that the plaintiff:
was seen on 24th February 2017 ~ 3.30 pm after being involved in a car accident near Chadstone shopping centre ~ 10am. She was the driver (sole occupant in car) when she was hit by another car. Frances Noser was hit whilst she was turning and the other car did not stop after running a red light. She reported her car spinning around with impact on the passenger side.
There was no loss of consciousness and she was able to get out of her car. She reported stiffness around her jaw and also back pain/tenderness after the accident. Her back felt better by the time she was seen.
She had good range of movement in her neck/shoulder/leg/ general movement. Ears/nose /throat and pupils were normal. (BP was 157/80- pulse 75).
Panadol was advised for any aches over the weekend with review at her regular clinic (as required).
Her regular prescription medications for diabetes/cholesterol/blood pressure were entered into our notes. No prescriptions were offered.
No obvious injury was noted at this consult from the car accident. No future medical treatment was estimated at this consult. Frances Noser was referred back to her regular clinic for review as required.[42]
[42]Exhibit P7, PCB 51-52.
19The plaintiff says that “since” the accident on 24 February 2017 she has complained of numbness and tingling that runs down her legs. As these reasons address, identifying the period of time that the present perfect form of the verb “since” encompasses occupied much of the hearing.
20The plaintiff says that the numbness and tingling that runs down her legs worsens after walking. She also experiences numbness in the ring and middle fingers of her left hand.
21The plaintiff said initially she hoped her symptoms would resolve with rest and so she did not seek medical advice or treatment. However, her symptoms did not improve and in fact she said they became progressively more evident.
22In her first two affidavits the plaintiff deposed that in November 2018 she travelled to Jordan, Egypt and Greece. She explained that she was able to cope with the travel despite her symptoms that had by this time developed. The plaintiff went on to depose that in early 2019 her symptoms “significantly worsened”.[43]
[43] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 11 [12].
23The plaintiff saw her general practitioner, Dr Nesarajah on 22 March 2019 because of numbness and tingling in both feet that “she had experienced for a few months”.[44] Prior to this consultation, the plaintiff attended Dr Marguerite Curran on 18 December 2018, which is very shortly after the plaintiff returned from the trip to Jordan, Egypt and Greece during which, as she deposed, she experienced ongoing symptoms. However, none of these symptoms were referred to in the doctor’s notes of consultation on 18 December 2018 although a cough and blocked ears was raised by the plaintiff with the doctor.
[44] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 11 [12]; cf. Exhibit D3, DCB 64 clinical note.
24The plaintiff had also attended her doctor on 7 February 2019, again a time by which according to the plaintiff, her symptoms had “significantly worsened.” However, the clinical notes record the purpose of this consultation was for the plaintiff’s diabetes and with no record appearing of the symptoms relevant to the subject application.
25On 5 April 2019, the plaintiff underwent a CT scan on her lumbar spine. Clinical notes identify that the result of the findings of the CT scan were explained to the plaintiff at a consultation on 17 April 2019. The findings were recorded in the clinical note as “Degenerative changes are seen most notably at L5/S1 but there is impingement of the transiting nerve roots as well as the exiting left L5 nerve root”.[45]
[45]Exhibit D2, DCB 65.
26On 20 April 2019, the plaintiff said she commenced physiotherapy with Arpitha Shastry at Back in Motion in an effort “to try to treat the tingling in my feet, numbness in my legs and tingling in my left fingers. After some initial improvement, my symptoms plateaued and I stopped treatment”.[46]
[46] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 11 [14].
27In about May 2019, the plaintiff commenced seeing chiropractor Callum Moley at Think Chiropractic. She found the chiropractic treatment helped with her jaw issues, her neck pain and referred tingling, but there was not any significant improvement in her lower back condition. Chiropractic treatment continued until around February 2020 but was then forestalled by Covid restricted public health orders.[47]
[47] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 11 [15].
28The plaintiff says that since about the end of 2017 she has suffered from a lot of pelvic pain and bladder dysfunction. In around the middle of 2019, she saw her GP concerning her pelvic pain. She was referred to a gynaecologist who diagnosed a prolapse.
29In October 2019, the plaintiff was referred to Mr Hazem Akil who told her that she could consider surgery on her lumbar spine but she expressed a reluctance to proceed down a surgical path.[48] It was not suggested by the defendant that the plaintiff’s rejection to surgery is unreasonable.
[48] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 11 [17].
30The plaintiff commenced physiotherapy on 4 November 2019 with Louise Howe at Rowville Sports and Spinal Rehab in an effort to assist with the management of her prolapse. She continued to attend on Ms Howe until around May 2020.
31The plaintiff remains under the care of Dr Nesarajah.
32The plaintiff said that she does not like taking drugs, but on occasions when she cannot cope she will take Panadol.
33The plaintiff’s neck and left arm symptoms have improved, but she continues to experience a constant tingling in her middle and ring fingers. They were not pursued as matters of impaired function in support of the plaintiff’s claim.
Pain and Suffering Consequences
34The plaintiff says that she continues to experience more or less constant numbness and tingling in both her legs and feet. If she walks for any greater than a few minutes she will experience numbness and suffer pain in both of her shins.
35The plaintiff said she also experiences more or less constant tingling in her left arm. She experiences occasional neck pain, around once or twice a week for
30 minutes. She struggles to lift items of significant weight due to both her left arm and leg symptoms. She finds housework difficult due to the left arm and leg symptoms. She can no longer garden whereas she used to weed, plant and trim her garden. She deposed that on one occasion since the accident she attempted to garden but experienced worsening pain in her back. Prior to the accident, she did all household cleaning but she now relies on a cleaner funded through her son’s NDIS program for a series of tasks around the house.36She described being severely limited in her ability to walk due to the leg symptoms. This limitation in turn impacts her ability to shop.
37The plaintiff said that in November 2020 she had two sessions of physiotherapy at home with Uniting Age Well. She was given exercises to perform. She was advised that in order to better cope with her leg pain she should not remain standing for too long, and that she should first undertake food preparation, have a rest, and then cook. She explained that she will often enough need to take a Panadeine between the meal preparation stage and the cooking.
38The plaintiff said walking had been her hobby. A good deal of the plaintiff’s walking of an extended, as opposed to an incidental type, occurred when she travelled overseas with her husband and prior to his death in 2018. Otherwise, according to the plaintiff’s affidavit, her walking was limited to going around the block perhaps twice a week for 30 minutes.[49] She said she misses the ability to take long walks.
[49] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 13 [23].
39The plaintiff deposed that prior to the transport accident she attended a gym at the Community Centre twice a week. These sessions were conducted by James Flynn. She said that after the car accident she tried to return to the Community Centre but found that she could no longer lift heavy weights and after training her legs felt “more numb”.[50]
[50] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 13 [23].
40The plaintiff deposed that whereas before the accident she enjoyed going out and meeting friends she does not do so as often and that this is also impeded due to her standing and walking intolerance. The plaintiff’s evidence lacked a comparison of the frequency or nature of her socialising before the car accident and since.
41The plaintiff drives. She did not suggest that there are limitations on the length of time she can drive since the transport accident by comparison to beforehand.
42The plaintiff deposed that her pain gets her down. She struggles to be motivated. She said she tends to be irritable and frustrated in a way that she never was before and she will occasionally snap at her son.
43The plaintiff deposed that she also suffers pain around her pelvis, particularly on the left side at the top of the thigh. The pelvic pain often makes it hard for her to sleep.[51] In her oral evidence[52] however, she attributed her sleep disturbance to her lower limbs.
[51] Exhibit P1, Affidavit of Frances Noser sworn 15 May 2020 PCB 13 [25].
[52]T73, L29 – T74, L22.
Walking and Travel
44The plaintiff said that the most evident “before and after” comparison of the effects she has suffered from the transport accident is her capacity to walk whilst travelling. As an example, she referred to a trip undertaken in August 2016 when walking the mountains of Switzerland with her husband, as well as a trip to the Middle East in November 2018 which she attended with her Church group. The plaintiff explained that her husband was Swiss and they travelled to Switzerland most years. She described a steep mountain, at the top of which was located a coffee shop, where they would stop for a break before coming down the other side. On some occasions they took a chair lift.[53] By contrast, she said that the land component of her travel in November 2018, was largely confined to a hop-on, hop-off bus trip. She said she did not go walking when the tour bus stopped at various sites.[54] She said that by November 2018 she was not able to do the same amount of walking that she had undertaken in Switzerland in August 2016.
[53] T68, L21-22.
[54] T51, L4-7.
The overlooked Mauritius trip
45Oddly, it was not until the plaintiff’s third affidavit was filed some three days before the hearing, that she recounted another overseas trip taken in September 2017, and so closer in time to the date of the transport accident of February 2017. The plaintiff deposed that she had “overlooked the fact”[55] of this other trip in her first two affidavits.
[55]Exhibit P1, Third affidavit of Frances Noser sworn 5 February 2022 PCB 187 [2].
46The plaintiff deposed that in about mid-September 2017 she travelled to Mauritius for a two-week holiday. She travelled with her brother and two sisters. They stayed at a villa owned by her brother. She explained that during the stay she mainly got around by car with her brother driving. Although the plaintiff said there was not a lot of walking involved, nonetheless, whenever she walked for longer than about five minutes she suffered numbness and tingling in her legs. When this occurred, she needed to stop walking and sit down for some time to recover. She recalled one incident where she had stood for a long time in line at a supermarket and began to feel the numbness and tingling and was required to sit down and rest. She also related that on the aeroplane flight to and from Mauritius she experienced symptoms while seated and whenever she stood up and walked through the aisles she experienced numbness in her legs and difficulty walking.
47The 2017 trip was mentioned by Mr Speck in his report dated 14 December 2020.[56] He described the plaintiff’s account as one in which she “could barely walk on the holiday.”[57]
[56] Exhibit D8, PCB 65.
[57] Exhibit D8, PCB 69.
Professor Bittar
48Professor Bittar furnished three reports.[58] In oral evidence he produced a screen shot and commented on an MRI[59] from 6 November 2019.
[58] Exhibit P3.
[59] Exhibit P3.
49In his report dated 23 January 2020, Professor Bittar observed that the plaintiff complained of the following symptoms:
(i) Bilateral lower limb sensory disturbance and pain. He recorded that the plaintiff said she experiences constant tingling throughout her lower limbs, with the entirety of her legs being affected. If she walks for more than approximately 5 minutes, her legs go numb and she feels unsteady. The distribution of the numbness radiates particularly through her buttocks into her hamstrings and calves. She also experiences bilateral buttock pain with an average severity 9/10, radiating into the back of her legs and to her calves. Her buttock and leg pain typically improves with sitting. There was no account of her experiencing any pain when sitting or lying down. She did not report any significant back pain. She related how these symptoms had not altered appreciably over the past one-and-a-half years.
(ii) Neck pain. The plaintiff reported intermittent neck pain which tends to occur once or twice a week and has an average severity of 7/10. The duration of her neck pain is fairly short, typically lasting around 30 minutes on each occasion. He said that her neck pain has responded favourably to chiropractic treatment.
(iii) Left upper limb sensory disturbance. She reported intermittent tingling radiating through her left biceps into her forearm and hand, particularly affecting her middle and ring fingers. This sensation occurs on a daily basis and it does not have any reliable precipitating or relieving factors.[60]
[60]Exhibit P3, PCB 27.
50Professor Bittar commented on the plaintiff’s past medical history as significant for Type 2 diabetes diagnosed some 16 years previously. He commented that she also had an episode of sensory disturbance in her left foot after prolonged sitting in around 2008 that was treated with physiotherapy and was followed up by a decision to change cars as the position of the car accelerator had been identified as causing her to adopt an unusual back posture. When she changed cars, her symptoms disappeared.
Professor Bittar and the record of onset of symptoms
51Professor Bittar recorded that the plaintiff said that her lower limb symptoms commenced around two days after the motor vehicle accident on 24 February 2017. He noted that when the plaintiff saw her general practitioner in the afternoon of the accident, she reported back pain and tenderness; however, by the time of her attendance this had improved.
52The remainder of the history related by Professor Bittar in his report of the onset of the plaintiff’s symptoms after the accident comprise much later accounts and are derived from what the plaintiff subsequently told others to whom she came to see. For example, Professor Bittar reported that the plaintiff was referred for physiotherapy and in a letter dated 17 July 2019 her physiotherapist referred to upper and lower limb paraesthesia and neck/shoulder pain.
53Professor Bittar mentioned that the plaintiff had been referred to Dr Hazem Akil, neurosurgeon, whom she saw on one occasion on 29 October 2019, by which stage she was complaining of sensory disturbance in her legs. Dr Akil recommended an MRI lumbosacral spine.
54Professor Bittar reviewed the MRI of the lumbosacral spine of 6 November 2019. He said it disclosed the plaintiff with a grade 1 degenerative anterolisthesis at
L4-L5. He said the MRI revealed the plaintiff with a combination of disc bulge in facet joint and ligamentum flavum hypertrophy at L3-L4 and L4-L5 with severe canal stenosis at both levels.55Professor Bittar recorded that the plaintiff’s treatment has been paracetamol-based medications as required, typically in the form of one tablet once or twice a week, and mainly to assist her with sleep, but that her preference is to avoid medications.
56On examination Professor Bittar recorded that the plaintiff walked with a nonantalgic and nonmyelopathic gait. She had ongoing mild restriction of lumbar spine flexion which was painful. Extension of her lumbar spine was normal. She had full range of cervical spine motion in all planes. She had left-sided lumbosacral paravertebral tenderness without muscle spasm. There was no tenderness or muscle spasm in the neck. Straight leg raising was normal bilaterally. She had ongoing altered sensation to light touch throughout her entire right leg. Otherwise power, tone, sensation and reflexes were normal. He recorded an absence of abnormal illness behaviour.
Diagnosis
57Professor Bittar diagnosed:
“(i)Aggravation of cervical spondylosis with intermittent neck pain.
(ii)Aggravation of lumbar spondylosis with symptoms of neurogenic claudication related to severe spinal stenosis at L3-L4 and/or L4-L5.”[61]
[61]Exhibit P3, PCB 28.
58Professor Bittar expressed the opinion that, “the transport accident of 24 February 2017, has been the dominant contributing factor to her cervical and lumbar spine conditions.”[62] He said that there “were no inconsistencies between the radiology and my findings on examination of her current symptoms. Her clinical presentation is highly consistent with neurogenic claudication and this fits very well with her radiological picture.”[63]
[62] Exhibit P3, PCB 28.
[63]Exhibit P3, PCB 31.
Disagreement with Mr Speck
59In a second report dated 17 June 2021, Professor Bittar explained that he had reviewed a medical report provided by Mr Speck dated December 14, 2020. He commented on Mr Speck’s opinion that the plaintiff’s lower back symptoms of neurogenic claudication are unrelated to the transport accident. Professor Bittar said that he thought Mr Speck had expressed his reasoning to conclusion on the basis that, “There is no evidence of temporal relationship to the development of her symptoms nor evidence on the imaging performed in 2019 to suggest the transport accident precipitated or caused the development of symptoms”.[64]
[64]Exhibit P3, PCB 35, quoting report of Mr Speck dated 14 December 2020, Exhibit D8, PCB 76.
60As to the absence of a temporal association as referred to by Mr Speck, Professor Bittar thought Mr Speck’s finding was inconsistent with the information he had obtained from the plaintiff that her symptoms had commenced very shortly after the transport accident and had not completely resolved. Moreover, Professor Bittar wrote that the account he obtained from the plaintiff was consistent with the history provided in the report of Physiotherapist, Ms Howe, dated 24 September 2020. Professor Bittar observed that Ms Howe reported that, “She [the plaintiff] stated that she felt immediate moderate back, buttock and groin pain which persisted for some time after the accident but very gradually became less intense and at times intermittent over the ensuing months. However, this pain did not ever resolve fully. Mrs Noser stated she had not experienced any significant low back, hip or groin pain prior to the motor vehicle accident”.[65]
[65]Exhibit P3, PCB 35, quoting report Ms Howe dated 24 September 2020, Exhibit P12, PCB 103.
61Professor Bittar said the history he obtained from the plaintiff plus the account documented by Ms Howe is “highly consistent with the opinion that the transport accident is causally related to her lumbar spine condition, and is at odds with the opinion of Dr Speck.”[66]
[66] Exhibit P3, PCB 31.
Third report of Professor Bittar[67]
[67] Exhibit P3, Report of Professor Bittar dated 5 November 2021, PCB 176-177.
62In his third report dated 5 November 2021, Professor Bittar explained neurogenic claudication as follows:
“Neurogenic claudication occurs when the nerve roots in the region of the lumbar spine become compressed and cause pain, numbness, weakness or mobility issues whilst adopting certain postures, particularly standing and walking. Typically, the cross section of the spinal canal, foramina and subarticular recesses is greater when an individual sits or bends forward. When one adopts a standing position, the amount of space for the nerve roots decreases and this particularly impact on the individual when they walk. Individuals who have neurogenic claudication typically experience relief of their leg pain and numbness when they sit and experience the symptoms most severely when they stand or walk.” [68]
[68] Exhibit P3, PCB 176.
63Professor Bittar addressed the impact of neurogenic claudication on the plaintiff and its relationship to her diagnosed spinal stenosis. He said:
“The impact of neurogenic claudication on Frances Noser is sensory disturbance and pain in her legs. If she walks for more than around 5 minutes her legs become numb and she feels unsteady. She also experiences pain in her buttocks and legs, which improve with sitting and with recumbency. The main impact of neurogenic claudication related symptoms in Frances Noser is on her ability to stand and walk. The impact is quite significant and this would be expected to affect her ability to undertake regular activities such as shopping, standing up to wash the dishes as well as any activities that require her to walk for longer than 5 minutes.
…
There is a direct relationship between neurogenic claudication and spinal stenosis. In individuals without spinal stenosis, the change in cross sectional diameter of the spinal canal, foramina and subarticular recesses when one stands would not result in neural compression. In individuals who have significant narrowing of the spinal canal however, the nerves become compressed (or more compressed than they previously were) in the standing position resulting in the development or an increase in lower limb symptoms.”[69]
[69] Exhibit P3, PCB 177.
Report of Dr Nesarajah dated 17 October 2019[70]
[70]Exhibit P8, PCB 56-57.
64Dr Nesarajah is the plaintiff’s general medical practitioner. She diagnosed the plaintiff with degenerative changes of the lumbar spine with impingement of the L5 nerve root - peripheral neuropathy being investigated currently whether the injuries are consistent with stated cause.
65Dr Nesarajah recorded that the plaintiff was seen on 24 February 2017 after the transport accident but at another clinic. Dr Nesarajah observed that the impact of the accident was on the passenger side. The plaintiff reported stiffness around the jaw and also back pain which had improved slightly by the time she saw the GP at the other clinic and the GP’s examination was essentially normal. Dr Nesarajah wrote that the plaintiff had recently started complaining of tingling of the legs and numbness and which she said had commenced after the transport accident.[71]
[71]Exhibit P8, PCB 56.
Affidavit of James Flynn[72]
[72] Exhibit P2, Affidavit of James Flynn affirmed 8 July 2021, PCB 21-25.
66James Flynn is a retired personal trainer. He provided strength training classes for persons aged 50 and over in partnership with the Council on the Ageing Victoria. The plaintiff was a client of Mr Flynn. She commenced attending his classes in January 2008. The plaintiff’s evidence is that she gave up the classes in about 2018.[73]
[73]T33.
67Mr Flynn deposed how he offered two one hour classes a week at the centres he visited. He deposed that a typical one hour session such as the plaintiff would have attended included:
“A warm up of about 5 minutes;
Leg exercise in the form of leg weights up 10kg on each leg being strapped to each ankle.”[74]
[74]Exhibit P2, PCB 23.
68Mr Flynn deposed that the plaintiff was very strong in the legs prior to the accident. After the accident she could not use any weight for this type of exercise.
69Mr Flynn also described upper body exercises using dumbbells that would take a further 20 minutes. He also described core exercises such as sit ups and lower back exercises including kneeling on all fours and raising one arm and the opposite leg, as well as stretching exercises.[75]
[75]Exhibit P2, PCB 23-24.
70Mr Flynn deposed that he knew the plaintiff quite well and she had attended his sessions regularly for 9 years.
71Mr Flynn deposed that sometime after her accident the plaintiff was still trying to commit to classes but she was in pain and told him that she was unable to continue because of the accident.
Mr Speck
72Mr Speck’s report dated 14 December 2020[76] supports a diagnosis of neurogenic claudication but a diagnosis associated with the plaintiff’s degenerative condition of the lumbar spine. Mr Speck commented that Professor Bittar had relied on the plaintiff’s recollection of symptoms subsequently recounted to Ms Howe in order to satisfy himself that the condition has the necessary temporal association with the transport accident.
[76] Exhibit D8, PCB 65-80.
Mr Speck’s second report
73In his second report dated 26 July 2021[77] Mr Speck said that when he undertook his first review of the plaintiff the main areas of her concern were symptoms and limitation in the low back but especially tingling in the legs which the plaintiff described as a numb sensation. He wrote that the plaintiff illustrated her symptoms on a diagram and they were confined to the lower extremities. She subsequently mentioned experiencing a tingling feeling in the palm of her hand and into the middle and ring fingers on the palmar surface only and did not extend up her forearm and was not related to any neck movements.
[77] Exhibit D8, PCB 89-96.
74Mr Speck said the plaintiff told him that the symptoms she experienced in the back were “not very painful”[78] and the tingling sensation she experienced was over the whole of the lower extremity in a circumferential stocking distribution. She said she had a sensation of numbness, which Mr Speck understood to mean, that she felt the legs were tight and wouldn’t move, as opposed to a loss of sensation, and that this especially occurs when she is walking. She told Mr Speck that the symptoms were “a little bit worse”[79] than previously. Mr Speck said the plaintiff described the calf being “funny”[80] which she explained meant it was tight if she was walking and she would use her massager on the legs and on her low back if she experienced these symptoms.
[78]Exhibit D8, PCB 86.
[79]Exhibit D8, PCB 86.
[80]Exhibit D8, PCB 86.
75Mr Speck reported that the plaintiff had previously seen Dr. Akil but she has not seen any surgeon for a follow up because she does not want to have surgery. She had not, for example, had injections. She had seen a physiotherapist twice who provided her with about 20 exercises but she said they did not produce any change.
76Mr Speck noted that the plaintiff was continuing to attend Dr. Nesarajah, approximately every 3 months for medications for diabetes, blood pressure and cholesterol. She occasionally takes Panadol for sleeping. She takes no prescription medication for pain and has no referrals for specialists in relation to her legs.
77In addressing the extent of the plaintiff’s limitations, Mr Speck said the plaintiff told him that in 2016 she had been able to walk mountains in Switzerland and that “she could walk all day”.[81] She said she did not visit Switzerland in 2017 and her husband passed away in March 2018.
[81]Exhibit D8, PCB 86.
78In his first report dated 14 December 2020[82] Mr Speck said the plaintiff gave an account of a trip to Mauritius in late 2017:
“She said soon after the transport accident she went on holiday to Mauritius with her family in September of 2017 and could barely walk on the holiday. She was unsure if it involved the feet at that stage.”[83]
[82] Exhibit D8, PCB 65-80.
[83] Exhibit D8, PCB 69.
79As to the plaintiff’s trip to Israel in November 2018, the plaintiff told Mr Speck that she felt the symptoms she encountered “were the same”[84] but that she had benefited from the support of members of the Church group with whom she travelled.
[84] Exhibit D8, PCB 87.
80Mr Speck commented that the plaintiff’s domestic situation was unaltered. Her son is physically capable and able to help her, but he has lost the sight of one eye, and has had an acquired brain injury from a motor vehicle accident suffered many years ago.
81Mr Speck said that the plaintiff continues to hold a drivers’ licence and drives to the shops up to some 9 kilometres away, or on other occasions to closer shops. She was receiving local council and NDIS help but said they “don’t do a proper job”[85] so she does for herself around the house by pacing herself. She undertakes her own personal care as far as showering, toileting and dressing are concerned and can shave her legs but attended a podiatrist for toe nail care. The plaintiff was unemployed at the time of her transport accident and to date she had the care of her son.
[85]Exhibit D8, PCB 87.
82Mr Speck recorded that the plaintiff’s social activities are limited although she has family of two sisters and a brother in Australia but she said that she rarely sees them or speaks to them on the phone. This is the family cohort with whom the plaintiff travelled to Mauritius in late 2017. The plaintiff was continuing to attend her church and mix with her church group.
83Mr Speck documented that the plaintiff had a good range of movement of her thoracolumbar spine, with the only noted symptoms on extension occurring at 25° with tingling into the legs.[86] Flexion was 80°, extension 25°, lateral flexion 40° to each side and rotation 40° to each side.[87] Reflexes in the lower limbs were symmetrical, plantar reflexes down going and there was no clonus. Sensation to light touch and pin prick were symmetrical in the lower extremities and motor and sensory function in the upper and lower extremities were normal. Sensation in the upper extremities was normal to light touch as well.
[86]Exhibit D8, PCB 88.
[87]Exhibit D8, PCB 88.
84Mr Speck extracted the report of findings of the MRI scan and the preceding CT scan:
CT scan Lumbar Spine of Dr. Comin, Radiologist on referral from
Dr. Nesarajah 5/4/19:Findings: … Subtle anterolisthesis is present L3/4 up to 4 mm.…
Degenerative changes are present throughout.…
L3/4: Mild disc bulging superimposed on anterolisthesis with severe facet and flavum hypertrophy. Central canal stenosis with transiting L4 impingement on both sides.
L4/5: Moderate disc bulging with severe facet and flavum hypertrophy. Moderate central canal stenosis with transiting L5 impingement on both sides. Foraminal narrowing is seen bilaterally with deformation of left L4 nerve root.
L5/S1: Moderate disc bulging with severe facet and flavum hypertrophy. Bilateral lateral recess narrowing impinging the transiting S1 nerve roots on both sides. Foraminal narrowing seen worse on the left, impinging the left L5 nerve root.…
Conclusion: Degenerative changes are seen most notably at L5/S1 but there is impingement of the transiting nerve roots as well as the exiting left L5 nerve root.[88]
[88]Exhibit D8, PCB 89.
MRI Lumbar Spine Dr. Molan, Radiologist 6/11/19
Clinical Notes: Neurogenic claudication.
Findings: There is straightening of the normal lumbar lordosis. No pars defect and no spondylolisthesis. There are short pedicles between the L3 and L5 vertebral bodies (inclusive predisposing to central canal stenosis.
Conclusion: Severe central canal stenosis at L3/4 and L4/5 secondary to a combination of disc bulge, congenitally short pedicles and facet arthropathy. Moderate left L4 neural foramen stenosis secondary to left foraminal disc bulge. Severe left L5 neural foramen stenosis secondary to facet hypertrophy and bilateral S1 lateral recess stenosis (more severe on the left, secondary to facet joint hypertrophy).[89]
[89]Exhibit D8, PCB 89.
85From his review of the clinical notes of the Dandenong Superclinic, Mr Speck observed the lack of clinical intervention over a long period. The notes confirmed no record of symptoms of a spinal condition, specifically the low back, from
2 November 2016 to 7 February 2019. Mr Speck said that the first entry related to the plaintiff’s current symptoms was on 22 March 2019. The note from Nurse Lata read:CP Started, patient complaining of tingling on both feet, referred to podiatrist. Advice on care and management of feet. Explain the importance of seeing a podiatrist for circulation and sensory test and foot care education.[90]
[90]Exhibit D8, PCB 91.
86On the same visit Dr. Nesarajah wrote:
“Numbness both feet on and off for a few months. Tingling sensation. No back pain. No numbness.”[91]
[91] Exhibit D8, PCB 91.
Third Report of Mr Speck
87In his third report dated 26 October 2021,[92] Mr Speck commented on Professor Bittar’s report dated 17 June 2021 and the report of Dr Tan dated 19 August 2021.[93]
[92] Exhibit D8, PCB 97-102.
[93] Exhibit P5, PCB 115-1126.
88Mr Speck wrote that he regarded the report by Dr Tan as highlighting the lack of contemporaneity in the medical records that the plaintiff suffered ongoing symptoms after the initial soft tissue back symptoms of which she complained on the day of the transport accident.
89Mr Speck wrote that the reports of Professor Bittar and Dr Tan indicated a common diagnosis of symptoms consistent with neurogenic claudication related to degenerative condition of the lumbar spine. However, Mr Speck said that no relevant neurologic deficit was identified in either of their reports and that nothing else in either of the reports caused him to alter his opinion.
Fourth report of Mr Speck dated 4 February 2022[94]
[94] Exhibit D8, PCB 180-185.
90A fourth report was provided by Mr Speck in answer to a request that he respond to the medical reports of Professor Bittar dated 5 November 2021[95] and
Dr Nesarajah dated 2 November 2021[96] and, in particular, that he comment on the issue of neurogenic claudication and spinal stenosis as identified by Professor Bittar.[95] Exhibit P3, PCB 176-177.
[96] Exhibit P8, PCB 178-179.
91Mr Speck said that he did not find anything in Dr Nesarajah’s report providing evidence of contemporaneous symptoms following the transport accident.
92Mr Speck also said that he did not find anything in Professor Bittar’s reports, nor in that of Dr Akil[97] to indicate the current symptoms of neurogenic claudication that is related to the plaintiff’s degenerative spinal stenosis to have been caused by the subject accident.
[97] See Exhibit P4, reports of Dr Akil dated 29 October 2019, PCB 174-175 and 16 August 2020, PCB 190-191.
The competing submissions
93In final address, Mr Monti contended that in order for me to reject the plaintiff’s application I would need to treat the plaintiff’s evidence of the onset of symptomology in what he described to be the “causal period” as false and deliberately untrue. Mr Monti argued that there was no basis to do so. He said that Professor Bittar and Mr Speck had excluded the plaintiff as exhibiting abnormal illness behaviour. Of course abnormal illness behaviour is not a synonym for dishonesty but may be an apt description to describe a disproportionate response to a diagnosable organic condition by an individual.
94Mr Moulds submitted that it was not a matter for the defendant to prove that the plaintiff’s account was untrue, because the burden of proof on all issues rested with her, but he did contend that for whatever reason, or set of reasons, the preponderance of evidence favoured at least a conclusion that the plaintiff had reasoned backwards so as to attribute the onset of and hence the cause of her degenerative spine condition and the development of neurogenic claudication to the transport accident.
95Mr Moulds relied on a series of what he called non-sequiturs inherent in the plaintiff’s case.
96First, the plaintiff deposed that walking was her hobby and a pursuit that brought her great enjoyment. However, with the onset and worsening of symptoms in September 2017, and a limitation in walking greater than 5 minutes, she did not seek out any treatment or make a report of the same to her treating doctors. Mr Moulds observed that this omission in reporting occurred in a period in which the notes of the Dandenong Clinic disclose that the plaintiff was attending for other health matters including diabetes as well as run of the mill ailments, for example, on her return trip from Israel, a cough.
97Mr Moulds submitted that the account given by Ms Howe[98] is inconsistent with the plaintiff’s affidavit evidence and also inconsistent with the plaintiff’s account recorded by Mr Speck.
[98] See paragraph 59 above.
98Mr Monti submitted that the plaintiff had testified to experiencing the onset of the symptomology in the lumbar region a short number of days after the accident. Her absence of complaint in seeking out of treatment in response to this manifestation of symptomology was because she hoped it would go away. Of course, according to the plaintiff’s affidavit, the symptoms did not go away, but despite this, from February 2017 until March 2019, there is no record of a complaint by her of the symptoms and upon which rests the common diagnosis of neurologic claudication.
99A somewhat different account of the plaintiff’s symptomology is recorded by
Ms Howe in her report following an examination of the plaintiff in November 2019. On this occasion Ms Howe noted the following:“Some LBP, buttock and ant groin pain at the time, aches and pains generally for a couple of months after, LBP persisted - intermittent, worse at times then started to notice 'heaviness' in pudendal area toward end of 2017. - seemed worse when LBP worse
Eventually consulted GP who felt it was gynaecological
ref to gynae • Ix showed pelvic floor weakness with some vag vault prolapse and mild cystocele – initiated after impact of MCA+? some denervation due to L5, S1 Lumbar issues
She suggested pessary if not responding to pelvic floor exercises
Ref to PTRx M some delay as Francis found gynae exam traumatic, not keen to consult physio presented b/c problem getting worse
C/0:
Feels okay when first gets up by late morning feels heaviness otr dragging in pudenda - needs to sit if been shopping or standing to do housework.
feels tired+ by EOD if been on her feet more than usual
Has curtailed her walking as feels v uncomfortable by end of walk, and LBP >.
Sleep: reasonable - worries about her health - seems to have taken a dive since accident.
Feels okay when driving, worries about her son if her health fails. Has difficult neighbours
Social; widowed • still dealing with this
Adult son still lives w/ her - he has a long standing ABI - doesn't need physical care- has executive function and memory issues.
Objective:
slim well dressed lady, seems hesitant to engage at times
Management:
ED: pelvic floor anatomy and function
Discussed plan for pelvic floor rehab”[99]
[99]Exhibit P13, DCB 84.
100In the first of two reports dated 19 August 2021 Dr Tan recorded that the plaintiff described “that over the first few weeks after the accident, she had tingling sensations in her feet and legs. She told me she thought it would go away and did not take this seriously until it worsened. She told me that her symptoms worsened over two months when her legs became numb after walking. She defined numbness as a painful type of stiffness in her legs where she is unable to move them and is relieved by sitting down. She also continued to experience pins and needles in her feet.”[100]
[100]Exhibit P5, PCB 117.
101The plaintiff made no mention to Dr Tan of her trip to Mauritius in 2017 or to the problems she deposed as having experienced both enroute and on return or during this trip, but she did recount to him that on her 2018 trip to Israel with her church group, she spent most of the time on the tour bus because of limitations in the ability to stand and walk with other members on excursions.
102Dr Tan observed that on her return from the trip to Israel the plaintiff attended Dr Curran GP on 18 December 2018 but that the walking difficulties the plaintiff said she had encountered on the trip were not at that consultation reported.
103Dr Tan wrote that it was not until 22 March 2019 that the plaintiff reported to
Dr Nesarajah “a few months history of intermittent numbness in both feet, described as a tingling sensation. There was no back pain or numbness documented by Dr Nesarajah.”[101][101] Exhibit P5, report of Dr Tran dated 19 August 2021, at PCB 122.
104Dr Tan referred to another history of the onset of the plaintiff’s symptoms as was recounted by Arpitha Shastry physiotherapist on 20 April 2019. Ms Shastry’s account is of the plaintiff having a 2 year history of progressively worsening tingling and numbness in both feet and legs, with the left being worse than the right. Ms Shastry wrote that the plaintiff told her about a car accident 2 years earlier, with initial pain that was not severe and followed 3 months later by tingling and numbness in the sole of both feet, radiating up the legs. The plaintiff said she had ignored these symptoms initially, until they became more prominent. She explained that her symptoms were aggravated by walking around the shopping centre and walking fast.
105Dr Tan noted that on 17 August 2019 the plaintiff again saw Dr Nesarajah and whose record was that the plaintiff reported the fact of the car accident “a few years ago in the context of left iliac fossa fullness and was diagnosed with a uterine prolapse. She also reported numbness of both legs that were being managed by a physiotherapist and chiropractor”.[102]
[102]Exhibit P5, report of Dr Tran dated 19 August 2021, at PCB 122.
106Dr Tan referred to Dr Akil who saw the plaintiff on 29 October 2019 and obtained a history that the plaintiff had been experiencing constant tingling in both feet, and numbness involving both legs that occurred after walking for 10 minutes. Dr Akil recorded that the plaintiff told him this presentation had followed the car accident in 2017. Mr Tan recorded Dr Akil’s opinion that the plaintiff had experienced an aggravation of lumbar spondylosis and spondylolisthesis caused by the road traffic accident.
107Mr Moulds referred to Dr Tan’s report dated 19 August 2021 when he said the plaintiff:
“Has a pre-existing lumbar spondylosis and has developed spinal canal stenosis resulting in symptoms of neurogenic claudication. Mrs Noser told me this commenced following the accident, however I note inconsistencies with respect to the reporting of symptoms, with Dr Nesarajah first noting the
symptoms in March 2019 as being present for over 12 months. I cannot provide an opinion on whether mechanical forces sustained during the impact of a motor vehicle accident can accelerate a degenerative process in the lumbar spine, resulting in the development of spinal canal stenosis, and defer to a spinal surgeon’s opinion.”108In his second report dated 26 October 2021, Dr Tan was requested to comment on Professor Bittar’s medical report. Dr Tan said this:
“Mrs Noser reported symptoms of back and neck pain immediately following the accident as detailed in section 1.2 of my report, and current bilateral leg paraesthesia and pain. I formed the opinion the motor vehicle accident resulted in a musculoskeletal injury to the neck and back. Mrs Noser reported both neck and back pain immediately following the accident, and when examined on 19 August 2021, reported back pain and bilateral leg paraesthesia as her primary symptom. In my opinion, there was a temporary increase in neck symptoms following the accident, and a longstanding deterioration in back pain. This is consistent with Prof Bittar's opinion of an aggravation of lumbar spondylosis. During my consultation with Mrs Noser, I noted a tendency to underreport symptoms. I note Mrs Noser did not report to me ongoing neck pain, however if this were consistently present since the accident, it would be consistent with Prof Bittar’s opinion of an aggravation of cervical spondylosis. In my opinion, the under reporting of symptoms has contributed to difficulties in verifying the onset of symptoms from the medical record and I can only base my opinion on the clinical history provided by Mrs Noser…
……………….
I do not have the expertise to provide an opinion as to whether Mrs Noser could have developed spinal canal stenosis and symptoms of neurogenic claudication in the absence of the motor vehicle accident.”[103]
[103] Exhibit P5, PCB 128.
109As Mr Moulds identified, Dr Tan went on to encapsulate the conundrum at the heart of this application in the following passage expressed in these terms:
“I have based my opinion on the history obtained from Mrs Noser. Mrs Noser did travel overseas without any functional limitations before the accident. Following the accident, Mrs Noser experienced neck and back pain. She travelled overseas following the accident and was limited in her ability to walk. This was not documented in her general practitioner’s medical notes in subsequent consultations after returning from overseas. I note there was a tendency for Mrs Noser to underreport her symptoms to medical practitioners. In my opinion, this has led to difficulties verifying the onset of Mrs Noser's complaints from her medical records and I have based my opinion on the history obtained during the consultation. I found no evidence of abnormal illness behaviour during the consultation, leading me to consider Mrs Noser to be a “reliable”[104] historian.”[105]
[104] An obvious typographical error and intended to read “unreliable”.
[105]Exhibit P5, PCB 128.
Analysis of the evidence
110The plaintiff is a 75-year-old widowed woman living in her own home with her son for whom she cares. She has a history of diabetes, hypertension and raised cholesterol. She was involved in a transport accident on the 24 February 2017 when her vehicle was involved in a collision in an intersection and was spun around and hit a traffic-light pole. The car was towed but the plaintiff travelled home in a taxi. She attended for medical attention that same day and presented with symptoms in her neck, shoulders and low back. She described the subsequent development of pins and needles in the soles of both feet and pain in her neck and back. The first documented mention of “tingling” in the feet (paraesthesia) recorded in her medical history is in March 2019, when it is described as having been present for a few months with no back pain.
111Investigation followed with a CT scan of her lumbar spine in April 2019.
112Until the production of the plaintiff’s final affidavit and the evidence of the Mauritius trip that was undertaken in 2017, the plaintiff had described a difficulty with walking when travelling in Israel with her church group in November/December 2018, that is, in excess of 18 months after the transport accident. On the views of both Professor Bittar and Mr Speck, that time is far too great to attribute the condition to the transport accident.
The fork in the causal road
113Mr Speck and Professor Bittar agree that the plaintiff’s current symptoms in the buttocks and lower limbs are consistent with neurogenic claudication arising from spinal canal stenosis in a degenerative lumbar spine. There the consensus concludes and their paths diverge. Unlike Professor Bittar, Mr Speck says there is an absence of evidence of a temporal relationship to the development of the plaintiff’s symptoms or by recourse to imaging in 2019 to lead him to believe that the transport accident precipitated or caused the development of symptoms in already degenerative spine.
Aggravation injury cervical spine
114if the plaintiff’s injury is a result of the transport accident then it is one that calls to be assessed as an aggravation of a degenerative spine. The parties did not argue to the contrary and, indeed, both Senior Counsel adopted this as the appropriate application of legal principle. Accordingly, if causation is resolved in the plaintiff’s favour, the question is reduced to whether any additional impairment occasioned by way of aggravation to the lumbar spine from the transport accident is itself serious and permanent. It is trite but worth reiterating that a non-serious aggravation caused by a transport accident cannot be added to a prior condition so that in combination the plaintiff can be assessed with a serious injury. In Petkovski v Galletti[106] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.”[107]
[106][1994] 1 VR 436.
[107]Ibid 443 (Southwell and Teague JJ).
115In accordance with the principle expressed in Petkovski v Galletti, and the application of the same to this case, it would be necessary to identify and isolate the plaintiff’s spine condition and measure any consequences to it from the transport accident separate from any consequences occasioned to the plaintiff from her pre-existing and non-compensable state and to assess if any additional impairment caused by an aggravation from the transport accident of February 2017 itself qualifies as a serious injury as that requirement is understood in law. However, for the reasons that follow, I am satisfied that this exercise does not arise to be undertaken in this matter.
The plaintiff’s credit
116I do not accept the absolutism inherent in Mr Monti’s submission that in order for me to reject the plaintiff’s evidence of the time of the onset of symptoms, it must follow that I need to make a positive finding that the plaintiff intentionally gave false evidence. As a matter of fact, it may be explicable that the plaintiff’s recollection of the timeline for the onset of symptoms is mistaken, but not deliberately so, and perhaps her account has not been assisted by a lack of contemporaneous recording of complaint by her to any of her treating practitioners until March 2019. As a result, it may be as Mr Moulds remarked in his address, a case of reasoning backwards from the 2019 MRI and not because of any dissembling on the plaintiff’s part.
117I do not find that the plaintiff gave knowingly false evidence. I have assessed the plaintiff as genuine. Nonetheless, the evidence about the onset of symptomology a few days after the accident lacks corroboration and calls into question the plaintiff’s reliability. The absence of corroboration is not invariably a fatal flaw to a successful application. However, I have considered the persuasiveness of the plaintiff’s explanation for not raising the problems with her doctors until March 2019, despite opportunities to do so well before then, as due to what proved to be her misplaced hope the symptoms would disappear. I am not satisfied this is a more probable explanation than not because, according to the plaintiff, the symptoms worsened well before March 2019 and were impeding activities such as walking, about which she places great emphasis in terms of the consequences she has experienced since the transport accident.
The contrasting expert evidence of the time frame for onset of symptoms
118The common element to the expert medical opinions of Professor Bittar and
Mr Speck is that neither would treat the condition of neurological claudication as causally related to the effects of the plaintiff’s transport accident if the plaintiff’s lower leg sensation and symptoms presented “late”. The importance of this was explored in the following passages of transcript. Mr Moulds asked Professor Bittar this in cross-examination:“If the history of symptoms commenced - this is a fact that I'm asking you to assume for the moment - symptoms being the claudication symptoms, 18 months after this accident, then that would be not a situation in which you'd implicate the accident in the current situation, would it?
---Correct.”[108]
[108]T91, L29 – T92, L3.
119As the defendant would have it, the further implication contained in the question put by Mr Monti, and Professor Bittar’s answer to it, is that the onset of claudication is consistent with the plaintiff’s age and pre-existing lumbar spine and not the transport accident. In re-examination Professor Bittar when asked by Mr Monti to identify the symptoms he would expect to have observed the plaintiff complaining of “within weeks to a few months after the trauma”,[109] in order for him to be satisfied that they were causally related to the transport accident, said:
“Those symptoms might be back pain, persistent back pain. They might be symptoms in the lower limbs. So the classic symptoms with neurogenic claudication are when you stand up you get pain or numbness or some other abnormal feeling in the legs, when you walk those symptoms get worse but when you sit down they get a lot better. The complicating thing here is the diabetes because that can cause numbness in the legs, but it causes very much a different type of numbness to the pattern that I've just described. Other symptoms, patients might get a bit of sciatica, for example, they might feel some discomfort in their legs, but eventually you get to the point where you get that pattern of neurogenic claudication, which is the inability to stand or walk for more than very short periods of time because of leg symptoms.”[110]
[109]T92, L13.
[110]T92, L14-29.
120Mr Monti then asked Professor Bittar his opinion if the plaintiff’s symptoms were found to have “commenced within some days of the accident?”[111] In light of his previous answer, not surprisingly, Professor Bittar said:
“It's very clearly related to the accident in that case. The closer the symptoms - the closer the onset of the symptoms were to the time of the accident, the stronger that causal - the stronger the confidence in terms of that causal relationship.”[112]
[111]T93, L2-3.
[112]T93, L4-9.
121Professor Bittar thought that if the plaintiff’s symptoms had appeared within a short number of days after the accident then he would also have expected to see a progressive worsening. Perhaps anticipating the lack of evidence of a progressive worsening until March 2019 based on the plaintiff’s clinical history, Professor Bittar suggested that “a patient” might be distracted by:
“…other injuries, they might have been given some medications, there might be other things going on that might be distracting. So often the symptoms in the first couple of weeks, they might just be a bit of back pain that might settle, they might have other injuries - I can't recall how bad her other injuries were, but they might be distracting injuries - or you might just have a situation where someone sustained an injury to the disc at L4-L5 on a background of degenerative changes, they get some back pain at the time and then over the next few weeks or few months they start to develop some symptoms in their legs.”[113]
[113]T94, L1-12.
122The suite of other distractions hypothesised by Professor Bittar as might distract “a patient” were not the subject of evidence to suggest they presented in the plaintiff with the result of having potentially inhibited her reporting ability.
123In answer to Mr Monti asking Professor Bittar over what period of time a progressive worsening might occur, Professor Bittar said:
“That can be quite variable. Sometimes it can progress over a matter of weeks; other times it can progress more slowly, over a six to 12-month period; and other patients have a much slower progression, so it does tend to vary a lot from one person to the next. The important thing is that it tends to progress in many cases.” [114]
[114] T94, L16-22.
124Professor Bittar said in answer to the following history upon which the plaintiff relied and was summarised by Mr Monti:
“In this case, His Honour has been told that in 2016, the year before the accident, the plaintiff, in Switzerland, walked on a very regular basis, if not daily, for long periods of time over long distances, up and down mountains, in 2016. She had the accident in February 2017 and His Honour has been told, and indeed the history is obtained by Mr Speck, that in September of 2017 - that is, within seven months of the accident - the plaintiff was in Mauritius and had symptoms of such severity with tingling and numbness and leg pain that she was unable to walk very far and she was unable to stand for very long. His Honour has also been told by the plaintiff that there'd been a slow progression which continued after the visit to Mauritius, continued through 2018 up until early 2019, which drove her to seek medical advice about that condition for the first time. What do you say about the consistency of that scenario?
---That fits perfectly well with someone who has progressively worsening neurogenic claudication. It fits very well in terms of the timeline. I think it fits well with my opinion, which is that this was related to the accident from a causation point of view. You've got a very good history of someone who had an excellent ability to walk long distances prior to the transport accident and within, I think you said, seven months afterwards, they were extremely limited. That's much more suggestive of some sort of traumatic event bringing things on faster than it is there's some sort of natural coincidental occurrence and progression of this problem.
In respect of the problem that the plaintiff encountered in Mauritius in September, probably - hardly seven months after the accident, do you place any significance on the fact that by that stage she had those symptoms, in terms of the symptoms being related to the accident?
---Yes, I do, and for the symptoms to get to that degree - like for the symptoms to become that severe by seven months, they probably didn't start the day before she got on the plane. They must have started quite some time before that because what we normally see here is that sort of progressive deterioration. So that would fit with certainly the information that she gave me, which was the symptoms started very soon after the accident. That's all quite consistent.” [115]
[115] T94, L23 – T96, L3.
125Professor Bittar’s evidence expressed in the above extract is not medically controversial, but unfortunately for the plaintiff, her claim is problematic, precisely because of Professor Bittar’s evidence. First, there is an absence of evidence from the plaintiff that conforms to the Professor Bittar’s opinion that in order for the plaintiff’s symptoms to “get to that degree - like for the symptoms to become that severe by seven months, they probably didn't start the day before she got on the plane. They must have started quite some time before that because what we normally see here is that sort of progressive deterioration.”[116]
[116]T95, L26-31.
126There is an absence of evidence from the plaintiff of the symptoms commencing and progressing in the manner described by Professor Bittar which he said as “quite some time before that because what we normally see here is that sort of progressive deterioration”.[117]
[117]T95, L29-31.
127There is also an absence of contemporaneity of symptoms having presented by reference to the plaintiff’s subsequent account given to Mr Speck and recounted in his report that “the onset of her symptoms in the lower extremities was gradual after the transport accident but was a significant feature by September 2017”[118].
[118]T105, L4-6.
128Furthermore, and by reference to Professor Bittar’s evidence in answer to Mr Monti, there is an absence of evidence of the symptoms being a “significant feature” for the plaintiff after the return from the September 2017 Mauritius trip and until at least late 2018 and a complaint to her doctor in March 2019. The absence of an account of symptoms both over and throughout this period of time was captured by Mr Speck in the following exchange with Mr Monti in cross-examination:
“Why is it that you require some contemporaneous evidence in respect of her complaints and the history she gave to you? You wouldn't do that if you had a patient come in to see you, would you?
---If I have a patient, I'm usually just treating them for the condition they have, not looking at the cause of why they had the condition. But if somebody had an injury, I'd expect there to be an acute onset and development of symptoms within a short period.
That's exactly what she told you. She said the onset of the symptoms in the lower extremities was gradual after the transport accident but was a significant feature by September 2017. It's exactly what she told you?
---The short answer is that within a couple of weeks I'd be expecting her to have the sort of symptoms that she might have had or described in September 2017 - that's five months, I think it is, after the transport accident or perhaps even longer - seven months.
She said the symptoms were gradual. You interpret that, don't you, as meaning that over that seven-month period, the - - -? ---That's right. Sorry, ask - - -
The symptoms gradually came on and increased to the point where they were a significant feature by September 2017?
---My answer before is the same really. I'd expect - if she was going to have something where she - an accident, an injury, aggravated a condition and was going to produce stenosis from the accident, that the aggravation would have occurred and been symptomatic at a severe level within a few weeks, not months later with whatever 'gradual' might mean.”[119]
[119]T108, L31 – T109, L29.
129In response to a question I posed to Mr Speck he amplified his reasoning as follows:
“HIS HONOUR: Sorry, Mr Monti, can I just go back. Mr Speck, just on the point that Mr Monti was directing you to in your report, which was at the foot of p4 of your first report and going over to p5, you write, as you've been asked already about, 'She said that the onset of the symptoms in the lower extremities was gradual after the transport accident but was a significant feature by this holiday in September 2017.' Now, I don't know what - let me go back a moment. What is inconsistent with such a diagnosis as is being proposed here by the plaintiff, what's inconsistent with her presenting to you or describing, if you like - complaining if it's a better word - of the onset of symptoms that gradually progressed and became very noticeable while she was on holiday seven months later? I, perhaps ill informed, read that as being consistent with your form of a diagnosis that you might expect; that is to say, a relatively contemporaneous complaint of symptomatology and a progression of which she speaks acutely about in September, seven months later. I'm obviously missing something. What am I missing?
---I think my expectation is if it was arising from an injury, it would be something within a few weeks of that because typically the aggravation, if you like, of the degenerative condition is of irritation of the arthritic joints, inflammation, so it's an earlier event rather than something that's gradual. The gradual progression is more consistent, to my mind, with degenerative process rather than something that's been aggravated, if you like.”[120]
[120]T110, L1-31.
130I should note two other matters upon which Mr Speck was cross-examined by
Mr Monti were the force of the accident and Mr Speck’s omission in his opinions to the report of Dr Akil. I have already explained why I do not regard the various descriptive permutations of the accident put by Mr Monti to Mr Speck are relevant to the ultimate issue of medical causation.131As to Dr Akil, Mr Monti noted in the course of cross-examining Mr Speck that
Dr Akil had included in his report that the plaintiff had told him that in 2017, “while driving her car, another car collided with her car from the side. Since then she has been having a significant degree of numbness that she feels running down her legs and walking for a distance of 10 minutes”.[121] Mr Monti asked Mr Speck why he would not have considered it relevant to the formulation of his opinion to have referred to the account of symptomology the plaintiff related to Dr Akil. Mr Speck said:“He [Dr Akil] didn't see her until 2019 I think you said - 2020 is his report - so he is seeing her and simply recording what she's told him, so it adds nothing to the story of what she told me.”[122]
[121]Exhibit P4, PCB 190.
[122] T113, L28-31.
Summary and Ultimate Findings
132In this determination of this application I had the unusual benefit of hearing viva voce evidence from the two principal medical experts. Despite this advantage, I am mindful that the plaintiff’s application is by way of an Originating Motion seeking the grant of a serious injury certificate. This is sometimes described as a “gateway” proceeding. However, the issue of causation was fully argued by the parties although in the context of the hearing of the serious injury application.
133It is explicable that the defendant resisted the plaintiff’s application given the paucity of clinical evidence that conforms to the common thread of the two experts, Professor Bittar and Mr Speck, of the probable time for the onset of and a progressive worsening of the condition if it is to be attributed to the transport accident.
134Ultimately, the issue is distilled to whether the plaintiff has proved on the balance of probabilities that she experienced the onset of lower leg symptomology in the relatively immediate aftermath of the accident, and moreover, that she experienced a progressive worsening throughout 2017 and 2018 such that by March 2019, after more than two years of apparently living with symptoms which she had hoped would disappear, but did not, she sought medical intervention. I am quite simply unable to arrive at this degree of satisfaction as matter of fact. I am not satisfied the evidence supports a finding that the plaintiff experienced symptoms in the relatively immediate aftermath of the accident, and moreover, that she experienced a progressive evolution and worsening of them throughout 2017 and 2018 and up to the time of and throughout the Mauritius trip.
135I prefer the reasoning expressed by Mr Speck by contrast to Professor Bittar, who did not grapple, as Mr Speck did, with the absence of primary clinical histories. Dr Tan did address the gap in the plaintiff’s clinical history but he regarded the lack of contemporaneous accounts as due to the plaintiff being a person who did not complain, a stoic, if one likes. I find this a bridge too far especially in light of the plaintiff’s recourse to her treating doctor during this historical clinical gap for other and sometimes rudimentary health issues. This lack of reporting is particularly telling, when after the plaintiff’s return from Mauritius and her account in evidence that she had encountered symptoms while there, she made no complaint to her doctor on whom she attended very shortly after her return. This makes scant logical sense in light of the plaintiff’s avowed love of walking and the interference to the same that the symptoms by this stage were said to be having on her.
136I am satisfied that the imposition to walking is no less attributable to the plaintiff’s prolapse and the treatment for it afforded by Ms Howe or, if as well attributable in consequence of claudication, that this manifested itself and its effects developed against the plaintiff’s predisposition. I am not satisfied that it manifested itself at the necessary earlier point in time to meet the requirements identified by Mr Speck or, indeed Professor Bittar, and so permit of a finding that it was a result of the February 2017 transport accident.
137I am satisfied and find that the better and more probable explanation for the onset of the plaintiff’s radicular symptoms and neurological claudication is the deterioration of her lumbar spine identified on MRI and that its course or trajectory is better explicable against a deterioration consistent with the plaintiff’s age than it is because the transport accident has caused a serious aggravation to the function of the spine.
138I am satisfied and find that the plaintiff’s objective history is more consistent with the evidence of Mr Speck of spontaneously occurring degeneration becoming symptomatic in a person of the plaintiff’s age.
139Finally, it is appropriate that I address Mr Flynn’s affidavit in light of Mr Mould’s final address. Mr Moulds submitted that Mr Flynn’s affidavit lacked probative worth on the primary question of the cause of the plaintiff’s impairment. Mr Moulds contended that Mr Flynn did not attest that he was made aware of the plaintiff’s transport accident at or about the time it occurred, or when it was, that he was told of the accident, despite the plaintiff having participated in his classes both prior to and since that occurrence. Mr Mould’s submitted that Mr Flynn’s affidavit does not disclose the state in which the plaintiff presented in his classes soon after the accident. Mr Flynn’s affidavit furthermore does not identify that the plaintiff’s attendance diminished but instead that the plaintiff had trouble performing certain exercises. In summary, Mr Moulds submitted, the whole of the affidavit is delightfully vague and not corroborative of the proposition that the plaintiff had problems since February 2017 in participating in classes. Mr Moulds submitted that the affidavit is as consistent as not with a developing problem from a non-transport related aggravation of a degenerative condition. I agree.
Conclusion
140The plaintiff’s application by way of originating motion reduced to a factual dispute whether the development of the symptomatology in her legs in particular, and perhaps also her lower back, although this was not an ongoing feature of her presentation relied on in the hearing, relate back in time sufficiently and in such a manner, consistent with the medical evidence, to lead to the proposition that the transport accident was a material contributing factor to an aggravation of the plaintiff pre-existing spondylotic degenerative condition and that such aggravation is more than significant or marked. For the reasons expressed, I am not satisfied of this and the Originating Motion is dismissed.
141I direct that the parties file a proposed minute of order to give effect to these reasons within 7 days failing which the proceeding will be listed for mention.
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