O'Connor v Transport Accident Commission
[2013] VCC 1159
•10 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03346
| THOMAS GRATTON O'CONNOR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 September 2013 | |
DATE OF JUDGMENT: | 10 September 2013 | |
CASE MAY BE CITED AS: | O'Connor v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1159 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – physical injury to cervical and lumbar spine – aggregation of injuries – whether consequences “very considerable” – psychological disorder – whether consequences “severe”.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Richards v Wylie (2000) 1 VR 79; State of Victoria v Glover [1998] VSCA 93
Judgment: Leave to the plaintiff to issue proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Mr J Valiotis | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms J Dixon SC with Ms M Fitzgerald | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 The plaintiff suffered soft tissue injury to his cervical and lumbar spines and a resultant psychological disorder, in a transport accident on 30 March 2007. A truck he was driving was struck from behind by another truck in the Burnley Tunnel, Richmond. As a result of the injury, the plaintiff claims he has been unable to work on his farm at Drouin, and has been unable to resume work as a truck driver. He claims to have suffered a range of other consequences.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in a transport accident on 30 March 2007. The body function said to be lost or impaired is the spine. In addition, the plaintiff claims to have suffered a permanent severe behavioural disorder in the nature of an Adjustment Disorder with Depressed Mood, and a mild Post-Traumatic Stress Disorder.
3 The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
4 The plaintiff, his wife and a consultant orthopaedic surgeon, Mr Michael Dooley, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his wife, various medical and radiological reports and vocational material were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff was born in 1956 and completed Year 11. He undertook and finished an apprenticeship as a fitter and turner. He worked for General Motors-Holden for about four years. He worked in various other manual jobs, mainly involving machinery.
6 The plaintiff was married in 1987, and has two children, a son now aged nineteen and a daughter fifteen.
7 In about 1987, he commenced share farming on his family’s dairy farm at Drouin. Eventually, after a dispute within his family, he purchased the 256‑acre farm.
8 In about 2003, the profile of the farm was changed from dairy to beef cattle. He stopped milking cows in 2005. In order to supplement the farm income, the plaintiff commenced truck driving.
9 In early 2005, the plaintiff commenced work with Delplant Haulage Pty Ltd, transporting earthmoving equipment. He built up his hours to 40 hours per week plus overtime. He said he enjoyed the work. His work on the farm was carried out over the weekend, with the assistance of his wife and children.
10 In approximately 2008, the plaintiff sold 65 acres of the farm for approximately $700,000. In cross-examination, he accepted the subdivision, prior to sale of that parcel of land was completed before the transport accident. The purpose of the subdivision was to pay off the mortgage he had taken out to purchase the land.
11 Prior to the transport accident, the plaintiff was active in all of the work around the farm, including feeding the cows and horses, undertaking repairs to buildings and fences, improving the paddocks, cutting and baling hay, and the use and maintenance of farm machinery. His wife, who is a trained and certified dairy farmer, worked upon the farm also. In evidence, she said she did the bulk of the work when the farm operated as a dairy.
12 Generally, the plaintiff was in good health, although he had some aches and pains in his lower back, which was treated by a local chiropractor on rare occasions. He had some migraines from time to time but was not able to say whether these were related to any neck problem. He was otherwise in good health, and was able to work in a free and unrestricted manner, both in respect of his truck driving and work on the farm.
The transport accident and its consequences
13 On 30 March 2007, the plaintiff was driving a large truck, transporting an excavator. There was a hold-up in the Burnley Tunnel and he was forced to pull up. Another truck came from behind and struck his truck with considerable force. He was shaken, but believed he was not injured. He was able to drive his truck back to the yard at Narre Warren. When he returned there, he felt unwell, and in particular his neck was sore, with tingling into his right hand. He also had some lower back pain. He saw his general practitioner and was sent for a CT scan. He tried to return to work the next Monday, but his neck and back were sore and he struggled for a day.
14 The CT scan was performed on 3 April 2007.[1] Dr Dhillon, the plaintiff’s general practitioner, telephoned him as there was some concern about damage to his spinal cord. He was taken to the Warragul Hospital by ambulance and then transferred to the Austin Hospital. An x‑ray taken at the Warragul Hospital showed spondylolisthesis (or subluxation) at C3 in relation to C4. This was described as instability of the spine at that level. According to a report of the Austin Hospital,[2] the plaintiff was admitted in the Orthopaedic Unit on 6 April, and discharged several days later. It was noted he had tingling in the fingers of the right hand, although a neurological examination showed no abnormality. An MRI scan undertaken on 7 April 2007 was said to reveal a broadbased disc bulge at C3-4 without injury to the spinal cord. The plaintiff was fitted with a cervical collar which he continued to wear over a number of months. He was seen on a number of occasions in the Outpatient Department. X-rays of 12 July 2007 showed that his cervical spine was stable. The plaintiff ceased work shortly after the transport accident, and has not returned to any form of truck driving, or other employment, since.
[1]Plaintiff’s Court Book (“PCB”) 32
[2]PCB 45
15 The plaintiff has been treated extensively by a physiotherapist, Mr Jamie Keen. He described the plaintiff as suffering a “severe whiplash injury”.[3] The plaintiff continued to suffer pain, in particular in his neck and in his lower back. He suffered altered sensation including tingling and pins and needles in his right arm, and into three fingers of the right hand. He was referred to a neurosurgeon, Mr Ton, who advised against operative intervention. A further MRI scan of the cervical and lumbar spines was arranged by Dr Dhillon in March 2009.[4] That scan, in relation to the cervical spine, concluded:
“Features of mild cervical spondylosis. The most significant level is at C3-4 where there is a mild, bilateral foraminal narrowing, due to neuro-central joint osteophytosis. This is slightly worse on the right.”
[3]PCB 27
[4]PCB 20-21
16 In relation to the lumbar spine, the scan concluded:
“No significant abnormality. Mild facet joint arthropathy L4-5 and L5-S1.”
17 The plaintiff continued to be treated by his general practitioner, Dr Dhillon, and was prescribed a range of medication, including Endep, Panadeine Forte, Nurofen, Brufen and Lyrica. He took this medication on a daily basis. Later, he was prescribed Cymbalta as an antidepressant.
18 In addition to the pain in his neck, the plaintiff says that his neck is stiff and he has difficulty rotating in either direction. He says the neck pain is present all the time and flares up, depending upon the activities in which he is involved. He gets headaches on a regular basis and the tingling into his right arm and hand has continued.
19 In 2007, the plaintiff was referred to Dr Ravi Subramanya, neurologist. He investigated the tingling in the plaintiff’s right arm which, according to the history, had improved 50 per cent since the transport accident. The plaintiff also reported dizziness. Dr Subramanya thought the plaintiff’s symptoms would slowly resolve but that his ability to drive a truck was limited because he did not have a free range of neck movement.
20 In 2009, the plaintiff was referred to Dr Terence Lim, a pain and rehabilitation specialist, and undertook a pain program at Elsternwick Private Hospital as an inpatient over a two-week period. He continued as an outpatient for some short time after that, but said that he did not find the program of assistance.
21 The plaintiff has remained under the care of his general practitioner, Dr Dhillon, without further specialist intervention, save that in several weeks’ time, he has an appointment with a neurologist, Mr Timms, for further assessment.
22 According to his most recent affidavit,[5] the plaintiff continues to suffer pain, limitations and restrictions, in particular to his neck. To a lesser extent, he suffers pain and restriction in the lumbar spine. The pain is constant with flare-ups from time to time. He continues to suffer headaches, which at times are severe. He continues to experience pins and needles and tingling sensations into the fingers of his right hand. He says that he has lost strength in that hand, in particular grip strength. He continues to suffer problems with dizziness and balance. The pain in his lower back has continued, and radiates down into his legs. Movements such as bending, twisting, lifting, pushing and pulling cause an increase in pain both in the cervical and lumbar spines.
[5]PCB 14
23 The plaintiff used to enjoy jogging several times per week prior to the transport accident, but is now unable to run. He says his sleep is interrupted by pain and he wakes several times during the night. He continues to take a range of medication, which at the present time is Comfarol Forte, Panadeine Forte, Lyrica, Brufen and Endep. He continues to take the antidepressant, Cymbalta.
24 The plaintiff is unable to work on his farm in the same manner as before the transport accident. He has been compelled to engage contractors to do some of the farm work that he was able to previously do himself. He no longer plays any active role in the physical aspects of the farm. Generally, these are undertaken by his wife and son. Both his children, like many brought up on farming properties, are competent with livestock, horses and farm machinery. He provides advice, deals with stock agents, and occasionally attends stock sales and field days.
25 The plaintiff was cross-examined extensively about the nature and extent of his involvement in the farm, and repeatedly denied any significant physical involvement with farm activities.
26 In late 2008, the plaintiff sold 65 acres of the farm for approximately $700,000. That money was used to pay off the mortgage over the farm, and a significant amount was used to pay contractors to improve pastures, dams and fences. An amount of $280,000 was invested with Gippsland Secured Investments, which has since gone into receivership. He is uncertain as to the prospects of the recovery of this investment.
27 The plaintiff says that the loss of his involvement in his farm activities is of particular significance to him. He feels distressed and embarrassed that his wife and son do most of the work. According to his affidavit, he feels that there is the prospect the farm will be sold.
28 Because of psychological symptoms, the plaintiff was referred to a psychologist, Ms Lynette Howell, in April 2011. She treated the plaintiff for a period in 2011 until funding from the WorkCover insurer ceased. There was a gap in treatment, and according to Ms Howell, his psychological symptoms worsened until treatment was resumed in 2012. Those symptoms have included depression and withdrawal. The plaintiff also claims that his memory is affected and that he suffers frequent nightmares and wakes in a sweat. The nightmares include flashbacks to the scene of the transport accident.
29 Ms Howell described the plaintiff as reclusive and irritable with a lessened interest in social activities, hobbies and involvement in the local football club. She noted sleeping problems and ongoing constant concerns about his health. She said the plaintiff was irritable and angry and fought with his family. He constantly ruminated over the transport accident and queried why it had happened. He felt depressed and angry as a result. Ms Howell also noted complaints of sexual dysfunction and loss of libido.
30 As stated, the plaintiff has not worked as a truck driver, nor in any other form of occupation since shortly after the transport accident. He has not applied for any positions and feels incapable of undertaking any work because of the pain and restriction, in particular in his neck. He is concerned at the prospect that his neck will deteriorate over time.
Medical opinions
31 According to the most recent report of the plaintiff’s general practitioner, Dr Dhillon, he considered that the plaintiff would not return to his work as a truck driver, but that he could work three times per week, 3 hours per day, in work involving supervision, answering calls, receiving materials at work, and could gradually increase those hours up to 8 hours per day, within six to eight weeks. As to prognosis, he said that over the years, the plaintiff’s neurological symptoms had improved and that the plaintiff could drive a truck on short errands. However, he noted the plaintiff’s mood was low and that he had Depression and Post-Traumatic Stress Syndrome which he was still seeking to overcome through treatment with the psychologist.
32 The plaintiff was examined in 2010 and in May of this year by Mr Rodney Simm, orthopaedic surgeon. In his most recent report, he received a history from the plaintiff of chronic pain requiring daily analgesic medication. The pain was on the right side of the plaintiff’s head, radiating down the back and across the neck and shoulders. There was some pain in the right arm. There were pins and needles into the fingers of the left and right hands. The plaintiff said he suffered severe headaches which would wake him in the early hours of the morning. In addition, the plaintiff complained of low-back pain over the right lumbar region with radiation into the thighs. At times the pain was severe.
33 On examination, Mr Simm noted that there was marked restriction of all neck movements. He diagnosed a soft-tissue injury to the cervical spine which he said was an aggravation of pre-existing degenerative changes. He said the mechanism of injury was an acceleration extension injury and that the clinical course of the injury showed features of a “whiplash syndrome”. It is unclear from Mr Simm’s reports whether this whiplash syndrome was a physical disorder, or a psychological reaction to physical injury. In relation to the symptoms into the arms and hand, he said there was no objective clinical nor neurological basis for those symptoms. In addition, he said the plaintiff had suffered a soft-tissue injury to his lumbar spine, although the MRI scan showed only minor facet joint arthropathy. He said:
“His clinical course of chronic cervical and lumbar pain in association with an emotional disturbance are typical features of the whiplash syndrome.”[6]
[6]PCB 78
34 Mr Simm said that the plaintiff was incapacitated for his former employment as a truck driver as it would be difficult for him to climb in and out of the cabin. He said that there were psychological factors affecting his capacity for work. He said his chronic cervical and lumbar pain would completely preclude the plaintiff from any physical forms of employment. He said it was highly improbable, given the plaintiff’s work history and experience, that he would be able to find suitable employment. Mr Simm said the plaintiff required ongoing management for his chronic pain and that his injuries had greatly impacted his social, domestic and recreational activities.
35 The plaintiff was examined by Dr Clayton Thomas, pain and rehabilitation specialist, in May 2013. His conclusion was as follows:
“Mr O’Connor was involved in a truck accident on 30 March 2007. He immediately developed symptoms in both hands and feet. He was diagnosed with a C3-C4 disc bulge and instability. He was treated conservatively, wearing a collar for a number of months. He still has significant problems which appear to be a direct effect of this spinal injury. He has absolutely no balance to stand on one leg unaided. He presents with a marked degree of disability. I accept that this degree of disability is a direct result of this motor vehicle accident. The injuries are consistent with the stated cause. … He does not present with any work capacity. He presents as being markedly disabled. The only type of work that could be done would be purely sedentary work, something which he has never worked in throughout his working life and for which he has no work experience. At the age of fifty-six, retraining would not be profitable here. As such, by the nature of this neck injury, he is not able to gain work in any capacity that one could consider reasonable for him. He has no work capacity and this will be indefinite. His injuries are physical in nature. This is not a psychological case. There are psychological sequelae of the injury secondary to the injury but not contributing to his level of disability.”[7]
[7]PCB 98-99
36 Dr Thomas thought that the injury had a significant impact upon the plaintiff’s ability to function socially, domestically and recreationally.
37 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in August of this year. He noted the extensive medication the plaintiff was taking and on examination of the cervical spine, noted a significant reduction in range of movement. He diagnosed the plaintiff as suffering a soft-tissue injury to both his cervical and lumbar spines. He said this would have involved musculoligamentous damage and possibly some aggravation of the naturally occurring underlying degenerative disc disease of the cervical spine. In particular, he said there was damage to the paraspinal musculature attaching to the spine. He said the subluxation or spondylolisthesis was degenerative in nature and that the plaintiff did not sustain a traumatic subluxation of the cervical spine in the transport accident.
38 Mr Dooley said that while he accepted the injury did explain some of the plaintiff’s ongoing pain, it did not explain some of the symptoms, including the tingling down the arms and dropping of items, and that he believed the plaintiff had a psychological reaction which significantly influenced his ongoing symptoms. He advised against surgical intervention. He also concluded the plaintiff had suffered a soft-tissue injury to his lower spine, and that the MRI scan showed mild degenerative changes at that level. He said that the plaintiff would not be able to return to work as a truck driver nor engage in the activities of running a dairy/cattle farm. He thought the plaintiff had the physical capacity to carry out light work. From an orthopaedic perspective, he said the plaintiff should expect some intermittent neck and shoulder pain and intermittent pain in the low back. He said much of the prognosis depended upon the plaintiff’s psychological condition.
39 The plaintiff was examined by a number of specialists at the request of the WorkCover insurer.[8]
[8]The transport accident was a “journey” accident which occurred in the course of the plaintiff’s employment and in respect of which a claim for WorkCover benefits was made.
40 Mr Khan, orthopaedic surgeon, examined and reported on a number of occasions in 2007 and 2008. Because of the age of those reports, they are of little assistance. In May 2009, his opinion was asked as to the plaintiff’s suitability for a number of positions, including as a courier, sales assistant and console operator. He said the plaintiff could not work as a courier but that he could work as a sales assistant or console operator within certain restrictions.
41 The plaintiff was examined by Dr David Fish, occupational and environmental physician, in December 2008 and June 2009. Although now somewhat dated, Dr Fish concluded the plaintiff had suffered an aggravation of underlying cervical spondylosis and mechanical lower back pain. He said in relation to the symptoms in the plaintiff’s right arm and leg, there were no objective findings of radiculopathy. He said the restriction of the function of the plaintiff’s right shoulder was to do with an underlying rotator cuff tendonitis, which was probably aggravated in the transport accident.
42 The plaintiff was examined by Dr Kevin Fraser, rheumatologist, on behalf of the Transport Accident Commission in July 2013. He provided two reports, of July and August 2013.[9] He concluded that the plaintiff was suffering no ongoing sequelae, in terms of physical injury, from the transport accident. He said the plaintiff had suffered a musculoligamentous strain to the cervical and lumbar spines but that radiological investigations showed only minor degenerative changes in those areas. He said the plaintiff’s ongoing symptoms were out of proportion to the radiological changes. He concluded the plaintiff was suffering a Chronic Pain Syndrome secondary to non-organic factors. He said the prognosis was poor and there was unlikely to be any improvement.
[9]Defendant’s Court Book (“DCB”) 71 and 75
43 In terms of the sequelae of the transport accident, Dr Fraser said the plaintiff was capable of his pre-injury employment as a truck driver, farmer or any other occupation to which he was suited.
44 In addition to the physical doctors, the plaintiff was examined on a number of occasions by a range of consultant psychiatrists. For the reasons which I shall shortly provide, I am satisfied the plaintiff achieves the “very considerable” level in relation to physical injury, and so have found it unnecessary to consider whether his psychological symptoms achieve the “severe” level as the Act requires.
Conclusions
45 It was not seriously contended by Ms Dixon, on behalf of the defendant, that the plaintiff could not aggregate the consequences in respect of both cervical and lumbar injuries. That issue has now been placed beyond doubt by the Court of Appeal in Transport Accident Commission v Zepic.[10]
[10][2013] VSCA 232 at paragraph [118] and following
46 I found the plaintiff a credible and honest witness giving a fair account of the symptoms and restrictions in both his neck and back as a result of the transport accident. There were no major credit issues put to him in the course of cross-examination. I detected no element of exaggeration and he answered questions in a manner which I would expect of an honest witness. The plaintiff’s wife was, in my view, a formidable witness, confirming the extent to which the plaintiff’s injuries incapacitated him for work around the farm. Generally, I accept his evidence as to the pain and restriction that the injuries have caused and accept his assessment, and the assessment of all of the medical practitioners who have examined him, that he is incapacitated for a return to work as a truck driver, or for undertaking the physical aspects involved in running his farm.
47 Although at an early stage, it was considered that there had been a subluxation of the third upon the fourth cervical vertebra, I accept the opinion of most practitioners, in particular Mr Dooley, that the subluxation, or spondylolisthesis was degenerative in nature. I accept the opinion of most practitioners that the plaintiff suffered a soft-tissue injury to both his cervical and lumbar spines in the transport accident. Generally, the radiological investigations of the cervical spine show mild to moderate degenerative changes at a number of levels which I accept pre-existed the transport accident. Investigations of the lumbar spine show mild degenerative changes, in particular mild facet joint arthropathy at L4-5 and L5-S1. In addition to the soft-tissue injury, the plaintiff suffered an aggravation of those underlying degenerative changes.
48 Ms Dixon submits that in accordance with the opinions of Dr Fraser and Mr Dooley, that the plaintiff has suffered a significant psychological reaction to a modest physical injury and that the symptoms and restrictions of which the plaintiff currently complains had their genesis more in that psychological reaction than any organic injury.
49 I reject the opinion of Dr Fraser. He is the only practitioner to conclude that the plaintiff suffers no sequelae from the transport accident and that the symptoms are wholly related to a psychological reaction. I prefer the opinions of the plaintiff’s treating general practitioner, Dr Dhillon, who has treated the plaintiff over a considerable period, Dr Clayton Thomas and Mr Dooley. Dr Thomas was of the view the plaintiff has suffered a soft-tissue injury and that while there are psychological sequelae, they do not contribute to the plaintiff’s disability. Mr Dooley accepts that the plaintiff has suffered soft-tissue injury and aggravation of underlying degenerative changes, in particular in the cervical spine, although notes there is a significant psychological element present.
50 I do accept that there is some psychological element involved in the plaintiff’s presentation and in respect of the symptoms of which he complains. It is difficult to explain symptoms of pins and needles and tingling, in particular to the right arm and into his legs, as there is no support on the radiology for true radiculopathy or nerve root compression. Further, the plaintiff’s complaints of dizziness and loss of balance do not appear to have a physical basis, although may be explained by the headaches from which the plaintiff suffers.
51 On balance, I have concluded that while there is an element of psychological or functional overlay involved in the plaintiff’s presentation, the very substantial underlying basis for the plaintiff’s symptoms in both the cervical and lumbar spines is the physical injury suffered in the transport accident.[11] As with so many applications of this nature heard in this Court, persons suffering injury either in a transport accident or in the course of their employment very often have a psychological reaction to that injury. It is to be expected that a person such as the plaintiff, who suffers an injury which prevents him from working in an area that he enjoyed, and from pursuing his activities on the farm which he had undertaken over many years, would become depressed and demoralised at that loss. To an extent, that reaction affects and aggravates the physical symptoms which have arisen as a result of injury. To the extent permitted by Richards v Wylie,[12] the psychological reaction may be taken into account in assessing the nature and extent of physical injury.
[11]Although related to an application under the Accident Compensation Act, see the approach set forth in Meadows v Lichmore Pty Ltd [2013] VSCA 201
[12](2000) 1 VR 79 at paragraphs [16]-[17]
52 It is impossible either at law, or in medicine, to cleanly dissect off that aspect of the symptoms and presentation which is psychological from that which is physical. In many cases there is an intermingling of the two and it is impossible to say which of the plaintiff’s symptoms and to what extent they have a psychological genesis, and to what extent physical. I am of the view, in particular given the opinions of Dr Dhillon and Dr Thomas, that the plaintiff’s presentation is very substantially that which is related to the organic injury, both in the cervical and the lumbar spines. I am satisfied that those organic injuries have resulted in the following consequences:
·The plaintiff suffers ongoing pain in the cervical and lumbar spines which has required conservative treatment, in particular the prescription of strong pain-relieving medication over many years.
·It has resulted further, in significant regular headaches, loss of sleep, and affected his personal physical relationship with his wife.
·He is very restricted in the physical activities he is able to undertake on his farm and essentially plays no active role in the running of the farm.
·He is precluded from returning to work as a truck driver.
53 Ms Dixon points out that the plaintiff has remained relatively active, with an involvement in his children’s sporting activities, attending stock sales and field days. He has holidayed interstate on a number of occasions, in particular in 2012, and on one occasion was able to drive his daughter to Sydney, although stopping regularly for rests. Ms Dixon further submitted the plaintiff had the capacity for lighter duties, and on the assessment of his general practitioner, eventually on a full-time basis. However, I regard these matters as minor when a comparison is made to the things the plaintiff has lost, in particular his involvement in the farm and his inability to resume work as a truck driver.[13]
[13]See State of Victoria v Glover [1998] VSCA 93
54 Bearing in mind the consequences to which I have referred, and my conclusion that those consequences are essentially related to the plaintiff’s organic injuries, I have little difficulty in accepting that those consequences achieve the “very considerable” level and more than “significant or marked” as the authorities require.
55 In those circumstances, leave will be granted to the plaintiff to institute proceedings at common law.
56 I shall make appropriate further orders.
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