O'Halloran v Transport Accident Commission
[2014] VCC 397
•9 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY DIVISION
Case No. CI-13-00208
| BRENDAN GERARD O’HALLORAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January and 4 February 2014 | |
DATE OF JUDGMENT: | 9 April 2014 | |
CASE MAY BE CITED AS: | O’Halloran v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 397 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Transport Accident Act 1986 – s93 – Serious injury – Pre-existing condition
Legislation Cited: Transport Accident Act 1986
Cases Cited:Transport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Bezzina v Phi and TAC (2012) 61 MVR 342; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Humphries v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to claim damages at common law in respect of injuries sustained in a transport accident occurring on or about 28 June 2006.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr C J Nettlefold | Ryan Carlisle Thomas |
| For the Defendant | Mr G A Lewis SC with Mr A D Newman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Mr Brendan O’Halloran was driving a utility vehicle on a country road near Warracknabeal on 28 June 2006 when it was struck in the rear by another vehicle, causing his vehicle to roll over two or three times. He believed he had knocked his head, an ambulance was called but he declined its assistance and was driven home by his wife in another vehicle. He attended his local doctor later on the same day and had x‑rays taken, which showed some degenerative changes in the cervical spine.
2 The plaintiff now seeks leave from the court to commence common law proceedings in respect of injuries received in that collision. Leave can only be granted where a person satisfies the court that he has sustained a serious injury as defined in s93(17) of the Transport Accident Act 1986 (“the Act”). The plaintiff sought to rely only upon the definition of serious injury as contained in sub-paragraph (a) of s93(17), and identifies the relevant body function as the neck. More specifically, the plaintiff argues that the consequences of the transport accident were to produce an aggravation of pre-existing cervical spine degeneration such that the consequences would satisfy the statutory threshold.
3 The defendant takes issue with the entitlement of the plaintiff to leave, and essentially submits that the consequences of any neck injury resulting from the accident do not satisfy the serious injury threshold, and particularly the evidence falls short of establishing that the consequences of injury to the plaintiff may properly be regarded as “at least very considerable”.
The Evidence
4 The plaintiff relied upon two affidavits sworn on 13 December 2012 and 17 January 2014. He was required for cross-examination, as was his treating general practitioner, Dr O’Brien. The evidence otherwise was set out in the various reports tendered from each party’s court book, together with a medications chart prepared by the plaintiff which was received as Exhibit 2.
5 The plaintiff’s two affidavits relevantly set out the following matters:
· The plaintiff had run his own farm for the last 20 years, running sheep and growing crops including wheat and barley.
· The work on the farm can be intensely physical work, depending on the actual activity.
· The plaintiff had a history of back problems dating back 20 years, and has occasional back pain, but has otherwise performed his work without difficulty.
· Initial treatment following the transport accident was in the form of anti-inflammatory medication, analgesia and rest.
· In addition to neck pain, the plaintiff developed symptoms down both arms and was referred to physiotherapy in September 2006.
· A referral to a neurosurgeon was made by the general practitioner, but the plaintiff did not attend this appointment which was to be in Melbourne.
· In May 2007 the plaintiff was referred to a rheumatologist in relation to suspected rheumatoid arthritis.
· The plaintiff continues to experience neck pain radiating into the shoulders and arms which affects his sleeping, sitting in the car for extended periods, and is aggravated by vibration, particularly when driving a tractor or riding a motorbike.
· The plaintiff takes large amounts of Naprosyn when his symptoms are severe. The Naprosyn upsets his stomach, and as a result he takes Panadol almost on a daily basis.
· The plaintiff needs to employ people to assist with tasks which he used to do himself.
6 In cross-examination the following matters were noted:
· The general practitioner prescribed Naprosyn on about two occasions per year post accident, although Naprosyn had been previously prescribed at similar levels for gout prior to the transport accident.[1]
[1]Transcript (“T”) 21, Line (“L”) 12–14.
· The plaintiff did not seek an opinion from Mr David Wallace, neurosurgeon, as he did not really think he could do anything for him.[2]
[2]T22, L16–22.
· The plaintiff did not intend to have an operation on his neck.[3]
[3]T22, L29–T30, L1.
· The plaintiff did not concede that he would have been taking Naprosyn for gout pain relief if the accident had not occurred, as he had other medication for the gout.[4]
[4]T23, L23–26.
· The plaintiff did not believe the pre-accident arthritis had become quite a problem for him, and stated that he did not actually have rheumatoid arthritis but rather gout.[5]
[5]T24, L16–18.
· The plaintiff agreed that he was having symptoms which were quite a handicap for his hands as at December 2006 but denied it was rheumatoid arthritis.[6]
· The plaintiff agreed that he had some ongoing problems with his low back and his right wrist that had been ongoing for the last few years.[7]
· The plaintiff was unaware of the contents of profit and loss statements in relation to the farm, commenting that his wife or his accountant did the books. He totally disagreed with the suggestion that there had been no increased outlay on contract labouring or the like as a result of his injuries received in the transport accident.[8]
[6]T24, L19–21.
[7]T27, L9–T28, L12.
[8]T33, L26–T34, L4.
7 In re‑examination, the plaintiff maintained that from about the late 1980s he had done much of the heavy work on the farm in relation to the sheep, and that would include everything other than shearing and drenching work. He stated there were currently about 1400 sheep, but it could be up to 3500 to 4000 in a good year. In so far as the cropping was concerned, he explained that prior to the accident he would drive a truck while a contractor basically did the tractor work, but contractors were brought in to cart the grain. He was unable to do this post accident because it was too rough driving the semi-trailer, which caused problems with his neck and shoulders.
8 The plaintiff also explained that he had first seen Professor Buchbinder in July 2010 and she prescribed drugs other than Naprosyn for his gout. He was currently taking 300 grams of Allopurinol and one Lengout tablet per day. Apart from the times when he had a flare-up of the gout symptoms requiring him to take a Naprosyn, the gout had no impact whatsoever upon his activities.[9]
[9]T41, L14–16.
9 In relation to the current problems from the neck, the plaintiff commented:
“That probably impacts on me every night when I go to bed, it keeps me awake. Probably I have to take some medication for it probably two to three times a week ... It wakes you up, a couple of hours’ sleep, you can’t get comfortable, it wakes you up. You’re up wandering around the house, whatever ... It happens probably two to three times a night.”[10]
[10]T43, L28–T44, L6.
10 The general practitioner Dr Gerard O’Brien was also cross-examined. Dr O’Brien had prepared two medical reports, the first addressed to CGU Insurance Ltd and dated 22 February 2007, the second addressed to the plaintiff’s solicitors and dated 29 December 2008. The substance of both medical reports provided in evidence was that the plaintiff had cervical disc degeneration which:
“... caused minimal discomfort prior to his accident. Subsequent to rolling his utility he had constant neck and nerve root pain which may require surgical intervention.”[11]
[11]Exhibit A, page 15.
11 The symptoms flowing from the plaintiff’s cervical spine injury were described as:
“... chronic, debilitating neck pain and nerve root irritation, which has had a major impact on his ability to perform his previous farm work.”[12]
[12]Exhibit A, page 19.
12 Bearing in mind that the most recent of these reports was more than five years old at the date of trial, it is unsurprising that Dr O’Brien was required for cross-examination. In cross-examination, the following evidence emerged:
· It was suspected that the plaintiff was suffering rheumatoid arthritis in December 2006.[13]
[13]T55, L4–12.
· These symptoms were regarded as different from an osteoarthritic pain.[14]
· Prior to the accident Dr O’Brien was prescribing two prescriptions a year for Naprosyn.[15] In the 2008 year he prescribed Naprosyn on four occasions, but otherwise has provided about two prescriptions per year.[16]
· Dr O’Brien described the plaintiff as an infrequent visitor whom he had only seen a couple of times since the accident, and probably not for some years prior to it.[17]
[14]T55, L20–22.
[15]T59, L27–30.
[16]T60, L1–4.
[17]T60, L24–27.
13 In re‑examination Dr O’Brien was unable to comment on whether Professor Buchbinder had ever diagnosed rheumatoid arthritis, but his understanding was that she was involved with treating his gout.[18]
[18]T65, L6–11.
14 Professor Rachelle Buchbinder provided four letters to Dr Jinks (who practises in partnership with Dr O’Brien) between 3 March 2011 and 22 April 2013. These letters confirm the reviews in relation to gout and confirm that the plaintiff was to take Naprosyn as needed in addition to the specific gout medications of Colgout and Allopurinol. There was an earlier medication of Zyloprim referred to in March 2011, and reference to an attempt to cease usage of the Colgout. There is no reference to any treatment given in respect of the cervical spine injury.
15 It is clear from the medication summary tendered as Exhibit 2 that the plaintiff did in fact receive two prescriptions of Naprosyn 1000 milligrams in the years 2003, 2004 and 2005 prior to the accident. After the accident, save for the 2008 calendar year in which four prescriptions were given, and 2010 in which there were three, it would appear that the prescription of this medication has remained much the same.
16 The final report from any treating practitioner is that dated 21 January 2009 from Louise Guarrella, physiotherapist. Ms Guarrella first saw the plaintiff on 1 September 2006, and continued to see him on what is described as an intermittent basis when he travelled to Melbourne. She notes that there was a reluctance by the plaintiff to return to his local physiotherapist “as he felt he had not gained any improvement from treatments with him”.[19] It would seem that the treatments with Ms Guarrella continued up until March 2007, by which time she had arranged for him to be treated by a local massage therapist, Claudia Sterling. Her conclusion in 2009 was that the transport accident had:
“... caused Brendan’s neck pain, headaches and arm symptoms, all consistent with severe whiplash injury. His symptoms were further exacerbated by moving sheep, driving and activities involving continued upper limb use which are all involved in his work duties.”[20]
[19]Exhibit A, page 20.
[20]Exhibit A, page 21.
17 Finally, in relation to medico-legal opinion, the plaintiff relies upon the opinions of Mr David Brownbill (neurosurgeon) dated 4 April 2013, Mr Roger Westh (orthopaedic surgeon) dated 9 May 2013, and Dr Kevin Fraser (rheumatologist) dated 25 October 2013.
18 The defendant’s sole specialist medico-legal opinion was provided by Mr Timothy Gale in a report to CGU Workers Compensation Insurance dated 1 February 2010. I note that this report was prepared in relation to a claim relating to the permanent impairment provisions of the Accident Compensation Act 1985, although it essentially addresses matters which are relevant to my consideration in this proceeding.
19 The defendant also put into evidence a letter from Professor Geoffrey Littlejohn addressed to Dr Jinks dated 4 May 2007, and a report from Professor Littlejohn to the plaintiff’s solicitors dated 24 June 2009.
20 Additionally, the defendant relied upon the clinical notes from the Roberts Avenue Medical Centre, a payment report from the WorkCover insurer, and a profit and loss spreadsheet which no doubt provided a basis for the cross-examination to which I have referred in paragraph 6.
Analysis
21 I formed the view that the plaintiff was a truthful witness, endeavouring to give a balanced account of the injuries received in the transport accident and the consequences that they had for him. It was evident that he had remained stoic in relation to the cervical spine injury and had not sought significant treatment apart from the physiotherapy and massage therapy and painkilling medications.
22 The language used to describe his complaints to the medico-legal examiners is consistent with a person who tends to understate rather than overstate the consequences of the injuries suffered by him. In May 2007 Professor Littlejohn noted the history as follows:
“He was pretty good until he was involved in a motor vehicle accident in June of 2006. Since that time he has had significant neck symptoms, radiating pain into the chest wall and shoulders.”[21]
[21]Exhibit 1, page 50.
23 A similar record of the plaintiff’s complaints was referred to in Professor Littlejohn’s later report to the solicitors in 2009. It would seem from the later report that the plaintiff only saw Professor Littlejohn on one occasion.
24 When the plaintiff was examined by Mr Gale on 28 January 2010 the following history was noted:
“He has regular discomfort in the posterior aspect of his neck which can pass down to the posterior aspect of his chest or along the medial border of both shoulder blades and often under the left shoulder blade. ... He has not been aware of restriction in range of neck movement, but he found the discomfort in the neck and shoulder blades would be worse if he was driving equipment such as a motorbike or a tractor because of the associated jolting movements, he would also develop some discomfort in the same area when lifting heavy equipment or after a prolonged drive.”[22]
[22]Exhibit 1, page 2.
25 Mr Gale noted on examination of the neck that there was a full range of movement in all directions, but noted mild discomfort on forward flexion. I note also that this history was put to the plaintiff in cross-examination, to which he replied:
“It was more than a discomfort but anyway that’s his words not mine.”[23]
[23]T32, L3–4.
26 The more recent medico-legal opinions have presented a somewhat gloomier picture of the plaintiff’s cervical spine condition. At examination by Mr Brownbill on 2 April 2013 the cervical spine examination showed what I regard as very significant restrictions on examination findings. Mr Brownbill commented that the plaintiff was “alert and cooperative without embellishment, appearing straightforward in his presentation”. Nevertheless, he found restrictions in some movements of between 50 and 75 per cent of normal. Mr Brownbill formed the opinion that the neck pain, developing as it did following the transport accident, was likely to continue in a fluctuating manner with activity exacerbation. He suggested that the plaintiff should be advised to avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a flexed position.
27 The orthopaedic surgeon Mr Westh examined the plaintiff on 26 April 2013 and obtained a history that the plaintiff’s main trouble was his painful neck “which is present most of the time”. He also has pain across the top of his shoulders and says the pain radiates down his arms into both hands. The pain is made worse when driving and sitting for long periods, and the pain is particularly worse at night. He had also been aware of pins and needles in his hands, and this occurs mainly whilst driving.
28 The more detailed history of activity aggravation refers to the driving of tractors, trucks or motorbikes and jerking movements aggravating the cervical spine. This is consistent with the evidence given by the plaintiff in this proceeding. On examination findings, Mr Westh found what he described as “significant restriction of movement in his cervical spine” but without evidence of radiculopathy. He commented that the CT scan in March 2007 confirmed the presence of what he described as significant cervical disc degenerative changes in the lower three levels of the cervical spine. He noted that the plaintiff:
“... continues to complain of ongoing cervical pain with some referred bilateral arm pain. His pain is made worse with activity and he is limited in a lot of his day to day activities.”[24]
[24]Exhibit A, page 41.
29 Mr Westh formed the opinion that the plaintiff would experience particularly activity-related neck pain, and he is permanently restricted to light work.
30 The final medico-legal opinion was provided by Dr Kevin Fraser, rheumatologist, following an examination of the plaintiff on 21 October 2013. Dr Fraser took quite a lengthy history of the plaintiff’s complaints and earlier treatment, and noted relevantly:
“He continues to have mild neck discomfort and stiffness and he said that he constantly feels as though he has been ‘punched in the neck’. As well, he notices crepitus with neck movements and intermittent transient ‘shooting pains’ radiating to the occiput. His symptoms are aggravated by any strenuous work. He is a farmer growing sheep and wheat on 4,000 acres. His share-farmer has retired and as he could no longer drive tractors, motorbikes or trucks he has to employ others to do much of the work.”[25]
[25]Exhibit A, page 42.
31 Dr Fraser again noted in his opinion that the plaintiff had given his history in an honest and straightforward fashion and there was no overreaction on physical examination. As with all other medical witnesses, he concluded that the injury received in the transport accident had been an aggravation of pre-existing cervical spondylosis most likely rendered symptomatic by the accident in the absence of any earlier complaint of neck pain or stiffness. Dr Fraser concluded that there was probably some permanent impairment as a result of the transport accident and the plaintiff was unable to perform heavy manual work about the farm.
32 In a further report dated 19 November 2013, Dr Fraser addressed issues relevant to the diagnoses of either gout and/or rheumatoid arthritis and particularly whether either condition would impact on the plaintiff’s shoulder and neck. Relevantly, he stated:
“Gout rarely if ever involves the shoulders, and in my view this makes it more likely that the shoulder girdle pain was referred from his neck, secondary to the cervical spondylosis. Thus I don’t consider that his neck or shoulder girdle pain is in any way related to the peripheral joint condition, be it rheumatoid arthritis or, most likely gout.”[26]
[26]Exhibit A, page 46.
33 Dr Fraser also noted that the joint condition was quiescent when he assessed the plaintiff.
34 The opinion from Mr Gale dating from 2010 was as follows:
“As a result of a motor vehicle accident occurring in June 2006, this man is likely to have suffered a hyperflexion injury of the neck resulting in symptomatic aggravation of pre-existing degenerative changes involving the cervical spine. This has produced pain in the posterior aspect of the neck radiating down to the posterior aspect of his chest along the medial border of both shoulder blades and in the vicinity of the lower pole of the left shoulder blade.”[27]
[27]Exhibit 1, page 3.
35 The entirety of the medical evidence in this case supports a conclusion that the plaintiff has aggravated an underlying cervical degenerative condition so as to render it symptomatic as a result of the transport accident. The real issue is whether the consequences produced by that injury satisfy the relevant statutory tests and the guidance provided to me by relevant authorities.
36 Mr Lewis SC, who appeared with Mr Newman for the defendant, referred me to the authority in Transport Accident Commission & O’Dea v Dennis[28], specifically emphasising the statement made by Callaway JA:
“The adverb ‘very’ is important, for many disturbances are considerable, in the sense that they are important or substantial without being very considerable. The distinction must be maintained if the legislative purpose of s93 is to be implemented.”[29]
I accept this is a correct analysis of the test which must be applied in accordance with the leading authority in Humphries v Poljak[30] if the plaintiff’s application is to succeed.
[28][1998] 1 VR 702.
[29][1998] 1 VR 702 at 703.
[30][1992] 2 VR 129.
37 The defendant submitted that, whilst the plaintiff may be regarded as stoic, the real question is, what is he being stoic about? Indeed, I note the clear line of authority[31] where the appellate courts have affirmed the proposition that an applicant for leave should not be disadvantaged, because of stoicism in his or her preparedness to put up with pain and suffering to get on with their business as best they can, against another who, showing less strength of character, simply resigns themselves to injury.
[31]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [27]; Haden Engineering v McKinnon (2010) 31 VR 1 at [13]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at [80].
38 In response to the defendant’s submissions, Mr Harrison SC, who appeared with Mr Nettlefold for the plaintiff, submitted that the specific features of the plaintiff’s life, particularly his conduct of a large farming enterprise, placed him in a position where the consequences of the neck injury to him were more serious than a plaintiff engaged in a more sedentary lifestyle.
39 A further argument was advanced by the defendant focussing on competing incapacities and specifically relating to the inflammatory condition affecting the hands and wrists, the pre-existing lumbar back pain and the flare-ups of gout. I was referred to the authority of Bezzina v Phi & Anor.[32] Once again, I accept that the proper approach to this analysis involves making an assessment of the level of functioning in total of the plaintiff prior to the transport accident and assessing the worsening, on a long term basis, that has been brought about by the injuries suffered.
[32][2012] VSCA 161 at [23].
40 Mr Lewis argued forcefully that the plaintiff’s evidence on matters such as driving for one and a half to two hours, reading a book or use of a motorbike on rough ground were either well below the required threshold level or would, in some cases, have been problematical for the plaintiff by reason of medical conditions unrelated to the transport accident. I accept, in relation to those specific examples, the correctness of the defendant’s submissions.
41 In terms of the resolution of this matter, I accept the plaintiff’s evidence that the neck pain has been relatively constant and troublesome for him. I further accept that he has a degree of stoicism and has rejected the need for ongoing medical treatment, which could be expected from many in the community suffering a similar level of ongoing pain and discomfort. The plaintiff’s evidence about the interruption to his sleep and the need to engage replacement labour to perform heavier aspects of the farm work are, in my view, indicative of an ongoing and problematical neck condition. I do not regard the pre-existing lower back condition as of great significance, as there is no evidence to support a conclusion that the low back prevented the plaintiff from continuing with his many and varied activities that are necessitated by the role he plays in the farming venture. I note that, following the transport accident, he did not do any farm work for about 12 months and then returned only to restricted farm duties. The plaintiff was prepared to concede that when he does suffer from gout, the symptoms are very severe, but only last for a short time.
42 I note that when the plaintiff was challenged as to the documentation relating to replacement labour for the heavier work on the farm, an application was made to submit further material to support the plaintiff’s claim. Although I have ruled during the trial that the admission of further material would not be permitted at such a late stage, I nevertheless accept the plaintiff’s evidence that he has been required to obtain additional or replacement labour for the heavier farming activities.
43 In reaching a conclusion in this matter, I emphasise the plaintiff’s occupation as a long-term and large-scale farmer. The relatively constant pain, which is activity‑related, the frequent interruption to sleep and the need to regulate the activities on the farm so as to engage additional or replacement labour for the heavier activities, in my view, amount to consequences which are fairly described as at least very considerable. In coming to that conclusion, I am mindful of the concession made by Mr Harrison that, but for the plaintiff’s usual occupation, the consequences of his injuries may not satisfy the statutory test.
Conclusion
44 For the reasons stated, I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of injuries resulting from the transport accident in which he was involved on 28 June 2006 in accordance with the provisions of s93(4)(d) of the Act.
45 I will hear the parties in relation to formal orders and costs.
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