O'Keefe, Celeste v Transport Accident Commission
[2009] VCC 1681
•18 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-05398
| CELESTE O'KEEFE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 & 30 September 2009 |
| DATE OF JUDGMENT: | 18 December 2009 |
| CASE MAY BE CITED AS: | O'Keefe, Celeste v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1681 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident – finding of serious injury – consequences from injury suffered very considerable and more than significant or marked.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.W. McGarvie SC with | Shine Lawyers |
| Mr S. Smith | ||
| For the Defendant | Mr D.E. Curtain QC with | Solicitor to the Transport |
| Ms G. Crafti | Accident Commission | |
| HIS HONOUR: |
1 On or about 22 June 2004 the plaintiff was injured when a vehicle she was driving struck the vehicle immediately in front of it and was also struck from behind by another vehicle in a multi car collision in St Georges Road, Northcote (“the accident”). This is an application by the plaintiff by originating motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings against the defendant to recover damages for injuries suffered by her in the accident. The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity.
2 Mr R.W. McGarvie SC with Mr S. Smith of counsel appeared on behalf of the plaintiff and Mr D.E. Curtain QC with Ms G. Crafti of counsel appeared on behalf of the defendant.
3 The plaintiff relies upon loss or impairment to two body functions, namely the whole of the spine alternatively, the right shoulder.
4 The following evidence was adduced during the hearing:
• the plaintiff gave sworn evidence and was cross-examined; •
the plaintiff tendered the following evidence from the Plaintiff’s Court Book (“PCB”) pp.1-72 inclusive (Exhibit A);
•
the defendant tendered the following pages from the Defendant’s Court Book (“DCB”) including the medical notes from the general practitioner, namely, pp.7, 8-15, 19-32, 33-46, 47-49, 50-67, 68-73, 74-81, 82-84 and 98-145 (all inclusive) (Exhibit 1).
The statutory scheme
5 The application is brought under the definition of “serious injury” contained in sub-.s(17) of s.93 of the Act which requires the plaintiff to prove that she has suffered a “serious long-term impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of a transport accident occurring on or after 20 May 1986[1]; (b) the injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future; (c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities, sub-s.(6); (d) to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequences, an injury is held to be serious, the question to be asked is; can the injury when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as “very considerable” and certainly more than “significant” or “marked”[2]; (e) in a claim for loss of earning capacity such loss must be to the extent of 40 per cent or more at the date of hearing and permanently. [1] Section 93(1) of the Act
[2] Humphries v Poljak [1992] 2 VR 129
7 I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test. I have applied the principles set out above in reaching my conclusions in this application.
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The affidavit evidence
9 The plaintiff swore two affidavits in support of her application. The first affidavit was sworn on 23 January 2007 and the second affidavit was sworn on 24 August 2009.
10 The plaintiff was born on 24 January 1976 and is approaching her 34th birthday. She grew up in Ballarat and attended Loreto College. She completed an Honours Degree in Bachelor of Police Studies, taking out her degree in 1997. She then took a year off work and travelled overseas.
11 In 1999 the plaintiff was employed as a child protection worker with the Department of Human Services (“DHS”) and worked in Geelong. Her first duties were to work as a placement coordinator and she handled alternative care placements for children subject to child protection. In 2002 she began work as a child protection officer, otherwise known as a case manager. In 2003 she was transferred to Footscray DHS to work there as a child protection officer. Her work involved managing at high risk infants and their siblings who were or were likely to suffer significant harm.
12 The plaintiff said that the accident occurred at about 11am in the city bound lane of St Georges Road in Northcote. She was the fourth in line of five cars at the time of the accident. The car travelling in front of her hit a dog which caused the driver to brake suddenly and this had a flow on effect with cars crashing into each other. At the time of the collision the plaintiff was travelling at what she deposes to be 65 kilometres per hour, after having just travelled through the traffic lights at the intersection with Separation Street. She describes the impact of the collision as being heavy. The plaintiff was wearing a seat belt and was driving a near new vehicle supplied by DHS. She says that most of the damage to her vehicle was to the rear and that she was advised by a car officer at DHS that the damage to the vehicle was approximately $13,000 to the rear of the vehicle. The airbag was not activated.
13 During the hearing an issue was raised on the issue of the plaintiff’s credit and it related in part to the amount of damage done to the plaintiff’s vehicle. It was put to the plaintiff that there was really only an insignificant amount of damage to the rear of the vehicle with the back bumper bar being damaged. There was no evidence put before the Court by the defendant as to the exact damage to the plaintiff’s vehicle or as to the actual cost of repairs. I make no conclusions whatsoever about the plaintiff’s credit on the basis of the damage issue alone.
14 The plaintiff deposed that the impact threw her forward and back and her right arm and head hit the steering wheel. She says that she was knocked unconscious for a short period and after she came to she got out of the car and exchanged details with the other drivers. She remembers feeling shocked, dazed and confused. Her head and right arm were hurting.
15 She was taken to St Vincent’s Hospital where she was kept under observation for some four hours and later released and prescribed Panadeine Forte and she was driven home by a work colleague.
16 The following day she went to see her general practitioner at the SIA Medical Centre in Essendon. At that time she deposes that she suffered from pain in her neck, back and right shoulder. She saw Dr Peter Jones and he certified her for a week off work. She says that she was in shock for a few days afterwards and her pain got worse in her upper back and her lower back and her neck and in her right arm. She says that she also started to get sciatic pains down her left leg. She had headaches and a sore jaw. She says that she was also concerned by a clicking sound in her right shoulder.
17 The plaintiff had some treatment by an osteopath, Josh Conlon, at the Moonee Valley Osteopathy Centre and then she had physiotherapy from the Rose Street Physiotherapy Centre in Essendon. That was in about October 2004.
18 By November 2004 she commenced clinical pilates supervised by the physiotherapist. She later had CT scans of her lumbar and thoracic spine performed and an MRI scan was taken of the cervical spine. In October 2004 she was referred to a neurosurgeon, Mr Bittar, for assessment.
19 The plaintiff deposes that she returned to work about a month after the accident and at that time was still undergoing osteopathy treatment. She started work part-time working five hours a day for three days a week and she gradually built up her hours to about 30 hours per week until her right shoulder surgery which she underwent in December 2005, about 18 months after the accident.
20 She had been referred to an orthopaedic surgeon, Mr Freeman, in about the middle of 2005 and he treated her right shoulder with two cortisone injections, one in the AC joint and the other in the bursar area. These injections provided some initial relief for about two weeks but then the pain in the right shoulder returned to the same level as it had been prior to the injections. It was then that Mr Freeman arranged for an ultrasound and an MRI to be taken of the right shoulder.
21 The plaintiff was also referred to a specialist, Mr Peter Selviratnam, for further treatment. Towards the end of 2005 the injury to the right shoulder had still not resolved. The plaintiff was referred to Mr Stewart Proper by Mr Freeman who was a specialist upper limb surgeon. Mr Proper recommended surgery and the plaintiff underwent surgery to her right shoulder on 13 December 2005. The plaintiff deposes that there were tears found in the supraspinatus tendon and an inflamed bursar in the right shoulder and that Mr Proper shaved off the bone in the AC joint. The surgery improved the plaintiff’s ability to move her right arm. However, she says that the pain in her right shoulder, neck and arm continue to almost the same level as before the operation. Following the surgery the plaintiff continued to have physiotherapy treatment and underwent clinical pilates and remedial massage.
22 The plaintiff returned to work after the right shoulder surgery in April 2006. She again started off on reduced hours and gradually built up to 28 hours per week working four days a week. In about May 2006 she needed three weeks off work for depression which came on because she was having trouble coping with her injury and did not feel that she was getting any support from DHS.
23 The plaintiff’s physiotherapy and pilates treatment ceased in September 2006 because WorkCover ceased funding it. At that time she was having weekly treatment. The plaintiff has continued to receive remedial massage at her own cost and she also does Pilates independently.
24 The plaintiff also took Panadeine Forte and Tramal for pain relief but has since weaned herself off that medication and has tried to avoid taking it. She says in her first affidavit that she takes Panadeine when her pain levels increase and at the time of swearing her first affidavit she was taking Effexor as an anti-depressant.
25 As to the consequences of her injuries, in her first affidavit the plaintiff deposed that she was suffering at that time from ongoing pain in the right shoulder, upper back and neck which she described as being most debilitating. She says in her first affidavit that she suffers from constant pain in the right shoulder joint and across the top of the shoulder and neck. She described the pain as radiating down her arm, into her hand and into the back of the scapula. She says that she also continues to suffer from low back pain with sciatic pains down the left side of the leg which fluctuate but can cause debilitation. The back pain has stabilised but it is still there. She says that she also suffers from fluctuating pain in her jaw which clicks, displaces and locks. In final submissions Mr McGarvie made clear that the plaintiff was relying principally upon the injury to her whole of spine and alternatively the injury to the right shoulder as serious injuries suffered in the collision. He made no submissions about any injury to the jaw. In arriving at my decision I have ignored the injury to the plaintiff’s jaw.
26 In her first affidavit the plaintiff deposes that prior to the accident she was in good health. This is an issue that has taken on some significance in the proceeding. As I will explain later, the evidence disclosed that in fact the plaintiff was having treatment for depression prior to the accident having occurred.
27 The plaintiff deposes in her first affidavit that the injuries suffered by her in the accident have affected her ability to drive long distances. She says that she has lost strength in her right arm and cannot lift heavy items, she also has a reduced tolerance for sitting, standing and walking. She says that there has been an impact on her ability to go out socially and enjoy herself and she deposes that her relationship broke down within six months of the car accident and she says, “I believe that my symptoms and my difficulty in dealing with them contributed to the relationship breakdown”.[3]
[3] PCB 7
28 The plaintiff deposes in her first affidavit as to her previous sporting career. In her school years and at university she had been an elite rower. At the time of the accident she enjoyed rowing and would occasionally go for a row at the Essendon Rowing or the Barwon Rowing club. When she was aged between 15 and 18 she rowed for the Victorian Institute of Sport receiving a scholarship through the Ballarat City Rowing Club. She deposes in her first affidavit to being unable to return to any form of rowing since the accident, although she has had some coaching jobs. She also deposes to having enjoyed calisthenics which she participated in between the ages of 5 and 25 years, and although she was not participating in that pastime at the time of the accident she deposes that she had planned and hoped to return to it at some stage in the future.
29 In her first affidavit, at paragraph 21, the plaintiff deposes that at the time of the accident she was working full-time and was coping with her work. She says that the work was stressful and that:
“ … it goes with the territory. I had to manage situations where children had been harmed or were likely to be harmed and had been the subject of court orders. My role involved court work and home visits. From about December 2003 I needed to take Zoloft for about four months to help me cope with hormonal mood swings and work stress.”
30 At the time of swearing her first affidavit the plaintiff was working 28 hours per week. Since the time of the accident her work duties had changed to office based duties in the child protection intake area which receives and assesses notifications of child abuse. At the time of swearing the first affidavit the plaintiff no longer did any driving for her work and believed that as a result of the accident and the injuries sustained, she had lost her capacity to work full- time and was limited in the work that she could do.
31 In her second affidavit, sworn on 24 August 2009, the plaintiff swore that she was then continuing to experience ongoing right shoulder, upper back and neck pain and of the pain in the right shoulder and upper back and neck she says:
“ … all seems to be connected. At times the pain inside the right shoulder is the worst pain of all. But at other times the neck and upper back are worse. The pain can radiate down my arm into my hand and into the back of my scapula. I also continue to suffer from low back pain with occasional sciatic pains down the left side of my leg.”
32 In paragraph 3 of her second affidavit the plaintiff deposes to having ceased the remedial massage because she can no longer afford it and she has began to have chiropractic treatment and she is having ongoing counselling through a psychologist, Edyta Bellio, which she ceased in December 2008 also because she could not afford it. She continues to see her general practitioner, Dr Arete Kouteris. She deposes to continuing to take Panadeine medication when her pain levels increase and she no longer takes Effexor medication for depression. She applies heat packs when necessary, has hot baths, does stretching and lying flat on her back to relieve pain and discomfort.
33 Post accident the plaintiff had some part time jobs coaching school students at rowing which she ceased in July 2009. I was told that she would spend about two hours a week coaching rowing crews but her participation was limited. She could not ride a bike quickly along the river bank and she could only demonstrate in the minimal sense to students how to row on a rowing machine. She did not get into a boat.
34 The plaintiff stayed with DHS on reduced hours up until May 2007 at which time she took 12 months off without pay. She says in her second affidavit at paragraph 5 that she was having problems at work with her injuries and also with the way that the management at DHS was managing her injuries. She began further studies in August 2007 and eventually obtained a Graduate Diploma in secondary education from the Australian Catholic University. She completed those studies at the end of 2008 and resigned her employment with DHS.
35 In February 2009 she was successful in obtaining a casual part-time job as a teacher at an organisation called “The Centre” in North Melbourne. She works approximately 24 per week being four 6 hour days a week.
“I find that the work can be a struggle with my injuries and I believe that part-time work is the extent of my work capacity. I run a homework program for refugee and migrant children in the north and west areas of Melbourne. This work suits me because it is much less physical than my work as a child protection officer for DHS.”
36 The plaintiff deposes in her second affidavit as to her loss of earnings which is the basis for her claim for leave to proceed for loss of earning capacity. She deposes that in her work with DHS she was earning approximately $50,000 gross per year before the accident and she is now earning $22,000 gross per year. On the figures the plaintiff qualifies to bring a claim for loss of earning capacity, provided of course, that she can show that the loss of capacity has been brought about by injuries sustained in the accident.
The issues
37 The plaintiff’s case is simply put. The plaintiff’s case is that the plaintiff suffered injuries to the whole of the spine, including lumbar, thoracic and cervical, the consequences of which demonstrated by the evidence are sufficient to justify a finding that the plaintiff has suffered a serious injury to the whole of the spine.
38 Alternatively, the plaintiff says that in the accident she suffered an injury to the right shoulder, the consequences of which are sufficient to demonstrate that she suffered a serious injury to the right shoulder. The plaintiff’s case is that if some of the consequences from the physical injuries have been caused by psychological or psychiatric symptoms caused by the accident and the injuries sustained in it, then applying the principles in Richards & Anor v Wiley [2000] VSCA 50 the plaintiff is permitted to have included in the assessment of her overall injuries her psychological or psychiatric symptoms.
39 The defendant’s case is that if the plaintiff has suffered a mild cervical stiffness and soreness and mild limitations of the shoulder and some mild occasional soreness in the lower back and if such injuries arose from the accident, each of which injuries falls far short of being a “serious injury” within the Act. Further, it says that there was not a psychiatric impact from the accident which was serious enough to contribute to the physical injuries to render them serious injuries.
40 The next issue raised by the defendant, very squarely in this case, is that of the plaintiff’s credit. The defendant contends that the plaintiff did not tell any doctor (with the exception of Dr Weissman, the defendant’s doctor) of a past history of depression prior to the accident, but instead tried to attribute all of her ongoing problems to the accident and the injuries sustained in it. These are issues to be resolved by the evidence. It is necessary that I now turn to the medical evidence.
Relevant medical evidence
41 In summarising the medical evidence in the case I will not deal with those medical reports that touch upon injuries to the temporo mandibular joint of the plaintiff.
42 I will deal, firstly, with the injury to the plaintiff’s right shoulder.
43 Relevantly, the plaintiff’s general practitioner has always been located at a practice known as “SIA Medical Centre” in Mount Alexander Road in Essendon. Dr Arete Kouteris has been treating the plaintiff since 5 August 2005, which is about 15 months after the accident. The plaintiff had been treated at that practice initially by Drs Jones and Furlan. Dr Kouteris has provided a number of reports.[4] In addition, the clinical notes from the practice, as at 10 March 2009, were tendered by the defendant.[5] The clinical notes are described as the “complete record” and cover the period 22 April 2003, when the plaintiff attended having been involved in a motor car accident after a vehicle she was driving hit a dog and she suffered a soft tissue injury to her neck with upper back pain, through to 25 October 2008.
[4] PCB 33-36 inclusive
[5] DCB 98-145 inclusive
44 The first thing to notice about each of the medical reports provided by Dr Kouteris, is that the report of 27 October 2006[6] and the report of 11 May 2007[7] are each addressed to “John Typaldos, Workforce Legal”, which I understand to be the WorkCover insurer for DHS. I infer that there was no attempt by the plaintiff to hide from any insurer the content of the medical reports. This is relevant in the context of the attack on the plaintiff’s credit. Were the plaintiff intent on painting a picture to the effect that she had not suffered from depression prior to the accident (which is the suggestion of the defendant), then it seems amazing that she would do so in the knowledge the full details of her medical history had been provided to WorkCover.
[6] PCB 33
[7] PCB 35
45 Dr Kouteris reported in October 2006 that when she first saw the plaintiff on 5 August 2005:
“She had ongoing right shoulder pain for which she was under the care of Mr Stewart Proper, an orthopaedic surgeon. Celeste also suffered from thoracic and lumbar back pains. She had the thoracic and lumbar back investigated after the accident with a CT of the lumbar and thoracic spine performed showing mild central canal stenosis at the L5-S1 level as a result of a posterior disc bulge and suprapedicular lateral recess stenosis to the exiting S1 nerve root. There were associated mild degenerative facet joint changes of the lower lumbar facet joints which is a common finding. The relevance of the scan findings is that they involve largely one level which makes it more likely to be the result of injury rather than general degeneration as with the facet joint changes.
Celeste has also suffered from depression as a result of her injuries and associated pain. She is seeing our psychologist and is currently on anti-depressant medication, Effexor. Though she was seeing the psychologist since last year, in May of this year it became apparent that as a result of the chronic pain with the right shoulder and back, and other general issues in her life, Celeste’s depression deteriorated significantly enough to warrant a change in anti-depressant medication. She responded well to this medication and she has been able to regularly attend work and increase her hours since starting the medication.
Currently Celeste is doing well. She had a significant medical illness that was unrelated to her injury and caused a setback after the last couple of months. Prior to that she was on a path of steady increase in her hours at work with a view to returning to pre-injury hours, though performing her new duties which as a current, involving triage work. She is limited somewhat by the pain in her shoulder and back but with myotherapy and physiotherapy to aid in controlling her pain and stiffness she is able to cope well.
Her injuries can now be considered permanent as they have stabilised but still cause ongoing pain. Celeste has been able to learn to live and work with her pain and limitation.”
46 In a subsequent report dated 11 May 2007[8] Dr Kouteris reported, inter alia, as follows:
“Celeste had a history of depression and anxiety. She has been on Zoloft in the past years ago and developed some anxiety and depression relating to stress at work and difficulties in her relationship at the time. She was seen by one of my colleagues and put on Zoloft again in December 2003. She stated to see a psychologist shortly after that. She was on a small dose of Zoloft and within a few months had halved the dose and then ceased it prior to the accident.
I believe that the transport accident has at the very least caused a new level of stress and anxiety as a result of physical injury, but would also have aggravated any pre-existing illness. To what level Celeste was mentally unwell prior to her injury I cannot answer, though it appears from the medical notes that she had reduced her anti-depressant medication and she claims had ceased it prior to her accident. Her treating doctor would have reduced her medication only if he thought she was doing well.
Celeste presented very depressed on 28 June 2005 to my colleague, Dr Rita Furlan, and was started on Cipramil, an anti- depressant. I was very concerned about Celeste’s mental state on 15 May 2006 and changed her medication to Effexor, as well as referred her to have counselling by our psychologist, Edyta Bellio. Celeste is still on anti-depressant medication and under the care of the psychologist.”
[8] PCB 35
47 During the hearing the plaintiff was pressed in cross-examination as to whether or not she had ceased taking Zoloft prior to the accident. Her evidence was that she thought that she had. The medical evidence from the general practitioner is to the effect that the Zoloft medication prescribed had been reduced. I find on the balance of probabilities that the plaintiff had ceased taking Zoloft prior to the accident.
48 An up to date report provided by Dr Kouteris, dated 29 September 2009[9], advises that the plaintiff has not attended:
“ … with regard to her WorkCover issues for over about 18 months though I have still seen her from time to time on unrelated matters. She still suffers from pain and discomfort related to her initial injuries though with her job change which is less physically demanding and includes less time at work she is able to manage currently.”
[9] PCB 36
49 The medical notes show clearly that the plaintiff was being treated for depression prior to the accident. The fact remains, however, that notwithstanding that the plaintiff was receiving treatment for depression probably caused by a number of issues, including stress at her workplace and relationship issues, she was, prior to the accident, able to cope with her work and was carrying on an active life in relation to her sport (rowing) and other exercises. On any view, it is clear that as a result of the accident the consequence that flowed to the plaintiff was that she was unable physically and mentally to cope with her work and she was unable to continue with her exercise regime. Both of those consequences in my judgment are serious when looked at in the overall lifestyle of this plaintiff and may be attributable to the physical injuries sustained by the plaintiff in the accident and there may also be an element of aggravation of a pre-existing depression.
50 On 28 April 2005 Dr Furlan referred the plaintiff to Mr Richard Freeman, orthopaedic surgeon, for a review relating to the plaintiff’s right shoulder. Mr Freeman saw the plaintiff on 6 June 2005 and has provided a report dated 18 August 2006.[10] On examination at that time Dr Freeman found minor local tenderness over the right acromioclavicular joint with some intermittent crepitus felt in the right shoulder girdle on abduction. There was a full range of motion in the right shoulder, albeit with a pain arc of abduction from 90 degrees to 180 degrees. The impingements tests were equivocal and an AC joint stress test was negative. There was a decrease in sensation inner glove and stocking distribution of the right upper limb, but otherwise the neurological examination was unremarkable. Dr Freeman opined:
“I formed the opinion that she may have a problem with an impingement syndrome or acromioclavicular joint injury of her right shoulder girdle, however much of her symptoms could also be consistent with brachialgia, being referred from the neck, and therefore I referred the patient for x-rays of both shoulders for comparison, and similarly AC joints including stress views, together with a dynamic ultrasound of the right shoulder.”
[10] PCB 14
51 After having the plaintiff’s right shoulder investigated by ultrasound, Dr Freeman advised that she should undergo an ultrasound guided cortisone injection into the right acromioclavicular joint which was done in July 2005. There were then some follow ups with Mr Freeman on a number of occasions up until October 2005. Whilst the plaintiff’s symptoms in the right shoulder were initially relieved by the injection, nonetheless the painful right shoulder returned. Dr Freeman then referred the plaintiff to Mr Stewart Proper, an orthopaedic surgeon, for review.
52 Mr Proper has provided a number of reports.[11] When he first examined the plaintiff he found that there was mild wasting of the muscles around her right shoulder but there was no increased wasting of her rotator cuff muscles over her global muscles. She was tender over the acromioclavicular joint on the right. She had a painful acromioclavicular joint. She had lateral elevation to 90 degrees but had considerable pain above that. Her external rotation was to 45 degrees with internal rotation limited so that her thumb tip came to her mid lumbar region. In his first report Mr Proper reported as follows:
“I gather that she has had some benefit from local anaesthetic and steroid injected into the right acromioclavicular joint albeit only for a few weeks. The MRI scan does indeed confirm a degenerative acromioclavicular joint with odema in the bones either side of the joint. The rotator cuff appears intact, but there is some impingement on the musculotendonous junction by her rather swollen acromioclavicular joint … I think she will benefit from arthroscopic evaluation of her shoulder, in particular, looking at her acromioclavicular joint. I would think that debridement of the AC joint would be beneficial, although if she had any evidence chondromalacia, I would think that excision of the outer end of the clavicle may be beneficial.”
[11] PCB 22-30 inclusive
53 On 13 December 2005 Dr Proper examined the plaintiff’s right shoulder arthroscopically. He reported:
“The glenohumeral joint looked well preserved, but she had some articular surface partial thickness tears in her supraspinatus. The capsule and glenohumeral ligaments were slightly lax but not significantly so. Her bursar was inflamed and was excised. Her acromioclavicular joint was considerably degenerative and was excised also. This was all done arthroscopically. I would hope that this allows her some pain free movement and she should be able to gently mobilise over the next six weeks.”
54 By January 2006 Dr Proper again reported that the plaintiff was progressing satisfactorily and “she is doing reasonably well”. However, by May the plaintiff was still having pain in her right acromioclavicular joint. At that stage Dr Proper reported:
“Clinically she has more of an impingement type problem. I think the only way to sort it out would be for Celeste to undergo a further MRI scan with a view to looking particularly at her previously encountered tear in her supraspinatus.”
55 A further MRI scan of the right shoulder was performed on 16 June 2006. This showed that the plaintiff still had some oedema in the acromioclavicular joint but there was no evidence of further pathology in the rotator cuff tendons. Mr Proper reported that the plaintiff had improved further after the scan with a reasonably normal range of motion but some ongoing discomfort in the acromioclavicular joint. His prognosis on 1 May 2007 was:
“I think that Celeste’s prognosis is reasonable given that she had continued to improve following her surgery. Although it was not normal shoulder function I suspect she will continue to improve over the ensuring months. I cannot comment on the injuries to her cervical spine or left temporo mandibular joint.”
56 In submissions the defendant correctly points out that there is no up to date medical evidence from Dr Proper, who is the principal treating surgeon in relation to the plaintiff’s injury to her right shoulder. However, it is clear to me, from the evidence of the plaintiff and from the reports of Mr Proper, that the plaintiff does presently have ongoing mild pain and limitation of movement in the right shoulder.
57 So far as the plaintiff’s spinal injuries are concerned, she was referred for treatment to Dr Richard Bittar who has provided a report dated 9 September 2006. Again, the criticism is made (in my view appropriately) that there is no up to date report from Mr Bittar. He last saw the plaintiff on 28 April 2005 at which stage on examination she had a full range of neck movement, however, she did experience some mild pain on neck flexion, extension and rotation on both sides. She was tender over the cervical spine, both in the midline and paravertebrally. Her upper limbs were neurologically intact with the exception of some mild sensory disturbance in the right arm which was non-dermatomal. Examination of her lower limbs failed to reveal any abnormality. Dr Bittar at that time diagnosed the plaintiff as suffering from musculo-ligamentous neck strain, probably cervical radiculopathy, possible right shoulder injury, musculo- ligamentous or discogenic lower back pain.
58 In May 2008 the plaintiff commenced treatment on a weekly basis with Peter Warrener, a chiropractor in Moonee Ponds. She presented with mid thoracic pain referring intermittently into the adjacent right posterior and lateral chest. She had intermittent lower back pain with pain referral into the left posterior leg, bilateral temporo mandibular joint pain, right worst than the left, and neck pain and restriction.[12] Mr Warrener administered chiropractive adjustive therapy which he said gives excellent relief but unfortunately it is short-term and he opined that at no stage has her condition stabilised for any significant period of time. He said:
“She did not start treatment with me for these injuries until four years after the accident. At that stage it was clear that her injuries had become chronic and persistent in nature despite seeking a wide range of different treatment options. Over a period of a year of chiropractic treatment I have yet to see a prolonged period (example several months) of stability in her condition.”[13]
[12] PCB 41
[13] PCB 43
59 The plaintiff was referred for medico-legal purposes to Mr Kevin King who saw her on or about 1 September 2009.[14] In his usual way Mr King took a very detailed history from the plaintiff and conducted a thorough examination. In relation to the cervical spine, on examination he found, “Mild but definite limitation of neck movements by spasm and discomfort – approximately two- thirds of the normal range of all movements were present”. In relation to the thoracolumbar spine he found, “Mild but definite limitation of all thoracolumbar spinal movements by spasm and discomfort – approximately two thirds of the normal range of all movements were present”. In relation to the right shoulder he found, “mild limitation of glenohumeral and combined movement consistent with a diagnosis of a mild residual rotator cuff lesion”. Dr King opined, inter alia:
“These injuries would have caused damage to cervical and to thoracolumbar disc and associated ligamentous structures at multiple levels, adequately explaining the onset of neck and back pain and the persistence of some neck and back pain ever since. She seems to have stabilised at her present level and has been left with a chronic impairment of cervical and thoracolumbar spinal function of mild to moderate severity equivalent on clinical grounds to 20 per cent loss of cervical spine function and 20 per cent loss of thoracolumbar spinal function. The jolting strain on the right shoulder caused some damage to the rotator cuff of tendons and ligaments and possibly to the acromioclavicular joint as well adequately explaining the persistence of continuing mild residual stiffness and pain in the right shoulder. This represents an overall loss of function in the right upper limb on clinical grounds of 20 per cent and the right shoulder condition has stabilised. Her earlier symptoms did suggest some mild degree of cervical nerve root irritation but this radiculopathy now seems to have settled.”
[14] PCB 49
60 Having examined all of the evidence relating to the plaintiff’s physical injuries to her spinal column and her right shoulder carefully, I have formed the opinion that the opinion of Mr King best summarises the position with this plaintiff and I accept and act upon it. The opinion of Mr King does not greatly differ from the way in which the defendant put its case. In submissions Mr Curtain submitted that the plaintiff has mild cervical stiffness and soreness, mild limitations of the shoulder, some mild occasional soreness in the lower back. Mr Curtain submitted that falls far short of a serious injury finding. However, although I accept that the injuries to the cervical spine and the thoracic spine and the right shoulder might be described as “mild”, the problem here is that the consequences have been very considerable and more than significant or marked.
61 The defendant had the plaintiff medically examined by Mr John O’Brien, who has provided two reports.[15] In summary form Mr O’Brien thought that the plaintiff’s physical injuries were mild in nature and her complaints in relation to the cervical, thoracic and lumbar spine “could now be referred to as Chronic Pain Syndrome”. A list of all of the medical reports provided to Mr O’Brien, for the purposes of his report, is attached as a schedule to his report. I note that he was provided with all of the medical reports from Drs Furlan, Kouteris, Freeman, Bittar, Selvaratanam and Mr Proper.
[15] DCB 7-13 inclusive
62 Edyta Bellio, is a clinical psychologist who treated the plaintiff for psychological issues. She first saw the plaintiff on 5 January 2006, about 17 months after the accident.[16] Dr Bellio described the plaintiff as being honest and cooperative with a clear and concise speech. She said that a positive relationship with her was established “instantly”. She was cooperative and polite at all times. “She was able to laugh when appropriate and her overall behaviour was congruent with her mood. She has a good memory and showed a high level of insight and judgment”. Dr Bellio reported that the plaintiff presented with a number of problems. The plaintiff told her that the accident and the injuries triggered a deterioration of self-esteem in the work place since her ability to function on a daily basis was limited. This also impacted on her personal life resulting in a relationship breakdown. Dr Bellio went on:
“Currently the client is not able to function to her full potential due to unresolved workplace adjustment issues. The client has low motivation and confidence to explore potential career options. After the accident the client was unable to resume normal work duties and this caused low motivation and loss of confidence. Although the client has still maintained all her skills and abilities she is more vulnerable to stress and high demands. She is easily fatigued when sitting down for extended periods of time. The client reported that she is not finding the workplace supportive or encouraging which is decreasing her motivation and levels of confidence. The client will require ongoing support and understanding from work.”
[16] PCB 37
63 Again, the defendant makes the valid criticism that there is no up to date report from Dr Bellio.
64 There is, however, a report provided by the plaintiff from Associate Professor N. Paoletti, a psychiatrist who saw the plaintiff for medico-legal purposes on or about 3 August 2009. On p.2 of his report Dr Paoletti details the extent of the medical reports relating to the plaintiff that were received by him after the consultation but presumably before his report was prepared as they are referred to in it.[17] The defendant makes a criticism of the plaintiff that she did not provide a truthful history to Dr Paoletti in that she did not provide him with a history of being treated for depression prior to the accident. True it is that the report from Dr Paoletti does not refer to this fact, but I cannot find that the plaintiff did not tell Dr Paoletti that she had previously suffered from depression and nor can I find that she failed to tell him deliberately in order to produce a false report. In my judgment the probability is that the plaintiff presented to Dr Paoletti expecting that he had been fully briefed, especially given the fact that he was provided with the two reports from Dr Kouteris, dated 27 October 2006 and 11 May 2007, both of which refer to the fact that the plaintiff had been treated pre-accident for depression. Dr Paoletti opined that the plaintiff is suffering from an anxiety disorder and a Chronic Adjustment Disorder with depressed mood. He further opined that the anxiety disorder is a “direct” effect of the motor vehicle accident and the depressive disorder would have both direct and consequential components; the former to the extent that the depressions arise from the anxiety disorder and the latter to the extent that there may be a depressive component related to the presence of physical injuries. He further opined that a return to the plaintiff’s pre- accident employment is unlikely in the foreseeable future.[18]
[17] PCB 58
[18] PCB 66
65 The defendant provided a medical report from psychiatrist Dr David Weissman, dated 28 October 2008.[19] The plaintiff clearly told Dr Weissman of her pre-accident depression because he refers to it on p.10 of his report.[20] She did tell Dr Weissman, as she had told Dr Kouteris, that she had ceased anti-depressant medication before the accident and she was working full-time. The defendant cannot gainsay that evidence. Dr Weissman opined: “There may be some pre-existing vulnerability in this case, but no pre-existing psychiatric impairment as such”.[21] Dr Weissman went on to say:
“The claimant developed both physical and emotional symptoms and injuries from the transport accident. She sustained physical injuries to her cervical spine, thoracic spine, lumbosacral spine, right shoulder and both temporo mandibular joints. She underwent right shoulder surgery in late 2005. She sustained psychological and emotional symptoms directly due to the transport accident and the predominantly consequential to the transport accident. She recommenced anti-depressants about 18 months following the transport accident.”
[19] DCB 19-32
[20] DCB 28
[21] DCB 28
66 Dr Weissman went on to say that her psychiatric prognosis is fair.[22]
[22] DCB 32
67 The defendant also tendered as part of its Court Book a report from Associate Professor George Mendelson, a psychiatrist.[23] The defendant relies specifically on this report to attack the plaintiff’s credit because Dr Mendelson reported at p.5 of his report as follows:
“On direct questioning, Ms O’Keefe did not acknowledge having experienced any psychological or emotional problems in the past, or having had treatment for any such difficulties.”
[23] DCB 33-43 inclusive
68 Whilst I accept that the plaintiff clearly had suffered from depression pre- accident, for which she had received treatment, I do not accept the defendant’s contention that the plaintiff was intent upon giving a false history of her health to any of the medical practitioners. The defendant’s argument I think fails when regard is had to the facts that all of the medical reports (some of which referred to pre-accident depression) were provided to Dr Paoletti and the plaintiff told the defendant’s doctor, Dr Weissman, of her pre-accident depression and the worker’s compensation insurer involved has also been fully appraised of the fact of the plaintiff’s pre-accident depression from the time that correspondence between the parties commenced.
69 Further, the defendant did not seek to cross-examine any of the plaintiff’s doctors.
70 Mr McGarvie submits, properly in my view, that I should regard any parts of the reports where it is said that the plaintiff did not acknowledge a past history of depression as simply a mistake. In the circumstances of this case I have done so.
Conclusions
71 My decision in this case depends largely upon my assessment of the credit of the plaintiff. True it is that the plaintiff has a history of pre-accident depression and it is also true that the plaintiff has a medical record of many and regular attendances upon her general practitioner both before and after the accident. Try as the defendant might to attack her credit, I accept her as a witness of truth.
72 In my view the attack on her credit was somewhat unfair in all of the circumstances. Her pre-accident depression had been well documented and was reported to WorkCover. The plaintiff herself told Dr. Weissman of her pre-accident depression. That alone debunks the theory advanced by the defendant that she is not a witness of truth.
73 Further, post accident the plaintiff has, impressively in my view, endeavoured to get on with her life as best she can. She tried re-starting her old job on two occasions both before and after shoulder surgery. She was unable to cope. She did further studies and trained as a teacher. She has found alternative employment but can only work part time at that job. She has not sat idly by but I consider is doing her best to make the best of a bad situation she now finds herself in and not of her own making.
74 In my judgment, as a result of the accident, the plaintiff clearly suffered injuries to her cervical and thoracolumbar disc and associated ligamentous structures at multiple levels of the spine which has caused the onset of persistent and chronic neck and back pain, leaving her with impairment of the functioning of the cervical and thoracic spine of moderate severity, together with a mild rotator cuff injury to the right shoulder. Superimposed on all of this is an aggravation of a pre-existing depression leaving the plaintiff with an ongoing anxiety disorder and a Chronic Adjustment Disorder with depressed mood.
75 Although I have used the adjective “mild”, in my judgment on all of the evidence the consequences for the plaintiff have been very considerable. Whilst a great deal of time was spent in cross-examination in attacking the plaintiff relating to her past depressive illnesses and the number of occasions upon which she attended on her general practitioner, she was not challenged on the accuracy or otherwise of her two affidavits particularly the adverse consequences which the plaintiff says she has suffered as a result of her injuries. The unchallenged position therefore is that, as a result of the accident and the injuries sustained by the plaintiff, she has been unable to continue with her work with DHS, she has retrained herself as a school teacher but she is not able to work a full working week and her earnings have been reduced by at least 40 per cent. I am satisfied that the consequences to her of the injuries she has suffered are permanent.
76 Whereas the plaintiff as a younger woman had been an elite rower, up until the time of the accident she was rowing, albeit socially but on a regular basis and relatively long distances. She has been unable to return to that activity. I accept the plaintiff’s evidence as to the consequences to her from the injuries suffered by her in the accident. In my judgment the plaintiff’s injuries both of the right shoulder and the spine are serious within the meaning of the Act.
77 As I have indicated earlier the plaintiff’s earnings have been reduced as a result of her need to change her employment from approximately $50,000 gross per year in her work with the DHS to approximately $22,000 gross per year in her part-time work as a school teacher. I accept that evidence. I am satisfied that her loss of earning capacity will probably be permanent. Accordingly the plaintiff will have leave to bring proceedings for damages for pain and suffering and loss of earning capacity.
78 I will hear the parties on costs.
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