O'Sullivan v TAC
[2010] VCC 1467
•23 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02093
| CORNELIUS WILLIAM O'SULLIVAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 14, 15, 16 September 2010 |
| DATE OF JUDGMENT: | 23 September 2010 |
| CASE MAY BE CITED AS: | O'Sullivan v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1467 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Transport Accident – s.93 Transport Accident Act 1986 – injury to cervical spine – injury to shoulder – organic brain injury – whether consequences “very considerable”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with | Brown McComish |
| Mr I R Fehring | ||
| For the Defendant | Mr P A Scanlon QC with | Solicitor for the Transport |
| Mr P B Jens | Accident Commission | |
| HIS HONOUR: |
Preliminary
1 The plaintiff was the driver of a motor vehicle at Terang on 5 January 2005 when the vehicle left the road and rolled over. The plaintiff has little if any recollection of the circumstances of the accident.
2 At the time, he was a dairy farmer at Kolora, between Mortlake and Terang. He had planned to transfer the operation of the farm to his son.
3 The plaintiff alleges he suffered a soft-tissue injury to his cervical spine, and to his right shoulder, and an organic brain injury. He contends that each of these injuries have significantly affected his capacity to work on his dairy farm, and to undertake a range of domestic and recreational tasks.
4 This is an application for leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in the transport accident of 5 January 2005.
5 Mr Bird, on behalf of the plaintiff, identified three body functions said to be lost or impaired:
• the cervical spine • the right shoulder • the brain – organic brain injury. 6 The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.93(17) of the Act.
7 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of any one of the body functions are at least “very considerable” and more than “significant” or “marked”.
8 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
9 In accordance with the principles established in To Ha Lu v Mediterranean Shoes Pty Ltd,[1] the plaintiff may not aggregate the consequences of the various injuries involving separate body functions. Each must be looked at in isolation and a determination made as to whether the consequences flowing from each respective injury achieves the “serious injury” level.
[1] [2000] VSCA 65
Relevant Background
10 The plaintiff is now sixty-seven years and was sixty-two at the time of the transport accident. He is married and has five children. The four older children, all daughters, have lived away from home for a considerable period. His youngest child, a son, now thirty-years of age, until 2005 lived with his parents, but now runs the family farm.
11 The farm is principally worked as a dairy farm although is also run with beef cattle. It is comprised of a number of properties, the main containing the dairy farm at Kolora. The plaintiff has spent his whole working life on the farm which he inherited from his parents.
12 He attended school in Ballarat and left at age fifteen at the end of Year 11 to run the farm. His brother is a professor of medicine in Melbourne.
13 Given his occupation, it is not surprising that he has had some back strains over the years from time to time which have been intermittently treated by a chiropractor. These have not significantly interfered with his capacity to work as a dairy farmer. He was diagnosed and treated with hypertension in the 1990s and had medication prescribed. In May 1995, he had coronary artery bypass surgery, but was back working within twelve weeks. He also had occasional neck discomfort,[2] but again was able to continue work, with occasional chiropractic treatment.
[2] See report of Mr Brownbill – Court Book (“CB”) 52
14 In approximately 1983, he fell from a loft in his dairy and landed on a concrete floor. He was dazed and sustained a brief loss of consciousness. He was able to drive himself to the hospital, and was discharged after a day or two.
15 In 1997 or 1998, he suffered depression and has been treated with a range of medication, and by a range of different specialists for that disorder from that time through to the present. A comprehensive history of his depressive disorder is set forth in the report of Dr Ivers, a former treating psychiatrist.[3] In October 1998, he was admitted to the Melbourne Clinic with symptoms of a Major Depressive Disorder under the care of Dr Silvia Jones, psychiatrist. At an earlier time he had been admitted to the Albert Road Psychiatric Clinic and treated with a range of anti-depressant medication. He was referred by Dr Nick Ingram, psychiatrist, of the Melbourne Clinic, to Dr Ivers in November 1998, and was seen by that doctor from that time until 2000. He again treated the plaintiff in 2004. Dr Ivers described a long history of depression and anxiety which was treated by a range of anti-depressant medication. He had further admissions to the St John of God Hospital in Warrnambool. In the course of his treatment, Dr Ivers arranged for the plaintiff to undergo a brain CT scan which showed “some dilatation of the lateral third and fourth ventricles” and Dr Ivers arranged for the plaintiff to be referred to Professor Ed Byrne, neurologist, to review those findings. Dr Byrne found there was no suggestion of cerebral atrophy. He considered that the plaintiff had longstanding hydrocephalus[4] but which was asymptomatic at that time.[5]
[3] CB 109-111
[4] An abnormal increase in the amount of cerebrospinal fluid within the ventricles of the brain.
[5] CB 110 and report of Dr Frost – CB 131
16 Dr Ivers also referred the plaintiff to Mr Radley, psychologist, for cognitive behavioural therapy. Dr Ivers said that during the course of his treatment the greatest stressor was a difficult relationship with his son, who was working on the family farm. The conflict apparently arose as a result of differences of views as to the manner in which the farm was to be run. The conflict continued when the plaintiff was again treated by Dr Ivers in 2004. On that occasion, such was the escalation that the plaintiff reported repeated physical assaults by his son, including to the point where he suffered broken ribs and bruises. Investigations did not indicate the plaintiff was suffering Bipolar Affective Disorder.
17 In the course of his evidence, the plaintiff sought to play down the discord in his relationship with his son. However, it is clear from various medical reports, and in particular the history to treating doctors, that the relationship had been difficult for a considerable period and at worst, involved assaults, on a weekly basis. There is little doubt that this relationship contributed to his longstanding Depressive Disorder.
18 In 2005, he and his wife moved from the family farm and took up residence in a property which he had purchased from his parents in Terang. From that time he remained living in Terang and would visit the farm on a regular basis.
19 In late 2007, his wife developed a progressive neurological disorder. This commenced with some slurring of speech and difficulty with writing, but of more recent times she has had problems with balance and some ataxia. Approximately five months ago the plaintiff applied to be his wife’s carer and he now receives a Commonwealth carer’s benefit. She is significantly limited in the domestic chores she is able to undertake, and the plaintiff himself now does the majority of the domestic chores, including maintenance and gardening.
20 Prior to the transport accident, the plaintiff had contemplated handing over the running of the dairy farm to his son. He stated that his intention was, by the age of sixty-five or sixty-six to be retired from the milking operation, but further intended to retain an interest in the beef cattle part of the business.
21 Aside from the matters referred to above, the plaintiff was in full-time work at the dairy farm up to the date of the transport accident. It required long hours, and was heavy work. He had an interest in thoroughbred racehorses and owned or part-owned a number.
The Injuries and their Consequences
22 On 5 January 2005, the plaintiff was travelling in his motor vehicle between Terang and Warrnambool. At some point he lost control of the vehicle, which left the roadway and rolled over. He has no clear memory of the events of the collision although has read reports in the press which said he swerved to miss a dog. He has further reconstructed events and believes a motor cyclist, who, some short time before the accident had passed him, caused his vehicle to run off the road. In any event, he was taken to the Warrnambool Base Hospital where he spent three days. Upon admission, it was noted he had suffered a head injury with lacerations of his scalp. There was a friction burn in the right neck and shoulder area from the seatbelt and he complained of discomfort to his neck and lower back. A CT scan of his brain and neck did not show any significant abnormalities. Degenerative changes were noted in the cervical spine and there was evidence of “normal pressure hydrocephalus”. This had been seen in an MRI scan of 1998[6]. He was treated conservatively and a cervical collar administered. He was discharged on 7 January 2005. He was reviewed by Mr Carl Murphy, surgeon, on 14 January 2005,[7] and was noted to be well, apart from some soreness in the cervical and lumbar spines. Movement of his neck and back was reasonable and there were no other significant physical findings.
[6] CB 131
[7] CB 14
23 He was seen by his general practitioner, Dr Neil Jackson of the Terang Medical Centre on 4 February 2005 and complained of right shoulder pain.[8] The doctor noted a long history of anxiety and depression. He was next seen by Dr Jackson on 10 March 2005 but that consultation was related to “domestic issues”. Subsequently, in March 2005, an x-ray and ultrasound of the right shoulder were taken.[9] An incomplete insubstance tear of the supraspinatus tendon was noted with some subacromial bursal thickening. A degree of degenerative or arthritic change was suspected. At this time the plaintiff reported to Dr Jackson that he was doing some milking and work about the farm. The plaintiff consulted Dr Jackson on a number of further occasions in 2005, but these were related to the discordant relationship with his son, rather than the injuries in the transport accident. In cross- examination, the plaintiff stated that he would have mentioned his neck and shoulder problems to Dr Jackson over this period. Dr Jackson observed:[10]
“… Con has been trying for some time to get off the farm and have his son, Michael, take over the running of the dairy aspects of his farm while he continues to be involved with beef cattle on an out paddock. These plans pre-date by a number of years his car accident, and from my examination of Con and his shoulder and his ability to continue to milk while his son was in Queensland. I don’t believe that his vehicle related injuries have provided a significant impediment to his work as a dairy farmer.”
[8] CB 10
[9] CB 138-9
[10] CB 12
24 In March 2005, the plaintiff was treated by a physiotherapist, Mr Cavalieri.[11] Treatment related to the right shoulder, cervical and lumbar spines. Mr Cavalieri noted:[12]
“His right shoulder was the most acute, and the problem requiring the most attention initially. His cervical spine condition was typical of a whiplash type injury superimposed on some pre-existing cervical spine degenerative joint disease. His poor right shoulder mechanics was also placing additional load on his cervical spine. So his neck was sprained during the accident, but his shoulder pain and weakness continued to aggravate his cervical spine for a period of time after the accident.”
[11] CB 15-18
[12] CB 16
25 Mr Cavalieri noted that the plaintiff struggled with his farm work for a period of six months after the accident and the hours spent at the farm were reduced. It was noted that the plaintiff’s shoulder strength improved but by February 2006 it had not returned to full strength. Generally, Mr Cavalieri noted the plaintiff had recovered reasonably well from the accident but continued to have some right shoulder problems relating to the supraspinatus tear. He was unable to perform the heavier farm duties. Further, there was noted cervical spine pain and stiffness but the expectation was that this would resolve. The plaintiff ceased physiotherapy in 2006.
26 By letter of 24 October 2006, another general practitioner from the Terang clinic, Dr Fitzpatrick,[13] noted that the plaintiff was still suffering a significant disability in his neck and shoulder, although it was not sufficient to warrant treatment over the years 2006 to 2008. The plaintiff attended the practice for consultation for various issues,[14] but there was no reference to any pain or restriction in the shoulder or neck. Dr Fitzpatrick noted[15] that the plaintiff’s wife had a progressive neurological illness which required him to care for her and undertake domestic duties.
[13] CB 19
[14] CB 62
[15] CB 61
27 In his report of 27 August 2007,[16] Dr Jackson said the plaintiff did consult with him in October 2005 complaining of right shoulder pain, but also of left shoulder pain which was unrelated to the transport accident. In relation to the affect of the plaintiff’s neck and shoulder injuries on his capacity to run the farm, Dr Jackson noted:[17]
“With regards to work capacity, Mr O’Sullivan has continued to work in his pre-accident employment as a farmer. Through a combination of circumstances which includes his desire to involve his son more fully in the running of his farm, his pre-existing ischaemic heart disease as well as the injury to the right shoulder sustained in the accident of 5 January 2005, he has generally reduced the hours he works. Apart from imaging, I have not referred Mr O’Sullivan for specialist opinion.”
[16] CB 136
[17] CB 136-7
28 The plaintiff has not been prescribed any pain-relieving medication and at the present time takes two to four Panadol per day. Prior to the transport accident he had been prescribed Valium and stated that he had continued to take the Valium and it assisted with the difficulty he had sleeping because of shoulder pain.
29 He has had further treatment from Mr Trevor Creed, formerly a chiropractor, who performs a therapy called “shiron”. This apparently involves light massage and has some relationship to the earth’s magnetic fields. The plaintiff claims the treatment provides benefit.
30 He has not been referred to any orthopaedic or other specialist for treatment.
31 The plaintiff was away from his farm work for approximately two weeks, and then resumed work on a graduated basis. In 2005, his son was working on the farm full-time and because of the difficulty in their relationship, he left the farm in late 2005 and went to live with his wife in Terang. In evidence, he stated that had the transport accident not occurred, he would have expected to remain working on the dairy farm until sixty-five or sixty-six years. He would have also intended to maintain an interest in the beef cattle side of the farm beyond that time.
32 At the present time, the plaintiff complains of pain and restriction in his right shoulder and neck. He complains of headaches on a regular basis, and has difficulty with sleep. In his affidavits, he claimed difficulty in driving any significant distance because of the pain and restriction in his neck.[18] However, in the course of cross-examination, he stated that the reason that driving was difficult was that he became tired and his concentration wavered. He deposed that while he still went out to the farm from time to time to assist with the farm work, he was not able to do any significant heavy work because of the pain in his neck and shoulders. His loss of contact with the farm was a significant factor for him.
[18] CB 70, 71b
33 In evidence, he stated that he had planned to join a lawn bowling club in Terang but was unable to do so because of the restriction of movement in his right shoulder. He is right hand dominant.
Medical Evidence
34 Aside from the treating doctors to whom I have referred, the plaintiff was examined by Mr Schofield, orthopaedic surgeon, in November 2006[19] and October 2009.[20] In the first report, the plaintiff complained of neck pain with referred pain down the left arm to the elbow. The symptoms were intermittent. The symptoms in the right arm were minimal but aggravated by excessive movement above the shoulder level. Mr Schofield suggested the plaintiff undergo an MRI scan of the neck which showed multi-level degenerative change, most significantly at C5-6, and to a lesser extent at C6-7. An MRI scan of the right shoulder reported:
“AC degenerative change, chronic degenerative change in the rotator cuff with a partial thickness tear in the supraspinatus and a SLAP lesion affecting the glenoid rim.”
[19] CB 20
[20] CB 63
35 Mr Schofield considered the plaintiff had suffered an aggravation of pre- existing degenerative change in the neck and right shoulder and noted some loss of range of movement which had deteriorated between 2006 and 2009.
36 The plaintiff was examined by Mr David Brownbill, neurosurgeon, in July 2008[21] and November 2009.[22] He complained to Mr Brownbill of nagging right shoulder and neck pain, fluctuating in severity. There was no pins and needles nor numbness in the arms. Mr Brownbill noted longstanding cervical degenerative changes. He further noted that the plaintiff had suffered a mild concussive head injury and given the plaintiff’s complaints of memory disturbance, he suggested the plaintiff be examined by a neuropsychologist. He thought the plaintiff had suffered an aggravation of cervical degenerative disease. In a letter of 7 August 2008, Mr Brownbill was provided with the neuropsychological assessment of Dr Peter Dowling.[23] Mr Brownbill commented:[24]
“Such described progressing memory decrease would not be consistent with occurring from any cerebral damage sustained in the motor vehicle accident.”
[21] CB 52
[22] CB 67
[23] CB 58
[24] CB 68
37 The plaintiff also complained of ongoing neck stiffness. In his report of 19 November 2009, Mr Brownbill received a history that the plaintiff was helping around the house and performing most of the domestic chores, including vacuuming and bathroom cleaning.
38 The plaintiff was examined by Dr Michael Epstein, psychiatrist, in May 2008.[25] He noted the long history of anxiety and depressive problems and diagnosed the plaintiff as suffering a Chronic Adjustment Disorder with Depressed Mood and that the transport accident had exacerbated the prior chronic depressive illness.
[25] CB 24
39 The plaintiff was assessed by Dr Peter Dowling, clinical neuropsychologist, in November 2007.[26] In a lengthy and comprehensive report, Dr Dowling took a detailed history, and administered a range of neuropsychological tests. From the records of the Warrnambool Hospital, Dr Dowling assessed the plaintiff as having suffered a moderate brain injury based upon the duration of his impaired conscious state after the accident. He noted the CT scan undertaken at the hospital showed prominent dilatation of all four ventricles. Dr Dowling concluded there were five major findings from the neuropsychological assessment. The first was an assessment of the plaintiff’s premorbid ability, based upon the fact that he had attained Year 11, and upon some aspects of the psychological testing, indicated he was likely to have had a “solid average premorbid ability” (IQ range 100-109). Based upon that assessment, there was a “significant decline in his cognitive functioning”. Secondly, the testing indicated there was a significant decline in memory and learning functions, reduced to the low-average level. Thirdly, testing demonstrated significant acquired limitations in high-level attentional functions. Fourthly, the plaintiff exhibited slowness on many (but not all) tasks, particularly in reduced speed of information processing and reduced efficiency in executive processes. Fifthly, there was support for some decline in both left and right frontal lobe functioning, more prominent in the right lobe.
[26] CB 32
40 These cognitive deficits, said Dr Dowling, were consistent with the plaintiff having suffered a moderately severe traumatic brain injury. Dr Dowling further said:[27]
“Conversely, there is a much higher likelihood of a significant contribution to his cognitive decline from the normal pressure hydrocephalus. This condition was diagnosed during the 1990s and there is a record available of an MRI scan that was conducted in 1998. Normal pressure hydrocephalus can produce cognitive impairment, including impaired delayed recall, attentional problems, decreased speed of processing and impaired ability to manipulate acquired knowledge. Thus many of Con’s identified cognitive deficits can also be found with normal pressure hydrocephalus.”
[27] CB 48
41 Dr Dowling noted that there was no neuropsychological assessment when normal pressure hydrocephalus was diagnosed in the 1990s and therefore no objective evidence available as to the nature and extent of cognitive decline before the transport accident.[28] Dr Dowling further noted:[29]
“Taking into account the moderately severe memory disorder and the other identified cognitive deficits in higher level attention skills and frontal lobe functions, particularly functions of the right frontal lobe, it is likely that Con requires and receives at least some direction or support in his daily living activities … . With respect to the mental status impairment arising specifically from the traumatic brain injury in the motor vehicle accident in 2005, a conservative but fair estimate of the contribution of that injury would be 50 per cent of the total impairment. ….
Whilst Con does not report any noteworthy changes in his emotional- behavioural functioning following the traumatic brain injury, this probably reflects his limited insight and other situational factors that were noted above in relation to his cognitive deficits. Since the frontal lobe may have a major role in regulating emotion as well as controlling higher cognitive functions, and there is a clear support for some acquired cognitive deficits from the brain injury, it is highly likely that there is also some acquired impairment in his emotional functioning as a result of the brain injury. … Overall the findings of his neuropsychological assessment suggests that the functional impact of the traumatic brain injury in 2005 has been underestimated by Con and by those involved in his ongoing medical care and physical rehabilitation. It is pertinent to note that his extensive dairy farming experience, his well-established work routines, the presence of natural environmental cues on the farm and the assistance of his son would have substantially reduced the negative impact of his acquired memory deficits and higher level attentional difficulties on his work performance. … .”
[28] CB 49
[29] CB 49
42 In summary, Dr Dowling concluded that the plaintiff had suffered a significant brain injury in the transport accident, that that injury had resulted in a range of disturbances in cognitive functioning, some of which he was not able to discern, and he apportioned the contribution to that reduced functioning as to 50 per cent to the transport accident, and 50 per cent to the pre-existing hydrocephalus first diagnosed in the 1990s. He regarded this assessment as “conservative”.
43 Dr Dowling attended to give evidence and be cross-examined by video link. I found him an impressive witness, well-versed and competent in the area of neuropsychology, making concessions I would expect of an honest witness.
44 It was put to him by Mr Scanlon that there were significant items of information which had not been provided to him which made his opinion deficient. These included the fact that the plaintiff had been taking powerful anti-depressant medication over many years and that this may explain his cognitive deficit. Further, he was not provided with a comprehensive history as to the full nature and extent of the previous head injury suffered by the plaintiff when he fell in the dairy, and by the various assaults by the plaintiff’s son, some of which resulted in him being “dazed”. It was put by Mr Scanlon that there was little difference between being “dazed” from such assaults and the disoriented state he was in after the transport accident. Dr Dowling responded to these matters by saying that he was not aware that the effect of anti-depressant medication, while possibly affecting some aspects of cognitive functioning in the short-term, would have long-term and significant effects such as matched the results of the neuropsychological testing. Further, the various incidents of assault and the fall as described to him were not at the same level of significance as was the transport accident. I accept his evidence in that regard.
45 Of significance was the following evidence given by Dr Dowling in answer to a question of mine:[30]
[30] T110-113
“HIS HONOUR:
Q:
The second matter I wanted to ask you about was contained at p.18 of your report where, as I understand it, you assess him as having suffered a significant organic brain injury?---
A: That's right. Q:
And you say that the role of the normal or lower pressure hydrocephalus plays a role to the extent of 50 per cent, is that right?---
A: Yes. Of course that's really an estimate based on minimising error
margin.Q: I want to explore that a little with you?--- A: All right. Q: We've got two possible causes - - - How do you come to that
conclusion?---A:
Yes. Essentially we have two possible causes or two highly likely causes of brain impairment or more likely causes if you like. The brain injury he suffered in 2005 and normal pressure hydrocephalus.
Q:
Can I just intervene, I'm sorry. As I understand it, you say some of these cognitive functions could be explained by this low pressure hydrocephalus or normal pressure hydrocephalus?---
A: That's right. Q: Is that right?--- A: Some of the problems that occur with this are similar to the things
that occur with brain - with a brain injury.Q: Yes?--- A:
So because we didn't have any evidence of how his functioning was after he had the normal pressure hydrocephalus, we also didn't have any assessment immediately after the brain injury, we're left with looking at the two possible causes which it's very hard to determine which is the major or minor contributor. I would - the fact - to minimise error if you ascribe 50 per cent to each, from a statistical point of view that minimises the error when you don't know which one is the major contributor. It could be the major contributor is normal pressure hydrocephalus. It could be the major contributor is the head injury but we don't have any objective information to make that decision.
Q:
Just let me explore that a little further. I am here called upon to determine - accepting that Mr O'Sullivan does have the cognitive deficits that you refer to, I need to determine the extent to which they have been contributed to by the car accident?---
A: Yes. Q: How accurate is your assessment when you say then that this is
not an easy task?---A:
What I'm saying is that I couldn't form a decision about the cause of these with any great certainty to ascribe more to one or the other. There wasn't any evidence to help me in that process from pre-existing reports. I was left looking at how his current functioning was and making a judgment based on my experience and knowledge and I felt that the fairest assessment was to ascribe an equal portion to both. That minimised error from my point of view but of course it could have been 70 per cent, 30 per cent either way, I don't know.
Q:
The decision I've got to make is what is based on a phrase that you've probably heard, the balance of probabilities, that is more probable than not?---
A: That's right, yes, sure. Q: Can you make your analysis on the basis of what is more probable
than not?---A:
From my point of view it's very difficult because we don't have evidence to base it on. We can - I can guess but I don't have any evidence to base it on because there's no objective evidence of what his cognitive functioning was after normal pressure hydrocephalus. It's just we're left with an uncertainty there. I certainly don't think you can dismiss the head injury as having no consequences. We're just talking about the weighting of these things, it's very hard. As time goes on, if his cognitive function is stable than that would increase the weighting for the head injury because it's suggesting that the normal pressure hydrocephalus isn't causing any deterioration in function. But it is a complex question that isn't easy to answer because of a lack of objective evidence - in the past we're talking about.
Q:
Yes. You were taken to an aspect of his affidavit which said that he had difficulties driving because of neck and shoulder injury but in the course of his evidence he describes something rather different to me. He said that it was difficult for him to drive long distances, for example, to Geelong or Melbourne because it left him tired and he had difficulties with concentration. He described that as having happened since the accident?---
A:
I think it's relevant to listen to what the client says and what other people who might know him say, like his doctors who've seen him over many years. Obviously I've only seen him at the time I did the assessment. I think we do have to weigh up what the client says here as additional evidence about when things occurred.
Q: Yes?--- A:
In answer to your question about his concentration, his high level attention difficulties would fit with his self-report there that can't sustain attention for long - for as long as he used to. Yes. Although I must say, in an earlier medical report around 2006 he said to a doctor that he was able to drive without any difficulty.
Q: There may be conflicting views?--- A: Sure. I did mention in my report that his insight into his difficulties is limited so he may not be the most - the best person to give an opinion about his cognitive difficulties. We do also know that people get more awareness as time goes on so three years later might have a better report of the difficulties than one year afterwards.
Q: Yes?--- A: (Indistinct) after traumatic brain injury. Q:
Yes. I understand what you say is an element of his cognitive difficulties, that he doesn't himself appreciate how bad they are?---
A: That's right … .”
46 The plaintiff was examined by Mr Michael Fogarty, orthopaedic surgeon, in October 2009.[31] He assessed the plaintiff’s soft-tissue injury to the neck and right shoulder. He thought that the complaints of pain made by the plaintiff were likely to continue, but thought from a purely physical point of view the plaintiff would have been able to continue doing most aspects of the dairy farming within three months of the transport accident. He said there were others factors which caused the plaintiff to retire. He described the injuries as having a “slight” affect upon the plaintiff’s domestic and leisure activities. He stated that the plaintiff was able to manage most activities of daily living and helped his wife to a significant extent. He said:[32]
“He has not been able to enter many leisure activities and this appears to
have been because of lack of initiative and confidence.”
[31] CB 89
[32] CB 94
47 The plaintiff was examined by Dr Carol Newlands, psychiatrist, in February 2008[33] and September 2009.[34] She also provided a letter to the defendant.[35] In her initial report,[36] she described the plaintiff as having developed a mild Adjustment Disorder as a result of the physical injuries sustained in the transport accident. However, when presented with a range of further reports, including that of Dr Dowling, she noted the significant decline in cognitive function and memory as assessed by Dr Dowling. She accepted the various complaints of the plaintiff were consistent with a history of sustaining a moderately severe traumatic brain injury in the transport accident. She stated:[37]
“I note that he has now been deemed to have an organic/traumatic brain injury. Thus there would appear to be quite a complex picture to this gentleman’s presentation. Certainly his traumatic brain injury would make it difficult for him to self monitor and might result in further irritation and irritability. I believe he still suffers from an Adjustment Disorder with Depressed Mood relevant to his ongoing pain and physical limitations and the more recent stressors which he has encountered on his life. In addition, this condition must be taken in the context of a pre-existing depressive disorder for which he took anti-depressants over many years, and the documented ongoing stressors, including conflict with his son. He has also been diagnosed with an acquired brain injury. … With regard to his acquired brain injury, I believe he has been and will remain incapacitated for employment. In particular his memory, decision making and other high cognitive functioning would appear to be significantly impaired and as such it would be difficult for him to make decisions and to translate these into action. The main limiting factor, however is not so much that of emotional or psychiatric problems but rather his cognitive decline. Certainly there is mention of his being slow on many but not all tasks, limitations in his higher level attentional functions and memory and learning functions being substantially affected.”
[33] CB 120
[34] CB 95
[35] CB 106
[36] CB 127
[37] CB103
48 Further:[38]
“I note the deficiencies in his attention to visual detail, interpersonal reasoning and executive functions such as problem solving and organisation. Given the fact that he was essentially running a business, he would require all these areas of functioning to be at least in the average range to function as required. The deficiencies in these areas would all significantly impact on his capacity to run a business.
……………………
Following his injury however, he described significant problems with memory and concentration and feels he can no longer run the farm. Whilst a small portion of this may well be due to his altered mood resultant upon his awareness of his pain and limitations and conflict between father and son, I believe the much greater problem lies with his acquired brain injury. According to the results of the neuropsychological assessment, it would appear that this has had a significant impact upon his cognitive abilities. Indeed, there are limitations to his memory and new learning as well as executive functioning. These deficiencies would certainly impact upon his capacity to run a farm, to make clear judgments, and even to be able to discuss his reasoning for decision making with his son or other parties. I believe the impairment commenced following the motor vehicle accident and continues to date. There is also an impact upon his social and leisure activities. Thus I believe the direct consequence of the transport accident plays the greater role in his current difficulties.”
[38] CB 104
49 The plaintiff was examined by Dr Mary Wyatt, occupational physician, on behalf of the defendant in December 2007.[39] She received a complaint of soreness to both sides of the neck and the right shoulder blade area. She noted the degenerative change on radiology. She considered the plaintiff had aggravated an underlying cervical spondylosis. She thought the partial thickness tear was clinically irrelevant. She stated that she was left with the impression that the transport accident had not made a significant difference to the plaintiff’s long-term capacity or ability, although he would have some difficulty with his job as a farmer.
[39] CB 132
The Injury to the Plaintiff’s Neck and Shoulder
50 In submission, Mr Bird did not pursue the neck and right shoulder injuries as having consequences sufficient to meet the “serious injury” test. In my view, that was an appropriate concession. I accept that the plaintiff did suffer some aggravation to the underlying degenerative process both in his right shoulder and neck, but it is clear from the medical evidence that he had only very modest treatment in 2005 and 2006 for the injuries and almost none since. He has been only taking over-the-counter pain-relieving medication and has not been referred to any specialist.
51 While I accept that there would be some of the heavier duties on the farm which would cause him difficulty given these injuries, there were many other factors at play which caused him to leave the farm. Most significant amongst these was the ongoing discordant relationship with his son, his wife’s neurological illness and his desire to have retired from the farm at sixty-five or sixty-six years in any event.
52 I am not satisfied the consequences of the injuries to the neck and right shoulder meet the “serious injury” test.
Submissions of the Defendant in relation to the Organic Brain Injury
53 Mr Scanlon submitted that the plaintiff had a long history of depression and anxiety which had been treated by powerful medication, and inpatient admissions to psychiatric hospitals. To the extent that the plaintiff suffered emotional problems as a result of the transport accident, including as to concentration, memory and other cognitive defects referred to by Dr Dowling, they could be explained by some mild aggravation of that disorder, as was concluded by Dr Epstein.
54 Mr Scanlon pointed to the evidence of Dr Dowling as to the manner in which he made an assessment of the contribution to the cognitive deficits by the transport accident. He submitted that I could not be satisfied, the onus being upon the plaintiff, on the balance of probabilities, that there was a significant contribution by the transport accident given Dr Dowling’s evidence.
55 Even accepting there was some contribution, the nature and extent of the cognitive deficits did not reach the “very considerable” level as the law required. The plaintiff still had an interest in his farm, he had become a carer for his wife and received a carer’s allowance. He was involved in doing most of the domestic duties at home and involved in a range of other recreational activities, including a passion for sport and a modest interest in racehorses.
56 Mr Scanlon pointed to the opinion of Mr Brownbill, neurosurgeon, where he stated:[40]
“Such described progressing memory decrease would not be consistent with occurring from any cerebral damage sustained in the motor vehicle accident.”
[40] CB 68
57 The described memory decrease apparently related to part of the history provided by the plaintiff where he reported that his memory since the transport accident had not been as good as it had been when earlier seen by Mr Brownbill in 2008.
Conclusions
58 I was impressed with the evidence of Dr Dowling. He is the only neuropsychologist to have undertaken comprehensive testing and assessment of the plaintiff’s cognitive capacities. He found very significant deficits in a range of areas which he concluded would have a significant affect upon the plaintiff’s level of intellectual functioning, in particular memory and concentration. He stated that it was likely the plaintiff had not been able to assess the real impact of the organic brain injury because the injury itself resulted in limited insight.
59 The difficulty with Dr Dowling’s evidence is the passage referred to above where he attempts to ascribe 50 per cent as being resultant from the transport accident. He stated clearly such an assessment was difficult, and even went further to say it may only have been responsible for 30 per cent, or on the other hand for 70 per cent. Does his evidence allow me to conclude, on the balance of probabilities, as to the nature and extent of the responsibility of the transport accident for the consequences determined by neuropsychological testing?
60 Dr Dowling was not significantly challenged upon the results of his neuropsychological testing. It was not put in issue in any significant way that the plaintiff in fact suffered significant cognitive problems. It was rather put that there were other factors which could explain the problem, in particular the pre-existing hydrocephalus, and the adjustment disorder emanating from the physical injuries.
61 I have concluded that the plaintiff does suffer the significant cognitive problems as outlined by Dr Dowling. These have led to a range of intellectual functioning, as set forth in his report. In particular, there is a substantial deficit in concentration and memory, and other higher level attentional functions. These have all had a significant impact upon the plaintiff’s life, although he may not have the insight to appreciate the extent of that effect. Although the passage referred to from the report of Mr Brownbill mitigates against the plaintiff’s memory difficulties being related to the transport accident, it is a short statement without significant analysis and I prefer the opinion of Dr Dowling on the point.
62 I have concluded that the transport accident has played a significant role in that deficit of cognitive functioning. I have come to that conclusion for the following reasons:
•
Firstly, the opinion of Dr Dowling is that a conservative contribution is 50 per cent, even although he accepted that was an estimate only;
•
His opinion is accepted by the defendant’s consultant psychiatrist, Dr Newlands. In particular, she accepts that the significant problems of memory and concentration which the plaintiff described to her occurred since the transport accident and were thus in a temporal sense, related to it. Further, she was of the view that a measure of the plaintiff’s pre- accident functioning was his capacity to run the farming business. This showed a level of intellectual functioning quite inconsistent with the deficits subsequently found by Dr Dowling;
•
In his evidence,[41] the plaintiff stated that his problems with tiredness and concentration, particularly affecting his ability to drive a motor vehicle any distance, and affecting his ability to involve himself in bowling had occurred since the transport accident. In fact he said that before the accident he had a very good memory and was able to recall phone numbers, numberplates and faces;
•
While Dr Dowling did have difficulty ascribing a percentage of responsibility to the transport accident, the nature and extent of the cognitive deficits found by him show a very significant impact upon the plaintiff’s level of functioning. Even if the extent of the contribution by the transport accident was modest, or 30 per cent as he contended at the lower end, that would be, in my view, sufficient to have a major impact upon the plaintiff’s mental functioning.
[41] T69, T73-75
63 In all these circumstances, I am satisfied that the plaintiff did suffer an organic brain injury as a result of the transport accident, and while the extent of its contribution to the plaintiff’s level of cognitive functioning is not certain, it is sufficient to meet the “very considerable” test as the law requires. In those circumstances, I propose to grant leave to the plaintiff to bring common law proceedings.
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