Parmar-Poynter v Transport Accident Commission
[2022] VCC 1791
•27 October 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-01590
| BHAVNA PARMAR-POYNTER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 and 10 October 2022 |
| DATE OF JUDGMENT: | 27 October 2022 |
| CASE MAY BE CITED AS: | Parmar-Poynter v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1791 |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Spinal injury ꟷ pre-existing spinal condition ꟷ whether pre-existing spinal condition aggravated in the subject transport accident ꟷ identification of the injury ꟷ identification of the separate impairment caused by subject transport accident ꟷ subsequent deterioration ꟷ whether the subsequent deterioration linked to the subject transport accident ꟷ second transport accident ꟷ identification of that injury and the impairment caused by it ꟷ whether the consequences of the second transport accident resolved ꟷ whether the impairment consequences meet the statutory threshold
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
Judgment:The plaintiff has leave to bring a proceeding at common law against the Transport Accident Commission.
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr J Richards KC with Mr A Taylor | Arnold Thomas & Becker |
For the Defendant | Mr S Smith KC with Ms A Wood | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1The plaintiff filed an Originating Motion against the State of Victoria (Department of Health and Human Services) (“DHHS”) alleging that she suffered injury in the course of her employment which resulted in an impairment of a body function and impairment consequences which are serious.
2The plaintiff filed a second Originating Motion against the Transport Accident Commission (“the TAC”) alleging that she suffered injury in a transport accident which resulted in an impairment of a body function and impairment consequences which are serious.
3Mr Richards appeared with Mr Taylor of counsel for the plaintiff. Mr Smith appeared with Ms Wood of counsel for the defendant.
The issues
4The initial issues raised by the Originating Motions are complicated for reasons which will become plain shortly. In the meantime, I will identify the topic headings of the issues which were common to all of the parties:
·An identification of the spinal complaint suffered by the plaintiff prior to the injury she alleges she suffered to her spine in the course of her employment with DHHS.
·An identification of the spinal injury which the plaintiff alleges she suffered in her employment with DHHS, and the body function which she alleges was impaired, and the impairment consequences of the impairment and/or loss of the function of the spine.
·An identification of the spinal injury which the plaintiff alleges she suffered in the first transport accident, which occurred on 14 April 2017, and the body function which she alleges was impaired, and the impairment consequences of the impairment and/or loss of the function of the spine.
·Whether the onset of a more serious impairment of the function of the plaintiff’s spine in mid-March 2018 is causally related to the injury she alleged she suffered to her spine in her employment with DHHS, or whether it is causally related to the injury she alleged she suffered in the first transport accident, or whether its occurrence is idiopathic.
·Whether the plaintiff suffered a further injury to the spine in a second transport accident, which occurred on 3 June 2020, and whether it resulted in a further impairment of the function of the spine, or whether she recovered from the consequences of it.
·Whether the consequences of either the injury she suffered in her employment with DHHS, or the first transport accident, meet the statutory threshold of serious injury.
5At the end of the hearing, and after I had reserved judgment, the plaintiff and DHHS informed me that they had resolved their originating motion. Despite the settlement eliminating some of the issues relevant to the Originating Motion between them, the evidence which was relevant to them remained somewhat relevant to the Originating Motion between the plaintiff and the TAC.
6The foregoing is a skeletal outline of the issues. There were a myriad of other issues which were part of a larger substrata emanating from these principal issues. I will now endeavour to summarise the evidence. One observation I feel compelled to make, is that the parties showed remarkable industry in the manner in which the applications were conducted, and in preparation of very helpful written
submissions; however, the submissions descended into granular detail and, indeed, to a level not called for in serious injury applications. I have summarised only so much as I think is necessary to demonstrate the angles taken by the parties, without condescending into the detail which they did.
Prior spinal condition
7The plaintiff said very little about her prior spinal condition in any of her affidavits. In her first affidavit, affirmed on 25 October 2019, the little that she did say was that she had experienced some prior problems with her spine, for which she had scans, physiotherapy and adjustments of her desk at her workstation.1 In her second affidavit, affirmed on 7 October 2021, she went into more detail, describing the problems with her neck as being caused by problems she had with her desk, computer and chair provided for her use.
8In about early 2014, the plaintiff made contact with DHHS, which organised for an ergonomic specialist to inspect her workstation. The specialist made recommendations which resulted in changes to her workstation. However, in early 2016, she was relocated to another floor, which resulted in her having problems with the chair, computer and workstation which she was provided. On this occasion, she was not provided with the assistance she had been given previously.
9The plaintiff had an overseas trip spanning about six weeks over the Christmas period of 2016 to 2017. Notwithstanding the break from her employment, she developed neck and shoulder problems due to the problems she was having with the chair, computer and workstation.
10
The plaintiff first sought treatment from Mr Mitchell Koh, physiotherapist on 6 February 2017. In a courtesy letter to Dr Jitendra Kumar, general practitioner, dated 3 March 2017,2 he noted that the plaintiff had chronic neck pain, headaches
Plaintiff's Court Book ("PCB") 15
PCB 53
and left lower back pain, and that she had suffered chronic neck pain over the previous five years. He diagnosed right levator scapula overuse, cervicogenic headache and left sacroiliac joint pain. He noted she experienced gradual improvement with her lower back and was no longer experiencing headaches, but was still experiencing pain in the attachment point of the levator scapula. He treated her with manual therapy, which provided temporary relief for her neck pain, and taping to help ease her symptoms. He further provided her with strengthening exercises for her neck and lower back. He considered that the plaintiff had suffered a chronic injury and that her neck would require a greater amount of time to settle.
11In a report dated 12 May 2017,3 Mr Koh provided a more extensive history obtained from the plaintiff. He noted that, when she initially sought treatment from him, she was having pain in the right side of her lower back and hip following a flight back from overseas.4 He also noted that the onset of neck and shoulder pain, and headaches, coincided with her return to work from the overseas trip, and that she associated the onset of those problems with her workstation, which was not set up correctly. Additionally, his clinical note of 6 February 2017 refers to this history of the onset of the plaintiff’s spinal pain, and contributed to by the plaintiff sitting on an aeroplane, the problems with her workstation, and sleeping on bad mattresses, resulting in the development of her spinal pain.5
12Under cross-examination, the plaintiff denied the substance of what Mr Koh referred to in his report and in his clinical note. She denied having any spinal pain while she was overseas.6 She said that she did not feel any spinal pain until she returned from overseas, but I take that to mean a denial that she experienced
PCB 54
This is a reference to the overseas trip spanning about six weeks over the Christmas period of 2016 to 2017.
Mr Koh's clinical notes are at PCB 295-334
Transcript (“T”)12
spinal pain while on the aeroplane.7 She said that she could not recall telling Mr Koh her spinal pain began while she was overseas in the United Kingdom.8 She said she could not recall telling Mr Koh about the number of years she had been suffering from spinal pain, and added that she could not remember how many years she had been suffering from that pain.9
13Under further cross-examination on Mr Koh’s clinical notes, the plaintiff said that she was in the habit of running up to 5 kilometres at a time on a treadmill about five to six times per week. She continued running at that level at around the time she saw Mr Koh.10 She told him that she had experienced tension in the right side of her neck with running, and had suffered right ankle, right knee and lower back pain from running.11
14Mr Koh considered that the more recent episode of neck pain would not subside with just physiotherapy, but required an ergonomic workstation assessment. He considered that the setup of a workstation was often a contributor to prolonged neck and shoulder injuries. I assume he made that observation relevant to the plaintiff’s circumstances. He recommended that the plaintiff engage in Pilates as a long-term maintenance treatment once her symptoms had subsided.
15In a report dated 9 November 2020, Dr Kumar referred to seeing the plaintiff before the occurrence of the first transport accident, on 8, 20 and 22 March 2017, for treatment for her neck. He did not treat her for any medical condition affecting her left shoulder or lower back prior to the occurrence of the first transport accident. He referred to his clinical notes of the attendances on those dates:
T14-15
T15
T15
T17
T19
·8 March 2017 ꟷ he referred to the plaintiff suffering neck pain and paraesthesia affecting her right arm. She was tender over the C7 level of her neck. He referred her to have a CT scan.12
·20 March 2017 ꟷ he diagnosed a disc protrusion and degenerative disc disease. That diagnosis was based upon the CT scan taken on 10 March 2017.13 The radiologist reported, among other things, that at C6-7 there was a posterocentral disc protrusion indenting the anterior thecal margin. The radiologist concluded that the appearances on the CT scan, overall, demonstrated degenerative changes in the plaintiff’s neck, with associated abnormalities demonstrated at various levels of her neck.14
·22 March 2017 ꟷ the plaintiff was provided with a care plan by Ms Jessica Gelding, who I assume was a practice nurse.15 She provided the plaintiff with a referral to Mr Simon Hogg, physiotherapist. Dr Kumar also saw the plaintiff. He provided her with a prescription for tramadol, 50 milligrams, with one capsule to be taken before she went to bed.16
16The plaintiff first saw Mr Hogg on 24 March 2017. His clinical note of that date reveals that the plaintiff told him that she had been experiencing neck and arm pain over the period of a few weeks without any specific onset. She had tried physiotherapy, which she did not find particularly helpful. She had returned to work as a social worker and had suffered an increase in symptoms.17 Under cross- examination, she agreed that the clinical note was accurate, however, when pressed about whether she was obtaining any treatment for her lower back, given
PCB 266
PCB 266
PCB 45
PCB 266-277
PCB 267
TAC's Court Book ("TAC CB") 8
an absence of any reference to it in the clinical note, she said that Mr Hogg had been treating her for her lower back as well.18
17Under further cross-examination, the plaintiff was referred to Mr Hogg’s clinical notes:
·31 March 2017 ꟷ he noted that the plaintiff was “much better”.19
·8 April 2017 ꟷ he saw the plaintiff again. His clinical note is difficult to decipher, but in a report to the TAC,20 he noted the plaintiff was responding well to localised manual therapy and postural advice relevant to her “non- specific right-sided neck and upper arm pain”,21 to the extent that he noted, subjectively, that the pain had almost resolved when he treated her on 8 April 2017.22
18The reports and clinical notes I have summarised thus far appear to demonstrate that the plaintiff was experiencing pain in her neck, right shoulder, right arm and lower back, due to the setup of her workstation. Despite having those problems, initially she made a very good recovery. Mr Hogg recorded improvement when he saw her on 8 April 2017. Under cross-examination, when the plaintiff was asked about the clinical note of that date, she stated that “[i]t was getting much, much, much better, yes”.23 By that, she meant the pain she was experiencing in her neck and right upper arm.24 In her second affidavit, she confirmed that “[she] was feeling better and coming good with the treatment”.25 She had also been relocated
T21-22
TAC CB 8
It appears to be undated, but is referred to as dated 21 May 2018 in the index to the Plaintiff's Court Book at PCB 67-69
PCB 68
PCB 68
T22, L13-14
T22
PCB 221
by DHHS to a different workplace, which she also attributed as being a reason why she was feeling better and coming good.26
19Dr Kumar saw the plaintiff five days after the occurrence of the first transport accident on 19 April 2017. He noted that her neck and lower back pain were getting better before the first transport accident and had been exacerbated by it,27 which seems to fit with the evidence that the plaintiff had substantially recovered, or improved, a short time prior to the occurrence of the first transport accident.
20On the eve of the first transport accident, the plaintiff was no doubt troubled by spinal, shoulder and arm pain, to the extent that she sought the treatment which I have just referred to. Despite being troubled by a level of pain and the disablement caused by it, she was otherwise able to maintain a level of functioning approximately consistent with her physical capacity prior to the onset of that level of pain. Despite some absence from her running routine, she returned to running on a treadmill to the same extent she had when not as much troubled by pain in her neck, right shoulder, right arm and lower back. She also maintained her employment, and it would appear from her affidavits, that she otherwise did not suffer any significant interference with her social, domestic and other recreational pursuits.
21In contrast to this evidence, my analysis of it, and the plaintiff’s evidence, the plaintiff completed a document described by the parties as a “DINMAR”,28 which is a form provided to the plaintiff by DHHS that she completed on 5 April 2017.29 It would appear that the plaintiff was provided with the DINMAR prior to the date on which she completed it. She delayed submitting it, because she did not have
PCB 25
PCB 268
The heading of the document has partly been skewed through photocopying, but it appears to read "Disease/Injury/Near Miss/Accident (DINMAR) "
PCB 231-233
the time to do it until early April 2017.30 It would appear that DHHS knew the plaintiff had complained of suffering spinal pain resulting from her work at an earlier point in time. It has a statement attached to it. In the last paragraph, the plaintiff described the pain she was experiencing resulting from her work as follows:
“I did not realise the extent of the pain in my neck/shoulder until my return to work after a 6 week break. On returning to work, the pain started again. The pain was so intense that I was having double physio sessions twice a week. I have also recently had a CAT scan which has confirmed that I have a bulging disc at the base of my neck and am still having physiotherapy once week. I am also on anti-inflammatory and painkiller (sic) to help assist with the pain and swelling and as well as tramadol at night to help me sleep, as the pain keeps me awake.”31
22Under cross-examination, the plaintiff appeared to adopt the content of the statement as representing the spinal pain she was experiencing resulting from her work, which prompted an inspection of her workstation on 22 March 2017.32 She agreed that she did not inform DHHS her spinal pain had “got a lot better”,33 nor is there anything in the statement to that effect. The purpose of the cross- examination was made plain in the TAC’s written submissions.34 It summarised the evidence relevant to the plaintiff’s spinal, and other, pain which she experienced prior to the occurrence of the first transport accident, a summary of the consequences claimed by the plaintiff resulting from her work, and concluding that all of that evidence demonstrated that the plaintiff had suffered a long-term significant neck problem with radiculopathy in the months immediately prior to the first transport accident.35 These submissions fell short of categorically submitting that the plaintiff had suffered a serious injury resulting from her work with DHHS, but that was the subliminal message evident in that submission.
T34
PCB 233
T31-35
T31
Written submissions dated 7 October 2022 ("the TAC written submissions").
Paragraph [11] of the TAC written submissions.
23The plaintiff’s submissions were much the same as the TAC’s written submissions,36 relying on the same evidence, but categorically submitting that the impairment consequences resulting from the plaintiff’s work with DHHS met the statutory threshold.37 The contrary submission was made by DHHS,38 which, I think, is the more compelling submission that, despite the treatment which the plaintiff obtained, she acknowledged unequivocally she was improving, to the extent that she was prepared to say, in the most emphatic terms, she was better, and by early April 2017, she was much better. It occurs to me that, once the plaintiff had improved her physical work circumstances, and had appropriate treatment, she was on an upward trajectory of improvement which she was confident would continue but, of course, this was interrupted by the occurrence of the first transport accident.39
24Inevitably, treating medical practitioners and medico-legal assessors were asked to consider the causes of the plaintiff’s current impairment consequences and, in retrospect, they considered that her employment with DHHS had contributed to her current impairment consequences. That would appear to be the reason why the plaintiff brought a separate originating motion against DHHS; however, in advance of setting up my reasoning, I am not persuaded that the plaintiff could discharge her onus relevant to the Originating Motion brought against DHHS. I hasten to add that, later treating medical practitioners and medical assessors differ in the conclusions they reach, which I will refer to later in these reasons. In any event, much of what I have observed thus far has become of no consequence relevant to the Originating Motion against DHHS, because that proceeding has resolved, no longer requiring me to say much more about it than I have thus far.
Undated written submissions ("the plaintiff's written submissions").
Paragraph [13] of the plaintiff's written submissions.
Written submissions dated 7 October 2022 ("the DHHS written submissions").
Paragraph 98 of the DHHS written submissions concluding its analysis of the evidence.
An aggravation case
25One of the recurrent forensic issues in applications such as this is that, very often, the only witness required for cross-examination is the plaintiff. The medical reports and clinical notes are tendered, with the parties then seeking to have observations and opinions made by medical practitioners determined in their favour, and cryptic clinical notes determined in a like manner. Plaintiff’s often do not remember occasions when they saw medical and paramedical practitioners, and then have the content of a clinical note put to them as being an almost empirical record, when that is often not so, and in some cases the recorder of the clinical note may not have captured what was said accurately, and sometimes not at all.
26It is clear from the cross-examination of the plaintiff, that DHHS endeavoured to demonstrate the plaintiff had a long-standing problem with her spine and, otherwise, before the occurrence of the first transport accident, was able to tolerate the pain, because she was able to work, and otherwise function in the manner I described earlier. The plaintiff could not always remember occasions when she saw treating medical and paramedical practitioners, nor whether what they recorded was accurate or not. It was urged upon me that I should prefer what the medical and paramedical practitioners have recorded where the plaintiff’s memory is imperfect, and even where the plaintiff contested whether what was recorded is accurate or otherwise.
27The conclusions I have reached are that the plaintiff did have spinal pain, and probably limited to her neck, for some years prior to 2017. She was able to function, notwithstanding the presence of that pain, and suffered relatively minimal interference with her capacity to work, and otherwise functioned in the manner I described earlier. The CT scan demonstrates disc abnormality at C6-7, but whether that is a discrete discal injury resulting from her work, or part of a degenerative spine, is somewhat controversial, but it would appear that, before the first transport accident, she had an actively symptomatic neck problem with
underlying degenerative changes, which were aggravated by the trauma of the first transport accident. I think this conclusion is well within keeping of the evidence.
28The parties addressed me on the legal principles that apply to an application which relies upon the aggravation of a pre-existing medical condition. Essentially, it is for the plaintiff to identify the nature of the condition of her spine prior to the occurrence of the first transport accident, and the injury resulting from its occurrence, to identify and separate the impairment consequences of each, and identify whether the additional impairment caused by the aggravation resulting from the first transport accident can meet the statutory threshold.40 It is not permissible to cumulate the consequences of the pre-existing medical condition and the injury resulting from the first transport accident, and to then assess whether the consequences based upon that approach meet the statutory threshold.41
29Therefore, the onus borne by the plaintiff is to satisfy me that the aggravation of the pre-existing medical condition meets the statutory threshold by the route enunciated in the authorities I have just referred to.
The first transport accident ꟷ treatment
30On 14 April 2017, the plaintiff drove her car into an intersection, presumably on a green light, because the car which struck the rear side of her car entered the intersection through a red light. The violence of the collision resulted in her car spinning 360 degrees.
31The plaintiff saw Dr Sujata Agarwal, general practitioner, on 18 April 2017. Her clinical note of that date records the plaintiff’s history of the first transport accident.
Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filopwicz
(2012) 34 VR 309 at [30]-[36] ("Filipowicz")
Filipowicz at paragraph [36]
She complained of back and left shoulder pain. On examination, her left shoulder joint capsule was tender. She prescribed her Voltaren and provided her with a medical certificate.42 The plaintiff emphasised that the medical certificates contain a diagnosis of a significant injury to her neck. I will return to the medical certificates later in these reasons.
32The plaintiff then subsequently saw medical practitioners at Advantage Health Hastings (“ the Hastings clinic”) and Advantage Health Mt Eliza (“the Mount Eliza clinic”). The following is a summary up to 14 March 2018:
·19 April 2017 ꟷ Dr Kumar ꟷ the clinical note discloses that the plaintiff was getting better, relevant to her neck and back pain prior to the occurrence of the first transport accident, but suffered an exacerbation resulting from it. She was seeing a physiotherapist and had been prescribed nonsteroidal anti- inflammatory medication. She was given a prescription for Panadeine Forte.43
·1 May 2017 ꟷ Dr Kumar ꟷ the clinical note discloses that the plaintiff was suffering headaches which were possibly cervicogenic, and some tingling in both hands. She was referred to have an MRI scan and was prescribed Panadeine Forte and Voltaren.44
·29 May 2017 ꟷ Dr Gordon Campbell, general practitioner ꟷ the clinical note discloses that she was struggling with work doing five hours per day and wanting to reduce to four hours per day. He referred her back to Dr Kumar.45
·5 June 2017 ꟷ Dr Kumar ꟷ the clinical note discloses that the plaintiff was suffering increased pain when working increased hours. Her hours of work
PCB 267
PCB 268
PCB 268
PCB 269
were reduced to four hours per day. There is a reference to her workstation and changes to it. She was referred back to have physiotherapy and Pilates, and she was prescribed Panadeine Forte and Voltaren.46
·3 July 2017 ꟷ Dr Kumar ꟷ the clinical note discloses a discussion about the plaintiff’s workstation.47
·27 July 2017 ꟷ Dr Kumar ꟷ the clinical note discloses a discussion about pain management, physiotherapy and analgesia, and also about the plaintiff’s workstation and a slow increase in her working hours. There is a reference to her suffering a cervical disc protrusion, and she was prescribed Voltaren Rapid.48
The March 2018 flare up
33Dr Christine Kotsios, psychiatrist, examined the plaintiff on 15 August 2018. She recorded a history that the plaintiff told her, by early January 2018, she had returned to work and was working full time in her usual duties.49 The plaintiff was being treated by Mr Hogg in early 2018. In his undated report, he noted that her neck pain fluctuated, depending on workload stress. Her right-sided symptoms had largely resolved. Her left-sided neck and upper trapezius pain was generally improving, with occasional flare ups which were related to her workstation and posture, and her range of movement in her neck was normal and pain free. The plaintiff saw Mr Hogg on 3 March 2018. He noted that the plaintiff was feeling good, with regular improvement in her neck pain following the installation of ergonomic aids at her workstation, and in her car.50 In her second affidavit,
PCB 269
PCB 269
PCB 270
TAC CB 11. The TAC did not tender the report of Dr Kotsios, despite referring to it in the TAC written submissions. For the sake of completeness, I will amend the tender of documents by the TAC to include it in Exhibit TAC 1.
PCB 67
however, the plaintiff said she was still experiencing spinal pain.51 Under cross- examination, the plaintiff appears to have agreed that, what Mr Hogg noted, was consistent with her situation at that time.
34The plaintiff suffered, what she described as, a flare up on 9 March 2018. She believed it resulted from her putting too much stress and strain on her neck and shoulder through the exercises she was performing.52 Mr Hogg saw the plaintiff on 17 March 2018 with a significant flare up of left-sided symptoms, including radiculopathy along the C6 and C7 dermatomes. He recorded that she told him she was unable to recall a specific incident precipitating the flare up. She felt the flare up coming on as she was reading at home, with symptoms progressively worsening over three days.53 Under cross-examination, the plaintiff said she was sitting having a cup of tea with her husband when she experienced throbbing pain.54
35Under cross-examination, with reference to Mr Hogg’s undated report, the plaintiff denied she was not experiencing tingling in her arms, and that the pain she was experiencing through the flare up was restricted to her neck and left side. She denied she had not told Mr Hogg about pain in her arms and tingling in her hands prior to the flare up.55
36The plaintiff’s treatment changed dramatically. She saw Dr Campbell on 14 March 2018 at the Mount Eliza clinic, and then, subsequently, on a number of occasions.56 She also saw Dr Kumar from 20 March 2018, and then, subsequently, on a number of occasions at the Hastings clinic.57 The plaintiff
PCB 27
PCB 27
PCB 67
T42
T40-42
PCB 273-276
PCB 247-248
continued seeing Mr Hogg from 17 March 2018.58 On the occasions she saw Dr Campbell, Dr Kumar and Mr Hogg, they recorded significant complaints by her of pain in her neck, left shoulder and scapula area, left hand and lower back pain.
37Dr Campbell referred the plaintiff to have an MRI scan, which was taken on 27 March 2018.59 He referred the plaintiff to Associate Professor Tony Goldschlager, neurosurgeon. The plaintiff saw him on 8 May 2018. In a courtesy letter to Dr Campbell, dated 9 May 2018,60 he considered that the plaintiff had suffered a large C6-7 disc prolapse, which he believed to be the cause of her pain. She had undergone a CT-guided left C7 nerve root injection on 11 April 2018,61 which did not provide her with any relief. He noted that she was on Lyrica, 300 milligrams per day; was using a TENS machine; and was barely managing, presumably because of the level of pain she was experiencing. He recommended surgery and, as an alternative, an epidural injection into her neck.
38The plaintiff was also referred to Mr Jin Tee, neurosurgeon. In a report to the TAC and a courtesy letter to Dr Campbell, both dated 25 May 2018 and in identical terms,62 Mr Tee did not consider that surgery was indicated, unless she suffered significant worsening and impact on her daily life and work. By the time he saw the plaintiff, she had come under the care of Dr Murray Taverner, physician. Dr Taverner’s treatment of the plaintiff spans the flare up which occurred on 9 March 2018, and also the second transport accident. I propose to set out the whole of his treatment of the plaintiff, because it is convenient to do so rather than only relevant to onset of pain 9 March 2018 and the second transport accident, and then come back to other aspects of his treatment later.
PCB 67-68
PCB 47-48
PCB 133-134, and a report to the plaintiff's solicitors dated 5 August 2019 at PCB 135-137
PCB 49
PCB 138 and 139
39The plaintiff first saw Dr Taverner on 19 April 2018.63 He recorded that the plaintiff told him she developed neck, right arm and lower back pain resulting from the first transport accident, which had settled with physiotherapy, exercise physiology and Pilates. She also told him that she suffered the onset of “new left-sided neck and arm and interscapular shoulder pain”64 on 9 March 2018, for which she had the CT-guided left C7 nerve root injection. Furthermore, the plaintiff described the onset of the pain on 9 March 2018 as starting as a twitch, which progressively became more intense and unbearable through the night, spreading to her neck, left arm, forearm and hand, with numbness in the left hand, and pins and needles. The pain she was experiencing prevented her from working, performing domestic tasks and limited her general mobility.
40On examination, Dr Taverner found altered sensation in the plaintiff’s left arm, absent left triceps reflex, but otherwise no weakness or focal left interscapular tenderness in a C6-7 pattern. He inspected an ultrasound and the MRI scan. He considered that she presented with a significant left-sided cervical disc protrusion at C6-7, causing radicular pain and radiculopathy. He recommended that she continue using medication and the TENS machine. In summary, Dr Taverner provided the plaintiff with the following treatment:65
·15 May 2018 ꟷ a cervical epidural neuroplasty at the Beleura Private Hospital to treat left arm pain.
·Reviewed on 21 May 2018, reporting that she felt much better.
·Reviewed on 13 July 2018, reporting that she was doing reasonably well and coping.
PCB 86
PCB 111
PCB 86-130
·Reviewed on 9 November 2018, describing having a rough three months.
·A further MRI scan taken on 15 November 2018, showing that the left paracentral disc extrusion at C6-7 was significantly smaller in comparison with the earlier MRI scan.66
·4 December 2018 ꟷ second cervical epidural neuroplasty at the Beleura Private Hospital for left-hand pain and interscapular pain.
·Reviewed on 18 January 2019, complaining of ongoing numbness in her left ring and middle finger, ongoing left shoulder pain in a C6-7 pattern, ongoing dysesthesia, a pulling sensation in her left arm and disrupted sleep.
·Reviewed by Dr Vishal Bhasin, physician, on 6 June 2019, reporting that the effect of the earlier epidural was wearing off and she was again troubled by pain.
·14 June 2019 ꟷ a therapeutic left C6 transforaminal epidural steroid injection performed at the Frankston Private day surgery for left arm pain.
·Reviewed on 28 August 2019, complaining of depression.
·17 September 2019 ꟷ left-sided cervical radiofrequency treatment and cervical epidural neuroplasty performed at the Beleura Private Hospital for neck and radicular arm pain.
·Reviewed on 11 May 2020 with neck pain starting to return.
·26 May 2020 ꟷ left C6 and C7 pulsed radiofrequency gangliotomy treatment and epidural neuroplasty performed at the Beleura Private Hospital for neck pain radiating into the left arm.
PCB 50
·Reviewed on 23 June 2020, reporting that she had been involved in the second transport accident.
·A further MRI scan was taken on 3 July 2020.67
·Reviewed on 7 July 2020, with an assessment of the recent MRI scan with similar findings to the previous MRI scan. It showed no convincing evidence of nerve root impingement.
·Telephone consultation on 28 July 2020, complaining of persisting neck pain radiating into the left arm, which had flared up after the occurrence of the second transport accident, and had not settled with physiotherapy and anti- inflammatory medication.
·4 August 2020 ꟷ left C6 and C7 pulsed radiofrequency gangliotomy treatment and cervical epidural neuroplasty performed at the Beleura Private Hospital for neck pain radiating into the left arm.
·Reviewed on 10 September 2020, reporting ongoing neck and left arm pain, with slight improvement after the recent treatment.
·Reviewed on 25 January 2021 to discuss treatment options following the TAC’s withdrawal of funding.
·23 February 2021 ꟷ a left cervical radiofrequency treatment performed at Beleura Private Hospital for neck pain radiating into the left arm.
·Reviewed at the Frankston pain management clinic on 23 April 2021, discussing further treatment options.
·8 June 2021 ꟷ a cervical spine radiofrequency treatment and epidural neuroplasty performed at the Beleura Private Hospital for left neck, shoulder and arm pain.
·Reviewed on 25 January 2022, reporting recurrent pain and paraesthesia in the left arm.
·8 March 2022 ꟷ radiofrequency treatment to the left C6 and C7 nerve roots and cervical epidural neuroplasty at the Beleura Private Hospital for left neck, shoulder and arm pain.
·Reviewed at the Frankston pain management clinic on 21 April 2022, during which the plaintiff described a good result from the recent treatment.
·Last reviewed on 26 September 2022, describing a good initial result from the recent treatment.
41The plaintiff agreed that the injections given to her by Dr Taverner provided her with significant relief, however, over the last year, the period over which that relief has been experienced by the plaintiff has reduced to about three to six months, as opposed to relief for six months or more. Under cross-examination, the plaintiff said that she did not know whether that reduction in relief occurred following the occurrence of the second transport accident. She said that she had not been necessarily monitoring each injection, and its effect, but noticed that she had a feeling of needing the injections a lot earlier than she anticipated.68
42The plaintiff said that the injections had reduced effectiveness, in that she has an increase in neck pain, an increase in pins and needles in her arms and hands, and an increase in the bad days she experiences, as opposed to the good days.69
T46 ꟷ T47 and T57 ꟷ T58
The second transport accident
43On 3 June 2020, the plaintiff was involved in the second transport accident. The plaintiff was driving her car. She entered a roundabout. Another car also entered the roundabout after failing to give way and collided into the plaintiff’s car.70
44Under cross-examination, the plaintiff was referred to a claim which she made on the TAC claim form relevant to the second transport accident. She was specifically referred to the injuries which she said she suffered in the second transport accident. She noted on the form that she suffered neck pain; collarbone pain; chest pain; shoulder pain; thoracic back pain; lower back pain; bilateral hip pain, with the right hip worse than the left; right foot pain; right ankle pain; right knee pain; left arm pain and tingling sensation; left hand numbness and pain; and headaches. She also noted on the form that she had suffered previous injuries, and referred to them as an aggravation of pre-existing transport accident injuries, and then she particularised them as lower back pain, right foot pain and neck pain.71
45In her second affidavit, the plaintiff referred to the second transport accident. She said that she aggravated her neck, back, hip and shoulder blade, and also suffered foot pain. She referred to having some medical treatment, which I will refer to shortly, but, importantly, she said that her neck and shoulder injuries, which were aggravated as a result of the second transport accident, returned to the same state as they were before the occurrence of the second transport accident.72
46Under cross-examination, the plaintiff was taken to the reports of Dr David Elder, specialist in occupational and environmental medicine, Mr Gary Speck, orthopaedic surgeon and Dr Taverner, for the purpose of demonstrating that she
T50-51
PCB 239-241
PCB 31
had, in fact, not recovered from the aggravating effect of the second transport accident.
47In relation to Dr Elder, the plaintiff was taken to his report dated 19 July 2022,73 in which he recorded that she had suffered a significant aggravation to her neck, left upper extremity pain and lower back pain, and that her lower back pain had somewhat settled.74 She agreed she did not tell Dr Elder that her neck and left upper extremity pain had also settled, but she denied the position was that her neck and left upper extremity pain were permanently worse after the second transport accident.75 She was unable to say when the aggravation of her injuries resulting from the second transport accident resolved, and it was then that she was taken to a report of Mr Speck.76
48In relation to Mr Speck, the plaintiff was taken to his report, dated 23 November 2020,77 in which he recorded that the second transport accident occurred about four months prior to the occasion when he examined her, and that she had experienced an increase in pain in all areas which were previously painful, and had re-aggravated her right foot symptoms. He also recorded that she said to him, she was “still being in pain and agony”.78 He put that as a quote, presumably because it was an expression directly used by the plaintiff.79 The plaintiff agreed that she described the result of the second transport accident in that way to Mr Speck.80 She could not remember whether she told Mr Speck that she had experienced any improvement or difference in the pain she was experiencing resulting from the second transport accident. Again, the plaintiff denied the injuries
TAC CB 42-57
TAC CB 50
T52 ꟷ T54
T54
TAC CB 80-96
TAC CB 83
TAC CB 83
T55
that were aggravated resulting from the second transport accident were permanently worse after the second transport accident.81
49In relation to Dr Taverner, the plaintiff was taken to his report dated 28 September 2022,82 in which he recorded that, during a review on 28 July 2020, the plaintiff told him that the persistent neck pain radiating into her left arm had flared after the occurrence of the second transport accident and had not settled with physiotherapy, anti-inflammatories and time. The plaintiff accepts she probably said that to Dr Taverner. Dr Taverner then referred to the plaintiff suffering severe pain and interference with various activities. That was put to the plaintiff under cross-examination, as was the treatment he subsequently provided the plaintiff, as if that level of pain and treatment was caused by the aggravation resulting from the second transport accident. I do not read the content and context of his report in that way.
50Next, under cross-examination and during a review on 10 September 2020, she was referred to the notes of Dr Taverner which recorded that she said she was not as good as she was before the second transport accident. The plaintiff agreed she told Dr Taverner that.83 However, this needs to be seen in the broader context of his opinion relevant to causation, which I will return to later in these reasons.
The medical opinions ꟷ the treaters
51Dr Kumar treated the plaintiff often enough to understand that she was experiencing, at least neck pain, which the plaintiff attributed to her work, as did Mr Hogg. My impression from their evidence is that the plaintiff was certainly suffering from spinal, shoulder and arm pain, but as I have already observed, she was improving, by her own account of things, and was otherwise untroubled when
T57
PCB 110-130
T59
it came to continuing with her work and her exercise regime. It would also appear that, in general terms, she was functioning reasonably well.
52In his report, dated 9 November 2020, Dr Kumar said on a number of occasions that he did not see the plaintiff after 27 July 2017, but she was treated by other general practitioners at one of the two clinics; however, with some equivocation, he said that the first transport accident resulted in an aggravation of her pre- existing spinal problems.84 He offered no opinion relevant to the flare up on 9 March 2018, nor the second transport accident, because he ceased treating the plaintiff before those events occurred.
53Mr Hogg referred to the plaintiff having right-sided symptoms in her neck, which were pre-existing and resolved prior to the occurrence of the second transport accident. He considered that her neck and left-sided shoulder pain worsened following the occurrence of the second transport accident, and that her left-sided symptoms were reported immediately following it.
54Mr Hogg treated the plaintiff after the flare up on 9 March 2018, however he offered no opinion about whether it was linked to the injury which the plaintiff suffered to her neck resulting from the first transport accident. It is clear from his undated report that he treated the plaintiff through 2018 for neck pain.
55Neither Associate Professor Goldschlager, nor Mr Tee, offered any opinion relevant to causation. Their involvement with the plaintiff appears to have been limited to treatment of the plaintiff only. Dr Taverner then occupied the position as the plaintiff’s substantial treater. He provided a lengthy report, which I think can be summarised by reference to his consideration of the involvement of the plaintiff’s work, the first transport accident, the flare up on 9 March 2018, the
PCB 63
second transport accident, and their respective contributions to the position the plaintiff finds herself in now.
56Firstly, Dr Taverner diagnosed the plaintiff to be suffering from neck, right shoulder and arm pain, and paraesthesia, arising from a C6-7 disc protrusion. He considered she had suffered an aggravation of each of those painful areas resulting from the occurrence of the first transport accident. He considered the pain and paraesthesia in her right arm were new symptoms resulting from the occurrence of the first transport accident, but had resolved until the occurrence of the second transport accident. He noted that it was after the occurrence of the second transport accident that a comparison between scans demonstrated the C6-
7 left-sided disc protrusion, which had previously been shrinking, was 1.5 millimetres thick after the occurrence of the second transport accident. He did not treat the plaintiff for her lower back pain, and understood that it had largely resolved before the occurrence of the first transport accident.
57Secondly, when Dr Taverner was asked to express an opinion on causation, he summed up a very lengthy discussion and analysis as follows:
“The first MVA was associated with the onset of bilateral arm pain paraesthesia.
[The plaintiff] reported persistent neck and arm symptoms from April 2017 to March 2018 evidenced by regular physiotherapy and medical consultations and inability to undertake her usual work and home duties. She sustained a significant deterioration on or about 9 March 2018 with onset of severe left arm and neck pain and paraesthesia that was likely due to a left sided extension of her C6/7 disc protrusion. The deterioration occurred while she was increasing work hours, doing more driving and physical therapy. Although this deterioration was delayed, she was not asymptomatic during the interval, it is my opinion that the MVA was a significant aggravating factor for her neck condition.
The second MVA on 3/6/2020 exacerbated her symptoms due to an extension of the disc prolapse and likely release of more phospholipase A2 to the epidural space. This in turn would cause more information and pain.
Over the last two years there has been a gradual return to the status post 14 April 2017 MVA. She has prioritised work and independence and has required assistance with domestic tasks.”85
58It occurs to me that Dr Taverner is probably in the best position of all of the treaters and medico-legal assessors to express an opinion on causation. He answered all of the questions which arise for consideration in this application, they being:
·The plaintiff’s pre-existing spinal condition, the impairment of the body function resulting from it, and the impairment consequences caused by it.
·Whether the occurrence of the first transport accident aggravated the plaintiff’s pre-existing spinal condition, and whether it resulted in an injury, impairment of a body function, and impairment consequences.
·Whether the flare up of 9 March 2018 is a discrete and separate incident, or is causally linked to the aggravation resulting from the first transport accident.
·Whether the aggravation caused by the second transport accident has receded, leaving the plaintiff with the impairment and consequences resulting from the first transport accident.
59I think it is very clear that he answered all of those questions favourably to the plaintiff, and consistently with the evidence given by the plaintiff herself; however, I think where this proceeding lost its way is, that the plaintiff implicated both DHHS and the TAC as being responsible for her injury, separate impairments of the same body function, and consequences said to be serious emanating from both. What then occurred, is that the plaintiff asked, as did the defendant, the medico-legal assessors to determine all of the questions of causation and contribution by the issues which I have summarised from Dr Taverner’s report. I will now turn to the medico-legal assessments.
PCB 130
The medical opinions
The medico-legal assessors
60The parties, and in particular, the plaintiff and the TAC, both argued that the medico-legal assessments of the other were flawed in various ways, rendering them of less import. While it is true that they were not provided with the uniform body of materials on which to be assisted in arriving at opinions, and while the emphasis which each of them arrived at is different, I think the criticisms are not overwhelming, and do not render the opinions as ineffective as the parties suggested I should conclude is the case.
61I will firstly turn to the medico-legal assessors engaged by the plaintiff. The first in time is Mr Ash Chehata, orthopaedic surgeon, who examined the plaintiff on 11 June 2019, 1 December 2020 and 7 June 2022. He provided three reports dated 4 July 2019,86 4 December 202087 and 8 June 2022.88
62I think Mr Chehata’s last report, together with aspects of his second report, contain his working conclusions. I will concentrate more on the opinions expressed in his last report. He was aware of the spinal condition affected by the plaintiff’s work, the first transport accident, the flare up of 9 March 2018 and the second transport accident. He considered:
·That the plaintiff’s work with DHHS caused a level of pain in her neck, back and shoulder.
·That her work continues to be a component of the aggravation of her underlying constitutional cervical spondylosis.
PCB 155-162
PCB 163-172
PCB 173-183
·That the second transport accident aggravated the underlying cervical and lumbar spondylosis, with pain radiating from her cervical spine into her shoulder.
·That the increase in the plaintiff’s neck and shoulder pain from 9 March 2018 appears to be related to the first transport accident, although he expressed that opinion rather equivocally.
63Professor Richard Bittar, neurosurgeon, examined the plaintiff on 24 June 2022 and provided a report bearing the same date.89 He provided a supplementary report dated 26 September 2022.90 He considered:
·That the plaintiff’s work with DHHS was a cause of her neck and back condition, but a minor continuing cause, and less than 30 percent. He added that he considered her workplace contribution was largely reversible, and he did not believe that it was a major contributor to her increased vulnerability or susceptibility to further injury.
·That the first transport accident was a cause of the production and aggravation of her neck and back conditions, and are continuing causes of both conditions. I will return to this because of some further observations made by Professor Bittar in his supplementary report.
·That the increase in the plaintiff’s neck and shoulder pain which the plaintiff experienced on 9 March 2018 are related to the first transport accident and are an evolution of pathology and symptoms resulting from the first transport accident. He considered that the question of contribution of the plaintiff’s work with DHHS and the first transport accident was difficult. Notwithstanding that difficulty, in relation to her neck, he considered that 30
PCB 191-200
PCB 201-203
percent was attributable to her work with DHHS and 70 percent to the aggravation caused by the occurrence of the first transport accident, and in relation to her back, that it was an equal contribution of 50 percent, although he expressed those opinions equivocally.
·That the neck and lower back condition were exacerbated by the occurrence of the second transport accident, but the exacerbation was temporary.
64In Professor Bittar’s supplementary report, he gave a summary of his opinion on causation as follows:
“Given the onset of neck pain and left arm pain immediately after the first subject transport accident, together with serial radiological changes, consistent with an acute disc prolapse, followed by partial resolution of disc prolapse before formation of disc-osteophyte complex, it is my opinion that [the plaintiff] sustained the C6/7 disc prolapse at the time of the transport accident, rather than having suffered from a ‘spontaneous’ disc prolapse prior to that. In my opinion, the further material does not confirm Dr (sic) Carey’s opinion, and in fact contradicts his opinion.
Considering the C6/7 disc damage and / or cervical spondylosis, it is my opinion that the first motor vehicle accident was a cause of the damage to the C6/7 intervertebral disc (and indeed the disc prolapse), as well as being a cause of the aggravation of pre-existing symptomatic spondylosis of the cervical spine.
In my opinion, the first motor vehicle accident most likely did make the neck more vulnerable or susceptible to further damage as it had resulted in a significant injury to the C6/7 intervertebral disc.
In my opinion, the first motor vehicle accident was a cause of the increase in pain in early 2018.”91
65Mr Roy Carey, orthopaedic surgeon, was asked to provide an opinion “on the papers” for the TAC. He provided a report dated 2 May 202292 and a supplementary report dated 23 August 2022.93 He was provided with a large volume of materials, which he identified in both of his reports. He considered:
PCB 202
PCB 219-226
·That the plaintiff had experienced symptoms consistent with constitutional cervical spondylosis without radicular symptoms prior to the occurrence of the first transport accident.
·That the plaintiff suffered a substantial aggravation of her ongoing cervical spondylosis resulting from the occurrence of the first transport accident.
·That the left C6-7 disc extrusion was more likely to have been a spontaneous occurrence in the plaintiff’s lower cervical spine, which was afflicted by degenerative spondylosis.
·That the brachialgia due to the C6-7 disc extrusion, which occurred on 9 March 2018, was not causally linked to the occurrence of the first transport accident.
·That the occurrence of the second transport accident caused an exacerbation of her pre-existing cervical spondylosis, but he was uncertain as to the nature and extent of the aggravation.
66Mr Carey was asked to reconsider his opinion in light of the further medical reports he was provided, but he did not consider that anything which he read in those further medical reports caused him to change his opinion in any material way. Mr Carey was asked to comment on the opinion of Dr Anthony Kam, consultant radiologist, who was asked to examine radiology taken both before and after the occurrence of the first transport accident. Dr Kam provided a report dated 26 March 2019.94 The principal radiology was a CT scan dated 10 March 2017 and the MRI scan dated 27 March 2018. In making that comparison, he concluded that the disc extrusion at C6-7 was first seen on the imaging dated 27 March 2018, which he considered was consistent with it developing subsequent to the CT scan
and having developed at the time of the occurrence of the first transport accident. Mr Carey disagreed with that conclusion.
67Dr Elder examined the plaintiff on 16 October 2018 for the defendant, and provided a report bearing the same date.95 He examined the plaintiff again on 19 July 2022, and provided a report bearing the same date.96 His opinions appear to exclusively relate to the plaintiff’s capacity for suitable employment. It does not appear that he was asked the same questions as other medico-legal assessors, but to the extent that it carries any weight at all, he was convinced that she suffered an exacerbation of pre-existing cervical and lumbar spinal pathology resulting from the first transport accident.
68Mr Speck examined the plaintiff for the defendant on 28 August 2019, 27 October 2020 and 13 July 2022. He provided three reports dated 18 October 2019,97 23 November 202098 and 9 August 2022.99 Mr Speck was provided with a large body of materials, which he referred to in the summary, of what he considered to be relevant to his consideration of the questions asked of him. I think his last report contains a full summary of the materials which he considered to be relevant, and his answers to questions directly relevant to the issues. He considered:
·That the plaintiff suffered soft-tissue injuries to her neck, shoulder region and her lower back, resulting from the occurrence of the first transport accident. He considered that the symptoms of the soft-tissue injuries continued following the occurrence of the first transport accident.
·That the new symptoms in the plaintiff’s left arm, which occurred on 9 March 2018, occurred acutely over a period of a week and were related to an acute
TAC CB 24-34
TAC CB 42-57
TAC CB 58-79
TAC CB 80-96
TAC CB 97-119
disc prolapse at C6-7, which had already been identified prior to the occurrence of the first transport accident.
·That the postural issues which she developed in her work with DHHS resolved when she was away from work, convincing him that it was a structural issue due to her posture and was not giving rise to symptoms which he considered continued to contribute to her current situation.
·That the occurrence of the second transport accident resulted in the plaintiff suffering a further soft-tissue injury to her neck, lower back and chest.
·That the widespread nature of the pain in her neck, left shoulder region, and left upper extremity, are not associated with any neurological findings or concordant imaging, which he considered indicated a relationship with either transport accident. He considered that her presentation was consistent with a somatic symptom disorder, which he recommended be assessed by an appropriate mental health expert.
Interim conclusions
69The first issue which must be determined is the nature and extent of the plaintiff’s spinal condition which developed in her work with DHHS.
70Professor Bittar considered that the plaintiff did not suffer a spontaneous disc prolapse before the occurrence of the first transport accident, but as a consequence of it. His opinion is based upon essentially three things: Firstly, that the contribution by the plaintiff’s work with DHHS was minor; secondly, that she experienced the onset of neck and arm pain after the occurrence of the first transport accident and, thirdly, he considered that the radiological changes evident following the occurrence of the first transport accident confirmed his opinion.
71I consider his opinion is the more compelling when compared with the opinions of Mr Speck and Mr Carey. Firstly, the plaintiff was improving significantly from the neck, back and shoulder pain she was experiencing in her work with DHHS, and was on an upward trajectory of improvement shortly prior to the occurrence of the first transport accident. That suggests the condition of her neck was not as serious as Mr Speck and Mr Carey believe it was. Their opinions are based upon the CT scan taken on 10 March 2017. Although Dr Kumar does not possess the very special surgical skills and experience of Professor Bittar, Mr Speck and Mr Carey, his opinion is, nonetheless, to be weighed into consideration, because he is the only medical practitioner who examined the plaintiff before and after the occurrence of the transport accident. I think that is important, because when he examined the CT scan, he diagnosed a disc protrusion and degenerative disc disease at C6-7. That is precisely what he recorded in his clinical note of 8 March 2017. A protrusion is significantly different from a prolapse. Furthermore, there is the evidence of Dr Kam, a specialist in radiology, who examined the relevant radiology both before and after the occurrence of the transport accident, and concluded that the acute disc prolapse occurred at the time of the occurrence of the first transport accident. Additionally, I am more comfortable in accepting Professor Bittar’s opinion, because it is also the opinion of Dr Taverner, who was asked to express an opinion on this causation issue.
72It is by no means an easy task for a trial judge to reason why one opinion is to be preferred over other opinions in the context of such a stark contrast in the expression of those opinions, especially when the reasoning is based upon an assessment of opinions from medical reports and in the absence of the direct, and often very helpful, nature of oral evidence, where the substrata of an opinion can be teased out and examined in order to be more confident that one opinion ought to be preferred over the other.
73On the basis of this conclusion, I think it follows that the opinion of Professor Bittar on the causal link between what occurred on 9 March 2018 and in the first transport accident, is more compelling than the opinions of Mr Speck and Mr Carey. Professor Bittar considered that the first transport accident caused the acute disc prolapse, rendering the plaintiff more vulnerable and susceptible to the C6-7 disc suffering further damage. Although the plaintiff was going about her ordinary business in the days leading up to 9 March 2018, there is nothing physically provocative about what she was doing, except for the strain, which she believed she might have imposed on her neck and shoulder through exercises she was performing. I do not think that her musing in that respect amounts to there being an independent discrete incident which detracts from the opinion of Professor Bittar, and the evidence upon which it is based.
74The next issue which must be determined is whether the second transport accident resulted in an aggravation of the plaintiff’s injuries resulting from the first transport accident.
75The plaintiff’s evidence is that she recovered from what she identified as the additional pain and restriction of movement resulting from the aggravation of her injuries from the second transport accident. Professor Bittar and Dr Taverner obtained histories from the plaintiff that she recovered and returned back to what she was like before the second transport accident occurred. They were armed with the plaintiff’s history of recovery from that aggravation, but it occurs to me that they did not simply accept that at face value. They were asked to express opinions on questions of causation, including this one, and I have no doubt they turned their mind to whether it continues to be implicated in aggravating the plaintiff’s injuries.
76Now that I have reached this stage, the conclusion I have reached is that the plaintiff suffered an acute disc prolapse resulting from the occurrence of the first transport accident. There is probably some continuing contribution to the way she
presents now by the injury she suffered in her work with DHHS, but it is minor. I do not accept that what occurred on 9 March 2018 is a discrete and independent event. I do not accept that the plaintiff continues to suffer from the consequences of the aggravation that resulted from the second transport accident. I do not think the attempts by the medical fraternity in this case to apply percentages is very helpful, except perhaps in identifying that some level of contribution persists.
The Plaintiff’s consequences
77The TAC submitted that there are aspects of the plaintiff’s evidence which very much call into question her creditworthiness and reliability. I will not trace through each and every one of those issues, except to say that, having weighed up the TAC’s written submissions, and the accompanying oral submissions, I do not accept the plaintiff is without credit and reliability to the extent submitted by the TAC. Overall, I formed the view that the plaintiff gave her evidence reasonably, and where there was some doubt about her veracity, there was other evidence in the form of the medical evidence, which confirms a significant portion of the plaintiff’s evidence, leaving me with sufficient confidence that I can accept the plaintiff’s evidence.
78The plaintiff swore three affidavits and was cross-examined at some length, relevant to the impairment consequences which she said resulted from the injury she suffered in the first transport accident. In summary, she described the consequences as follows:
·Persisting spinal pain, comprising neck pain, with pain radiating into the shoulders and into the arms. The pain varies from being tolerable to significant. The plaintiff gave estimates based on a level of pain out of ten. Under cross-examination, it was suggested that her estimates were that of extreme pain which would be utterly disabling. I rather took the estimates to be a clumsy attempt to describe persisting levels of pain and increased levels
of pain. I have rather more relied upon the measurement of her pain described to medical practitioners, than her attempt at a subjective assessment using a scale out of ten.
·Interference with her sleep because of pain. The use of a water bottle and sleeping tablets to get to sleep. Waking with pain and numbness down one arm. Sleep commonly broken after three to four hours of sleep, with the result of feeling tired during the day because of a lack of sleep.
·Interference with general mobility, such as, bending, squatting, using stairs, and putting on shoes and socks, as well as bending to pick things up.
·An inability to continue running four days a week up to 5 kilometres on a treadmill.
·Difficulty walking, and particularly walking her dog every day, with an inability to walk at a fast pace for more than five to ten minutes at a time.
·The need for the medical treatment provided by Dr Taverner, her general practitioner and physiotherapist, and resorting to medication, namely, up to eight Panadeine Forte tablets per day and six Nurofen tablets on a bad day. Additionally, the use of Voltaren gel on her spine, engaging in Pilates twice a week and the use of a TENS machine.
·Difficulty with gardening, and now using a gardener fortnightly to do work she previously did with her husband.
·Difficulty with domestic tasks, such as cleaning, vacuuming and mopping, and now using a cleaner fortnightly. Needing assistance from her children with domestic tasks. Additionally, difficulty making beds.
·Difficulty with cooking, which is now shared among members of the family.
·Difficulty driving, needing to stop regularly, use of a cushion to support her back and neck, and difficulty turning her head while driving.
·Interference with her social life, for example, going out with friends for a meal; on outings, such as going to a winery; difficulty sitting for too long in social settings; and difficulty sitting in a cinema, the theatre and musicals.
·Difficulty sitting in an aeroplane, for example, on a trip to the United States of America in May 2018, and the need to use medication to cope with the flight. Interference with the desire to travel overseas.
79On the upside, the plaintiff continues to work with the Salvation Army as a service manager. She works five days per week from an office and at home. She suffers a slight loss of income, on her assessment of work that she would have been able to take up had she not been injured, working one day less than she is now. Furthermore, the TAC placed the plaintiff under surveillance. Under cross examination the plaintiff was referred to the product of that surveillance that on Sunday, 26 June 2022 and Sunday, 10 July 2022 she was observed sharing a meal with a friend during which she sat for about an hour, and demonstrated a capacity to drive for about 50 minutes and to journey around a shopping centre for up to 40 minutes on foot. Whilst the actual film footage was not shown, the plaintiff agreed that she was able to engage in the activities captured on the film100
80The conclusions I have reached is that the plaintiff suffered a significant spinal injury to her neck which has resulted in a disc prolapse at C6-7, and pain extending beyond her neck into her shoulders and arms. She continues to have lower back pain, but her principal problem is neck pain and the extension of the pain beyond her neck. The plaintiff has been under a very long and extensive regime of treatment provided by Dr Taverner, which has given her relief, and I accept her
Transcript 60-61. The plaintiff had previously been provided the film and had viewed it
evidence that the extent of the relief is reducing as time has gone by. She is also now using a significant amount of medication, and has treatment provided by her general practitioner and physiotherapist, and she also engages in Pilates for the purpose of gaining relief from the pain she experiences.
81Additionally, almost every aspect of the plaintiff’s life has been the subject of interference from being able to get a reasonable night’s sleep; having full, free and unrestricted mobility, and being able to undertake social, domestic and recreational pursuits; although, balanced against that is that the plaintiff is able to work full time which, of itself, must be pleasurable and provide the plaintiff with some quality of life, as work tends to do, because of association with what employment offers and the income derived from it.
82I am satisfied that the plaintiff has suffered a long-term impairment of the function of her spine and, in particular, her neck. I am satisfied that the extent of the pain goes beyond her neck and that pain is due to the principal injury to her neck, which is the disc prolapse at C6-7 and the aggravation of the spondylitic changes in her upper spine. I accept the consequences of that impairment of function have plagued the plaintiff since the occurrence of the first transport accident over five- and-a-half years ago. The prognosis is for a persistence of pain and interference with the activities which I have summarised, and it would appear that it will persist indefinitely.
83I have reached the conclusion that the impairment consequences contended for by the plaintiff meet the statutory threshold comfortably, and I have reached that conclusion after having made a comparison of like impairments, as I am obliged to do.
84I will, therefore, grant the plaintiff the leave that she seeks.
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