Payne v Transport Accident Commission

[2014] VCC 2181

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-13-04327

JUDE PAYNE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2014
DATE OF JUDGMENT:	18 December 2014
CASE MAY BE CITED AS:	Payne v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 2181

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:             Damages – serious injury – injury to the spine – “range” case – pain and suffering only

Legislation Cited:     Transport Accident Act 1986, s93(4)(d)

Cases Cited:Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Humphries & Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Cropp v Transport Accident Commission & Anor [1998] 3 VR 357; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235

Judgment:                Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie with Mr M Fogarty	Slater and Gordon
For the Defendant	Mr J Ruskin with Ms C Spitaleri	Solicitor to the Transport Accident Commission

HIS HONOUR:

1       In this matter Mr McGarvie of Her Majesty’s Counsel appeared with Mr Fogerty for the plaintiff and Mr Ruskin of Her Majesty’s Counsel appeared with Ms Spitaleri for the defendant. 

2 Mr McGarvie advised that this was an application under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for leave to issue proceedings for damages for personal injury as a result of a transport accident on 15 June 2009 when, as he said, his client’s car was “T-boned”.

3 The application concerns an “injury” as defined in part (a) of the definition of “serious injury” in sub-paragraph (17) of the Act. The body part is the spine and the consequences are pain and suffering consequences only.

4       The plaintiff is now aged fifty-eight, soon to turn fifty-nine, having been born in December 1955.  She is a horticulturalist by occupation and is employed by Citywide Services, in particular carrying out such activities on behalf of such company for the City of Whittlesea, and has been so employed since 2004.  As to the chronology relevant to this claim, the plaintiff tendered exhibit P.

5       Following the opening of Mr McGarvie, Mr Ruskin said that this was a “range” case, the issue being whether the plaintiff could prove to the required standard that the pain and suffering, which she has endured, consequent upon the transport accident, met the “very considerable” test.  He submitted that the Court would need to concentrate, in particular, on the issue of an analysis as to what capacities the plaintiff retains and what she lost as a result of the accident, and as such, referred the Court to Stijepic v One Force Group Australia Pty Ltd & Anor.[1] 

[1][2009] VSCA 181 at paragraph [44]

6       Insofar as the law relevant to such a determination is concerned, the Court is assisted in such application by the principles expounded by the Appeal Division of the Supreme Court, as it then was, in Humphries & Anor v Poljak[2] and, in particular, by the determination of the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak.[3]

[2][1992] 2 VR 129 at 140

[3](2005) 14 VR 622

7       Insofar as such relevant law is concerned, the determination by the Court of Appeal in Cropp v Transport Accident Commission & Anor[4] serves to remind trial Judges that it is most important they do not apply a more stringent test than that set out in Humphries.  I also adopt, as the manner of dealing with the matters in issue, what Charles JA said in Cropp at page 375:

“In these circumstances the matters really in issue before the learned judge were the identification of the body function of the appellant which had been impaired, the nature of the impairment, whether the impairment could be described as long-term, and what were the consequences for the appellant in the form of disablement from work or interference with enjoyment of life.  … .”

[4][1998] 3 VR 357

8       Unusually, in this jurisdiction in this Court, this case was concluded in one day.  Mr McGarvie called the plaintiff and tendered her affidavits, exhibits A1 and A2.  Exhibit A1[5] detailed the plaintiff’s social background,[6] her employment background[7] and her health background.[8]  The circumstances of the accident were detailed at paragraph 8 and the treatment received thereafter.[9]  As to the consequences, at paragraph 16, she said as follows, “I have been battling on at work.  I love being outdoors and I love my job.  I am determined to remain at work as long as I can.”  At paragraph 18, she said a lot of her energy is taken up just coping with work.  She is required to avoid the heavier tasks, such as tree planting and hammering in stakes and the like.  She needs to take painkillers to get through the day and by the time she has finished her work, the pain has increased and she just needs to relax when she gets home.  She is worried as to whether she will get to retirement age.

[5]Plaintiff’s Court Book  (“PCB”) 7-12

[6](Supra) at paragraphs 4-5

[7](Supra) at paragraph 6

[8](Supra) at paragraph 7

[9](Supra) at paragraphs 9, 15 and 17

9       As to general pain and suffering consequences, at paragraph 19, the plaintiff detailed constant back and neck pain, with the back pain being worse, the degree being variable, and with it generally being worse at the end of the day.  This pain causes her frustration and eventually impacted on her relationship to the extent that it ceased.  The fact that she is always in pain causes her to get angry and become less tolerant.  The plaintiff is very nervous when driving a car, in particular keeping a lookout for boats on trailers.  She has trouble sleeping and the constant pain makes it difficult for her to not only get to sleep but to remain asleep through the night.  As a result, all of her hobbies which she previously enjoyed, being camping, running, cycling and gardening, are, to use her words, “destroyed”.  The plaintiff can no longer tend her plot at the local community garden because of the difficulties of bending and twisting.  She has ongoing difficulties with her housework and because of her change of residence, has been forced to reduce her garden, which she loved very much.  She is concerned at her capacities.  She cannot be bothered in life.  She has reduced capacity to perform overtime in her job and worries about her financial future and the issue of living in pain and spending her days trying to manage such pain.

10      In exhibit A2,[10] sworn on 2 October 2014, the plaintiff confirmed, at paragraph 3, the ongoing consequences requiring monthly attention upon her general practitioner for the prescription of painkilling medication for her low back pain and neck pain.  She detailed that she takes Tramadol and also Panadol Osteo, together with an anti-depressant.  She has had pain-relieving injections, approved by the defendant, which gave her temporary relief.  The low back pain continues to be the main problem, from which she gets referred pain into her left leg and weakness of such leg.  The level of such pain fluctuates, with it being at times severe, and worse when she is active, in particular at work.  She continues to be restricted in her hobbies, as detailed in her earlier affidavit.  As to her housework, she continues to be restricted but is helped by her former partner, who now lives with her in a rental situation.  The plaintiff, because of pain and lack of sleep, is often tired and irritable.  As at the date of swearing of the affidavit, that is 14 October 2014, and as confirmed in her oral evidence, her current condition, she considers, is now worse.  She is currently awaiting a further round of painkilling injections.  She is maintaining her desire to work; however, continues to be concerned in that regard.

[10]PCB 13-15

11      As to the plaintiff’s case, the plaintiff also tendered as exhibit B an affidavit of Patrick Heenhan, who is a workmate of the plaintiff.  He confirmed the consequences at work by way of the restrictions and limitations on overtime that were detailed by the plaintiff.  At paragraph 5, he noted that he had observed the plaintiff experience difficulties due to neck and back injuries and that she struggled with particular tasks, involving bending, and, indeed, had observed her struggle with planting trees.

12      The plaintiff also tendered exhibit C,[11] an affidavit affirmed 2 October 2014 by Doreen Bundy, the former partner of the plaintiff.  At paragraph 7, Ms Bundy confirms the restrictions of housework and complaints of pain since the accident and the taking daily of Tramadol.  Following the accident, she noted a grave change in the emotional state of the plaintiff, and owing to the plaintiff’s injuries, a move of house was necessary, with a minimal garden, which would therefore require less maintenance.  At paragraph 11, she noted that the plaintiff had restrictions insofar as her social activities as detailed, and at paragraph 12, Ms Bundy detailed the problems with their sexual life, which impacted upon their intimacy and ultimately led to the breakup of their relationship.

[11]PCB 18

13      Remarkably, given the issues in this case, there was no up-to-date report by the general practitioner.  The latest report of the general practitioner, Dr Leslie Pinto, is dated 22 August 2013.[12]  He confirms the initial attendance following the accident and her report of experiencing low back and neck pain since the accident as at 19 June 2009.  Upon examination, there was tenderness in the muscles of the back and the lower back and there was a reference to x-ray. 

[12]Exhibit H1, PCB 48-49

14      At the next attendance on 14 October 2009, chronic pain to the neck and back was reported and a strong narcotic analgesic was prescribed, being OxyNorm tablets, with a reference for physiotherapy and to a consultant physician, Dr Karlov. 

15      Subsequently, in October 2011, chronic pain was still being reported in both the neck and the back, with a failure to respond to Nurofen Plus and Panadeine Forte, and the consequent prescription of Tramadol. 

16      It is also noted that in February 2012, a severe exacerbation of chronic neck and back pain due to her work, where she was mulching with a pitchfork all day.  Ongoing chronic back and neck pain was reported. 

17      At the last reported attendance upon the plaintiff on 13 March 2013, the chronicity was noted again, with occasional radiation to the left hip and leg, with the left leg occasionally giving way, causing her to stumble, such happening approximately once per week.  The Tramadol was reduced to 50 milligrams twice daily.  The general practitioner noted a referral to the pain specialist, Dr Peter Courtney, who was the person approved by the defendant for the pain-reducing injections.  It was noted[13] that such occurred in June 2012 and in February 2013, with no good response from the injections in 2012 and an opinion received from him that perhaps denervation may be the next step.

[13]PCB 51

18      The specialist opinions received by the general practitioner were confirmatory of his own opinion,[14] as at the review in March 2013, that the plaintiff was suffering chronic neck and low back pain, with the low back pain being more prominent, with such being confirmed upon his own clinical findings and on reference from various specialists.  He advised continuation of the pain injections from Dr Courtney and thought that the long-term prognosis was guarded, given the length of time that Ms Payne had experienced chronic pain and psychological disturbance.  The doctor noted[15] that there were pre-existing degenerative changes indicating C3-4 facet joint osteoarthritis; however, such changes, he said, were not symptomatic prior to the accident, and it was the accident that brought on the chronic neck and back pain. 

[14]PCB 52

[15]PCB 53

19      The plaintiff’s solicitors obtained a medico-legal update of November 2014 from Dr Clayton Thomas, a consultant in rehabilitation and pain medicine.  He had originally seen the plaintiff as a medico-legal practitioner and was subsequently asked to treat her.  The history and examination appears consistent with that of the general practitioner.  Dr Thomas’s opinion in November 2014 was that the motor vehicle accident caused pain in the lumbar spine and cervical spine, with non-specific examination findings.  He noted the pain-relieving injections, and confirmed that the plaintiff had symptomatic spondylosis of her lumbar spine.  He noted that she worked full-time and despite her difficulty, was able to manage in a productive manner, and was also of the view that further denervation procedures may assist her.  The defendant tendered a report of Dr Clayton Thomas,[16] which I do not think takes the matter much further, albeit he is concerned as to the ongoing pain and need for treatment as of April 2012, and suggests consideration of anaesthetic blocks by way ultrasound.

[16]Exhibit 4

20      The plaintiff also consulted, in a medico-legal capacity, Mr Russell Miller, orthopaedic surgeon, who provided a report to the Court dated 5 May 2014.[17]  The history and ongoing consequences seemed to be consistent, as was the examination.  Mr Miller diagnosed musculoligamentous strain to both the cervical and lumbar spine, with aggravation of degenerative disease in both areas, with the symptoms in the lumbar spine being more severe than those in the cervical spine, and with the prognosis for the lumbar spine as being only fair.  He traced such symptomology back to the accident and confirmed the history given by the plaintiff in her affidavit that, in the median term, the plaintiff would have significant difficulties with physical work and her restrictions were accident-related.  He had no issue with the history of lifestyle restrictions reported to him, and the difficulties therein caused to the plaintiff.

[17]Exhibit N

21      The plaintiff was also asked to see a neurologist, Professor Mark Cook, who provided a medico-legal report dated August 2014.[18]  He noted on examination, tenderness and spasm of the paraspinal muscles in the cervical spine and like signs in the lumbar spine, with limitation of movement due to pain.  He opined that the accident had caused considerable restrictions to the plaintiff, in particular insofar as her leisure activities are concerned, and thought that it was remarkable that the plaintiff had persisted, as she had, with her work despite such restrictions.  He thought such would be ongoing and would require further management and wondered how long the plaintiff would be able to continue with work.  He considered the situation with the plaintiff’s neck and back was clinically stable owing to the time that had elapsed. 

[18]Exhibit O

22      The final medical report tendered by the plaintiff was that of the consultant psychiatrist,Dr Nathan Serry,[19] who, at page 93, again noted consistent reporting of symptoms.  In his report dated 15 July 2014, the plaintiff reported continuing to be very much troubled by low back pain and, to a lesser extent, neck pain, with ongoing difficulty with prolonged sitting, standing, walking, lifting, bending and twisting.  He noted the plaintiff continued under the care of Dr Courtney and was taking ongoing medication.  He noted the plaintiff to be a very clear, direct and engaging historian[20] who was anxious, apprehensive, very frustrated and angry at her current condition.  Dr Serry confirmed that the plaintiff had suffered Chronic Post-Traumatic Stress Disorder as a result of the accident, and that she had no like symptoms prior thereto.

[19]Exhibit M3

[20]PCB 96

23      The defendant’s medical material, to say the least, was limited, as I had remarked to Mr Ruskin, when he indicated to the Court what the issues were.  As to the physical condition of the plaintiff, it comprised the tendering of one report, being that of Mr Michael Fogarty, orthopaedic surgeon, dated 3 July 2014.[21]  He too received a similar history from the plaintiff and, upon clinical examination, noted that she was loath to move her back.  He noted an ability to walk without a limp, a loss of lumbar lordosis and marked loss of range of motion of the thoracic lumbar spine.  By way of opinion, he remarked in examination upon what seemed to be an unusual restriction of movement of the thoracolumbar spine; however, he confirmed soft tissue injuries to both the cervico-thoracic and lumbo-sacral regions of the spine, which had led to a persistence of symptoms for five years, with apparent loss of motion, particularly in the lumbar region of the spine, and was of the view that such was indicative of a condition of chronic low back pain. 

[21]Exhibit 3

24      Insofar as an analysis of the chronic low back pain caused by the accident and relating that to the inconsistency he had found on examination, Mr Fogarty said the explanation may be the development of a Chronic Pain Syndrome.  He noted that it would be unlikely to be a full recovery of the injuries, particularly in the low back.

25      The only other medical practitioner that the defendant had the plaintiff see was Dr Timothy Entwisle, consultant psychiatrist, who reported on 10 June 2014[22] on an examination made in May 2014 of the plaintiff.  The result of such examination was the diagnosis of a Chronic Pain Syndrome, emanating out of the motor vehicle accident, with an Adjustment Disorder and Depressed and Anxious Mood.  He thought that the experience of chronic pain had been heavily modulated by the plaintiff’s previous history of emotional deprivation and instability.  As to the treatment of any psychological or psychiatric issues, he recommended continued treatment and management by the plaintiff’s general practitioner.

[22]Exhibit 2

26      The cross-examination of Mr Ruskin could best be described as consistent with the issues that he detailed and his reference to Stijepic.[23]  Mr Ruskin was at pains to demonstrate what was the differentiation between the capacities that the plaintiff retained post-accident, and what she had lost.  It was noted that insofar as her employment was concerned, she had two weeks off work, went back to light duties and, within a period of two months thereafter, was on full duties, and has continued to perform her work, except for the restrictions indicated by her in her evidence. 

[23]Supra

27      As to the relationship problems, Mr Ruskin questioned whether such relationship was not already in difficulty prior to the accident.  Indeed, materials were tendered[24] which showed, from the general practitioner’s notes, that the plaintiff was suffering some loss of libido prior to the date of the accident and resultant relationship problems, for which she had apparently been referred to a psychologist.

[24]Exhibit 1

28      Specifically, insofar as the plaintiff’s work was concerned, the plaintiff confirmed that she continued to work Monday to Friday and lived only some three minutes from work.  The plaintiff’s work involved brush cutting, mowing, spraying and rubbish removal, and she avoided any heavier tasks now, such as tree planting.  The plaintiff said she maintained her friendships at work and enjoyed seeing those persons out of work.  In regard to her relationship, this had broken up as a result of the accident.  The plaintiff had also been forced to sell her home where she had previously live with her partner, Doreen.  Subsequently, Doreen had come in on a rental basis to assist her. 

29      As to the plaintiff’s ongoing restrictions, she is able to drive a truck, albeit with occasional difficulty in getting in and out of a truck, and is able to drive the ride-on motor mower. 

30      In regard to the plaintiff’s future, she said that she intended to continue to work, albeit with her ongoing difficulties, and continue to attend her general practitioner, so that her medications are maintained. 

31      In re-examination, the plaintiff said that essentially, she found her job “all too hard”, that her back kills her when she uses the Whipper Snipper, it hurts to pick up rubbish and when she is reversing in the truck.

32      In final address, Mr Ruskin relied upon the principles set out in Stijepic,[25] Sutton v Laminex Group Pty Ltd,[26] Haden Engineering Pty Ltd v McKinnon[27] and Peak Engineering & Anor v McKenzie,[28] and submitted that the plaintiff, on her own evidence, maintained an active and full-time workload, albeit that she was restricted by way of planting trees, and had ongoing pain.  Her social life had not been destroyed, and, indeed, she is quite happy with her own self, and she mixes with her friends from work.  While there may have been significant changes in her life, it was the submission of Mr Ruskin that this case simply does not meet the required test, and the plaintiff failed in that regard.

[25]Supra

[26][2011] VSCA 52

[27](2010) 31 VR 1

[28][2014] VSCA 67

33      Mr McGarvie did not dispute any of the principles put by Mr Ruskin but stressed the issue, as detailed by the plaintiff, as to her ongoing pain.  He also addressed the very stoical nature of the plaintiff, who continued to work, albeit, as detailed by Mr Miller, in a tenuous situation.  Mr McGarvie submitted that given the review of Mr Miller, one should consider that there is some question mark as to whether the plaintiff will be able to maintain in the future full employment, despite her persistent nature.

34      Mr McGarvie also stressed the effect upon the plaintiff of the deprivation of sleep, as shown in her affidavits, and submitted that this on its own can, in particular circumstances, amount to a sufficient consequence to justify leave being granted.  He noted the plaintiff remained on strong pain medication.  As to her difficulties at work and at home, he relied on the independent affidavits filed[29] as confirming the credit of the plaintiff.  Indeed, it was not the submission of Mr Ruskin, nor was any suggestion made by any medical practitioner, that there is any issue with the plaintiff’s credit.  Mr McGarvie also stressed the recreational restrictions of which the plaintiff now has to encounter.  The change from the previous campervan she was able to employ to the now tent, the reduction in her social activities, the impact upon her relationship with her partner, and the fact that she now avoids socialisation.  Mr McGarvie stressed the breakup of the relationship after the accident and the evidence of Ms Bundy that this was due to intimacy issues associated with physical restrictions caused to the plaintiff.  He stressed the evidence given by Mr Heenan, as to the impact on the plaintiff at work, and his comment that this was not the plaintiff, as he previously knew her.

[29]Exhibits B and C

35      Mr McGarvie said that the medicine was very consistent in support of the credibility and the actuality of the plaintiff’s symptoms and suggested that Mr Fogarty’s evidence was out there on its own, in the sense of suggesting a psychological overlay.  My own reading of Mr Fogarty’s evidence was not in any way that he denied the issue of the chronic physical pain, but said that there could be a factor laid over such by way of a psychological consequence, which was also the opinion of Dr Serry.

Conclusion

36      As was put by counsel, cases such as this are always questions of degree.  We have a plaintiff who is about to turn fifty-nine, which is a period in one’s life where one has to be very particular about one’s physical capacity.  As I can comprehend from the plaintiff and her lifestyle, which is obvious from looking at her in Court, she has maintained a very rigorous regime in this regard.  Unfortunately, due to this motor vehicle accident, she has been subject, despite her best endeavours and stoic nature, to ongoing chronic pain, both in the neck and lower back, but, in particular, in the lower back, which at times can radiate through the hip into the left leg.

37      Based primarily upon her general practitioner’s very supportive statements, the orthopaedic surgeon, Mr Miller, and the neurologist, Professor Cook, I accept the evidence of the plaintiff that she has suffered ongoing chronic pain over the last five years.  For this pain she requires analgesic medication which is ongoing, and her current treatment regime is attending her general practitioner to maintain same, with the possibility of further nerve therapy.  In the past, she has received physiotherapy and injections for pain from Dr Courtney, and recommendations have been made for her as to further denervation processes.  I find the plaintiff clearly has restrictions in her employment caused by ongoing pain, as well as in all of her recreational activities, in particular gardening, housework, camping, walking, fishing and her love life.  These restrictions and ongoing pain have also had a psychological sequelae.  The plaintiff is particularly credible, has given an ongoing and consistent history over five years, and, insofar as assessing her credibility, I rely particularly upon the testimonials of Ms Bundy and Mr Heenan as to the impact of change upon her.  I note the principles set out in Stijepic[30] referred to by Mr Ruskin, as well as the principles in Haden Engineering,[31] in particular on the issue of disabling pain, and in Halpin v Wilson Transformer Co Pty Ltd[32] as to the methodology by way of analysis in cases such as this.

[30](Supra) at paragraphs 14-17

[31]Supra

[32][2012] VSCA 235

38      Upon the whole of the evidence, in particular the evidence of the plaintiff as confirmed by the two independent testimonials, I find that such changes to her life and the chronicity of same and their symptoms, as confirmed by the medical material, in particular, by the evidence of her general practitioner, Mr Clayton Thomas, and the medico-legal practitioners, Mr Miller and Mr Cook, that I accept the evidence of the plaintiff.  There is no need for particular rejection of the medical evidence tendered by the defendant, as I consider that the opinions expressed are not necessarily inconsistent with my conclusion.

39      In assessing the physical consequences of the impairment caused by the accident on the basis of the evidence of the plaintiff and the medical opinions that I have referred to, I find that such has had a particularly deleterious effect upon the plaintiff, causing pain and suffering, loss of enjoyment of life, in particular, in regard to her ability to utilise her bodily functions in carrying out her normal daily activities, employment and home duties.

40 In assessing such impairment objectively, and in accordance with the definition of pain and suffering damages, as set out in s93(17) of the Act, I find the consequences caused by the impairment by way of pain and suffering and loss of enjoyment of life to the plaintiff are certainly more than significant or marked and are very considerable, and I find such consequences to be serious.

41 Accordingly, I find, as a result of the transport accident and injury on 15 June 2009, the plaintiff suffered a “serious injury” as defined by s93(17) of the Act.

42 I grant leave pursuant to s93(4)(d) of the Act, that the plaintiff commence proceedings to recover damages for pain and suffering.

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