Phelan v TAC
[2012] VCC 1694
•6 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No.CI-10-04815
| ANITA LOUISE PHELAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 May 2012 | |
DATE OF JUDGMENT: | 6 June 2012 | |
CASE MAY BE CITED AS: | Phelan v TAC | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1694 | |
REASONS FOR JUDGMENT
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Catchwords: Transport accident; claim brought under s93 Transport Accident Act 1986 for serious injury as defined under s93(17) paragraph (a); injury to spine as a result of a car accident in 2007; characterisation and effect of pain on function; principles in Richards v Wylie and Humphreys v Poljak applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr S McCredie | Nowicki Carbone |
| For the Defendant | Ms M Hartley SC with Ms M Fox | Lander & Rogers |
HIS HONOUR:
Background
1 Ms Phelan was born in 1975. After completing her secondary education she undertook a course in medical administration at a TAFE college. Over the years she has held employment with a number of organisations involved in the marketing of medical products. She commenced employment with Jassen Silag in about August of 2006.
2 On Friday, 13 April 2007, she was crossing Ormond Road at Elwood on a pedestrian crossing when a vehicle failed to stop apparently seeing her only at the last minute. She was struck, landed on the bonnet of the car and then on the pavement.
3 There is some debate as to the speed at which the vehicle that struck her was travelling at the point of impact and how violent that impact was. Ms Phelan said, “After falling to the ground I realised the seriousness of my situation so I did not move in the event that I had injured my spine.” An ambulance arrived, taking her to the Alfred Hospital where she was admitted overnight and underwent a series of tests.
4 A report from the Ambulance Service recorded the following injury, “Thoracic region pain described as `dull’, denies radiation; “left elbow graze.” The pain suffered by Ms Phelan was, according to the ambulance record, three out of ten at 3:42 pm and two out of ten at 3:57pm, 4:07pm and 4:16pm. The ambulance report records Ms Phelan as having refused offers of analgesia. Ms Phelan does not remember events in this light at all. She says that she was “in agony” at the scene of the accident and was suffering a high level of pain, not mild pain at all. She did not absolutely deny having refused analgesia but could not remember doing it. The logic of her account would suggest that she would have accepted analgesia had it been offered to her.
5 Records from the Alfred Hospital where she was taken by ambulance record:
·“Struck on PT’s right side.
·Fell onto bonnet of car then onto road, striking left side and occiput.
·Pain upper back.
·No neurological sympt.”
Whilst a number of strong analgesics were prescribed, it appears none of them was consumed. Ms Phelan apparently received an intravenous dose of morphine presumably by way of pain relief.
6 The following day she was discharged to the care of her local general practitioner, Dr Gillian Taylor.
7 She attended Dr Taylor’s medical centre in Hampton on 17 April. The doctor records “She [that is, Ms Phelan] was feeling very emotional about the accident and was also emotional about other issues involving her personal life. She had back and neck pain but was managing this with occas. Nurofen.”
8 Since that time she has attended Dr Taylor’s clinic, consulting Dr Taylor herself and other practitioners at that clinic, and at least one other general practitioner, a Dr Duff, in circumstances which will be explained later. The X-rays and CT scans taken at the Alfred on the evening of the accident showed no abnormalities for reasons that are not immediately apparent. An MRI scan was delayed. The findings of that scan conducted on 17 April 2007 were as follows:
“There is mild compression fracture through the superior aspects of the vertebral body of T2 and T3 with less than ten per cent loss of vertebral height. No traumatic disc protrusion is present. The other vertebral bodies are normal. Facet joints are congruent. Ligaments are intact. There is no epidural haematoma and the cervical cord is normal. Flow void in both vertebral arteries are present.”
9 Ms Phelan has brought this proceeding through her solicitors seeking leave under s.93 of the Transport Accident Act 1986 for the recovery of damages in respect of her injuries.
Legal considerations
10 By virtue of s.93 of the Transport Accident Act 1986, Ms Phelan is prevented from bringing a claim for damages in respect of her injuries unless the court gives her leave to bring those proceedings under s.93(4)(d). That leave ought not be given unless the injury is a “serious injury”. That expression is defined in s.93(17) as follows:
“In this section─
‘serious injury’ means—
(a)serious long-term impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d)loss of a foetus.”
11 In this proceeding, Ms Phelan relies only on paragraph (a) of the definition.
12 The majority of the Full Court in Humphreys v Poljak [1992] 2 VR 129 (Crockett and Southwell JJ) said that, to reach the standard in this statutory definition, an injury must be not merely significant or marked but must at least be “very considerable” – [1992] 2 VR 129, 140.
13 The distinction between paragraphs (a) and (b) of the definition “serious injury” is that impairments of body function which are produced by behavioural disturbances or disorders are to be considered solely within the confines of paragraph (b) of the definition. On the other hand, the seriousness of a body function under paragraph (a) of the definition could be judged in part by the mental response to it. This was referred to by Mr McGarvie SC, who appeared with Mr McCredie for the plaintiff, as being a “top up” component in the assessment of the seriousness of the physical injury – Richards v Wylie (2000) 1 VR 79.
Expert opinions
14 Ms Phelan’s principal primary health carer has been Dr Gillian Taylor, who carries on practice at Hampton Bayside Medical Centre. At the time of the transport accident, Ms Phelan lived in Black Rock. Shortly after, she moved to a property which she owned in Pakenham to be closer to her parents and to have the advantage of her parents’ support. As a result, her attendances at Dr Taylor’s surgery became more problematic. Whilst Ms Phelan believes she has consulted other general practitioners, the evidence established with certainty only that she consulted Dr Taylor and other practitioners at the Hampton Clinic and a Dr Duff.
15 Dr Taylor furnished a number of reports which were put into evidence. In a letter of 31 December 2008, she traced the history of Ms Phelan’s injury and subsequent treatment. The first of those reports, dated 31 December 2008, stated that, as at 17 September 2008, Ms Phelan “still had ongoing back and neck pain and stiffness” and “had returned to physio”. The report spoke of a referral to Dr Stephen de Graaf. It appears that this referral was aborted because Dr de Graaf had, by the time of the referral, ceased to practise. No further referral to a rehabilitation and pain specialist seems to have occurred. A further report from Dr Taylor of 18 May 2010 stated:
“At medical review on 03/03/2010 Anita presented at a routine consultation and reported that she has ongoing back and neck stiffness which benefits from regular massage and stretching. She is working fulltime and coping with this at present.”
An update to that report, dated 24 October 2011, stated:
“I have not been actively involved in managing Anita’s symptoms for the last two years. I understand that she has a number of other practitioners involved in her care but I have not received any reports nor assessed her in detail so have nothing further to add to [the 2010] report …”
16 On 1 February 2008, Dr Richard Duff, who practises at Point Nepean Road, Rosebud, referred Ms Phelan to ear, nose and throat surgeon, Mr Sarin Wongprasartsuk. Ms Phelan said that she suffered serious problems with vertigo which impaired her driving capacity. She was in need of urgent attention and wished to avoid a long journey to the Hampton Clinic, seeking assistance closer to her then home. Mr Wongprasartsuk reported on 19 February 2008 recording the vertigo problems, but making no particular finding. He said:
“She is coping quite well with things. I think it may well be a case of vestibular rehabilitation for her.”
17 Ms Phelan attended the rooms of Mr Justin Hunt, orthopaedic and spinal surgeon, on 4 July 2011 for assessment for medico-legal purposes at the request of her solicitor. According to Mr Hunt:
“Ms Phelan described pain in her head radiating to her neck and in her spine and back and coccygeal region. She described the pain in her was in the occipital region of radiation to the cervical region associated with the thoracic region and across the shoulders posteriorly. She stated that her spine was very irritable and tended to easily exacerbate pain symptoms.”
18 Mr Hunt found Ms Phelan tender in the occipito-cervical region and the trapezial regions, but “there were no signs of over-reactivity. She was also tender over the thoracic, lower and lumbosacral junction”. He found that her neck had restricted forward flexion and extension, to half of normal range with limits in rotation as well, with limitations being more marked to the left than to the right. Her shoulders had a good range of pain free motion and “neurological examination of her upper and lower limbs did not reveal any abnormality”.
19 Mr Hunt observed that there were fractures to T2 and T3 with “a suggestion of an L1 fracture”. Those fractures were stable and did not require any surgical intervention or bracing. The injuries and their “pain manifestations”, he said, “resulted in quite significant restrictions of lifestyle due to the ongoing nature of her symptoms”. He said Ms Phelan would be unlikely to be able to resume an active lifestyle as activities such as playing sport and dancing “tend to exacerbate her symptoms”.
20 He continued:
“It is likely that Ms Phelan will continue to be limited by her symptoms of axial neck, thoracic and lower back pain. It is likely that her pain symptoms will intrude into everyday activities in respect of domestic duties as well as her normal lifestyle and leisure activities, into the foreseeable future.”
21 Mr Hunt was asked to comment on an MRI scan of the whole spine carried out on 1 August 2011. He said:
“The MRI scan demonstrates evidence of flattening of the cervical and lumbar regions as well as the thoracic region of the lumbar spine. Compressive fracture of the T2 and T3 vertebra have undergone radiological healing and loss of height of less than 10%. There is some mid-cervical degenerative change.
In the lumbar region not much in the way of degenerative change is seen. The imaging supports Ms Phelan’s ongoing symptoms of axial neck and thoracic back pain symptoms secondary to an aggravation of degenerative change in the cervical region and upper thoracic crush fractures.”
The compression fractures and loss of body height, he said, were “not of significant severity to cause major increase in the thoracic kyphosis of the upper thoracic spine”. The continuing pain relative to thoracic and lumbar fractures “may be due to end plate factors and damage to the adjacent discs that occurred at the time of the injury, or other associated soft tissue injuries”.
22 Ms Phelan was also assessed by consultant surgeon, Professor K.A. Myers. On 28 May 2009, he diagnosed her as suffering “pain associated with compression fractures of upper thoracic vertebrae”. He found “a mild restriction of the range of movements of the neck and thoracic spine. There was some pain with light percussion over the upper thoracic spine.”
23 The professor carried out a reassessment on 30 April 2012. Broadly, the professor found Ms Phelan in the same condition she had been in at her assessment in 2009. The professor furnished a supplementary report dated 22 May. He observed:
“It is my personal experience that the majority of patients with crush fractures in vertebrae have longstanding clinical disability, irrespective of any radiological appearances and it was certainly my opinion that your client has ongoing pain at the fracture site that can be attributed to the crush fractures.”
24 Ms Phelan’s solicitors also referred her to consultant psychiatrist, Dr David Weissman, for medico-legal purposes. In a report to the solicitors dated 3 August 2009, he diagnosed Ms Phelan as suffering ─
“…mild post-traumatic stress disorder symptoms and features, directly due to the circumstances of the transport accident itself. She has thought, reminders, triggers and flashbacks of the transport accident, there is a heightened awareness to reminders and triggers of the accident, there are occasional bad dreams about the accident, driver, passenger, pedestrian and accident site-related anxiety, nervousness and hypervigilance, reduced socialisation, increased irritability and lowered frustration tolerance, and a change in her personality and outlook as mentioned.”
He also noted a mild to moderate mixed, reactive depressive and anxiety syndrome.
25 Dr Weissman conducted a re-examination on 7 July 2011. The doctor diagnosed the same symptoms as in his previous report; that is, mild but not insignificant post traumatic stress disorder and mild to moderate mixed, reactive, depressive and anxiety symptoms “as a consequence of, or secondary to, her accident-related pain, injuries and disabilities”. Her psychiatric prognosis was, according to the doctor, fair.
26 The defendant had Ms Phelan assessed for medico-legal purposes by Mr John O’Brien, orthopaedic surgeon. The first assessment was conducted on 4 August 2009. He said:
“…the patient presents describing constant neck and upper back pain accompanied by minor signs of mild restriction of cervical movement with extensive distribution of apparent soft tissue tenderness. Indeed the extensive distribution of pain and tenderness would be in keeping with residual soft tissue injury, which has now apparently progressed to an extensive area of chronic pain. Indeed there is some suggestion the problem is influenced by psychosocial factors.”
27 He commented:
“Despite the prolonged nature of symptoms the patient’s overall disability does not appear to be major, reporting a fairly active lifestyle. The patient indicated her employment as not being apparently affected by her ongoing symptoms…Thus the persistent pain has not been a source of interrupting the patient’s employment and I would suggest this continues to be the situation, as she remains physically reasonably active. I would therefore suggest Ms Phelan has not sustained a considerable injury as a consequence of the described accident in April 2007. Physically the patient remains generally quite active and it appears she is only a little restricted in what could be regarded as more heavy physical activity such as lifting, running and dancing. This would appear to have some effect on her recreational and leisure activities although the patient appears to be fully capable of all activities of daily living and remains capable of the tasks required for independent living.”
28 Mr O’Brien conducted a further assessment on 1 August 2011. On the same date he said:
“Physical signs now are relatively subjective. Indeed there are minimal restrictions of cervical and thoracic spine movement with a widespread area of tenderness mostly confined to soft tissue with no reported tenderness in the midline directly over the spine. Certainly there was no clear evidence which would suggest specific spinal pathology…I did suggest after my first examination this patient appeared to present with signs of a soft tissue injury. I would however consider that the clinical course in the past two years does really define the presence of a chronic pain syndrome which I would suggest is fairly significantly influenced by psychosocial factors…I would suggest that what I have described is a chronic pain syndrome and will not be responsive to any physical treatment. Indeed any treatment currently pursued is symptomatic and must then be regarded as pain management.”
29 He said the prognosis was poor. Having been furnished with a more recent MRI scan and the supplementary report of 9 November 2011, Mr O’Brien said: “I think this excludes the presence of any ongoing osseus pathology as a pain generator in this patient”. It would seem to follow that Mr O’Brien was of opinion that whatever pain and restrictions Ms Phelan now suffers from are entirely functional and non-organic.
30 The defendant also had Ms Phelan assessed by consultant psychiatric, Dr Lester Walton, who diagnosed her as suffering from an adjustment disorder with mixed anxiety and depression. The Court Books contained some other expert reports but neither counsel mentioned them and I took it they were not relied upon.
Conclusions
31 Since this application relies on a loss of bodily function, in accordance with the legal principles discussed above, there is no occasion to give any weight to the diagnoses of post traumatic stress disorder or adjustment disorder deriving directly from the transport accident vis the shock of the moment. In any event, neither in the affidavits filed in this proceeding nor in viva voce evidence, did Ms Phelan say anything about flashbacks, intrusive thoughts and other symptoms typically associated with post traumatic stress disorder. Accordingly, I put all these matters to one side.
32 The next question that I have to consider is how the physical injury that she suffered should at least at its outset be characterised. Ms Hartley and Ms Fox for the defendant took me to a number of references and material such as the records of the Alfred Hospital and of the ambulance service which characterised the impact as minor and Ms Phelan’s pain levels as “3 out of 10” or “2 out of 10”. It will be recalled that the ambulance records indicate she refused an offer of analgesia at the scene. They also pointed out the lack of damage to the vehicle which struck her.
33 Ultimately I believe this view of things trivialises the seriousness of the accident. First, that whilst it required a delayed MRI to establish it, Ms Phelan suffered compression fractures, that is, actual broken bones. As Mr McGarvie correctly observed, the injury to Ms Phelan was likely done by her impact on the pavement rather than directly by the impact of the vehicle, so the lack of damage to the vehicle is not of central significance. Whilst a number of powerful pain relievers seems to have been prescribed during her time at the Alfred Hospital, they do not appear to have been consumed except that intravenous morphine was administered to her. Ms Hartley and Ms Fox conceded that morphine is a powerful pain reliever. The fact that the persons managing her care at the Alfred Hospital saw fit to administer this powerful pain relief leads me to infer that her pain on the day was very considerable indeed.
34 If Mr O’Brien is correct and her pain and restrictions are entirely functional, in accordance with the principles stated in Humphries v Poljak and Richards v Wylie and referred to above, none of those pain and restrictions would count in favour of success in the present application based entirely on paragraph (a) of the definition of serious injury. The next question therefore is how should Ms Phelan’s pain and restrictions be characterised for the purposes of this application?
35 With some hesitation I concur in the view expressed by Mr Hunt that the pain and restrictions which I accept Ms Phelan suffers are organically driven.
36 But how serious are they?
37 Ms Hartley conducted a detailed cross-examination of Ms Phelan and demonstrated that after July 2007 her attendances on the general practitioners for treatment of the neck and back problems were, at best, desultory. Treatment focused on therapy from a number of physiotherapists. First, those at a clinic known as “Body Wise” at which Ms Phelan ultimately became disenchanted, then later Mr Lensen and again Mr Erlich. The physiotherapy had been funded by the Victorian WorkCover Authority, presumably because the transport accident occurred during Ms Phelan’s work not merely during what were, under the old law, “protected journeys” to and from work. The Authority has ceased funding the physiotherapy and Ms Phelan is no longer undertaking it.
38 The lack of intervention from the medical profession in the narrow sense is a contraindication to the seriousness of the pain and restrictions. On the other hand, from a fairly early stage the assessments suggest that Ms Phelan’s condition has stabilised and therefore there is little which orthodox medicine could offer. To take an extreme example, a plaintiff who has suffered an amputation has suffered a very serious injury but once the immediate post-operative phase of the amputation is complete there will be little medical attention given to the stump. This does diminish the seriousness of the injury, however.
39 There were some inconsistencies in the sort of criticisms that the defendant made of Ms Phelan. She was taken, in cross-examination, to some statements, for instance, by the Director of Body Wise, Ms Lobo, which would appear to imply that she had returned to jogging up to five kilometres - something that Ms Phelan denied. At other times Ms Phelan was confronted by statements from Ms Lobo of a tendency for Ms Phelan to “backslide” on the self-management exercises which the physiotherapy program required her to undertake.
40 The plaintiff, in her evidence, said a lot to the effect that her previously happy live had been spoiled by the pain and restrictions which she now suffers. That view is either entirely untenable or at best a great exaggeration. Ms Hartley correctly drew my attention to the psychological counselling from Ms Lavery which Ms Phelan was receiving from her in the breakdown of a personal relationship prior to the transport accident. That Ms Phelan required this sort of assistance in those circumstances is inconsistent with the history she gave to Dr Weissman that immediately before the accident she was a “happy go lucky” personality. Ms Phelan took a holiday in France in September 2007. The holiday extended over about two weeks. She flew directly from Australia to France and took a direct flight back. I enquired about this, having regard to the stress that this might have put on her back and neck. I asked her if this happened within a 12 month period after the accident. She replied (at T 105, L 18-21): “It was actually my main reason was because of the accident. In the past 12 months prior to the accident was probably the worst part of my life so I really wanted a holiday” [my emphasis].
41 After the accident Ms Phelan continued to receive emotional support from counsellors including a Ms Cook. The sessions apparently related to a number of issues being relationship matters entirely distinct from the transport accident. The view that the pain and restrictions in her neck and shoulders aside, Ms Phelan “would be happy go lucky” is untenable.
42 I cannot accept that a person who suffered a spinal injury which five years after the event remains “very considerable” would have within a few months of the accident taken a holiday with two lengthy intercontinental flights within 2 weeks. Again, whilst in answer to my direct questioning Ms Phelan complained of discomfort as she sat in the witness box, to the casual observer she displayed no major discomfort during a lengthy cross-examination that extended over two days. She manages her pain with `over the counter’ preparation such as Nurofen.
43 Applying the tests laid down in Humphries v Poljak, whilst I accept that Ms Phelan continues to suffer pain and restrictions which can be regarded as having an organic cause and therefore are appropriately to be considered under paragraph (a) of the definition of serious injury, these pain and restrictions are marked and significant but I cannot accept that they are “very considerable”. The restrictions in day to day life with lifting and the like are again significant and marked but not very considerable. The fact that after a relatively brief time Ms Phelan has been fit and available to continue her pre-accident work also points away from her injuries being serious. For the reasons explained, I do not believe that there is, in this case, any “top up” for the psychological consequences of injury. The emotional and psychological issues which Ms Phelan has been coping with are, in my view, unrelated to the accident and are not secondary to physical pain and restriction.
44 The application for leave to commence proceedings is dismissed.
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