Phelan v Transport Accident Commission
[2020] VCC 169
•4 March 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05205
| COURTNEY MAY PHELAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 2 and 3 May 2019 | |
DATE OF JUDGMENT: | 4 March 2020 | |
CASE MAY BE CITED AS: | Phelan v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 169 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the spine – nature and extent of such injury
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie [2000] 1 VR 79
Judgment: Leave granted to the plaintiff to issue proceedings seeking damages at common law arising out of a motor vehicle accident which occurred on 17 April 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Masel SC with Ms C Spitaleri | Slater and Gordon |
| For the Defendant | Mr A D Clements QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion dated 21 November 2018, Courtney Phelan (“the plaintiff”) seeks leave pursuant to s93(4)(3) of the Transport Accident Act 1986, as amended, (“the Act”), to bring common law proceedings to recover damages for spinal injury (“the injury”) suffered by her arising out of a transport accident which occurred on 17 April 2015.
2 The plaintiff tendered in evidence two affidavits and was cross-examined. The parties also tendered various other documents, all of which I have read.
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[1]
[1]See s93(6) of the Act
4 The plaintiff relies primarily on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“In this section … serious injury means –
(a) serious long-term impairment of loss of a body function … .”
5 The plaintiff also relies on paragraph (c) of the definition of “serious injury” which reads:
“(c)severe long-term mental or severe long-term behavioural disturbance or disorder … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) in relation to the transport accident was to “the spine, including the cervical spine”. The plaintiff relies predominantly on the cervical level.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that “the injury” suffered by her was the result of the transport accident.
8 The requirements of the test are set out in the seminal decision of Humphries & Anor v Poljak,[2] wherein a majority of then Full Court of Victoria stated:
“Subs(17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para(a) and the latter under para(c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
[2][1992] 2 VR 129
9 “Serious injury” as defined in subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment; however, the mental disorder cannot in itself constitute or be the producer of the impairment of a body function.[3]
[3]Richards & Anor v Wylie [2000] 1 VR 79
10 Senior Counsel for the defendant informed the Court there was no issue in relation to the plaintiff being involved in a transport accident and suffering a degree of soft-tissue injury to her spine on account thereof. The main issues in the case were said to be first:
(a)the plaintiff’s soft-tissue injury to her cervical spine had now resolved and there was no ongoing organic or physical basis for her complaints of neck pain and left-arm pain;
(b)if there is an ongoing organic transport-accident-caused injury affecting the plaintiff’s spine, the consequences of it fall below the “very considerable” threshold;
(c)any ongoing psychiatric condition arising from the transport accident falls well short of being “severe”;
(d)the plaintiff has failed to “disentangle” other medical conditions, particularly with respect to ongoing headaches;
(e) there are credit matters which reflect on the plaintiff’s reliability.
Identifying the injury
11 The plaintiff’s case, pursuant to paragraph (a) above, is that she suffered a chronic soft-tissue injury to the cervical spine, which is said to involve central sensitisation or central nervous system pain pathway sensitisation due to scientifically-proven organic changes after having suffered an episode of acute or nociceptive pain caused by an initial injury.[4]
[4]Exhibit “D”, report of Dr Terence C Lim dated 4 April 2018, Plaintiff’s Court Book (“PCB”) 44-51
The Plaintiff’s evidence
12 Prior to a motor vehicle accident on 17 April 2015.
13 In the first affidavit sworn 15 March 2017,[5] the plaintiff swore she was born in July 1994 in Queensland. She completed primary school and Year 12 of secondary school.
[5]Exhibit “A”
14 Thereafter, in about 2012, she returned to live in Melbourne and obtained a Diploma of Interior Design at North Melbourne Institute of Technology in about November 2014. While studying, she also worked casually as a bartender in the evenings and she was also a colour consultant for a building company on the weekends.
15 After completing her course, she worked at Beaumont Tiles as a colour consultant for approximately four months up until about mid-March 2015. Her intention was to thereafter return to study event management and she had a number of potential job opportunities lined up. She had attended one interview at the Home Buyers Centre working as a colour consultant. She also had as similar interview arranged at Simmonds Homes.
16 Just prior to the accident, the plaintiff was supporting herself with personal savings, together with support from her partner, Brad.
17 The plaintiff also swore she was physically motivated to improve her health. She stated she would get up early in order to work out. She drove to Southbank at 5.30am in order to undertake an intense fitness training session. This was a class-based gym focusing on personal training. It was also her intention to lose weight. She paid $500 to complete the challenge to lose 9 kilograms in six weeks and was successful, thus securing the return of her money. She stated:
“I enjoyed these fitness workouts not only for the purpose of weight loss, which I was achieving, but because it made me feel stronger and more mentally alert. Working out each day was a great stress reliever and made me happier overall.”[6]
[6]Exhibit “A” (supra), paragraph [12] at PCB 9
18 The plaintiff stated she would go out clubbing to bars and pubs with her friends and attend concerts and musical festivals. She enjoyed attending sporting events such as the AFL, the A-League or rugby. Also, she and her partner would travel to the Dandenong Ranges and do the One Thousand Steps for fitness.
19 As well as taking an active part in household chores, including cleaning the shower, vanity and bathroom, the plaintiff stated that she enjoyed a vigorous intimate life with her partner.
20 Finally, the plaintiff swore she had no neck, upper body or back injuries, or any psychiatric illnesses prior to the injury.
Treatment following the transport accident
21 The plaintiff described the motor vehicle accident on 17 April 2015 as a major collision, such that both vehicles were written off.[7]
[7]Exhibit “A” (supra), paragraph [24] at PCB 11
22 The plaintiff was driven to the Northern Hospital following the collision and was admitted for two days. She underwent a trauma CT scan of the spine, which revealed no fractures.
23 Following discharge, she was prescribed Targin, Ibuprofen, paracetamol and Endone.
24 On or about 21 April 2015, the plaintiff attended her general practitioner, Dr Mohamed Hajoona, complaining of headaches, stiffness and neck pain since the transport accident. In the months that followed, she started experiencing chronic neck pain and headaches which were progressing to migraines regularly. She was also experiencing anxiety and having nightmares about the accident.[8]
[8]Exhibit “A” (supra), paragraphs [31]-[32] at PCB 12
25 The plaintiff continued to attend her general practitioner, complaining of restricted movement, ongoing headaches and neck pain, as well as difficulty sleeping a full night due to nightmares. She underwent specific exercises for shoulder, lower back and thoracic spine pain. She was also prescribed other pain-management medication and anti-inflammatories, including Brufen, Mersyndol, Endep and Panadeine Forte.[9]
[9]Exhibit “A” (supra), paragraph [33] at PCB 12
26 In June 2015, the plaintiff was referred for physiotherapy at Mill Park Physiotherapy Centre. She continued this treatment for approximately six months.
27 When attending a new general practitioner in July 2015, the plaintiff was complaining of “constant frontal headaches and migraines, neck pain and stiffness, back pain, as well as some memory loss and heightened anxiety around driving”.[10] In the subsequent months, she was prescribed Celebrex, Lyrica and Norgesic for further pain management.
[10]Exhibit “A” (supra), paragraph [35] at PCB 13
28 In about September 2015, the plaintiff attended a psychologist, Ms Nadja Berberovic, for psychological treatment. She learnt strategies for coping with pain and anxiety through mindfulness.[11]
[11]Exhibit “A” (supra), paragraph [37] at PCB 13
29 Following chronic neck pain, migraines and a persistent heavy feeling in her head, she was referred to neurosurgeon, Dr Nicholas Maartens. An MRI scan and nerve conduction investigation for carpal tunnel were certified as normal, although the plaintiff was experiencing tingling and numbness in her upper left limb.[12]
[12]Exhibit “A” (supra), paragraph [38] at PCB 13-14
30 The plaintiff was thereafter referred by Dr Maartens for pain management to Dr Terence Lim, a rehabilitation and pain consultant. Dr Lim, in turn, referred the plaintiff to the North Eastern Rehabilitation Centre pain team and for further psychological and psychiatric treatment.
31 As at March 2017, the plaintiff was taking paracetamol regularly and Panadeine Forte for breakthrough pain relief, and also taking Andepra and Celebrex, one daily, and Ranitidine and Circadin.[13]
[13]Exhibit “A” (supra), paragraph [44] at PCB 14
32 On or about 24 August 2016, Dr Lim advised the plaintiff to stop all physiotherapy treatment as he was concerned it was aggravating her injuries.
Consequences of the transport accident injury
33 The plaintiff has sworn that since the accident, she experiences chronic pain in her neck which feels like sharp stabbing pain, and it is worse on her left side. She states there is a lot of stiffness which restricts her from twisting and turning her head and neck to the left.[14]
[14]Exhibit “A” (supra), paragraph [48] at PCB 15
34 Further, the plaintiff’s partner does a lot more of the housework.
“… For example, on most occasions he has to hang out the washing, put the clothes away and vacuum the floor because this causes me too much pain. I used to clean the shower and wash the basin and vanity, though after the Transport Accident these are chores that Brad has to do, as any job requiring me to get on my hands and knees or stretch my arms out in order to undertake a wiping motion causes neck pain.”[15]
[15]Exhibit “A” (supra), paragraph [49] at PCB 15-16
35 The plaintiff states she struggles to wash and dry her hair and the chronic neck pain has resulted in regular sleep disturbance, such that she is not able to sleep at all on her left side due to the pain.[16]
[16]Exhibit “A” (supra), paragraph [52] at PCB 16
36 Although she has undergone long drives and road trips, she has found them overwhelming at times, as it causes her greater pain to the neck and can often lead to headaches, and she “would have to take several breaks and rest stops when on a road trip in order to alleviate the pain”.[17]
[17]Exhibit “A” (supra), paragraph [51] at PCB 16
37 Further, the plaintiff has sworn that the chronic neck pain has led to the development of pain and constant tingling in her left arm, which feels like a constant stabbing pain.[18]
[18]Exhibit “A” (supra), paragraph [53] at PCB 16
38 The plaintiff has also sworn that the chronic pain has led to frontal headaches which involve pain to the “entire front part of my head. These headaches often progress to migraines”.[19] Further, the migraine headaches can last for “several hours”.[20]
[19]Exhibit “A” (supra), paragraph [55] at PCB 17
[20]Exhibit “A” (supra), paragraph [56] at PCB 16
39 The plaintiff also swears that her emotional and physical relationship with her partner has been seriously affected.
40 Further, the plaintiff has sworn that since the transport accident, she has developed pain in her left leg, which consists of sharp pain and tingling that spans from the pelvis region on the left to the foot and that such persistent injuries have affected her “physically and psychologically”.
41 At the time of the accident, the plaintiff was undergoing a second weight-loss challenge and was halfway through her course, but has not been able to return to the gym and complete the challenge.[21]
[21]Exhibit “A” (supra), paragraph [69] at PCB 19
42 Further, the plaintiff has now gained a lot of weight since the accident and weighs over 100 kilograms, which she attributes to her “severely limited ability to undertake physical activity, chronic pain, and fear of further injury”.[22]
[22]Exhibit “A” (supra), paragraph [70] at PCB 19
43 In her second affidavit sworn 21 March 2019, the plaintiff swore that she had been attending a pain-management centre since 2016 until January 2019, when she completed the program.[23]
[23]Exhibit “B”, Plaintiff’s second affidavit sworn 21 March 2019, paragraph [3] at PCB 22
44 Further, in approximately February 2018, the plaintiff commenced volunteering at Second Chance Animal Rescue. She volunteered four-and-a-half hours per fortnight and worked up to four-and-a-half hours per week by mid-2018. She finds that working these hours, she is “struggling more, because I am not able to take the breaks I need”.[24] She further states:
“… I am able to manage my duties but by the end of my shift I am in a lot of pain. I also experience increased pain the day after a shift. In about September 2018 I tried to increase my hours to nine hours per week but I was unable to cope.”[25]
[24]Exhibit “B” (supra), paragraph [4] at PCB 22
[25]Exhibit “B” (supra), paragraph [5] at PCB 22
45 Further, in January 2019, the plaintiff completed a Responsible Service of Alcohol course, which went for about four hours. She states that she is hopeful she will be able to work as a bartender and thinks she can manage four hours per week.[26]
[26]Exhibit “B” (supra), paragraph [7] at PCB 23
46 Since swearing her last affidavit, the plaintiff states:
“… I continue to suffer from constant pain in my neck which runs down my left shoulder and aim. The pain that I experience varies from day to day but it is always present. There are days where I experience pain in other parts of my body including my back and my legs. Some days the pain in my neck is so bad that I am unable to get out of bed. This happens about once per week.”[27]
[27]Exhibit “B” (supra), paragraph [8] at PCB 23
47 Further, the plaintiff states:
“… Due to my neck pain I experience headaches every day and I suffer from migraines about three times per week. My sleep is affected by my neck pain.”[28]
[28]Exhibit “B” (supra), paragraph [9] at PCB 23
48 At the time of the hearing, the plaintiff states she was taking the following medication to manage her pain:
“• 100mg of Celebrex once per day;
• 60mg of Duloexteine (scil Duloxetine) once per day;
• Panadeine Forte – once to two tablets per week;
• 75mg of Lyrica – two tablets approximately 3-4 times per week
• Endone – only when required
• Paracetamol – approximately two times per week
• 10mg of Buscopan – two tablets approximately 2-3 times a week.”[29]
[29]Exhibit “B” (supra), paragraph [10] at PCB 23
49 Further, the plaintiff continues to see her general practitioner and pain specialist, Dr Lim, and she is still seeing her psychologist, Dr Berberovic, approximately once per week.[30]
[30]Exhibit “B” (supra), paragraphs [12]-[13] at PCB 24
50 The plaintiff further swore that her weight has now increased to 135 kilograms because of her lack of activity due to her pain.
51 The plaintiff described her current position thus:
“I try to go the gym but I can only manage about ten minutes on the exercise bike and ten minutes walking on the treadmill. Before the transport accident I was able to do things like push ups, squats, boot camp and spin classes, strengthening and conditioning classes, yoga, kick boxing classes and boxing classes.
Since the transport accident I have been socialising less and this is because of my pain. I used to enjoy going to pubs and parties and I really enjoyed dancing. I now find it difficult to dance because of my pain. I recently went to a concert because a friend had brought me a ticket as a gift. I went to the concert but I was unable to enjoy myself because of my pain.
…
I suffer from low mood and I am upset that I am now limited in the activities that I can do because of my pain. I am frustrated that my condition has not improved and that I am no longer the person I used to be. I was always an independent person and I hate that I am now reliant on Brad. I am very concerned about my future.[31]
[31]Exhibit “B” (supra), paragraphs [17]-[18] and [20] at PCB 25
Cross-examination of the Plaintiff
52 As is common in modern times, the plaintiff was quite active on Facebook. The defendant tendered in evidence Facebook material posted by the plaintiff[32] and material posted by her partner, Bradley Wyatt.[33] These exhibits, and the cross-examination thereon, revealed the plaintiff had travelled to Perth in March 2016, became engaged in September 2016 and went to South Wharf on New Year’s Eve in December 2016. Further, her partner’s Facebook revealed a number of outings in 2015 to hotels and restaurants. The plaintiff was cross-examined, particularly with respect to these entries from Transcript 56 to 65, which was summarised by Senior Counsel for the defendant as follows:
[32]Exhibit 10, Defendant’s Court Book (“DCB”) [49]-[56]
[33]Exhibit 10, DCB [57]-[103]
Q:“So what you would say, and you correct me if I’m wrong about this, you say to His Honour since the accident I have continued to do things like travelling both interstate and within Victoria, I have continued to be able to go out for dinner with my boyfriend and lunch and films and shopping, but I did all of that a little bit more before the car accident?---
A: I would say a lot more
Q: But you’re still able to do it, aren’t you, that’s the point?---
A: Yes.”[34]
[34]Transcript (“T”) 64, Line (“L”) 25 – T65, L2
53 Further in cross-examination, the plaintiff stated that in July 2016, she developed pain in her left leg all the way down to the left foot. It was a sharp pain, which is constant, and it is one of the things for which she takes pain medication. She stated “[i]t’s just a stabbing pain. It’s bad but not too bad.”[35]
[35]T43, L3-23
54 In cross-examination, the plaintiff conceded that she had problems with her weight in 2012 and 2013, resulting in medical treatment and prescription of medication.[36]
[36]T39-41
55 Senior Counsel put to the plaintiff:
Q:“What you say to the court is since the car accident in April 2015 I have put on a lot of weight and I blame that on the car accident, that’s what you say, isn’t it?---
A: Yes.
Q:And you say I blame it on the car accident because I haven’t been able to exercise as much?---
A:Yes, it is not exercise as much, exercise period, it’s only been the last year that I have been able to go for a walk and do exercise.
Q:But even before the car accident you had periods when you could exercise and your weight was still going up didn’t you?---
…
A:Yes.”[37]
[37]T41, L22-T42, L4
56 The plaintiff was further cross-examined concerning a consultation she had with her treating psychologist, Dr Nadja Berberovic, on 12 September 2018. On that occasion, Ms Berberovic took a history of a new medical issue which had been diagnosed in July 2017, being:
“… fluid and pressure on your optic nerve … New symptoms:
• sometimes can’t see properly
• massive headaches
• ringing in the ears
…
Medication for that prescribed to help reduce fluid. Not reducing it at this stage but it has not gotten worse either’.”[38]
[38]Exhibit 6 at DCB 31
57 It was further put to the plaintiff:
Q:“… as at September 2018 you were continuing to experience massive frontal headaches behind your eyes, do you agree?---
A:Yes.
Q:And that has continued since September 2018, hasn’t 1 it?---
A:Yes.
…
Q:So what’s happened is you have been now taking this Diamox medication for almost two years since July 2017?---
A:Yes.
Q:And you’re going along to get reviewed every couple of months at the eye and ear branch that you described before?---
A:Yes.
…
Q:But you are continuing to experience massive frontal headaches behind your eyes as a result of this condition?---
A:Yes.”[39]
[39]T20, L11-13
58 It was later put:
Q:I suggest that the true position is you believe you experienced two different types of headaches, a tension headache coming out from the neck into the head, correct?---
A:Yes.
Q:And you also believe you experience a separate massive frontal headache behind the eyes in connection with your hypertension intracranial?---
A:Yes.
Q:But the picture you have painted in your affidavit is that the only cause of your headaches including migraines is your neck injury from the car accident, that’s picture you have painted, isn’t it?---
A:Yes.”[40]
[40]T21, L22-T22, L1
59 Further, when the question of disentanglement was addressed, Senior Counsel asked:
Q:“I was saying to you, Ms Phelan, I think, that on the occasions that your frontal headaches are sufficiently severe that they interfere with your vision and you have to lie down for a period of time, your daily activities are interfered with, aren’t they?---
A: It is not every day that I get these headaches.
Q: How often is it?---
A: Once a week, twice a week.
Q:And when you get them do you take a migraine tablet, I’m talking about the frontal headaches, to be clear?---
A: Sometimes.
Q:What do you take, is there a tablet called Sandomigran or something like that?---
A:No.
Q: What do you take?---
A: Panadol Rapid.
Q:So that’s what you take if you’re getting a severe frontal migraine?---
A: Yes.
Q:I suggest to you that those severe frontal headaches behind your eyes would interfere with your capacity to work, do you agree?---
A:No.”[41]
[41]T24, L16 – T25, L2
60 Finally, the plaintiff was asked:
Q:“Did you deliberately leave all of this out in your March 2019 affidavit because you thought it would assist your case if the court didn’t know about this?---
A: No.”[42]
[42]T26, L3-5
61 With respect to a diagnosis of Attention Deficit Disorder, the plaintiff was taken to her affidavit, where she stated:
“‘Prior to the transport accident I had meant to consult a psychiatrist in relation to suspected ADHD … As my sister, Brianne Phelan, also had ADHD. I was concerned about my anxiety levels. In around September 2015 I consulted with a psychiatrist and was diagnosed with ADHD’.”[43]
[43]T26, L21-30
Preliminary findings
62 The plaintiff was skilfully but fairly cross-examined at length. As stated at the time, she gave me the impression she was an honest person, and I considered that any pausing to give answers was reflecting to make sure she was accurate rather than she was trying to think what is the best answer to give.[44]
[44]T103, L19-23
63 Senior Counsel for the defendant accepted this proposition, at least in part.[45]
[45]T85, L28 – T86, L3
64 Prior to the accident, I accept that she led a full, vigorous and energetic lifestyle, albeit with weight difficulties from time to time. I consider this is consistent with her Facebook entries made in the weeks and days leading up to the accident.[46]
[46]Exhibit “Q”
65 Accordingly, prior to the diagnosis of the intercranial hypertension in July 2017, causing specific headaches behind her eyes, I accept that she was suffering from the sequelae from the motor vehicle accident, as attested to in her first affidavit, sworn 15 March 2017.
66 I also accept that just prior to the accident, the plaintiff was ready, willing and able to engage in full employment or study in accordance with her then ambitions.
Identifying the injury
67 The medical opinions obtained by the plaintiff and the defendant are in stark contrast. It is clear enough that the plaintiff relies heavily on her treating physician, consultant in rehabilitation and pain medicine, Dr Terence C Lim.
68 In his report dated 4 April 2018,[47] he describes his qualifications as follows:
“I am a consultant in rehabilitation medicine as well as a pain medicine specialist, holding fellowships in both the Faculty of Rehabilitation Medicine, Royal Australasian College of Physicians and the Faculty of Pain Medicine of the Australia and New Zealand College of Anaesthetists where my professional focus and dedication is to clinical management. I have been specialising in the management of complex disability e.g. spinal cord injury since 1990 and in managing both chronic pain and complex disability, as my core speciality since 1992, when I co-founded the Austin Health (previously Austin Hospital) chronic pain clinic. I have since gone on to develop rehabilitation programmes to address either or combined complex and chronic pain conditions (too complicated for generic chronic pain management programmes) in the private sector, based al private rehabilitation hospitals as per my letterhead, where I am now fully dedicated.”[48]
[47]Exhibit “D”
[48](Supra) at PCB 34
69 Dr Lim first assessed the plaintiff on 27 April 2016, where she complained to him of:
“… suffering from persistent left-sided neck/shoulder girdle pain that could radiate down her left upper limb and associated with neuropathic-like symptoms and associated with frontal and occipital headaches.
Her persistent symptoms were caused by a MVA in April 2015 … .”[49]
[49](Supra) at PCB 45
70 Dr Lim noted that an MRI scan of the cervical spine did not find pathology to explain her pain and likewise with nerve conduction studies. At that time, medication included Panadeine Forte, up to ten per week, and Celebrex, 100 milligrams daily. She had tried Lyrica, but had ceased due to the known side effect of weight gain.[50]
[50](Supra) at PCB 45
71 On examination, Dr Lim:
“… found Ms Phelan to have evidence of multiple, exquisitely tender muscular trigger points that were not only exquisitely tender to gentle palpation but also caused pain to be ‘trigger’ or refer either towards her head and/or in particular, down her left upper limb and associated with paraesthesia, duplicating the symptoms she had been complaining of These trigger points were evident in a regional distribution and included the muscles of the left side of her head, neck, shoulder girdle and upper limb, including the intrinsic muscles of the first webspace of her left hand.”[51]
[51](Supra) at PCB 45
72 It was Dr Lim’s opinion that “[m]uscular trigger points reflect the development of central sensitisation which can perpetuate and amplify pain”.[52]
[52](Supra) at PCB 45
73 Dr Lim then gave a fulsome diagnosis as follows:
“As a consequence of suffering soft tissue injuries in a MVA in April 2015, Ms Phelan had become pain-sensitised resulting in suffering chronic regional pain and affecting the left side of her neck/shoulder girdle and upper limb, her non-dominant side due to the development of central sensitisation.
Central Sensitisation or central nervous system pain pathway sensitisation is due to scientifically-proven organic changes after having suffered an episode of acute or nociceptive pain caused by an initial injury. The original research revealed changes affecting the posterior spinal cord (superficial layers of the dorsal horn). This research continues and has been extended more proximally to include the brain where significant changes have also been found to occur.
These changes result in the chronic pain sufferer not only becoming primed to suffer chronic or persistent pain but also prone to experience spontaneous flares of increased pain, independent of any other factors or pathology.
According to the International Association for the Study of Pain (IASP), chronic pain is pain that persists for longer than three months, the outer limit of time when physiological healing of an injury would have been expected to have taken place.
Pain pathways usually collect and transfer messages pertaining to pain from an injured body part to register in the brain as pain, acting as a warning/protective mechanism — acute or nociceptive pain. Pain can also warn a person of the possibility of tissue damage/injury e.g. when putting one’s hand too close to fire. On occasions and despite evidence to indicate that the damaged/injured tissue has healed, pain does not resolve. After a period of three months, this is defined as persistent or chronic pain and occurs due to a significant contribution from the development of central sensitisation.”[53]
[53](Supra) at PCB 46
74 Dr Lim goes on to state that the central nervous system is “plastic” or changeable and that these changes include:
“Recruitment of other parts of the body not previously injured or in pain to experience chronic pain e.g. shoulder pain becoming a regional pain syndrome or worse still, a generalised pain condition, even if the original medical condition has healed or is considered stable caused by the expansion of pain sensitisation to affect other parts of the CNS.”[54]
[54](Supra) at PCB 47
75 As to the nature of the condition and its treatment, Dr Lim states:
“Cure is not realistically achievable, due to the multifactorial and complex nature of the condition, in particular, the development of central sensitisation. In other words, to cure chronic pain means that the scientists who research pain must provide the clinicians who work in this area with the solution.
To date, this has not as yet become available.”[55]
[55](Supra) at PCB 47-48
76 With respect to the onset of left buttock and left leg pain, in July 2016, Dr Lim stated:
“Ms Phelan reported that she had suffered left buttock/leg pain following the assessment [at the NERC pain rehabilitation program] even though the focus of the assessment was in regard to her upper body and tried to attribute this new pain condition to the pain physiotherapist assessment — the physiotherapist had identified an exquisitely tender left deltoid (shoulder) muscle trigger point which caused pain to be ‘triggered’ or referred down her left upper limb. Later, when Ms Phelan was getting into a car, she experienced left leg pain and tried to link the two events.
The following discussion was centred around dispelling Ms Phelan’s belief that she had been re-injured as well as re-explaining the central sensitisation model of chronic or persistent pain, the reason being that if she, Ms Phelan was not accepting of this explanation, then the NERC pain rehabilitation program would not be efficacious in assisting her gain improved pain control and restore improved functioning through the self-help process and she would need to return to consult Dr Mifsud [her general practitioner] in regard to pursuing further investigations to exclude other reasons for her left leg pain.
Ms Phelan stated that she was satisfied that she would not need to pursue further investigations of her left leg pain.”[56]
[56](Supra) at PCB 48-49
77 With respect to the diagnosis referred to above in July 2017 of the idiopathic intracranial hypertension, Dr Lim stated:
“I reviewed Ms Phelan on 24 July 2017.
She made me aware that she was undergoing investigations for Idiopathic Intracranial Hypertension (ICH) when by chance, her optometrist noted papilloedema. She would be undergoing a lumbar puncture at the Eye and Ear Hospital in the next week.
She had decided to continue attending the NERC pain rehabilitation program reflecting a further improvement in her coping resilience as previously, she would have succumbed to this additional stress with increased anxiety/depression and more helplessness.
I reviewed Ms Phelan on 31 August 2017.
She had managed to cope with undergoing the lumbar puncture, which apparently required 15 attempts! She was being treated for the ICH. She was exploring voluntary work options as the entrée to seeking pain [paid?] employment.”[57]
[57](Supra) at PCB 50
78 When next reviewed on 21 November 2017, Dr Lim noted:
“… Ms Phelan had remained ‘in control’ which had meant only a slight increase in her pain levels. She had also recognised the link between stress and pain exacerbation.
She had recently returned from visiting her mother in Perth for 2 weeks. She was planning to return to Perth over the Christmas-New Year period to be with mother again.
I last reviewed Ms Phelan on 30 January 2018.
She reported feeling ‘under control’.”[58]
[58](Supra) at PCB 50
79 I infer from Dr Lim’s report that he did not consider the episode of ICH had broken the chain of causation with respect to the motor vehicle accident, nor that he had significantly, if at all, appraised her symptom levels as a result of the motor vehicle accident. Although not mentioned in her affidavit, I do not consider that the plaintiff was seeking to hide this episode from the Court.
80 Dr Lim last wrote to the plaintiff’s solicitors on 6 March 2019. Just prior to then he had found her mood to be upbeat. She had successfully renewed her RSG licence, which allowed her to work in a facility which had a gaming licence. She was also attending a course to gain a Responsible Serving of Alcohol Licence, which then allowed her to be employed in a pub or facility that serves alcohol. At that stage, she was continuing to work a four-and-a-half-hour shift three times a fortnight walking dogs in a voluntary capacity.
81 It was Dr Lim’s opinion that at stage, the plaintiff’s chronic pain condition had substantially stabilised. He thought that now she would not require ongoing treatment, as she has been taught how to “self-treat/self-manage as her own pain therapist/pain manager”.[59] Dr Lim stated:
“… However, my plan is to continue to review her until she is well-established in her chosen employment i.e. bar work. It is my expectation that she will continue her voluntary work as a dog walker, but perhaps, in reduced hours.”[60]
[59](Supra) at PCB 55
[60](Supra) at PCB 55
82 Dr Lim considered her condition was likely to persist into the foreseeable future as she had developed a chronic pain condition due to the development of general sensitisation, as previously explained.[61] Finally, Dr Lim considered that the plaintiff would have a permanently-reduced function or capacity which would interfere with her work capacity and activities of normal living. He thought, eventually, she could graduate to up to about twenty hours per week.[62]
[61](Supra) at PCB 55
[62](Supra) at PCB 55
83 In support of the proposition that the plaintiff had suffered a soft-tissue injury in the motor vehicle accident, from which she had recovered, the defendant principally relied upon the medical reports of Dr David Elder of 30 April 2018,[63] and Dr Robert Lefkovits of 4 March 2019.[64]
[63]Exhibit 1
[64]Exhibit 3
84 Dr David Elder reported to the defendant on 30 April 2018. He is an occupational physician. He took a history that the plaintiff’s car was towed and written off and that her general practitioner had instituted pain management of Lyrica, Norgesic, Panadeine Forte, Celebrex and Tramadol, and referred her to physiotherapy and psychology.[65]
[65]Exhibit 1 at DCB 9
85 Dr Elder recited how the plaintiff had come under the care of Dr Lim and was being treated under his pain program. He noted she had returned to volunteer work at a dogs’ home, taking dogs for a walk four hours per fortnight and was now looking for bar-tending work. She planned, longer term, to return to her interior-design work, as she did have a diploma in interior design.
86 The plaintiff’s current status was as follows:
“She describes neck pain which radiates into the left arm and gives a tingling sensation in a non-anatomical distribution affecting the back of the left hand but generalised throughout the left upper extremity.
She also describes non-anatomical right leg left leg pain.
…
She is prescribed Celebrex, Duloxetine and Ranitidine for gastric cover. She was on Panadeine Forte, perhaps four to eight per week. She was also on some medication, the name of which she could not remember, for papilloedema [‘ICH’]. ”[66]
[66](Supra) at DCB 10
87 In terms of treatment:
“She is doing 20 minutes 4 times a day of stretching in both upper and lower extremities and for her neck and back. She massages her own trigger points. She is doing hydrotherapy twice weekly as well as going out daily for a 30-minute walk.
She also walks the dogs as part of her fortnightly volunteer work.” [67]
[67](Supra) at DCB 11
88 The plaintiff’s activities of daily living included the following:
“She stated that she cannot lift the basket to do the washing and her partner tends to do most of the household chores.”[68]
[68](Supra) at DCB 11
89 Dr Elder considered that her physical examination was basically normal, as were the radiological investigations. His analysis was as follows:
“I would accept that she suffered soft tissue injuries of her cervical spine but there is now no significant clinical finding to suggest any ongoing organic physical medical condition. She is now being treated as a pain presentation.”[69]
[69](Supra) at DCB 12
90 I note that when Dr Elder states that the plaintiff is being treated “as a pain presentation”, he does not purport to gainsay any of the opinions or explanations proffered by Dr Lim, despite being provided with a copy of his report dated 20 July 2017.
91 The defendant also tendered a report of Dr Lefkovits, consultant physician, dated 4 March 2019.[70] He took a consistent history of the plaintiff being aware of “painful stiff neck, headache, aches and pains over the abdomen, mid and lower back”.[71] He further noted that following the accident, she developed worsening severe painful limitation of neck and head movements, ongoing frontal headache, impaired memory and increased levels of anxiety and feeling distressed.[72] Dr Lefkovits noted that symptoms persisted despite taking analgesics, anti-inflammatory agents and undergoing physiotherapy and attending a psychologist for her anxiety issues. He noted:
“… Around July 2015, she developed increasing tingling in her left arm particularly over the lateral upper arm over the triceps, and radiating down into all five fingers of the left hand. Use of the left upper limb aggravated her symptoms, as did movements of the neck. Headaches persisted and she continued to have back pain radiating into the buttocks and down the posterolateral thighs … .”[73]
[70]Exhibit 3
[71](Supra) at DCB 23
[72](Supra) at DCB 23
[73](Supra) at DCB 24
92 Dr Lefkovits also took a history of the diagnosis of ADHD made around the time of the road traffic accident and that her sister had a similar diagnosis. She was on dexamphetamine for that condition and “also had problems with her eyes for which she takes Diamox, presumably for increased pressure within the eye/s”.[74]
[74](Supra) at DCB 24
93 Dr Lefkovits also noted that she required referral to a pain management specialist during the course of 2016 because of her worsening pains in the neck, head and back.[75]
[75](Supra) at DCB 24
94 Since the accident, the plaintiff complained of chronic pain and remained on Celebrex, an anti-inflammatory agent, 100 milligrams daily; Cymbalta, 60 milligrams daily, which is an antidepressant and pain modifier. She was also on Lyrica, 75 milligrams at night, for pain management, and took Panadeine Forte once or twice a week on bad days. She took Endone, as necessary, for the more severe pains.[76]
[76](Supra) at DCB 24
95 On physical examination, it was seemingly mostly normal. Dr Lefkovits considered that:
“… She did demonstrate abnormal illness behaviour during the period of consultation. Central nervous system examination was intact. There was no evidence of tenderness or muscle spasm of the paracervical muscle groups. She had variable restriction of active neck movements of the cervical spine. There was no clear cut evidence of radiculopathy in either upper limb and in particular there were no sensory changes, no motor weakness, no wasting and no asymmetric reflexes in the left upper limb … General examination was not consistent with fibromyalgia.”[77]
[77](Supra) at DCB 24
96 Dr Lefkovits’ assessment was as follows:
“The plaintiff’s symptoms continue to be consistent with a chronic pain syndrome involving the cervicothoracic spine and lumbar spine without evidence of any ongoing organic injury to the cervical spine or to the thoracolumbar spine, relevant to the claimed transport injuries. One CT scan showed minimal changes at CS/6 and T1/2 which are inconsistent with her symptomatology. I would presume that she predominantly has no demonstrable organic injury to her neck or to the low back or to the left upper limb, but rather has a chronic pain syndrome or possibly a chronic pain disorder. Her treatment is consistent with that diagnosis, and I suspect the Celebrex is achieving little, if any, benefit.”[78]
[78](Supra) at DCB 25
97 Further, Dr Lefkovits believed that there was no convincing evidence for an organic basis to her complex pain condition. As to his opinion as to the likely cause of the plaintiff’s symptoms, he stated:
“I suspect that she has a somatisation disorder and that her symptoms can be attributed to non-organic factors. A formal psychiatric opinion is the best way to elucidate the relevance of this probability.”[79]
[79](Supra) at DCB 25
98 With respect to the transport accident, Dr Lefkovits was asked what his advice would be as to any further treatment which would be appropriate, and he stated:
“I would consider that concentration on pain management and any ongoing psychological/psychiatric issues that need to be addressed is the best way to improve her symptom complex.”[80]
[80](Supra) at DCB 25
99 Dr Lefkovits stated further:
“The plaintiff does perceive herself to have significant physical injuries as evidenced by her perceived very real physical symptoms. However, any ongoing incapacity cannot be attributed to any specific physical or organic injury/disease.”[81]
[81](Supra) at DCB 25
100 I infer from this report that Dr Lefkovits considers the plaintiff has a genuine medical condition which requires ongoing treatment and is productive of pain, but is not organic in nature. Accordingly, he does not believe that there are any organic (physical) injuries that would impact on her work capacity.
101 In his report, Dr Lefkovits does not state that he is being provided with any reports whatsoever from Dr Lim.
Disentanglement
102 Consultant neurologist, Dr Anneke Van Der Walt, reported to the plaintiff’s solicitors on 4 January 2018, which report was tendered by the defendant.[82]
[82]Exhibit 5
103 Dr Van Der Walt took a history as follows:
“A review of her history had revealed a two year history of headaches that started after a motor vehicle accident. She developed a chronic pain syndrome with left sided pain shooting up her body which I understand is being managed by Dr Lim. She has not been able to work since that time. At the same time she developed a daily headache which she can differentiate now into different types. She gets a pain that is more a tension type pain that comes from the back of her neck, She also now realises that she has a pain that is more frontal, behind her eyes. Over the last few weeks, the pain has been worse and she wakes up with throbbing pain and nausea. When the headache is incredibly severe, she has blurring of her peripheral fields and black vision.”[83]
[83](Supra) at DCB 29
104 I consider that this history is consistent with the motor vehicle accident causing headaches that emanate from the back of her neck, whereas the worsening of the pain behind her eyes, which came on over the last few weeks prior to July 2017, was related to the bilateral papilloedema.
105 I consider that the “chronic pain syndrome” as documented by Dr Van Der Walt, is a direct result of the motor vehicle accident, with the consequences that I have endeavoured to describe above. The “new” condition would be responsible for the pain which is behind her eyes. While no doubt the medication prescribed would also address that pain, it is clear that the pain from the motor vehicle accident had continued unabated both before and after this diagnosis. Accordingly, I consider that those consequences from the motor vehicle accident fall to be considered as ongoing.
Conclusions
106 I do not interpret either Dr Lefkovits or Dr Elder as opining that the plaintiff is anything other than genuine in her complaints of symptoms following the transport accident.
107 I would accept their opinions as being genuine, in that there was no abnormality detected in the radiological investigations and there was little to find on examination which would be consistent with a chronic musculoskeletal/discal injury.
108 It is clear enough that Dr Lim has not proffered an opinion based on a traditional orthopaedic analysis, but one based on “pain sensitisation” as described above. No attempt has been made by the defendant’s medicos to address the opinions and explanations given by Dr Lim.
109 Perhaps the best way of viewing this situation is that proffered by the defendant’s psychiatrist, Dr Nicholas Ingram, in his report dated 30 April 2018.[84] First, it seems that Dr Ingram was at least provided with the report of Dr Lim dated 27 April 2016 and identified the diagnosis as being one of “central sensitisation, which explained her complaints of pain”.[85] On mental state examination, Dr Ingram noted:
“At assessment Ms Phelan presented as a young woman with long red hair who was significantly overweight and casually dressed. Her behaviour was appropriate and there was no evidence of her being in pain during the interview or of any psychomotor retardation. She spoke clearly and answered questions fully and gave a good history.
Her affect was not depressed or anxious and she engaged well with normal reactivity. There was no thought disorder or perceptual abnormality and her memory, concentration and intelligence seemed normal.”[86]
[84]Exhibit 2
[85](Supra) at DCB 17
[86](Supra) at DCB 19
110 In my lay view, this opinion was consistent with her presentation in the witness box.
111 Dr Ingram stated:
“… Since [the accident] she has had chronic pain in her neck and left arm and has been diagnosed with myofascial pain syndrome and is currently in a rehabilitation program, which has led to some improvement in the last year. As a result of her pain she has been unable to work, though in the last month she has started doing same voluntary work in a Lost Dogs’ Home and she is enjoying this.”[87]
[87](Supra) at DCB 20
112 Dr Ingram considered that the plaintiff was suffering from:
“… a mild chronic adjustment disorder with depressed mood, which causes 5% secondary impairment.
She is also suffering from chronic pain. It is not clear that there is a definite organic diagnosis for her pain and if this is the case she may have a chronic pain syndrome.”[88]
[88](Supra) at DCB 20
113 To my mind, the interesting part of Dr Ingram’s report follows:
“Ms Phelan’s mam problem is her chronic pain, which has prevented her from returning to work. There seems to be no obvious diagnosis for the pain, which suggests that she has a chronic pain syndrome. This is a complex condition, with biological, psychological, environmental and cultural factors all contributing to its development and the fact that it is not entirely biological does not make it any less real than other pain and there is no evidence that Ms Phelan is deliberately exaggerating her pain.
As a result of the pain she has become mildly depressed, though recently she has been working in her rehabilitation program and has started doing same voluntary work and the depression has improved a little … .”[89]
[89](Supra) at DCB 20
114 The fact that the Chronic Pain Syndrome as noted by Dr Ingram is “a complex condition, with biological … factors all contributing to its development”[90] is, in my view, at least consistent with the view proffered by Dr Lim, and because there is no attempt to discredit or gainsay that opinion by Dr Lefkovits or Dr Elder, I prefer the opinion of Dr Lim as to the organic basis via pain sensitisation as described.
[90](Supra) at DCB 20
115 That being the case, I consider that there is a considerable organic basis to the injury pursuant to paragraph (a) of the definition referred to above.
116 Insofar as opined by Dr Ingram that there is also a psychiatric response to the pain associated with the physical injury, I consider that, in assessing the seriousness of the impairment of the relevant bodily function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[91]
[91]See Richards & Anor v Wylie (supra)
117 Accordingly, I am satisfied that the plaintiff has discharged the onus of proof in proving that the injury, being the pain sensitisation, and its extent, caused by the motor vehicle accident in question, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and certainly “more than significant or marked”.
118 Leave will be granted to the plaintiff pursuant to s93(4)(d) of the Act to bring common law proceedings to recover damages for the neck injury she suffered arising out of the transport accident on 17 April 2015.
119 I will hear the parties as to any consequential orders or costs.
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