Prouse v Taylor

[2010] VCC 1302

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-04286

SARAH PROUSE	Plaintiff
V
JACQUELINE TAYLOR	First Defendant
and	and
TRANSPORT ACCIDENT COMMISSION	Second Defendant

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JUDGE:	Judge Howie
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 2 September 2010
DATE OF JUDGMENT:	8 September 2010
CASE MAY BE CITED AS:	Prouse v Taylor & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 1302

REASONS FOR JUDGMENT

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Catchwords: serious injury, s 93 Transport Accident Act 1986

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Collis QC and Mr N Chamings	Slater and Gordon
For the Defendant	Mr R Stanley	Solicitor to the Transport Accident Commission
HIS HONOUR:

1 By an originating motion filed on 11 September 2009 the plaintiff seeks leave pursuant to section 93 of the Transport Accident Act 1986 to bring proceedings to recover damages in respect of injury to her as a result of a transport

accident which occurred on 25 February 2006. The body function said to be impaired is the function of the lumbar spine.

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impairment or loss of a body function. For the impairment to be serious it must have serious consequences for the plaintiff. In most circumstances the consequences of an impairment of a body function would be understood in terms of the effect of the impairment on a person’s ability to work and earn income and the interference that the impairment causes to the person’s enjoyment of life. The nature of the consequences and whether they can be fairly considered to be serious is a matter of emphasis or classification in each case. Elements of fact, degree and value judgment are involved. The question For an injury to be adjudged to be serious it must be a serious long term judged by comparison with other cases in the range of possible impairments or losses, can be described as being at least very considerable and certainly more than significant or marked. The impairment must also be long term. The time for making the assessment of the consequences of the impairment of the body function is at the time of the hearing of the application.

3           The plaintiff is 39 years of age, her date of birth being 6 December 1970. On Friday 25 February 2005 she was involved in a transport accident when the motor car she was driving was stationary at the intersection of Russell Street

and Flinders Street and was struck forcefully to the rear by another vehicle. The impact was of sufficient magnitude to break the driver’s seat and cause the vehicle to be written off. The plaintiff was immediately conscious of neck

pain and dizziness. She attended an osteopath that afternoon. Over the
weekend she became increasingly aware of pain in her low back, buttocks and
thighs. She attended her chiropractor Dr Alevaki on 28 February 2005 and her
general practitioner Dr Gates on 1 March 2005.

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low back condition. When the plaintiff attended Dr Alevaki on 28 February

2005 she was in acute pain. Dr Alevaki treated her “quite intensely over the

next few months”, with daily chiropractic treatment. Temporary

improvement was achieved, but not longer lasting improvement. Dr Gates

referred the plaintiff for physiotherapy. She had been taking Nurofen. As her

Dr Alevaki and Dr Gates have been responsible for treatment of the plaintiff’s Forte. The plaintiff was working as a system analyst with Aviva, an affiliate of Norwich Union Life Australia Ltd. In April 2005 Dr Gates certified that the plaintiff was fit to work half days and she returned to work, but lasted only one day due to back pain. Dr Gates referred her for a CT scan of the lumbar spine, which was performed on 26 May 2005, and showed a large disc prolapse at the level of L4-5. She then referred the plaintiff to an orthopaedic surgeon, Mr de la Harpe. He arranged for an MRI of the lumbar spine, which was carried out on 7 June 2005 and showed two level disc degeneration at L4- 5 and L5-S1 with a broad based right paracentral disc protrusion at L4-5 with posterior displacement of the right L5 nerve.

5           There is no dispute that the plaintiff suffered an injury to her low back in the transport accident on 25 February 2005. The issue to be decided is whether the consequences of the impairment of the function of her low back can be properly adjudged to be more than significant or marked and at least very considerable. The defendants acknowledge that she has some pain and restriction from her low back injury, but submit that it is modest, and that, to some extent, her present limitations are due a bipolar condition from which she suffers.

6           The treatment of the plaintiff’s low back injury can be relatively briefly stated. Mr de la Harpe advised Dr Gates on 8 July 2005 that surgery at that stage was not warranted. He advised conservative treatment with an exercise program and hydrotherapy and recommended that the plaintiff work no more than 3-4 hours per day on alternate days and that she get up and move around the

2006. Her condition was worse and he arranged an updated MRI, which was

carried out on 4 August 2006. It showed a little further degeneration in the

office every 20-30 minutes. Mr de la Harpe reviewed the plaintiff on 2 August at L5-S1. Mr de la Harpe advised Dr Gates on 14 August 2006 that a double level fusion operation was not appropriate and that the plaintiff should “continue with her chiropractic treatment and exercise program which is certainly keeping her going.”

7 regular chiropractic treatment from Dr Alevaki. It was intense treatment in the months following the accident, and regular weekly treatment after that. On 14 December 2007 Dr Alevaki reported that there had been increased degeneration in the preceding period of more than 12 months and that while the treatment was managing the plaintiff’s symptoms it did not resolve them. At that time the plaintiff had just returned to full time employment and was relying more on pain medication and increased chiropractic care in order to manage her symptoms. A year and a half later, by 30 May 2009, Dr Alevaki reported that the plaintiff had continued having chiropractic treatment and attended an average of three visits per week to manage her pain levels. At the Consistently with the advice of Mr de la Harpe, the plaintiff continued to have plaintiff’s condition had deteriorated. She was still seeing her on a regular basis. There had been two or three acute episodes of pain and disablement. The plaintiff was in constant pain and the treatment helped to manage this. Dr Alevaki considered that her condition would not improve and that she would not be able to sustain her level of work for the rest of her career. She recommended working four days a week with a day’s rest in the middle.

8           The chiropractic treatment by Dr Alevaki has been the principal treatment the plaintiff has received for her low back injury. She continued to attend Dr Gates until the beginning of 2007. On 17 January 2007 Dr Gates expressed the opinion that the plaintiff had “developed a chronic pain syndrome that began with an acute back but which was exacerbated and perpetuated by [her] psychiatric condition and personality style.” She considered that the plaintiff had “a capacity to work, perhaps not full time, although how much her back pain and how much her psychiatric difficulties each contribute to this is difficult to assess.” The difficulties which Dr Gates appeared to have in mind were the plaintiff’s bipolar condition, for which Dr Gates encouraged her to see her psychiatrist, Dr McIntosh, difficulties in her return to work, and stress associated with the care of her aging and unwell parents.

9           The plaintiff has been assessed by a number of doctors. Mr M Dooley, orthopaedic surgeon, assessed her on 1 September 2005, 5 September 2006, 28 February 2008 and 17 February 2010. Although he diagnosed a soft tissue injury to the lumbar spine, he acknowledged that it was probable that a disc prolapse at L4-5 had been caused by the accident. He did not consider operative treatment to be necessary. By September 2006 his view was that the constancy and intensity of the plaintiff’s ongoing pain were out of proportion to the injury sustained and that she had developed what he called “a chronic pain syndrome”. He considered it reasonable for her to have chiropractic treatment once a week, but not beyond February 2007. Following examination on 28 February 2008 Mr Dooley advised that while he accepted that the plaintiff benefited from chiropractic treatment two or three times a week, self management by regular exercise and analgesic medication was more appropriate and chiropractic treatment reserved for significant acute exacerbations of pain that did not settle within a reasonable time.

10         Mr Dooley expressed a similar opinion following his examination of the plaintiff on 17 February 2010. He acknowledged that the plaintiff has an injury to her low back that will continue to cause her pain and restrict her

activities and would be appropriately treated by chiropractic treatment, not on
an ongoing basis, but at times of acute exacerbations of pain. He considered
that she was able to continue working as a systems analyst, would be able to
play golf occasionally, but not engage in active impact leisure pursuits.

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and advised that she needed active management and guidance under a

rehabilitation pain specialist. He considered that she was not fit for her pre-

accident employment at that time. When he assessed on a second occasion on

23 August 2006 she had attended a rehabilitation program, but was

disappointed with the result. Dr Elder’s opinion was that she continued to

suffer from the sequelae of the original physical injury which had given rise to

an aggravation of disc degeneration at L4-5 and L5-S1 and annular tears at

those levels. The opinion of Dr Thomas, occupational physician, who assessed

11         Another orthopaedic surgeon, Mr King, assessed the plaintiff on 17 May 2007, 22 October 2008 and 13 July 2010. On each occasion she was troubled by constant nagging low back pain, fluctuating in intensity from mild to moderate severity, with periodic flare-ups of severe pain brought on by exertion and fatigue. Mr King diagnosed the plaintiff as having sustained an injury to her lumbosacral spine causing damage to lumbar discs and associated ligamentous structures of at least two levels with the development of a moderately large central and right sided disc prolapse at the L4-5 level. He considered that she had been left with a chronic impairment of low back function of mild to moderate severity. Having noted reference to “chronic pain syndrome” in some reports, he stated that he found no evidence of “this rather vaguely defined condition”. He also stated that he found no evidence of exaggeration or of any sort of psychological overlay. He considered her condition to be stabilised, that she may be subject to flare-ups in the future if she exposed her back to stress, that she could manage her office job without difficulty, that surgery was not appropriate and that it would be unlikely that she would be able to return to sports such as golf on a regular basis.

The occupational physician Dr Elder assessed the plaintiff on 25 August 2005 surgeons and Dr Elder. Interestingly, he did not consider the plaintiff’s bipolar disorder, which was well managed and controlled to have much relevance to her physical problems. He considered that she had a capacity to work, possibly full time, and that she should have regular and appropriate rest breaks. Mr Brownbill, neurosurgeon, who assessed the plaintiff on 18 November 2009, did not express a contrary view. He stated in his report that the motor accident was a significant contributing factor to the plaintiff’s lumbar spine degenerative changes.

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In this proceeding questions have been raised by the defendant concerning the sworn on 29 October 2007 that in 1994 she was diagnosed with bipolar disorder. At the time of the accident she was attending a psychiatrist, Dr McIntosh. On 19 November 2004 Dr McIntosh advised the plaintiff’s general practitioner, Dr Gates, that the plaintiff was a little more settled. She was taking a small dosage of the anti-depressant medication Zoloft. In a letter to the plaintiff’s employer dated 27 May 2005, Dr Gates advised that at that time the plaintiff’s recovery was complicated by her bipolar disorder as stress, anxiety and tiredness could exacerbate her condition and that constant pain made her tired and sleep difficult. Dr Gates stated that the plaintiff was coping reasonably well at that time, but that it was extremely difficult to provide a prognosis with respect to her disorder. The plaintiff had also had an amphetamine addiction in the early 1990’s, for which she had successfully undergone rehabilitation at Moreland Hall, and a gambling addiction.

14         Dr Entwistle, consultant psychiatrist, who assessed the plaintiff on 23 August 2006, thought that her low back injury was likely to aggravate her bipolar illness, and that her illness was a contributor to the difficulties she was then having in her workplace. Subsequently, in reports to the Transport Accident Commission on 10 and 25 October 2006, and after reading Mr Dooley’s report of 18 September 2006, Dr Entwistle stated that the plaintiff was suffering from an adjustment disorder with depressed mood and a pain disorder, which was an aggravation of her bipolar illness. In his report of 26 August 2006 he stated that she would have a work capacity “once the current issues have been resolved”, but in the later report of 10 October 2006, without any further assessment of the plaintiff, he advised the Commission that she was “capable of returning to work on modified/reduced hours.”

15         Another consultant psychiatrist, Dr Serry, who assessed the plaintiff on 15 March 2007, considered there were combined physical and psychological consequences of the accident. He diagnosed a pain disorder secondary to a general medical condition, and a chronic adjustment disorder with anxiety, depression and features of traumatisation. The plaintiff had difficulty coping with her pain and that had produced a significant degree of depression in combination with negative attitudes on returning to work. Dr Serry was of the opinion that the plaintiff would require ongoing management of her pain and ongoing treatment by her treating psychiatrist.

16         In affidavits sworn on 29 October 2009 and 23 August 2010 the plaintiff deposed to her continuing low back pain and the difficulties it has caused her. After the accident, despite return to work attempts, she was largely off work until November 2006, when her employment with Aviva ceased. Ongoing low back pain contributed to her difficulties with work and depression and care of her aging parents may well have played a part. In February 2007 she commenced working full time as an information technology contractor with the Transport Ticketing Authority until June 2007, and from then until March 2009, with Sensis. She was off work from June 2008 to March 2008 after fracturing her left ankle. She worked from March 2009 to December 2009 as a test analyst with AAS. In January 2010 she commenced work as a contract systems analyst with Victoria Legal Aid.

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skilled work as a systems analyst. I perceived that there was no basis to

consider her other than a truthful and reliable witness. She has completed the

contract that she had with VLA and, after a break, will commence a further

contract with that body. Whatever part her bipolar disorder has played in the

past, including in the years following the accident, there is no evidence that it

now contributes to the pain and difficulty she experiences as a consequence of

the injury to her lumbar spine. Each of the medical practitioners who have

assessed the plaintiff agree that the transport accident caused injury to her

lumbar spine, aggravating disc degeneration and causing a large disc prolapse

It is readily apparent that the plaintiff is a capable person able to perform his review on 13 July 2010 that she has been left with a chronic impairment of low back function of mild to moderate severity. Her injury has stabilised and is unlikely to improve. She is able to perform her work which requires her to sit at a computer, but the low back pain increases with the day’s work and builds up over several days causing her to regularly and frequently have a rest day to recover. It has meant that she has worked an average of four days a week during her present contract, not the five days expected of her. It is probable that will be the pattern of her working life. Regular chiropractic treatment two or thee times a week provides some relief from the pain, but no cure of her chronic injury. From time to time she will have acute episodes of severe pain such as the episode she suffered in May of this year.

18         Before the accident the plaintiff regularly played social golf with friends. She loved golf and it gave her considerable enjoyment. She has attempted to play since the accident on three or four occasions but has not been able to continue because of the difficulty swinging the club and the aggravation of her low

back pain. I consider the loss of the ability to play the sport she enjoyed,
something she could rightfully have expected to continue into old age, to be a
substantial impairment of her enjoyment of life. Low back pain disturbs her
sleep. It restricts her ability to perform household tasks such as vacuuming,
lifting and gardening and limits her capacity to carry her shopping. Other
normal daily activities such as driving, walking, standing on public transport,
attending the football, playing games with nephews and nieces, are made
more difficult, limited and less enjoyable by the pain and discomfort they
cause to her low back and the risk they will lead to acute severe pain. It limits
her ability to travel long distances

19         The affidavits of Clare McBeath, Helen Prouse and Sarah Frances McConville confirm the evidence of the plaintiff concerning the impact of the low back injury on her.

20          The chronic impairment of the function of the plaintiff’s low back has had a substantial impact on the broad range of normal activities that make up her daily life and on her enjoyment of life and a significant impact on her ability to perform her work. In my judgment, the consequences of the plaintiff’s

injury in terms of pain and suffering, interference with enjoyment of life and
interference with her ability to carry out and enjoy her work, can be fairly
described as being more than significant or marked and as being at least very
considerable. I am satisfied that the impairment of the function of the
plaintiff’s low back caused by the injury is long term.

21          Accordingly, I find that the injury to the plaintiff’s low back as a result of the transport accident occurring on 25 February 2005 is a serious injury as defined by subsection (17) of the Transport Accident Act 1986. Leave is granted to the plaintiff pursuant to section 93(4)(d) to bring proceedings to recover damages in respect of the injury.