Rendell v Todd
[2012] ACTSC 68
•May 8, 2012
SUSAN BARBARA RENDELL v DAVID TODD
[2012] ACTSC 68 (8 May 2012)
PERSONAL INJURY – motor vehicle accident – nature and extent of injury – causation in relation to thoracic spine condition – income loss buffer – need for domestic care
Civil Liability Act2002 (NSW) s 5D(1)(a)
Civil Law (Wrongs) Act 2005 (ACT) ss 45, 46
Strong v Woolworths Ltd [2012] HCA 5
Zanner v Zanner [2010] NSWCA 343
No. SC 707 of 2007
Judge: Sidis AJ
Supreme Court of the ACT
Date: 8 May 2012
IN THE SUPREME COURT OF THE )
) No. SC 707 of 2007
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SUSAN BARBARA RENDELL
Plaintiff
AND:DAVID TODD
Defendant
ORDER
Judge: Sidis AJ
Date: 8 May 2012
Place: Canberra
THE COURT ORDERS THAT:
(a)Verdict and judgment for the plaintiff in the sum of $223,648.
(b)The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for 7 days to allow the parties to list the matter for further argument as to the appointment of costs.
(c)The exhibits are returned.
(d)My reasons are published.
Susan Barbara Rendell claimed damages for injuries suffered in a motor vehicle accident that occurred on 16 August 2005 when the defendant’s vehicle ran into the rear of her stationary vehicle. Liability was not in issue. The issues were:
(a)The nature and extent of the injuries that the plaintiff suffered as a result of the accident;
(b)In particular, the extent, if any, to which the accident caused or materially contributed to injury to the plaintiff’s thoracic spine;
(c)The extent to which the plaintiff was to be compensated for general damages, loss of income earning capacity, domestic care and out of pocket expenses.
The plaintiff said the accident occurred when her vehicle was stationary at an intersection and the defendant’s vehicle ran into its rear. She said the defendant was travelling at speed and although he applied his brakes his car impacted with her car with some force. She braced herself by holding onto her steering wheel and was thrown forward and back in her seat. The plaintiff’s vehicle was not damaged. This absence of damage was attributed to the large towbar fitted to the rear of the car. The defendant’s vehicle was reported to be badly damaged at the front.
The plaintiff said that immediately after the accident she was in shock but she was able to drive home. She developed pain in her neck and shoulders, mostly in the right shoulder and she began to suffer from severe headache. She consulted her general practitioner, Dr Ng, on 17 August 2005 with complaints of neck and shoulder pain and headache. Dr Ng reported that the range of movement in the plaintiff’s cervical spine was restricted and that there was slight radiation of pain into right arm. He noted tenderness at C2 and C3 and TP right Trapezius.
Dr Ng recorded only one more consultation relating to injuries resulting from the accident. This took place on 6 September 2005. His clinical record appeared to indicate that the restriction on range of movement in the neck was resolved. He reported (Exhibit 2) that on this occasion there was a tender area in the muscles at the T7 level.
The plaintiff was treated by her chiropractor between 17 August 2005 and February 2006.
In April 2006 the plaintiff noticed tingling and numbness in her right lower leg. She developed pins and needles and coldness and pain in her feet. These symptoms developed and abated intermittently with no particular precipitating event.
In June 2006 the plaintiff had acupuncture treatment after developing significant pain in her low back. She had further treatment with acupuncture and massage 22 times between January 2007 and November 2010.
On 19 January 2009 the plaintiff attended her chiropractor with complaints of right shoulder pain, neck pain and mid-thoracic pain after attending the gym three to four times. She described the mid-thoracic pain as a sharp stabbing pain. She also consulted her general practitioner with complaints concerning this pain. The pain settled after chiropractic treatment.
In March 2009 the plaintiff complained to Dr Russell of feeling off balance and of instability affecting her legs.
In August 2009 the plaintiff complained to her general practitioner of significant low back pain. This pain subsided with treatment.
In late September 2009, the plaintiff took a holiday at Mollymook with her family. In the course of this holiday she started to trip and fall over. She said it was always her left foot that caused her to stumble. She had difficulty putting her lower body clothes on and she had serious mid-thoracic pain. She tried chiropractic treatment and acupuncture without relief.
Towards the end of 2009 she consulted her general practitioner with worsening symptoms in her legs. In January 2010 Dr Russell recommended that the plaintiff consult a neurosurgeon.
In June 2010 she consulted Dr Pik who arranged for an urgent MRI and told the plaintiff that she required surgery as a matter of urgency.
Dr Pik reported to the plaintiff’s general practitioner on 16 June 2010 (Exhibit B.85) that the MRI of her cervical and thoracic spine disclosed a very large T6/7 central disc herniation occupying almost the whole spinal canal, causing severe thoracic spinal cord compression at the T6/7 level. Dr Pik proposed transthoracic T6/7 anterior decompression followed by interbody fusion and fixation. He told the plaintiff that the severity of her symptoms was such that the operation would not return her spinal cord function to normal.
The first attempt at surgery was made on 1 July 2010. It was abandoned after the plaintiff suffered significant blood loss. Her recovery from this procedure was difficult and painful. She required the use of a special electric lifting chair and opiate based medication. In August 2010 after attempting to drive her daughter to school she suffered an episode of pain so severe that she required admission to hospital for pain relief.
On 8 September 2010 Dr Pik performed a T7 bilateral transpedicular decompression, removal of the thoracic disc herniation and T5 to T8 posterolateral fusion and pedicle screw fixation. This procedure was successful in relieving the symptoms in the plaintiff’s legs and sharp pain in the mid-thoracic region. The posture that she was required to adopt for the purpose of the lengthy surgical procedure aggravated the condition of the plaintiff’s right shoulder.
The surgery left her with two significant scars. The scar from the abandoned surgery extended from her spine to beneath her right arm and continued to cause her pain.
The injury to the thoracic spine
The plaintiff contended that the 2005 accident was a material contributing factor in the development of the substantial disc protrusion at T6/7 and the requirement for the surgery undertaken by Dr Pik. The plaintiff withdrew her claim that a further factor in the development of this condition was Dr Stubbs’ requirement that she hop during the course of his examination of her on 10 September 2009.
In order to determine this issue it was necessary to consider the plaintiff’s medical history both before and after the accident and the opinions of several medical experts.
The history
The plaintiff was 36 years old at the date of the 2005 accident and 42 at the date of the hearing. There were a number of features in the plaintiff’s history that were potentially causative of damage to her thoracic spine.
During her teenage years she lived on a hobby farm and enjoyed horse riding. She conceded that she fell from horses a number of times without apparent significant injury.
The plaintiff said that from her early 20’s she suffered generalised pain in her spine, including her thoracic spine, for which she sought chiropractic treatment and acupuncture.
In 1999 she was involved in a motor vehicle accident in which her car was struck side on by another vehicle in what was referred to as a T-bone style impact. There was some force in the collision because at least one of the vehicles was travelling at 80 kph. The plaintiff said that she suffered seat belt bruising and lacerations to her left arm and left knee. She was taken to hospital to be checked after the accident but was not admitted. She said she had some chiropractic treatment following the accident and made a claim that was limited to recovery of her out of pocket expenses. She also complained to Dr Rodgers, a general practitioner, of mid-thoracic pain immediately after the accident. The plaintiff could not recall whether this pain was in the nature of the knife-like pain that she suffered in 2009.
In 2004 the plaintiff worked as a carer in a nursing home. This work involved the moving and lifting of elderly and infirm patients. The plaintiff said she was able to perform these tasks without difficulty, except for one occasion when her low back was jolted following the unexpected movement of a patient.
By January 2004 the plaintiff was 34 years old and had been receiving chiropractic treatment intermittently for more than 10 years, in all cases, for spinal pain.
The records of the Tuggeranong Chiropractic Centre indicated that the plaintiff was treated regularly between January 2004 and October 2004 for low back pain and headaches and between July 2005 and 9 August 2005 for low back pain. Treatments involved manipulation of the cervical, thoracic and lumbar segments of the plaintiff’s spine, with the T6/7 vertebra noted as part of the treatment on several occasions. She was treated 16 or 17 times in 2004 and 2005 prior to the accident in August 2005.
On 9 August 2005 the chiropractor recorded that treatment was provided to spinal segments, including T6/7, and that the plaintiff was feeling terrific.
On 15 August 2005 the plaintiff was involved in the accident that was the subject of the proceedings.
The plaintiff consulted her general practitioner, Dr Ng, on 17 August 2005 with complaints of neck and shoulder pain. On the same date, she attended on her chiropractor who recorded: ...Cervico-thoracic pain ... and mid-thoracic tenderness, pain in the mid-thoracics on left head rotation right arm tenderness. He provided treatment that was the same as that provided prior to the accident. The chiropractic treatment continued until February 2006.
The chiropractor’s clinical notes indicated that the plaintiff was treated on ten occasions between August 2005 and January 2006. The notes indicated that her condition had improved significantly by 15 September 2005. The frequency with which she was treated reduced and treatment ceased in January 2006. The plaintiff said that at no time during this period did the chiropractor treat her right shoulder because it was too tender to touch. She said that this was a period when she was under considerable strain because of the breakdown of her marriage. After January 2006 she was financially constrained and unable to afford treatment.
The plaintiff consulted Dr Ng on two occasions only with complaints arising out of the 2005 accident. She consulted him a number of times about other health problems unconnected with the accident. She said Dr Ng told her that there was nothing wrong with her and that therefore there was little point in discussing her ongoing complaints with him. She agreed that there were other doctors in the practice with Dr Ng whom she might have consulted if she considered that Dr Ng was unsympathetic.
In March 2006 the plaintiff transferred to the general practice of Dr Russell. There were no complaints of pain in the thoracic spine recorded in the clinical notes of Dr Ng or Dr Russell between September 2005 and January 2009.
The plaintiff described the pain in her mid-back in the period of three years prior to January 2009 as mild (Transcript 52.34) and of insufficient severity to warrant raising with her doctors. She said that when she transferred to Dr Russell for treatment attention was concentrated on her right shoulder and low back, with less attention to her neck. She said she concentrated on what was causing her discomfort to the point where it was sufficient to go to the doctor.
Similarly, the plaintiff did not seek medical attention for the symptoms of numbness and coldness in her lower limbs that she said developed in April 2006. She said this was because those symptoms were intermittent with periods of several months between episodes. She had not suffered from these symptoms since surgery was undertaken in 2010.
In January 2009 the plaintiff joined a gymnasium where she exercised through unsupervised circuit training. Some of this training involved the use of machinery to strengthen upper body muscles. It required the use of the arms with equipment that had little or no weight resistance.
After attending the gym two or three times that the plaintiff complained of a sharp, stabbing, knife-like pain in her mid-thoracic area. She reported this pain to Dr Russell and obtained chiropractic treatment. She described this pain as extreme (Transcript 52.25). She said it continued for the period of treatment, that is about two weeks.
In March 2009 the plaintiff complained to Dr Russell of symptoms affecting her legs that caused her to feel unbalanced.
In August 2009 the plaintiff complained to Dr Russell that her back was sore and stiff on waking and that the pain could be easily triggered by minimal activity. Dr Russell referred in her note of the consultation to a motor vehicle accident that occurred four years before. She noted the plaintiff’s complaint of pain to this level three to four times a year. The plaintiff agreed that this pain was similar to that which she suffered prior to the accident but said that after the accident it occurred more frequently.
Dr Russell recorded no complaint of mid-thoracic pain although the plaintiff said that it continued intermittently. She agreed that she said nothing of thoracic pain to Dr Griffith when he examined her in December 2007 or to Dr Champion when he examined her in May 2009. She said this was because she was not suffering pain in this area at the time of these examinations.
On 10 September 2009 the plaintiff was examined by Dr Stubbs on behalf of the defendant. At his request, she hopped on one leg.
The plaintiff suffered another episode of knife-like pain commencing about two days after examination by Dr Stubbs. This was two weeks before she took a holiday on the South Coast of New South Wales. She said that in this period the pain developed at mid-day and increased to the point where she was in tears by night time. The pain abated overnight. This episode of pain continued for about two months until mid-October 2009. It abated after treatment with acupuncture and chiropractic.
At the same time the plaintiff’s stability problems increased. Although both legs had been affected from January 2009, her left leg was weaker and began to cause her to stumble from the end of September 2009. The plaintiff continued to complain to Dr Russell of her symptoms.
A CT scan was performed that disclosed degenerative changes involving the facet joint at the thoraco-lumbar junction and in the lower lumbar spine. In May 2010 the plaintiff was referred to Dr Pik for treatment.
The plaintiff said that this treatment resolved her pain and the symptoms of stumbling and loss of balance.
Medical Opinion
Aside from the records of treating medical practitioners, the court was provided with opinion from:
Dr Ron Brooder, consultant neurologist
Dr Scott F Campbell, neurosurgeon
Dr G David Champion, consultant physician
Dr Jillian M Fleming, psychologist
Dr G G Griffith, consultant surgeon
Dr Geoffrey Stubbs, orthopaedic surgeon
Dr Michael M Fearnside, neurological surgeon
Dr Ross Mellick, consultant neurologist
The defendant did not press for the acceptance of the opinions of Dr Mellick.
Dr Brooder’s initial opinion was that, on the balance of probabilities, the need for surgery to the plaintiff’s thoracic spine was not the result of the 2005 motor vehicle accident or its sequelae. In a subsequent report Dr Brooder said that he considered that there was a causal relationship between the thoracic disc extrusion and the consultation with Dr Stubbs on 10 September 2009 when the plaintiff was asked to demonstrate her capacity to hop. He considered that this was responsible for significant aggravation.
In giving evidence to the court, Dr Brooder was provided with greater detail of the plaintiff’s complaints of thoracic pain both before and after the 2005 accident. Having been informed of complaints of interscapular pain after the 2005 accident and the symptoms of numbness in the right leg and coldness in the feet in 2006, he said:
So it would appear that after the motor vehicle accident, there was an increase in her mid thoracic symptoms which subsequently resulted in her developing the mid thoracic intervertebral disc protrusion. I guess if she had not sustained the car accident in 2005, then it would be reasonable that she may not necessarily have developed damage to her mid-thoracic intervertebral disc which resulted in the spinal cord syndrome developing. So it would be potentially unlikely, yes. (Transcript 70.40)
Dr Brooder was ambivalent in his answers to the questions concerning the extent to which calcification shown on the CT scan could be relied upon in determining the time at which the disc was damaged. He pointed to the need to focus more upon the fact that there had to be some damage to the disc to cause it to rupture. He also thought it was relevant that the plaintiff had thoracic pain between 2005 and 2009, regardless of its severity.
Reminded of the history, including the 1999 accident, the pre-accident chiropractic records, the post accident chiropractic records and pain that developed after exercising at the gym in January 2009, Dr Brooder said:
There would appear to be multiple factors that can potentially contribute to her initial injury and to the ongoing aggravation and the eventual development of the disc protrusion. (Transcript 84.36)
On the question of whether it was impossible to attribute the disc protrusion to the 2005 accident, Dr Brooder said:
Well, certainly the one in 1999 would appear to have been a more severe accident and may have been the initiating injury, and anything subsequent to that has been one of several aggravating factors. (Transcript 85.22)
In his initial report of 17 June 2011, Dr Campbell noted the prior history including the 1999 accident and the complaints of neck and mid back pain that indicated that there was pathology that pre-existed the 2005 accident. He also noted the four year interval between the 2005 accident and the onset of myelopathic symptoms leading to surgery. Against this background he said that it was possible that the disc protrusion commenced as a result of the 2005 accident and gradually deteriorated until the onset of symptoms in September 2009.
In a report dated 29 March 2012 Dr Campbell said that the 2005 accident was the most likely cause for the T6/7 disc protrusion. He did not state in this report his reasons for reaching this firmer opinion concerning causation.
Dr Campbell told the court that the calcification of the disc indicated that it was old in nature. The finding of calcification was the basis for his opinion that the protrusion had been present for three to five years or more and he ruled out any incident at the gym as a cause. He agreed that it was possible that calcification could have developed over the 17 month period from January 2009 to the date of the radiology in June 2010 but said it was unlikely.
Dr Campbell had understood that the plaintiff suffered no major injury in the 1999 accident. The medical records appeared to support that understanding except that following the high speed, violent collision that occurred in 1999 the plaintiff’s prior history of generalised back pain became more problematic. Provided with information to this effect, Dr Campbell said that the plaintiff’s disc injury was the result of trauma resulting from the 1999 accident or the 2005 accident.
Dr Campbell did not consider the symptoms of 2006 to be of significance.
Dr Campbell agreed that the absence of radiological investigation of the plaintiff’s thoracic spine was a disadvantage. He said it was possible that the disc protrusion occurred in 1999. It was also possible that both accidents contributed to the disc protrusion. He initially thought it was more likely that the protrusion was the result of the 2005 accident. With the additional information concerning the first accident and its consequences he thought it was equally possible that the 1999 accident was the cause. He agreed that he could not state with certainty which was responsible in the absence of radiological investigation.
Dr Champion first reported on 10 June 2009. He recorded a prior history of neck and low back pain and that the plaintiff told him that discomfort in these areas were aggravated as a result of the 1999 accident. He referred to Dr Ng’s clinical notes in which he recorded bruising and mid-thoracic pain following the 1999 accident and made reference to left posterior thoracic pain in September 2000. Dr Champion was also provided with the chiropractor’s clinical notes between August 2004 and August 2005 which he interpreted as involving treatment almost exclusively to the plaintiff’s lower back.
Dr Champion’s initial report made no reference to the plaintiff’s thoracic spine. He confirmed that she made no complaint to him of thoracic spine pain at the time of the consultation in June 2009 or at any time since the 2005 accident. He agreed that the consultation extended over a two hour period during which he allowed the plaintiff more than sufficient time to tell him of her symptoms.
In his second report of 26 March 2012, Dr Champion revisited the chiropractic records and noted reference to treatment to the T7, T8 and T6/7 segments. He accepted that this indicated that there were symptoms in that region prior to the 2005 accident. Dr Champion referred to numerous entries after the 2005 accident about treatment to the mid-thoracic spine.
On this basis he concluded that there was a clear history of exacerbation immediately after the 2005 accident and that it continued. He said a disc lesion of the size suffered by the plaintiff would be highly unusual without trauma. He said:
The only history of potentially relevant trauma was the subject MVA. It seems to me that Ms Rendell very likely had degenerative disc at T6/7 pre-MVA and that it was aggravated by the MVA, and gradually over time, in the ordinary course of everyday life, the degenerate intervertebral disc protruded further, became more symptomatic, actually extruded without additional major biomechanical stress, and led to the requirement for decompressive and fusion surgery.
In the absence of evidence of further trauma he concluded on the balance of probabilities that the 2005 accident substantially contributed to the T6/7 disc protrusion and the need for surgery.
Dr Champion’s opinion depended, in part, upon his understanding that the plaintiff had continuing mild but intermittent mid thoracic back pain after the 1999 accident and that after the 2005 accident she repeatedly suffered from increased pain. He agreed that he had not been aware of the plaintiff’s complaints of cervical, thoracic and lumbar pain from the time of her late teens until the 1999 accident. He had not understood that the plaintiff’s mid-thoracic pain settled within about four weeks of the 2005 accident to their pre-accident levels. He accepted that on this basis it appeared that the 2005 did not cause ongoing exacerbation of the plaintiff’s symptoms.
Dr Champion agreed that there was no record of complaint in the clinical notes of either of her general practitioners and that she had taken no time off from work prior to the time that the surgery was undertaken in 2010.
He said this did not provide the whole picture. This was of multiple causation with early degenerative onset, possibly genetic and from trauma in 1999 and 2005. There was no other precipitating event before the plaintiff consulted Dr Pik. He said the 2006 symptoms could not be dismissed but they did not assist in determining causation. By the time the plaintiff attended the gym in 2009 her thoracic spine was highly vulnerable to pain and further disc pathology.
Dr Champion agreed that in the absence of radiology it was not possible to be certain which traumatic event, added to the many years of biomechanical minor stress, lead to the disc failure. He was able to talk only in probabilities that the 1999, 2005 and 2009 incidents were contributing factors. He said that, without radiology, it was not possible to state that any one was indispensable.
Dr Griffith first reported on 3 December 2007, making reference to a significant prior history and describing the 1999 motor vehicle accident, the symptoms from which, he said, resolved over a period of months. He noted that the plaintiff suffered from a curvature of the lower thoracic region at the level of her bra strap with global pain.
His comments on the plaintiff’s thoraco-lumbar spine were:
There is a full range of spinal movement, demonstrated ability to hop, squat and toe and heel walk and negative simulated rotation test. Milgram’s, sacroiliac and femoral stress tests are negative. There is one point of focal tenderness overlying piriformis in the left buttock.
Dr Griffith also made no reference in this report of complaint by the plaintiff of pain or discomfort in the thoracic spine. He said that the plaintiff made no complaint of symptoms in her mid thoracic spine when he examined her in November 2007. He said he took a lengthy history and gave the plaintiff the time and opportunity to tell him of her symptoms.
In a further report dated 2 May 2011 Dr Griffith confirmed that on examination in 2007 there was full range of movement in the thoraco lumbar spine, without neurological symptoms in the lower limbs or major local distress. He described the development of symptoms and the treatment of the plaintiff’s thoracic spinal condition and said it was possible that the T6/7 protrusion was a sequal to the 2005 accident, although delayed. He said he had little doubt that the acute protrusion to the T6/7 disc lesion occurred during the plaintiff’s examination by Dr Stubbs.
Dr Griffith provided a third report dated 17 March 2012. In that report he said that hopping at Dr Stubbs’ request was the most likely cause of the disc protrusion and that its onset was more gradual than he previously understood. He said it was likely that its progression was triggered by this event together with the slow and relentless progression of the lesion in the months following.
In his evidence to the court Dr Griffiths described the process by which the condition of the T6/7 disc degenerated as insidious, that it came without warning because the disc had no nerve supply and the pathology was not obvious until the final rupture in 2009.
He said it was highly likely that the 2005 accident precipitated this ultimate disruption of the disc. He said the clinical picture was very complex and both accidents would have contributed to the structural changes in the plaintiff’s thoracic spine.
Dr Griffith accepted that there was evidence of pathology in the mid thoracic spine prior to the 2005 accident and said it was difficult therefore to quantify the extent of the damage caused in 2005. He thought the mechanism of the 2005 accident, involving flexion injury, might have produced a progression of the annular tear.
He accepted that the gym exercise, if the plaintiff undertook a twisting motion, might have contributed to progression of her condition. Pressed further concerning this incident, he agreed that it made a significant contribution to the ultimate failure of the disc. He said, however, that the forces involved in the 2005 accident were much greater than those involved in the gym exercise. He suggested that the forces involved in both accidents could be compared by analogy to jumping from a second floor window.
Dr Griffith said it was extremely difficult to say that any particular event was the immediate precipitating cause of the plaintiff’s condition. He thought it was unlikely that, without the motor vehicle accidents, the plaintiff would have suffered the massive disc disruption. He said that the forces involved in both accidents were such that each of them would have made a significant contribution to the ultimate degenerative processes involved in the disc rupture and that:
To attribute a percentage contribution from either accident must remain speculative in the absence of the primary radiology, which is singularly unfortunate. But we’re faced with the fact that it simply wasn’t looked at.
Dr Stubbs first reported in September 2009. He made no reference in that report to complaints of symptoms in the thoracic spine and he addressed the plaintiff’s neck and shoulder problems. In his report of 30 March 2012 Dr Stubbs noted that the plaintiff was examined by Dr Griffith in November 2007 and Dr Champion in June 2009, both experienced physicians, and by himself in September 2009. He said that in none of those examinations were any of the features found by Dr Pik present. He concluded that, four years after the 2005 accident, there was no evidence to suggest the presence of a thoracic disc prolapse.
He told the court that in his opinion the disc prolapse occurred in September 2009 producing the symptoms of spinal cord compression. He said these symptoms would have occurred immediately upon or within hours of the development of compression. He denied that trauma was a necessary element in the disc prolapse. He said that thoracic spinal disc prolapse did not commonly occur. The few that he had seen occurred spontaneously without a precipitating event.
On the question of calcification, he said that after three months it was not possible to determine the date at which calcification occurred. The development of a prolapse in September 2009 was therefore consistent with the presence of calcification at the time of surgery.
Dr Stubbs produced an extract from a medical text said to support his opinions. Unfortunately, the article dealt with a study that excluded cases in which the patients were claiming compensation. This suggested that traumatic injuries might have been under represented in the study. Further, Dr Stubbs produced part only of the text and not those parts that did not support his conclusion.
Dr Fearnside reported on 23 June 2011 that on the balance of probabilities it was not likely that the thoracic disc protrusion was causally related to the 2005 accident or to Dr Stubbs medical examination. He thought it was likely that in 2005 the plaintiff suffered soft tissue injury that resolved with treatment within a few weeks of the accident.
He explained his opinion to the court. He said the plaintiff’s history prior to the accident indicated that the plaintiff suffered from mechanical thoracic pain that was also present in her neck and low back over a long period of time. It was static at the time of the accident but sufficiently severe to require treatment on a needs basis. After the 2005 accident there was a temporary increase in symptoms that improved with chiropractic treatment and reverted to pre accident levels. Although he accepted that parasthesia was an indication of spinal cord dysfunction, he said the 2006 symptoms were non-specific and of little significance because of their intermittent nature. These symptoms would have been more significant if they had been constantly present and progressive. This was because, once spinal cord dysfunction occurred, symptoms were generally constant and progressive.
Dr Fearnside considered the pain that developed in January 2009 to be significant because it was of three weeks duration and was accompanied by the development of neurological symptoms. The further episode of pain and neurological symptoms in September 2009 were indicative of further progression.
Dr Fearnside agreed that a prolapse at the T6/7 level was unusual. He said it could occur spontaneously without history of trauma. He said calcification was common in thoracic discs and that it occurred over a period of time in a process that could take two to three years. He put little weight on the evidence of calcification because, he said, it could occur coincidentally and be entirely asymptomatic. He placed more emphasis on the presence of symptoms. He said that, if there was a significant injury in January 2009, the period of 17 months to the date of the radiology in June 2010 was sufficient to allow for the development of calcification.
Dr Fearnside attached significance to the length of time between the 2005 accident and the development of symptoms in 2009. He thought this period of time was too great to conclude that there was a causal relationship with the accident.
Summary
The plaintiff’s medical experts all agreed that, having regard to the multiplicity of factors that had the potential to damage the plaintiff’s thoracic spine, it was not possible without radiological investigation to state with certainty what, if any, contribution to the failure of the T6/7 disc was the result of the 2005 accident.
The issue then was whether there was evidence that the 2005 accident was a material contributing cause of that failure so that, even if it were not responsible for the initiating injury, the trauma received in 2005 further damaged the plaintiff’s spine to the point where it was materially responsible for the ultimate failure of the disc.
Medical opinion was divided between two positions:
(1) The position adopted by the plaintiff’s medical experts who for various and changing reasons maintained that the 2005 accident was either the precipitating factor or one of a number of factors that contributed to the collapse of the T6/7 disc.
(2) The position adopted by the defendant’s medical experts who maintained that the collapse of the T6/7 disc was not causally related to the plaintiff’s prior medical history, including the 2005 accident.
The position adopted by the plaintiff’s medical experts was undermined by:
(1) The alterations to their opinions.
(2) Having regard to the general agreement that the condition that resulted in the collapse of the T6/7 disc was progressive:
(a) The absence of note by Dr Griffith in November 2007 and by Dr Champion in June 2009 of any abnormality in the plaintiff’s thoracic spine; and
(b) the absence of complaint of any change in symptoms from those experienced prior to the 2005 accident, with the exception of a short period of exacerbation immediately after the accident.
(3) The symptoms of which the plaintiff complained after the 2005 accident were the same as those recorded prior to the accident. The plaintiff attended on her general practitioners regularly between 2005 and 2009. Aside from the initial record made by Dr Ng there was no record that she complained of symptoms in her thoracic spine. Aside from a period of about four weeks after the accident, she made no complaint to her chiropractor or acupuncturist that was specific to the condition of her thoracic spine.
(4) There were two features that could have provided support for the plaintiff’s position:
(a)Calcification of the disc.
The evidence concerning calcification was inconclusive both as to the period required for it to be present and whether it provided evidence of trauma. Dr Fearnside said that calcification was not uncommon and its presence within the disc could be coincidental.
(b) The symptoms experienced in 2006.
No expert considered the symptoms that commenced in 2006 to be sufficiently specific or consistent to be of assistance on the issue of causation.
(5) The absence of radiological investigation of the plaintiff’s spinal complaints in 1999 and 2005.
The position adopted by the defendant’s medical experts was undermined by:
(1) The absence of evidence of trauma other than as a result of the 1999 and 2005 motor vehicle accidents, both of which involved the application of considerable forces to the plaintiff’s spine.
(2) The absence of direct evidence of any injury at the gym in January 2009. At best, there was a coincidence between the plaintiff’s undertaking unfamiliar exercise and the development of more serious and specific neurological symptoms.
(3) If there was an injury in January 2009, it could equally be the precipitating cause of the ultimate collapse or a contributing cause of further damage to a part of the plaintiff’s spine rendered vulnerable by the earlier accidents.
(4) The absence of radiological investigation of the plaintiff’s spinal complaints in 1999 and 2005.
Conclusion
In respect of causation the Civil Law (Wrongs) Act 2005 provides:
45 General Principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the harm (‘factual causation’);
(b)that it is appropriate for the scope fo the negligent person’s liability to extend to the harm so caused (the scope of liability.
(2)However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to any 1 or more of them –
(a)the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b)the court must consider the position of each defendant individually and state the reasons for bring the defendant within the scope of liability.
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46Burden of Proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
In Strong v Woolworths Ltd [2012] HCA 5 the High Court considered s 5D(1)(a) of the Civil Liability Act2002 (NSW), a provision identical to s 45(1)(a) of the Civil Law (Wrongs) Act. The plurality confirmed that the New South Wales Court of Appeal was correct in stating that s 5D(1)(a) allowed for negligence to be shown to be a necessary condition of the harm by a process of probabilistic reasoning. They said there was no conflict between this approach and Allsop P’s analysis of s 5D in Zanner v Zanner [2010] NSWCA 343 where he said:
The requirement to follow s 5D is clear. What its statutory content is and the extent of any continuity with developing common law concepts awaits judicial elucidation. In Woolworths Limited v Strong [2010] NSWCA 282 at [48] Campbell JA (with whom Handley AJA and Harrison J agreed) said that s 5D(1) excluded notions of “material contribution” and increase in risk. To the extent that his Honour was referring only to factors or circumstances from which a negative “but for” answer was given, so much is clear. However, the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give positive a “but for” answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred. The facts of Henville v Walker [2001] HCA 52: 206 CLR 459 provide another example. However, material contributions that have been taken to be causes in the past (notwithstanding failure to pass the “but for” test) such as in Bonnington Casting Ltd v Wardlaw [1956] AC 613 are taken up by s 5D(2) which, though referring to “an exceptional case”, is to be assessed “in accordance with established principle”.
The agreement by the medical experts that, without radiology, it was not possible to state with certainty the extent to which the 2005 accident contributed to the condition of the plaintiff’s thoracic spine, suggested that this case came with the first category referred to in Strong at [25], namely:
The first category involves the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm is unascertainable. Bonnington Castings was said to exemplify cases in this category.
The first step for the plaintiff in this case was therefore to establish on the balance of probabilities that the need for the surgery undertaken in 2010 was caused by events occurring at the earliest some five years before. Only if that was done was the court required to consider what contribution to that condition was the result of the 2005 accident.
All of the medical experts described the failure of the T6/7 disc as the result of the progression of some derangement in the plaintiff’s thoracic spine. The problem faced by the plaintiff was that her condition did not appear to progress in the six years between 1999 and 2005 or in the four years between 2005 and 2009. There was evidence of some progression in early 2009, possibly as a result of the gym exercises. There was further progression after September 2009 with no identified precipitating feature. Thereafter the plaintiff’s condition progressed to the point where urgent surgery was required in mid-2010.
This history provided support for Dr Fearnside’s opinion that trauma was not always necessary to the failure of a thoracic disc and that, once commenced, the condition would progress.
In the absence of radiological evidence and in the light of the lengthy periods between the instances of trauma and the development of neurological symptoms, I considered that it was not possible by the application of the but for test to conclude that the defendant’s negligence was a necessary condition to the harm suffered by the plaintiff to her thoracic spine. Nor did I consider that the application of common law principles or common sense allowed me to reach that conclusion.
Assessment
General Damages
I proceeded to assess the plaintiff’s damages on the basis that the 2005 accident was not the cause of injury to her thoracic spine at T6/7 that resulted in surgery in 2010.
The defendant did not dispute the plaintiff’s complaints of injury to her cervical spine, her right shoulder and her low back.
On 6 March 2006 Dr Russell recorded complaints of chronic lower back pain and painful right shoulder. Dr Russell referred the plaintiff to physiotherapy. The plaintiff said this stirred up her right shoulder symptoms and caused a significant increase in her right shoulder pain. Hydrotherapy was attempted with little benefit. An MRI arthrogram revealed a small tear in the supraspinatus tendon.
In March 2008 the plaintiff was referred to Dr Woods, orthopaedic specialist. He recommended injections of cortizone. The plaintiff did not proceed with this treatment. At this time her mother became ill with breast cancer and this distracted the plaintiff from treatment for her condition. She told the court she would reconsider the proposal for cortizone injections after obtaining a second opinion.
The plaintiff said that her immediate pain in these areas became less severe with time but that she continued to be troubled by a number of symptoms.
At the time of the hearing she suffered from mild back pain that was aggravated by certain activity, such as hanging out washing or driving; she suffered headaches daily ranging from mild to severe in intensity and neck pain accompanying shoulder pain and headaches.
She continued to suffer from sleep disturbed by headaches or shoulder pain. She used a number of pillows in various arrangements to alleviate her sleeping problems. Her low back pain was aggravated with prolonged standing or sitting. She was able to sit for a maximum of 20 minutes.
The plaintiff said she was too exhausted to do more than go to work and come home to lie down and rest.
Her medication included Digesic, Mobic, Endep and Osteo-Panadol at times. She no longer had chiropractic or acupuncture treatment or physiotherapy.
The plaintiff’s mother, Mrs Padovan, gave evidence that confirmed that prior to the 2005 accident the plaintiff was fit and capable of contributing fully to the social, domestic and economic aspects of her family life. She said that the plaintiff enjoyed life with her two daughters and participated in the usual family acitvities of outings, holidays, walks and shopping.
Mrs Padovan said that immediately after the accident the plaintiff complained of headaches, neck and back pain and her activities were severely restricted. She agreed that there was some relief in the severity of these complaints after two to three months.
As to the plaintiff’s current condition, Mrs Padovan said that by the end of the day she was very tired and needed to lie down when she came home from work. She observed that the plaintiff developed a sore back if she was required to sit or stand for long periods. She had little social life. She was unable to push a shopping trolley or carry shopping loads.
It was apparent that the neck, shoulder and low back symptoms were the result of the 2005 accident and that they affected and continued to affect the plaintiff’s quality of life to a significant degree. Having regard to these factors, I considered her claim for $80,000 for general damages to be reasonable.
I awarded the plaintiff for general damages $80,000, allocating $40,000 to past pain and suffering and $40,000 to the future.
Employment
At the time of the accident the plaintiff was employed as a receptionist in the Oncology Department of Canberra Hospital. She had no time off immediately after the accident. She said this was because of her personal circumstances. She was on a contract with the Hospital at a time when she and her former husband were separating. She said as a consequence she needed to search for permanent employment and did not want to develop a reputation for taking time off.
In April 2006 the plaintiff secured permanent employment with the Australian Transport Safety Bureau, a job she enjoyed. Her role allowed her to move around from time to time and her employer was sympathetic to her need to take occasional breaks. She hoped that she would continue in this job until she retired. She abandoned her pre-accident ambitions to train into geriatric care or nursing.
The plaintiff continued to work full time to the date of the hearing with the exception of a period of approximately four months while recovering from surgery.
The plaintiff said her full time employment was governed by financial necessity. She acknowledged that her current employer was understanding of her condition and that there was no current threat to her continued employment.
Dr Champion noted the plaintiff’s complaint of exhaustion by the end of each working day and said it would take little by way of exacerbation of her symptoms to render her unfit for work or vulnerable to termination. He suggested that the plaintiff reduce work hours to 24 – 30 hours per week to relieve stress and allow her an opportunity to improve her general health.
The plaintiff claimed $50,000 by way of a buffer in the event that she was unable to continue in her present position and was required to find employment on the open labour market. The defendant argued against any such award, pointing to the evidence that the only break in the plaintiff’s employment was unrelated to the injuries for which it accepted responsibility and that her current suitable position appeared to be secure.
There were two reasons why I accepted the plaintiff’s claim as reasonable.
At the age of 42 years the plaintiff had at least 25 years remaining of her income producing life. I did not think that, in current economic conditions, it was possible to conclude that the security of any employment could be guaranteed for 25 years. I accepted that the plaintiff’s continuing symptoms and restrictions would put her in a position of disadvantage if she were required to find alternative employment.
Further, I took into account the evidence of the plaintiff and Mrs Padovan concerning the plaintiff’s condition at the end of the working day in deciding that I should accept Dr Champion’s opinion that it was unlikely that the plaintiff would continue with full time employment.
I awarded the plaintiff $50,000, inclusive of superannuation, as a buffer against future income loss.
Domestic Care
Immediately after the accident the plaintiff’s former husband continued to do the gardening but also assisted with vacuum cleaning and bathroom cleaning. After separation in early 2006, her husband’s family assisted for some time with the gardening. The plaintiff’s mother also provided assistance.
Mrs Padovan said that initially she provided assistance by driving the plaintiff’s daughters to school and doing housework and washing. She helped in the garden. Her estimate was of about six hours per week, with a break during 2008 when her capacity to assist was diminished because of her own health problems.
Mrs Padovan provided a substantial amount of assistance in the periods after the surgery was performed. She said she stayed at the plaintiff’s home immediately after the surgery. After the first operation in June 2010 she provided personal and domestic care, estimating that this occupied five to seven hours per day initially and reduced to two to three hours by the third week after surgery. Following the second operation she provided two hours per day of care for ten days.
She was also required to drive the plaintiff’s daughters to school and appointments because the plaintiff was unable to drive for three to four months.
Mrs Padovan said she continued to provide care for 15 minutes, five days per week and one half day per month for gardening.
The plaintiff said she performed such housework as she did in a piecemeal fashion. At the time of the hearing she had assistance from her two daughters, now 15 and 13 years old. They cleaned the house with her over 1.5 to 2 hours every Saturday morning. The girls vacuumed and cleaned the bathroom. The older daughter mowed the lawn.
Both the plaintiff and Mrs Padovan agreed that the plaintiff’s daughters were of the age where it was expected that they would assist with housework irrespective of the plaintiff’s medical condition.
On this basis the plaintiff claimed to recover for 3 hours per week of assistance from Mrs Padovan from early 2006 to the present, with adjustment for the periods when the plaintiff was recovering from surgery and when Mrs Padovan was in ill health. She claimed to recover 1.5 hours per week of assistance from her daughters for three years.
The defendant proposed an allowance of 2 hours per month based on particulars provided by the plaintiff in the course of preparation for hearing. Particulars were provided in February 2011 that increased the claim to 4 hours per week but the defendant maintained that the original claim remained appropriate and that the plaintiff required assistance only with monthly lawn mowing.
I did not agree. I was satisfied that the consequences of the injuries for which the defendant accepted responsibility were such that it was reasonable that the plaintiff have assistance in the performance of her domestic responsibilities.
I accepted that some aspects of the assistance provided by Mrs Padovan were related to the needs of the plaintiff’s daughters rather than the plaintiff herself. I considered it appropriate to assess the need for the provision to the plaintiff of domestic assistance generated by the 2005 accident as follows:
Past Care
Assistance provided by the plaintiff’s daughters
2 years @ 1.5 hours per week x $22 per hour $3,432
Assistance provided by the plaintiff’s mother,
6 years @ 2 hours per week, minus 13 weeks 12,877
$16,309
Interest (6 years x 0.45) 4,403
$20,712
Future Care
2.5 hours per week x 1270 x $22 per hour – 15% $59,372
$80,084
I awarded the plaintiff $80,084 for domestic assistance past and future.
Out of Pocket Expenses
Past out of pocket expenses were agreed in the sum of $3,236.
For the future the plaintiff claimed $10,000. There was little evidence to support an allowance in this amount. The plaintiff was no longer receiving active treatment. She was uncertain whether she would proceed with cortizone injections to her shoulder. I considered it appropriate therefore to allow the sum of $5,000 to provide for her continued need for medication.
Summary
General Damages $80,000
Interest (6.66 years x .02 x $40,000) 5,328
Future income loss 50,000
Domestic Care 80,084
Out of pocket expenses 8,236
$223,648
Provisional Assessment
In the event that this matter proceeds further, I have assessed the claim for damages that arises from the condition of the plaintiff’s thoracic spine.
Were I to take into account the pain and suffering resulting from development and treatment of the plaintiff’s thoracic spine, I would have awarded her the sum of $120,000 for general damages, allocating $70,000 to past pain and suffering and $50,000 to the future.
I would have allowed the claim of $27,175 for past income loss but would not alter the assessment of the plaintiff’s future income loss.
I would have allowed a further $2,674 for the additional domestic care required during the periods of recovery from surgery.
I would have allowed $93,807 for past out of pocket expenses and $10,000 for future out of pocket expenses.
Orders
Verdict and judgment for the plaintiff in the sum of $223,648.
The defendant is to pay the plaintiff’s costs of the proceedings as agreed or assessed. This order is suspended for 7 days to allow the parties to list the matter for further argument as to the appointment of costs.
The exhibits are returned.
My reasons are published.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: Kayla Martin
Date: 8 May 2012
Counsel for the Plaintiff: Mr R Crowe SC
Solicitor for the Plaintiff: Maliganis Edwards Johnson
Counsel for the Defendant: Mr K Rewell SC
Solicitor for the respondent: Sparke Helmore
Date of hearing: 17, 18 and 19 April 2012
Date of judgment: 8 May 2012
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