Riches v TAC
[2014] VCC 1851
•14 November 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No.
| FRANCINE RICHES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 01 October 2014 | |
DATE OF JUDGMENT: | 14 November 2014 | |
CASE MAY BE CITED AS: | Riches v TAC | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1851 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident compensation – serious injury – transport accident – lumbar spine injury – where pre-existing lower back injury from prior accident aggravated.
Legislation Cited: Transport Accident Act 1986 (Vic) – s93(17)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Papamanos v Commonwealth Bank [2014] VSCA 167; De Agostino v Leatch [2011] VSCA 249;
Judgment: Leave granted to commence proceedings for damages pursuant to section 93(17) Transport Accident Act 1986 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R Gorton QC A Dimsey | Arnold Thomas & Becker |
| For the Defendant | G Lewis SC | Hall & Wilcox |
HER HONOUR:
Introduction
1 The plaintiff applies under s93(17) of the Transport Accident Act 1986 (Vic) (“the Act”) for leave to issue proceedings for damages in respect of an injury to her spine suffered in a transport accident on 1 July 2010.
2 In Humphries v Poljak,[1] Crockett and Southwell JJ identified the test to be applied with respect to a claim of serious injury under paragraph (a) of s93(17) of the Act.
[1][1992] 2 VR 129.
3 To be serious, the consequences of the injury must be serious to the particular applicant. In forming a judgment as to whether, when regard is had to such consequences, an injury is 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”.
4 The accident on 1 July 2010 was not the first transport accident the plaintiff was involved in. In 1997 she suffered injuries to her neck, back/spine, wrist and leg when, as a pedestrian, she was hit by a four wheel drive.
5 Insofar as it was submitted that the injury the plaintiff suffered in the accident was an aggravation of the pre-existing injury to her spine, Southwell and Teague JJ, in Petkovski v Galletti,[2] made it plain that the task of the court is to analyse the extent of the impairment of the body function before and after the relevant injury.
[2][1994] 1 VR 436.
6 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must itself involve serious long-term impairment or loss of a body function. An analysis must be made of the extent of the impairment of body function before and after the relevant injury.
7 The plaintiff swore two affidavits in support of her application and gave evidence. She also relied on an affidavit sworn by her husband. No other witnesses were called. Both parties relied on medical reports and other relevant material in their respective court books and a number of documents tendered during the hearing.
The Plaintiff’s Background
8 The plaintiff was born on 7 June 1965. She is currently fifty years old. She is originally from the Kimberley and is of Aboriginal descent. She completed Year 11 at Tuart Hill Senior High School in Perth where she was a boarder and then returned to the Kimberley and did missionary work and was a houseparent for children from neglected families.
9 After the plaintiff married she moved to Esperance where she and her husband cared for Aboriginal girls. They then did missionary work around Australia before returning to Perth to work with homeless children.
The Accident In Broome
10 On 18 August 1997 the plaintiff was injured when she was in Broome and a four wheel drive reversed into her. After the Broome accident she was taken to the Broome Hospital where she complained of pain in her neck, her back, hips and knees, together with a very painful left wrist.
11 The history she gave to Dr John Saunders[3] reveals that she was kept at the Broome hospital for a few hours where her left wrist was x-rayed and a plaster of Paris was applied. Ten days later, she returned to Broome Hospital and had a further x-ray of the wrist. There was no fracture so the plaster of Paris was removed.
[3]DCB 7-9.
12 The plaintiff was given painkillers and anti-inflammatories, but she continued to have pain in her back, neck and knees. As she was not improving the plaintiff saw a chiropractor and attended once a week when possible. She had difficulty with ironing and vacuuming and playing basketball with her four children. As she was not getting adequate treatment, she moved to Perth.
13 In January 2009, when one of her sons received a basketball scholarship, the plaintiff and her family moved to Melbourne. In Melbourne the plaintiff obtained work as a Community Development Worker and she has worked for Western Regional Health in this capacity since 2009.
14 The plaintiff’s working hours would vary and typically included, but were not limited to, approximately 25 hours per week, three days per week. In her affidavit of 7 January 2013 the plaintiff described her duties as being “all highly physical tasks which involved prolonged standing, walking, sitting, driving, bending, lifting and carrying.”[4]
[4]PCB 6.
15 On 5 September 2009 an x-ray of her full spine and pelvis found no degenerative changes in the pelvis, lumbar spine, and cervical spine. In the thoracic spine there was mild scoliosis at the thoracolumbar junction convex to the left and mild to moderate spondylitis was present in the lower thoracic spine, with prominent anterior and right lateral vertebral body osteophytes.[5]
[5]DCB 1A-B.
16 The plaintiff became a patient of the Western Suburbs Indigenous Gathering Place in Maribyrnong (the clinic) where her general practitioner was initially Dr David Lee and more recently Dr Rod Anderson. The defendant tendered the plaintiff’s attendance records at the clinic from 25 November 2009 to 4 August 2014.
17 Examination of the clinic records reveals that the plaintiff attended the clinic for back pain together with other medical issues on 2 December 2009 , 19, January, 26 February (central sacro-coccyg pain), 4,19 and 30 March, and April 23 (cocydone) 2010.
18 On 21 January 2010 the plaintiff had a CT scan, which concluded that there was no disc abnormality or compromise to left-sided lumbosacral nerve roots. Very mild bilateral facet joint osteoarthritic degenerative disease was noted in lower lumbar spine.[6]
[6]DCB 1.
19 On 13 March 2010 an x-ray of the coccyx and sacrum was carried out. No fracture was detected and alignment appeared normal.[7]
[7]DCB 1B.
The Transport Accident on 1 July 2010
20 On 1 July 2010, the plaintiff was travelling east in Churchill Avenue, Braybrook, in the course of her employment. She was stopped at a red traffic light at a pedestrian crossing near Melon Street when a vehicle travelling east collided with the rear of her stationary vehicle.
21 The plaintiff sustained injury to her spinal column, legs, hips and pelvis. She was taken to the clinic, where she complained of neck pain, and Dr Anderson prescribed her Panadol Osteo tablets and Celebrex.[8]
[8]DCB 1E.
History of Treatment
22 The plaintiff’s back pain persisted and on 23 July 2010 she attended the clinic and complained of the back pain since the accident. Dr Anderson prescribed her Panadol Osteo tablets and she was referred to Dr Tahir a rheumatologist. She continued to work, but on modified duties one day per week. In August she underwent gastric band surgery to help her reduce weight.
23 On 3 August 2010 the plaintiff attended the clinic and complained of back pain again. Dr Lee requested diagnostic imaging which took place on 7 August 2010. The report of an x-ray of the lumbosacral spine revealed that vertebral alignment was normal. There was mild end plate spondylitic lipping at L4 in association with a mild reduction in intervertebral disc space height. No focal bone lesions were seen. The sacroiliac joints were normal in appearance. Bilateral tubal litigation clips were noticed in situ.[9]
[9]Plaintiff’s Court Book (“PCB”) 24.
24 On 12 August 2010, the plaintiff made a claim for compensation for the spinal injury sustained in the accident on 1 July 2010. On 17 August 2010 she attended the clinic complaining of back pain and concerning lap band surgery.
25 On September 1 2010 the plaintiff informed Dr Lee that her back pain was improving. However, she complained of still having back pain on 21 September and 9 November 2010.
26 On 15 October 2010 Dr Tahir reported to Dr Lee that the plaintiff was still suffering pain in the lower back and at the coccyx, which was very tender on the left side. She was doing massage and using non-steroid and anti-inflammatory drugs with a minimal effect. He gave her a bone scan request with John Fawkner and consideration was given to performing a local cortisone injection under image guidance.[10]
[10]PCB 25.
27 On 22 October 2010 a bone scan of the whole body was performed. As no focal abnormality was found in the symptomatic coccyx region, the plaintiff was not considered to be a candidate for steroid injections. There was evidence of low grade degenerative arthritis but no definite evidence for osteoplastic bony metastasis, metabolic bone disease or osteoporotic fracture.[11]
[11]PCB30-31.
28 On 25 October 2010 Dr Tahir reported to Dr Lee that the bone scan had confirmed mild degenerative arthritis and he had arranged an appointment to see the plaintiff in his rooms to give her an injection.[12]
[12]PCB26.
29 On 13 May 2011 the plaintiff filled out a workers injury claim form with respect to an incident at work where she slipped and injured her lower leg, back and nerves.[13] The attendance records from the clinic reveal that on 18 May 2011 the plaintiff told Dr Lee about the fall and complained of knee pain.
[13]Defendant’s Court Book (“DCB”) 70–71.
30 On 22 June 2011 the plaintiff attended the clinic and complained of an exacerbation of back pain. On 30 June she attended again and complained of chronic low back pain and was tender at L5/S1. She complained of back pain, again, on 23 and 26 of August 2011 to the extent that she was prescribed a Norspan patch.
31 On 19 July 2011 the plaintiff attended at the Western Hospital where an MRI was carried out on her thoracolumbosacral spine by Dr Rhodes, who noted:
“Moderate to severe pain ? coccyx lumbosacral spine with left sided sciatic pain, radiculopathy or coccydynia, also has pain at thoracolumbar junction with swelling ? lower ribs. Normal bone scan ? mass lesion in the left lower ribs.”[14]
[14]PCB 32.
32 Under the heading “Conclusion” Dr Rhodes reported:
“No rib abnormality detected. No neural impingement evident. Apparent increased signal at the C1-2 level within the coccyx may account for the patient’s coccydynia. A CT guided steroid injection could be performed at this level, if clinically required.”[15]
[15]PCB 33.
33 In the “Findings” section of his report, Dr Rhodes referred to an L5/S1 broad-based disc bulge being present and loss of intervertebral disc height and signal without central canal or foraminal stenosis.
34 On 25 July 2011 Dr Tahir injected the plaintiff’s coccyx area with Depo-Medrol and Xylocaine and she had a cortisone injection in her back in August 2011 and in January 2013.[16]
[16]PCB 27.
35 As the plaintiff had a strong family history of ischaemic heart disease in August 2011, Dr Le referred her to Dr Thuy Le for cardiac assessment. She had a CT coronary angiogram performed which was essentially normal but found underlying heart disease.[17]
[17] PCB 40 and 42.
36 From early 2012 until the end of 2013, the plaintiff undertook a Masters of Fine Arts (Research) at the University of Melbourne. However, she found study difficult because of ongoing back pain which made it difficult for her to sit for extended periods and to concentrate.[18]
[18] PCB13.
37 While she was studying, the plaintiff continued to work at Co-Health (formerly Western Regional Health), about half to one whole day per week, facilitating art therapy groups. She had some time off work to treat two hernias and reposition a gastric lap band, then, after obtaining her Masters in June 2014, she increased to two, and sometimes three, days per week.
38 The clinic notes reveal that the plaintiff attended for ongoing back pain on four occasions in 2012. The last prescription for Panadol Osteo tablets appears to be on 9 March 2012. On 9 August 2012 the plaintiff was prescribed Tramal and on 5 October 2012 she was prescribed Nexium.
39 The plaintiff claims that her life has changed very significantly for the worse since the transport accident in July 2010. While it is conceded that she had some prior back problems in her affidavit of 22 September 2014, the plaintiff described them as being “relatively minor” in comparison to the ones she has today. Further, as being “episodic and easily managed” in comparison with today as they were now “constant and very difficult to manage”.[19]
[19] PCB 17.
Plaintiff’s Medical Reports – Treating Particulars
Dr Lee
40 Although there was no report from Dr Lee there was a letter to WorkCover, dated 9 November 2010, in which Dr Lee sought cover for hydrotherapy and a gym membership for the plaintiff. In this letter he certified that the plaintiff was still suffering from recurrent back pain and that she would benefit from hydrotherapy and a three month trial gym membership.[20] Other than this letter, the court had the advantage of being able to examine the attendance records of the clinic.
[20]PCB 37.
Dr Rod Anderson - General Practitioner
41 In his report, dated 4 September 2014,[21] Dr Anderson concluded that:
[21]PCB 66.
· The diagnosis of the plaintiffs condition was “chronic thoracolumbar spinal pain and sciatica.”
· She needed ongoing pain relief and her condition was worsening and would continue indefinitely;
· The MRI of 21 July 2011, showed a damaged L5/S1 disc;
· She was unable to lift weights over five kilograms and had problems bending and dressing herself;
· She was unable to walk more than 300 metres without resting and is able to perform limited sedentary work only.
Mr Toovey - Physiotherapist
42 In November 2010 Mr Toovey reported to WorkCover that he had been the plaintiff’s treating physiotherapist for the last three months following the car accident. He was of the opinion that the plaintiff would benefit from hydrotherapy regularly, three times a week and that it would facilitate her return to work.[22]
Dr Tahir - Rheumatologist
[22]PCB 36.
43 Dr Tahir reported to the plaintiff’s solicitors, on 5 September 2014, that she was referred to him after the car accident for “worsening lower back pain and generalised muscle ache and pain which had affected her function and quality of life”.[23]
[23]DCB 28-33.
44 Dr Tahir referred to the whole-body scan in October 2010 as being “unremarkable and showing no evidence of fracture, osteoplastic activity, minimal degenerative joint disease of the lower lumbar spine, due to the presence of pain”.
45 With respect to the MRI scan of July 2011, Dr Tahir described it as showing “minimal coccydynia”. While regarding the injection on 25 July 2011 of cortisone and Xylocaine to the plaintiff’s coccydynia area he reported that at the time of this consultation “she was crippled with pain which had affected her function and quality of life, and made her a little depressed”.[24]
Dr Peter Mitrevski - Chiropractor
[24]PCB 28.
46 On 1 October 2014 Dr Mitrevski reported to the plaintiff’s solicitors that she first presented to the clinic on 28 August 2009, primarily for lower back pain that had resulted from a road accident in the Kimberley in 1997.
Dr Mitrevski took a history from the plaintiff that –
“since then she had suffered from constant pain with intensity varying from a dull ache to a sharper quality. The pain had become noticeably worse over the previous three months and was located in the lower spine area and around the coccyx area, with referral of pain into the right posterior thigh.”[25]
[25]PCB 61.
47 The plaintiff described the pain in her thigh as “a pinched nerve sensation” and informed him that since the accident in 1997, she had seen chiropractors regularly for relief. She was not taking medication but took multivitamins for general health.
48 On 23 July 2010, the plaintiff attended the clinic and reported that she was involved in a motor vehicle accident on 1 July 2010. She complained of cervicothoracic pain, pain in both shoulders and lower back pain.
49 Dr Mitrevski reported that at her most recent consultation at the clinic, on 25 August 2014, the plaintiff had described “her lower back pain and right lateral thigh and calf pain as constant.” She said she had difficulty getting dressed, especially trying to put underwear on, and experienced pain driving, and needed to support her back with a cushion.[26]
[26]PCB 62.
50 Dr Mitrevski’s clinical impression was:
“1. Chronic lumbosacral sprain/strain, complicated by degenerative joint disease.
2. Right sacro-iliac joint dysfunction with associated myofascial pain syndrome.”[27]
[27]PCB 64.
51 Dr Mitrevski described the plaintiff’s back condition as remaining relatively unchanged over the last few years. She continued to complain of low back pain and stiffness with associated right leg referred pain. Even though her pain was constant, she could present with unpredictable episodes of exacerbation which hindered her personal activities of daily living.[28]
Dr Lim Huay Jiun
[28]PCB 65.
52 Dr Huay Jiun reported, on 31 December 2012, that the plaintiff presented with “chronic lower back pain with referral pain down her left thigh”. Aggravating factors were sitting for more than 10 minutes, lifting 5 kilograms and painting for more than 30 minutes. He made various recommendations for treatment including programs and exercises to try to relieve her pain.
53 On examination he noted:
· palpation tender L4/5;
· stiff L1/3 lumbar joint;
· tight gluteal and erector spine muscles;
54 His diagnosis was chronic disc bulge referral to left lower leg. As to work capacity there should be:
· no prolonged static sitting or standing > 30 minutes;
· no lifting > five kilograms;
· rest as required.[29]
[29]PCB45.
Dr Thuy Le - Consultant Physician and Cardiologist
55 Dr Thuy Le’s reports are in relation to the plaintiff’s coronary artery disease. In his opinion, while the plaintiff had multiple risk factors for coronary heart disease, her chest pain most likely related to a recent adjustment of her lap banding procedure.[30]
[30]PCB 41.
56 On 8 September 2011, Dr Le reported that a CT coronary angiogram was essentially normal. There was underlying coronary artery disease. There was an incidental finding of a large right axillary lymph node. There was also a lump detected on her right breast which was tender and she was referred to the Western General Hospital.[31]
[31]PCB 42.
Medico Legal Opinion
Professor Kenneth Myers - Consultant General Surgeon
57 Professor Myers reported to the plaintiff’s solicitors on 17 February 2014. His opinion may be summarised as follows:
· The plaintiff aggravated her pre-existing, degenerative intervertebral disc disease and spondylitis in the lumbar spine and probably in the cervical spine in the motor vehicle accident in 2010;
· The plaintiff should be encouraged to continue to attempt to return to her pre-injury employment;
· There would be restriction of her ability to obtain unrestricted employment opportunities;
· There would be ongoing interference with social, recreational and domestic activities;
· There would be no future improvement in her condition.[32]
[32]PCB 49-50.
Dr Helen Sutcliffe - Occupational Physician
58 In her report to the plaintiff’s solicitors, dated 30 April 2014, Dr Sutcliffe believed that the plaintiff sustained “aggravation of osteoarthritic change in the lumbosacral spine, together with the onset of coccydynia as a result of the motor vehicle accident in 2010”.[33]
[33]PCB 58.
59 With respect to the plaintiff’s work capacity, Dr Sutcliffe believed that she had no capacity for full-time unrestricted manual or pre-injury employment when her age, background, education and prior work experience was taken into account. However, that she would be able to undertake her pre-injury employment one day per week, which might increase to two days per week with a gradual increase in hours if she could vary sitting, standing, and driving at will.[34]
[34]PCB 59.
60 Dr Sutcliffe considered that the plaintiff had “sustained adverse impact on her capacity for social, recreational and domestic activities now and into the future. In addition that “the prognosis is restricted as the symptoms have persisted for the past four years and are likely to continue into the foreseeable future, particularly the symptoms of coccydynia”.[35]
[35]PCB 60.
Defendant’s Medical Evidence
Dr Saunders
61 Dr Saunder’s report, of 12 July 1999,[36] relates to the accident in Broome on 18 August 1997 when the plaintiff was hit by the four wheel drive. He was of the opinion that in this accident the plaintiff suffered a soft tissue injury to her neck and back as well as an injury to her wrist and bruising to her knees.
[36]DCB 7–9.
62 Dr Saunder’s reported that the plaintiff had made good progress in that her wrist had “very much improved”, although it ached occasionally. Her neck had also “very much improved” and she had little, if any, clinical signs on examination”.
63 The plaintiff’s “main problem” was her back, which appeared to limit her capacity to carry out her normal social and domestic activities. The plaintiff appeared to have been partially incapacitated since the time of the accident and she had been limited in carrying out normal social and domestic activities. However, she was very overweight, which aggravated her condition.[37]
[37]DCB 9.
Dr Philip Mutton - Consultant Occupational Physician
64 In his report, dated 2 February 2011, Dr Mutton described the plaintiff as providing a history of a “very minor motor vehicle accident.”[38] He found that clinically she presented with mild loss of function and little specific findings. There was no supportive evidence on CT of significant structural changes.
[38]DCB 13.
65 Accepting that the transport accident was a minor one and that the plaintiff has a prior history of back injury, Dr Mutton concluded that it was likely that she suffered some exacerbation in the transport accident. However, in his opinion much of her current presentation was a reflection of the underlying condition and any aggravation or exacerbation which may have occurred as part of the transport accident would have ceased by 12 months post-accident. The plaintiff had the capacity to continue with her pre-injury duties and hours.
Dr David Elder - consultant in occupational and environmental medicine
66 In his report, of 12 January 2010, Dr Elder stated that
“In summary ,the worker does have mechanical back pain with no clinical evidence of radiculopathy arising out of the motor vehicle accident.”[39]
[39]DCB 19–22.
67 Taking into account her pre-existing impairment, he assessed her present overall residual impairment as zero per cent.
Mr Michael Dooley - Orthopaedic Surgeon
68 In his report, dated 2 September 2014, Mr Dooley stated that:
“It is clear that, at the time of the motor vehicle accident, Mrs Riches had established degenerative disc disease at the lumbosacral level of the spine. She was aware of some low back pain and of coccygeal pain in relation to this condition. It is therefore likely that she would have continued to have noticed symptoms on an intermittent basis in this regard, regardless of the motor vehicle accident of July 2010.”[40]
[40]DCB 27.
69 In his opinion (from an orthopaedic viewpoint only, Mr Dooley expected the plaintiff to note some ongoing intermittent low back pain and lower limb pain. He would not expect her orthopaedic condition to deteriorate over and above the natural evolution of her underlying degenerative disc disease. He thought she would be unable to carry out regular heavy physical work or work that involved a lot of bending, lifting and manoeuvring.
The Five Month Progress Report
70 The five month progress report of 25 February 2011, from IPAR rehabilitation detailed the plaintiff’s return to work progress.[41] It noted that the plaintiff:
[41]DCB 63–65.
· Had been certified by Dr Lee to complete 20 hours per week, two full days and one half day, and that she had successfully maintained these hours for six weeks;
· Underwent a cortisone injection on her lower back on 28 January 2011 and advised IPAR, on 24 February 2011, that her lower back pain was almost gone;
· Advised that she was attending chiropractic sessions once a week at present and would be attending a hydrotherapy session 24 February 2011;
· Reported that she is completing the majority of her pre-injury duties and is able to alternate her posture, as required, during the day.
71 It was anticipated that following the next medical review, the plaintiff would be given a medical certificate to return to her pre-injury hours as she had reported she was almost pain free, and the physical demands of her pre-injury role were no different to the physical demands of her activities outside work.
Finding Regarding The Injury
72 Given that the plaintiff has clearly suffered from lower back pain, in particular in the region of the coccyx lumbosacral spine since the accident in 1997, I accept that she suffered a soft tissue injury to this region in that accident.
73 While it is difficult to determine the exact nature of this injury I note that the MRI of 19 July 2011 concluded an increased signal at the C1-2 level within the coccyx, which Dr Rhodes thought may account for her coccydinia. Although this was not detected back in 2009 or 2010 in the x-rays carried out, the MRI is a more sophisticated diagnostic tool.
74 With respect to the injury received in the accident on 1 July 2010, I accept the medical opinion that the plaintiff sustained aggravation of osteoarthritic change in the lumbosacral spine, including a disc bulge at L5/S1. This diagnosis is supported by:
· Dr Lim – chronic disc bulge with referral to her lower left leg.
· Dr Anderson – the MRI of 19 July 2011 showed a damaged L5/S1 disc.
· Professor Myers – the plaintiff aggravated her pre-existing degenerative intervertebral disc disease and spondylitis, and probably her cervical spine.
· Dr Sutcliffe –aggravation of osteoarthritic change in the lumbosacral spine, particularly at L5/S1 level.
· The fact that the MRI scan of 19 July 2011 shows a broad based disc bulge at L5-S1 which was not seen in the CT Scan of January 2010,
· The fact that the plaintiff has complained of chronic back pain and sciatica since the accident.
75 While Dr Mutton was of the opinion that there were no disc-related changes, his report pre-dated the MRI of 19 July 2011, and he therefore did not have access to it to inform his opinion.
76 In addition, Dr Mutton’s conclusion that any aggravation or exacerbation of the plaintiff’s condition caused by the July 2010 accident would have ceased by 12 months post-accident is not supported by the fact that the plaintiff continues to suffer from problems above and beyond those she had after 1997.
77 This also applies to Mr Dooley as while I accept his opinion that the plaintiff’s pre-existing disc degeneration was likely to have continued to give her symptoms on an ongoing basis (some back pain and coccygeal pain), I do not accept that it explains the extra degree of pain and restrictions suffered by the plaintiff since the accident in July 2010.
78 In reaching this decision, I have also taken into account that the evidence reveals that after the 1997 accident, the plaintiff’s back pain was largely around the coccyx area with some referred pain into the right thigh. This was reported by Dr Mitrevski.[42] In contrast, after the accident in July 2010, the plaintiff’s back pain included not only the coccyx area but also referred pain down her left thigh and left leg. [43]
[42] PCB 61.
[43] Dr Lim PCB45, Dr Rhodes PCB38 and Dr Sutcliffe PCB55.
79 It was submitted for the defendant that the reports of both Mr Myers and Dr Sutcliffe would not assist me in the disentangling exercise as they did not have the history that the plaintiff had suffered from continuing regular low back pain (coccygeal pain) after the 1997 accident.
80 However, I note that when they prepared their reports both Mr Myers and Dr Sutcliffe had the:
· CT of the lumbosacral spine of January 2010.
· The whole body scan of 22 October 2010,
· The MIR of the thoracolumbar spine of 19 July 2010.
· The report of Dr John Saunders with respect to the 1997 accident .
· Dr Mutton’s report which referred to the fact that the plaintiff had “a history of regular chiropractic treatment from a back injury when she was struck as a pedestrian in 1997”.
Consequences of the Injury
81 The question for the Court is does the additional degree of impairment to the plaintiff’s lumbar spine have pain and suffering consequences that are at least “very considerable” and more than “significant “or “marked”?
82 It is clear from the respective authorities that the aggravation itself must meet this test and that the task of the court is to analyse the extent of the impairment of the body function immediately before and after the relevant injury. If the additional impairment is not serious then leave must be refused.[44]
[44]De Agostino v Leach and Anor [2011] VSCA 249; Petkovski v Galetti.
83 It is apparent from the evidence in this case that following the accident in 1997 the plaintiff experienced problems with continuing back pain back. In July 1999 Dr Saunders reported that she had problems with ironing and vacuuming because her back hurt too much The plaintiff was described as being ‘Partially incapacitated’ since 1997 accident.[45]
[45] DCB 9.
84 In her affidavit of 7 January 2013 the plaintiff claimed that in the time immediately prior to the 2010 accident, this back condition had resolved or was effectively managed and had no significant impact on her ability to undertake normal activities of daily living or duties in the course of her employment.
85 However, it appeared from the evidence in this case that the plaintiff continued to suffer from lower back pain particularly in the coccyx area up to the date of the accident in July 2010.
86 Indeed, when cross-examined, the plaintiff agreed that it would not be entirely accurate to say that her condition from 1997 had totally improved by the time the car accident took place in July 2010. She agreed that there were ongoing problems.
87 This was also apparent from the:
· Medical records from the clinic referred to earlier in this judgment.
· The fact that she had an Xray of her coccyx in March 2010.
· The fact that she continued to have regular chiropractic treatment.
88 However, I found the plaintiff to be an honest and straightforward witness and I accept her evidence that prior to the accident in July 2010 she was independent with regard to her “intrinsic and functional physical activity, travel sleep, sexual function and participation in social and recreational activities.”[46]
[46] PCB 8.
89 I accept that despite her back pain the plaintiff was still able to enjoy an active lifestyle and took pleasure in walking her dogs regularly, playing basketball with her children, gardening, swimming and aerobics.[47]
[47] PCB 9.
90 In addition I accept that prior to the July 2010 accident she was an active and enthusiastic contributor to her Indigenous community, and she travelled back to the Kimberley in Western Australia several times a year to visit the Bardi-Jawi tribe to which she belongs, in order to carry out her duties as an elder.
91 It also was apparent from the photographs produced to the court that the plaintiff was an accomplished sculptor. She took part in exhibitions such as “Sculpture by the Sea” at Bondi and had also travelled widely in relation to her art, including to Europe.
92 While much of the pre-accident sculpture work was done in 2005 and 2006 I note that in 2008 the plaintiff exhibited her work at Sculpture by the Sea at Bondi in Sydney and at Cottesloe in Perth. In 2009 she was invited to exhibit the same piece in Denmark.
I accept that the plaintiff’s life changed in many respects after the July 2010 injury/aggravation to her lumbar spine, including as follows:
· She has difficulties with walking far or exercising. She can only walk a few hundred metres before it becomes very difficult;
· She has been told that she needs to lose weight, but unfortunately she finds it difficult to exercise because of her back pain;
· She suffers from significant pain on a constant daily basis and constant sciatic pain in her left leg;
· She was primarily responsible for household activities such as cleaning and cooking but now relies on her husband more. While generally they share in the activities he now does the bulk of them.[48]
[48] T26.
· She is unable to participate in sexual activity.[49]
[49] PCB10.
· She suffers from interrupted sleep due to pain.[50]
· She has lost of the physical ability to work as a sculptor due to the onerous physical demands of this work.
· She cannot return to her country to perform her duties as an elder as much as she would otherwise like to as it involves a four hour flight from Melbourne to Broome followed by 200k on a bumpy dirt road to her community.[51]
[50] PCB16.
[51] PCB15.
93 The plaintiff’s claims regarding the consequence of her injury were supported by her husband in his affidavit of 22 September 2014 who had noticed “a very significant deterioration” in the plaintiff’s back condition following the accident in July 2010.
94 While he acknowledged that she had some problems with her back from the accident in Broome in 1997 he described these problems as being “minor”, and said that she had “managed all domestic, social and work obligations without complaint or difficulty”.[52]
[52] PCB 18.
95 After the accident in July 2010, the plaintiff made a couple of trips to the Kimberley and in 2012 she and her husband took a trip to Port Augusta. I accept however that this was with discomfort and pain and t with respect to the Port Augusta trip that the plaintiff’s husband drove and they had frequent stops along the way.[53]
[53] T24-25.
96 The plaintiff also went on three occasions to the United States once to take her son to college and then to visit him, and once to Fiji. I accept that she experienced pain discomfort when making these trips.[54]
[54] PCB53.
97 With respect to her medication I accept her evidence that she uses Norspan patches one a week every month or so. She takes Advil (2 a day) and Nurofen as required. In addition that she takes Panadol Osteo twice a day.[55]
[55] PCB16.
98 While the plaintiff’s last prescription for for Panadol Osteo was on 9 March 2012 I accept her evidence that she has been able to obtain Panadol Osteo tablets from her sister who takes this medication.[56]
[56] T 18-29.
99 In so far as the defendant relied on the fact that the plaintiff had been able to return to her pre-injury work I have taken into account that:
· She is lucky to have a job where she has the ability to pace herself as required throughout the day and to alternate her position between sitting and standing;
· Various modifications have been necessary at work;
· Due to her injury the plaintiff is restricted to sedentary work ;
· She has difficulties in performing her work because of her ongoing back pain.[57]
[57] PCB14,66
100 It is apparent from the plaintiff’s evidence that although the additional impairment has affected all aspects of her life, that she is most affected by her loss of ability to work as a sculptor and the effect of her injury on her role as an elder. The plaintiff said:
“The Lord has given me so much ability to do this but I can’t do any more and I want to be the role model for my people and since the accident I haven’t been able to continue the sculpture.”[58]
[58] T27.
101 I consider these matters by themselves are significant and that combined with all the other consequences of her injury the plaintiff ‘established that the consequences of the extra impairment to her lumbar spine meet the definition of being a serious injury. Accordingly I grant leave for the plaintiff to bring proceedings to recover damages in respect of the injury.
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