Roberts v Transport Accident Commission

[2021] VCC 1765

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-00371

SANDRA ROBERTS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne by Zoom
DATE OF HEARING:	11 November 2021
DATE OF JUDGMENT:	12 November 2021
CASE MAY BE CITED AS:	Roberts v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1765

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – pain and suffering – aggravation – very considerable consequences – ballroom dancing

Legislation Cited:      Transport Accident Act 1986

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Petkovski v Galletti [1994] 1 VR 463

Judgment:                  Leave granted to the plaintiff to commence a common law proceeding for injuries suffered in a motor vehicle accident which occurred on 25 May 2015

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr T Nathanielsz	Slater & Gordon Ltd
For the Defendant	Mr C Blanden QC with Ms A Bannon	HWL Ebsworth

HIS HONOUR:

1This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The plaintiff in this proceeding, Ms Sandra Roberts, is a now 54 year old married lady with three adult children. She is currently employed full time as an executive assistant. She has a love of ballroom dancing and participated in and taught ballroom dancing for many years at a high level, certainly at a level beyond a simple fondness for the 1992 romantic comedy “Strictly Ballroom” as confessed to in opening by her senior counsel.[1]

[1]        Transcript (“T) 2, Lines (“L”) 28-29

2The plaintiff was involved in a transport accident on 25 March 2015 when a vehicle turned suddenly into the path of the car that she was driving in Wantirna (“the accident”).  The plaintiff has described it as a violent and frightening accident. 

3There is no argument that the accident occurred.  The plaintiff was not challenged as to the circumstances of it.  Equally, the defendant accepts that as a consequence of the accident the plaintiff suffered injury to her neck.

4The plaintiff claims that the injury to her neck is “serious” within the meaning of s93(17)(a) of the Act, namely a “serious long-term impairment or loss of a body function”. As she continues in full time employment of a similar nature to that which she performed before the accident, she relies on the pain and suffering consequences only.

5The plaintiff tendered affidavits sworn by her on 20 April 2017[2] and 19 August 2021.[3]  In addition she tendered an affidavit from her husband, Mr Garry Roberts, sworn 21 September 2021[4] and an affidavit from Mr Trevor Scott, a ballroom dancing colleague, sworn 3 November 2021.[5]  In addition the plaintiff tendered relevant medical reports and radiology.  She was the only witness required for cross-examination.  The defendant tendered relevant radiology, medical reports and clinical records.  I have taken into account the tendered evidence, as well as the transcript of the plaintiff’s oral evidence, but I shall refer to it only to the extent necessary in these reasons.

[2]Plaintiff’s Court Book (“PCB”) 12

[3]PCB 21

[4]PCB 26

[5]PCB 31

6I acknowledge the short and efficient cross-examination of the plaintiff, which was entirely appropriate bearing in mind the important but narrow issue in dispute in this proceeding, namely whether the plaintiff has and will continue to have symptoms in her neck which are “very considerable”.

7The injury is not really in dispute.  The plaintiff had an occasional episode of neck pain prior to the accident.  She was cross-examined on clinical records about those attendances and the fact that she underwent a CT scan of her cervical spine on 20 September 2013.[6]  In particular, she was cross-examined about a referral in December 2013 for myotherapy treatment.  In a report dated 3 December 2013,[7] Ms Danae English, myotherapist, records a referral from the plaintiff’s treating general practitioner regarding headaches and neck pain.  It was recorded that the plaintiff was suffering stabbing thoracic pain and chronic neck pain as well as tension headaches.  Ms English assessed the plaintiff and stated that it was her belief that with continued soft tissue work and stretching/corrective exercise, there was expected to be reduced acute pain and improved mobility in the thoracic spine.

[6]Defendant’s Court Book (“DCB”) 5

[7]PCB 39

8The general practitioner records[8] leading up to the referral to Ms English suggested that the plaintiff’s presenting complaints at that time were mostly to do with headaches and the plaintiff explained in her oral evidence that was ultimately a problem linked to a form of contraceptive pill that she was then prescribed.[9]  She said that the problem settled down once she stopped that medication and that is consistent with the clinical records, as there are no further complaints of neck pain in the 12 months or so leading up to the accident.  But, the defendant says that the evidence in clinical records and related reports raises as an issue the fact that the injury to the neck in the accident is an aggravation injury.[10]

[8]DCB 80-82

[9]        T20, L15-18

[10]        T27, L15-22

9Pausing, where the injury relied on is an “aggravation” then the aggravation injury must of itself be “serious”.[11]

[11]Petkovski v Galletti [1994] 1 VR 463

10The plaintiff was examined by the orthopaedic surgeon, Mr Peter Wilde, at the request of the defendant.  In a report dated 6 October 2021,[12] Mr Wilde sets out his examination of the plaintiff on 4 October 2021.  He sets out the documentation that he was provided which included the relevant clinical records and the report of Ms English.  Critically, Mr Wilde was also provided with all relevant radiology of the plaintiff’s neck performed pre and post the accident.  Having considered all of that material, Mr Wilde said –

“Ms. Sandra Roberts is a fifty-five-year-old woman who was involved in a significant motor vehicle accident on 24/3/2015. Details of the accident are described above. She injured her neck primarily and upper thoracic spine.  The diagnosis is aggravation of pre-existing mild asymptomatic cervical and upper thoracic spondylosis without radiculopathy. Also she may have bruised the left elbow and she demonstrates clinical left mild ulna neuropathy of the left elbow or sensory neuropathy of the left elbow.  Treatments tried are outlined above. She has not been referred for a surgical assessment or pain management.”[13]

[12]DCB 22; Exhibit P2

[13]DCB 27

11Mr Wilde said further in his report that –

“All the current symptoms are attributed to the motor vehicle accident as she did not have symptoms with her neck or upper arm prior to the motor vehicle accident.  Her current symptoms, radiology and various medical reports, including general practitioner’s records, are consistent with this conclusion.  There is past history of psoriatic arthritis affecting one finger (right 3rd finger) and the left knee which was managed pre-motor vehicle accident by Dr. Tony Kostos and Dr. Tim Bennet (rheumatologists).  She continues to take  small dose of Methotrexate daily.”[14]

[14]DCB 28

12The defendant says that Mr Wilde’s report should be seen in light of his history that the plaintiff had an asymptomatic neck prior to the accident, in circumstances where the clinical notes suggest otherwise.[15]  I disagree.  The clinical notes suggest sporadic attendances for neck pain, likely in fact linked to the headaches that the plaintiff was suffering, but in any event she was asymptomatic for at least 12 months or so prior to the accident.  Mr Wilde had all of the early material and so I accept his opinion that the plaintiff was asymptomatic at the time of the accident.  I accept his opinion that in the accident she aggravated pre‑existing cervical and upper thoracic spondylosis.

[15]        T27, L20-29

13It is unnecessary to deal with any of the remaining medical material regarding the plaintiff’s neck, save for completeness I note that her current treatment is with the general practitioner Dr Greg Field.  In a report dated 8 July 2021,[16] he stated that the plaintiff attends him on a fairly regular basis averaging two-monthly, mostly for cervical spondylosis and for prescriptions required to relieve symptoms related to this.  He notes referrals for treatment and describes treatment to date as involving “physiotherapy, anti-inflammatories, analgesics, antidepressants, antineuralgics, Circadin and Endep for sleep, and an antimigraine medication.”[17]

[16]PCB 64

[17]PCB 64

14In respect to medication, in her second affidavit the plaintiff describes ongoing use of Panadeine Forte and Panadol Extra and ordinarily she uses both those medications every day.[18]  She was not challenged about the use of that strong painkilling medication to manage her current neck symptoms.  There was certainly no suggestion she required it before the accident.

[18]PCB 22

15The plaintiff presented as a straightforward and reliable witness.  In my view she made appropriate concessions.  In judging the seriousness of the claimed injury and consequences, her credit is highly relevant.[19]  Of course in this application I also have the evidence of her husband and her dancing colleague, which corroborates her evidence.  I am satisfied that the plaintiff is a reliable witness.

[19]Johns v Oaktech Pty Ltd [2020] VSCA 10

16She was challenged, however, about the extent of an unrelated left knee condition and whether that would now prevent her from participating in her love of ballroom dancing.  The plaintiff did have symptoms in her left knee before the accident bad enough to require specialist referral to a sports physician, Dr Nick Van Wetering.  In a letter to the plaintiff’s treating general practitioner dated 22 July 2009,[20] Dr Van Wetering noted the referral to him for left knee trouble.  At that time, he noted various matters including that the plaintiff had danced the night before and could hardly walk following this.  Having conducted an assessment, he said at that time the plaintiff appears to have had definite signs of chondral injury of the medial and lateral patella.  He speculated that other structures in the knee could also be involved and noted her to be particularly tender around the proximal patella tendon and fat pad.  His suggestion at that time was radiological investigation of the knee.[21]

[20]PCB 36

[21]PCB 37

17The plaintiff returned to see Dr Van Wetering, having had an MRI scan of her knee.  By letter dated 28 July 2009 he again reported back to the plaintiff’s treating general practitioner.  He stated that the MRI scan unhappily confirmed that the plaintiff did have a focal area of lateral chondromalacia patellae.  He recorded a long discussion with the plaintiff and noted that “dancing is just too painful for her and she will need to refrain from this” and that he discussed “the possibility of arthroscopy, chondroplasty and chondrocyte grafting” and that he would like to review her in about six weeks.[22]

[22]PCB 38

18There is no evidence that the plaintiff ever returned to see Dr Van Wetering.  She may have refrained from dancing at that point in time but equally the evidence reveals that she returned to her love of ballroom dancing and continued to engage in it and teach it leading up to the accident.  She describes in her first affidavit how she was very much involved in ballroom dancing and loved dancing and in fact taught it two or three evenings each week and on occasional weekends.  It was a significant social outlet for her.  This evidence is confirmed by Mr Scott.  In her second affidavit the plaintiff notes she has not been able to return to her lifelong passion of ballroom dancing or teaching and continues to suffer from lost social connections as a consequence.[23]

[23]PCB 33

19The defendant noted that the plaintiff had a flareup of the left knee symptoms in late 2017/early 2018, seemingly related to her underlying psoriatic arthritic condition.  The plaintiff gave evidence of treatment for that and a referral to a consultant physician Dr Farshad Ghazanfari, who arranged radiologically guided aspiration of the knee.  She was prescribed and continues to take Methrotrexate to manage that condition.  She said that the left knee symptoms settled down.[24] That evidence is consistent with the opinion expressed by Dr Ghazanfari on 17 April 2018 that “In terms of her knee she reports no symptoms and no stiffness” and that “there is no evidence of active arthritis”.[25]

[24]        T17, L3-5

[25]        PCB 63

20The defendant submitted that the combination of the opinion from Dr Van Wetering in 2009 and the flareup of symptoms in late 2017/18 in the left knee is such that the plaintiff would not now be able to engage in her love of ballroom dancing.[26]  I do not accept that submission.  Firstly, there is no medical opinion that supports it.  There is simply no medical opinion that says the plaintiff’s left knee condition would have meant she could not continue to participate in ballroom dancing.  Secondly, it is a submission that is inconsistent with the fact that the plaintiff returned to ballroom dancing and teaching at a frequent level in the years leading up to the car accident and she was not challenged about her ability to engage in dancing.  It was not put to her that she had an ongoing left knee problem which in some way was impacting on her dancing before the accident.  The whole of the evidence tends to the conclusion that ballroom dancing and teaching was something that the plaintiff loved and she had to give it up because of her neck injury, for the reasons given in re-examination as follows:

“So when you teach – when you dance, you have to hold your own arms up at shoulder level, that’s something I can’t do any more for any length of time, or I find it very hard to do, it causes me a great deal of pain. And when you are dancing with someone else, particularly a beginner, they tend to lean on you when you dance. So that puts added pressure on my arms and shoulders, increasing the amount of pain caused to my neck and shoulders.”[27]

[26]        T27, L1-10

[27]        T19, L23-31

21The remaining issue then is simply whether or not the plaintiff can demonstrate that she has a “very considerable” consequence.  Firstly, I accept that she has ongoing neck pain for which she requires strong painkilling medication.  I accept that it caused her to give up her love of ballroom dancing.  I also accept that she has the consequences otherwise as set out in her affidavits and in particular she now struggles with domestic tasks around the home and requires help from family.  She is restricted for activities such as hanging the clothes which require her to lift her arms above her head for prolonged periods.  She has difficulty with vacuuming and sweeping.  The personal aspect of her relationship with her husband has been affected.  She continues to undertake exercises as taught to her to try and maintain strength in her upper back and shoulders.   Her sleep is impaired.  She requires regular GP attendance.  She was not really challenged otherwise as to the matters set out in her affidavits. 

22The defendant submitted that all things considered the plaintiff’s injury just did not meet the statutory threshold of “serious”.[28]  I disagree.  The accident occurred some 6 ½ years ago.  The plaintiff is still only 54 years of age.  There is no suggestion of anything other than that she will have ongoing neck pain with the restrictions already discussed.  When all of those matters are taken into account and bearing in mind the need to take into account the broad range of injuries and impairment consequences and not just those that come before the Court,[29] I am satisfied that the plaintiff has demonstrated “very considerable” pain and suffering consequences from the neck injury.

[28]        T30, L15-18

[29]TTB SMS Pty Ltd v Reading [2020] VSCA 203

23Accordingly, leave is granted to the plaintiff to commence a common law proceeding for injury suffered in the motor vehicle accident which occurred on 25 March 2015.

24I shall hear from the parties as to consequential cost orders.

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