Robyn Huf v Transport Accident Commission
[2012] VCC 995
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01784
| ROBYN HUF | Plaintiff |
| v | |
| GORDANA BOSNJAK | First defendant |
| TRANSPORT ACCIDENT COMMISSION | Second defendant |
---
JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 April 2012 | |
DATE OF JUDGMENT: | 20 July 2012 | |
CASE MAY BE CITED AS: | Robyn Huf v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 995 | |
REASONS FOR JUDGMENT
---
Catchwords: S 93(17)(a) Transport Accident Act 1986 – Serious injury – Loss of body function - Injury to the spine – Neck and lower back – Pain and suffering and pecuniary disadvantage – pre-existing symptomatic degenerative disease
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram with Ms A. Ryan | Melbourne Injury Lawyers |
| For the Defendant | Mr J. Ruskin QC with Mr N. Wolski | Lander and Rogers |
HER HONOUR:
The application
1 By originating motion filed on 20 April 2011, the plaintiff seeks leave under section 93(4) of the Transport Accident Act 1986 (“the Act”) to bring common law proceedings to recover damages for pain and suffering and pecuniary loss, in respect to injury sustained as a result of a transport accident on or about 20 September 2002. According to the plaintiff on this date, another vehicle driving on the wrong side of the road collided with a vehicle driven by the plaintiff (the ‘accident’).
2 The defendants did not contest counsel's submission that this was a head-on collision of significant force[1] or, indeed, the plaintiff’s claim that her vehicle was severely damaged and a write-off and that she had suffered a whiplash type injury to her neck.[2]
[1]Transcript ("TN") 84-85
[2]Exhibit P1, 9[10]
The evidence
3 The plaintiff tendered two affidavits sworn on 11 June 2010 and 15 March 2012, and she was cross-examined. That the plaintiff likely suffered from symptomatic degenerative disease affecting her spine was not challenged. Her credit was not directly challenged either. Counsel for the defendants nevertheless drew the Court's attention to "some inaccuracies with respect to the history.[3] From my assessment of her evidence the plaintiff presented as a straightforward and credible witness. This is not to deny however that in recounting her medical history to doctors, the plaintiff more often than not failed to mention earlier treatment or symptoms affecting her cervical spine or she gave the impression that these symptoms had been minimal.
[3]TN 23.
4 The plaintiff also relied on the unchallenged evidence of her friend, of some 27 years, Andrea Joy Kettle, contained in her affidavit sworn on 15 March 2012. In addition to this evidence, the plaintiff tendered her Court Book comprising:[4]
[4]Exhibit P1
(a) Various medical reports relating to the treatment of her spine.
(c) Her claim for compensation.
(d) Report of physician specialising in sports medicine, Dr McGivern, dated 12 March 2008.
(e) Report of chiropractor, Dr Werth, dated 28 October 2009.
5 The defendants called no evidence. The defendants tendered the plaintiff's Summary of Taxation Returns,[5] extracts from their Court Book consisting of the initial medical certificate dated 21 September 2002 from the Royal Melbourne Hospital recording minor soft tissue injury to the plaintiff’s cervical spine, chest wall and left hand and certifying her as unfit to work until 14 October 2002 inclusive, a number of medical reports and the results of radiological investigations,[6] and the particulars of injury filed by the plaintiff on 12 September 2011.[7]
[5]Exhibit D1
[6]Exhibit D2
[7]Exhibit D3
The Legislation
6 Section 93(6) of the Act provides that, before granting leave under section 93(4)(d), I must be satisfied the injury is a ‘serious injury’ within the meaning of section 93(17) of the Act, namely:
(a) serious long-term impairment or loss of a body function; or
(b) …;
(c) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) … .
7 In the particulars of injury filed by her in September 2011,[8] the plaintiff relied on both paragraphs (a) and (c) of the definition of serious injury, namely:
[8]Ibid
“A. Injury to the cervical spine involving aggravation of spondylosis at C4-5, C5-6 and C6-7, right sided C6-7 posterolateral disc prolapse and foraminal stenosis at C4-5 and C5-6.
B. Chronic adjustment disorder with anxious mood and features of traumatisation consistent with partial post-traumatic stress disorder.”
8 The plaintiff abandoned her application under paragraph (c). Accordingly, in this application serious injury is determined by considering the consequences of an injury-related impairment or loss of body function.
9 In opening the plaintiff's case, her junior counsel, Ms Ryan nominated injury to the plaintiff's spine (lumbar and cervical spine and in particular to her cervical spine) as the body function on which the plaintiff relied under section 93(17)(a) of the Act, submitting that injury to her spine had resulted in a serious long-term impairment or loss of this body function. She clarified this by saying that the plaintiff would rely on right-sided nerve root impingement at the C4 level, probable disc prolapse at the C6-7 level and foraminal stenosis at the C4-5 and C5-6 levels[9] and by indicating that the condition of the plaintiff’s lumbar spine had improved, such that the focus of her application was on the injury to her cervical spine.[10]
[9]TN 3
[10]TN 4
The issues
10 It was common ground that the applicant suffered injury to her neck in the accident. Moreover, it was not challenged by the defendants that ‘the plaintiff’s condition post accident, in terms of symptoms, whatever their cause, is different and worse than it was pre-accident.’[11] The real dispute at hearing of this application was centred on the neck injury.[12] The questions that were asked of me were:
[11]TN 54 and 60.
[12]TN 58.
· whether the plaintiff’s neck symptoms at the time of hearing were caused by the accident? In other words to what extent, if any, was the accident a cause of her continuing problems, rather than the degenerative process to which some of the doctors attribute responsibility?[13]
· and, if I found her neck symptoms to be caused by the accident, whether, at the time of hearing, the plaintiff experienced consequences as a result of her injury that met the definition of ‘serious,’ (can be fairly described as at least "very considerable") as interpreted by the Victorian Court of Appeal in Humphries v Poljak[14].
[13]TN 8
[14][1992] VR 129.
11 The principal submission made by Mr Ruskin QC, for the defendants, was that, ‘in respect to the neck it must be a Petkovski case,’ that is ‘an aggravation case.’[15] Pursuant to Petkovski v Galletti[16] the plaintiff was required to establish what injury had been caused by the accident, to establish the extent of impairment of her spine before and after the injury, and to show that any additional impairment of the function of her spine was, at the date of hearing, both long-term and serious in its consequences.
[15]TN 60.
[16][1994] 1 VR 436, 444 and see also De Agostino v Leatch & Another [2011] VSCA 249, [60] and AG Staff v Filipowicz [2012] VSCA 60 [26]
12 Relying in the main on the evidence of pre-existing degenerative disease (confirmed by the result of x-ray film obtained in April 2002) counsel submitted that, for many years prior to the accident, the plaintiff had suffered from a symptomatic degenerative condition affecting her neck which was likely to continue to impair this body function on a long-term basis. Alternatively, any aggravation or exacerbation of this degenerative disease caused by the accident did not of itself constitute ‘serious injury.’
The lumbar spine
13 As to the role, if any, played by the transport accident in also rendering symptomatic the plaintiff's degenerative lumbar spine, in her affidavit sworn on 14 June 2010 and filed in support of this application the plaintiff deposed (without nominating when post-accident she had first experienced low back pain) that increasing problems with her lower back had prompted a medical practitioner, Dr Tran to refer her for lumbar CT scans. No evidence was before the Court from Dr Tran. However, these images, obtained on 24 October 2006, so the plaintiff said, had revealed "degenerative disc changes throughout the lumbar spine with some L1-2, L2-3 and L4-5 canal stenoses as well as mild L5-S1 facet degeneration but no other significant abnormality…"[17] Accordingly, notwithstanding the likely late emergence of these, the plaintiff attributed persistent problems of increasing severity in her lumbar spine, not relieved by a hysterectomy in June 2009, to injury suffered in the accident.
[17]Exhibit P1, 11 [17]
14 It appears that on 8 September 2009 another treating general practitioner, Dr Barson, who has treated the plaintiff’s neck condition since 2004, obtained CT scans of the plaintiff’s lumbar spine which, according to the radiologist's report, revealed: "Multilevel degenerative disc disease. At L5-S1 endplate osteophytes and facet joint hypertrophy combine to produce mild bilateral foraminal stenoses. Disc bulges at L3-4 and L4-5 produce mild indentation of the theca."[18]
[18]Exhibit D2, 50
15 The two reports and correspondence from Dr Barson addressed to the plaintiff's solicitors in March 2010, March 2012 and April 2012 respectively[19] each focus on treatment of ongoing symptoms of injury to the plaintiff's neck and a driving phobia. Notably, from as early as March 2010 Dr Barson advised the plaintiff’s solicitors that, in consultations closer to the time of the accident, the plaintiff had not complained about low back pain and had indicated to this doctor that she was not convinced that her low back pain was any worse than before the accident.[20]
[19]Exhibit P1, 29-34
[20]Ibid, 29
16 Moreover, when in 2012 Dr Barson was specifically asked by the plaintiff's solicitors whether the accident was a cause of the plaintiff's "neck and or back condition", this treating doctor ignored any lower back complaint and said that the accident was likely causative of the plaintiff's current neck symptoms and had triggered her driving phobia.[21]
[21]Ibid, 32-33
17 MRI investigation of the lumbar spine obtained by the treating chiropractor, Dr Bartolo on 16 September 2009 revealed:[22]
[22]Exhibit D2, 51
"1. Multi level degenerative spondylosis of the lumbosacral discs.
2. Small left L1/2 posterior paracentral disc protrusion indenting the theca. Small posterocentral T11/T12 disc protrusion.
3. Mild diffuse circumferential disc bulging at L3/4 and L4/5 causing minor lumbar canal stenosis. Moderate bilateral L4/5 flaval hypertrophy and mild degenerative facet joint arthritis.
4. Small broad posterior central L5/S1 disc protrusion causing mild lumbar canal stenosis and contacting traversing S1 nerve roots."
18 Interestingly enough, until he submitted his reports to the plaintiff's solicitors in March 2010 and in March 2012,[23] the chiropractor, whose multiple reports are discussed in more detail below, never mentioned in his earlier reports to the Transport Accident Commission ('the TAC') that he had also treated the plaintiff for back pain caused by the accident.
[23]Exhibit P1, 40-60
19 In any event, in 2009 the plaintiff obtained a referral from her mother's general practitioner, Dr Coughlan, to neurosurgeon, Professor Kaye. He examined the plaintiff on 5 October 2009, at which time, Professor Kaye appears to have taken into account the CT and MRI imaging of the plaintiff’s lumbar spine in 2009.
20 Among other things, Professor Kaye noted a past history of a motor vehicle accident in 2002 in which the plaintiff sustained a whiplash type neck injury. However, at the time of his examination the plaintiff presented with a largely asymptomatic back condition, reporting that her back pain had commenced in January 2009. Professor Kaye recommended conservative management of the plaintiff’s lumbar spine condition (described by the plaintiff as pain in her lower lumbar region which radiated to the lateral aspect of her thigh and calf) with review in six months time should her condition not be significantly improved.[24]
[24]Ibid, 13-14
21 Under cross-examination the plaintiff agreed that:[25]
[25]TN 33- 35
· The injury suffered in the transport accident had been to her neck, not her back ("Not that I know of").
· The worsening of her back pain in 2009 was sufficiently worrying for her to see Professor Kaye.
· In August 2010 she told neurosurgeon, Mr Klug that her lower back complaint had not significantly worsened. However, some time "in 2009 she woke one particular day and noticed increased pain in her low back with spread of pain to the right lower limb and right groin. As far as she was aware the onset of this pain was not associated with any particular activity."[26] Notably, whilst Mr Klug was not prepared to exclude the possibility that the accident had also aggravated a pre-existing lower back disorder for which the plaintiff had required chiropractic treatment some six times each year,[27] he clearly felt that on balance, any ongoing symptoms were due to progression of the underlying degenerative disorder.[28]
· In March 2012 she told the defendants' orthopaedic surgeon, Mr Dickens[29] that her low back pain had been present since 2009 (although at hearing the plaintiff made it clear that this was because it was an acute episode, not because she had not previously suffered lower back pain) and that following a hysterectomy her back pain was very much better. Notably, Mr Dickens was not satisfied that the condition of the plaintiff's lumbar spine was related to the accident.[30]
· Following the hysterectomy, her back pain was very much better. The plaintiff attributed this to the passing of time and compliance with Professor Kaye's recommendations to lose weight and exercise.
[26]Exhibit P1, 108
[27]Ibid, 119
[28]Ibid, 111
[29]Exhibit D2, 25
[30]Ibid, 27
22 Whilst not entirely abandoning the application in respect to her lumbar spine, in his closing counsel for the plaintiff, Mr Ingram, confirmed that “principally” the dispute was “about the neck.”[31]
[31]TN 84 and 100.
23 Having considered all of the evidence, the plaintiff failed to satisfy me that there existed a causal relationship between the transport accident and the symptoms that emerged some years later affecting this level of the plaintiff's spine. In these circumstances, my reasons for judgment are focused on the evidence regarding injury to the plaintiff's cervical spine and its sequelae.
The plaintiff’s background and employment history
24 The plaintiff’s background may be summarised as follows. The plaintiff is 50 years of age. She has been married twice. She has three children – two from her first marriage and one from her second marriage.
25 The plaintiff was educated to Year 11 level. She commenced a hairdressing apprenticeship and worked as a hairdresser between 1982 and 1983. She ceased work prior to the birth of her eldest child.[32] Between 1984 and 1994 she worked in a secretarial capacity for her first husband, having a second child in 1987. She then participated for a period of about four or five years in her second husband’s landscaping business and in 1997, her youngest son was born.
[32]TN 6.
26 In 1999, the plaintiff and her husband opened the Old Strathmore Bakery where she worked for about 30 to 36 hours per week as a bookkeeper and shop assistant. She also did some hairdressing work as a hobby. The plaintiff deposed that as a result of the accident she took some months off work, after which she returned on reduced hours, but struggled to cope. [33]
[33]Exhibit P1, 9 [7], [12] and [17].
27 The business was sold in July 2007.[34] According to the plaintiff, between August 2007 and 2009 she worked as a part-time shop assistant, three days per week, at a newsagency. Without differentiating between neck and back pain, the plaintiff deposed that from 2009 increasing pain forced her to reduce her days of work to two days per week, for eight hours a day. She also deposed to having minimised her hairdressing hobby. Counsel for the plaintiff submitted that the Court should infer that the reduction in the plaintiff’s working hours was mainly driven by neck pain.
[34]Ibid, [26]
28 In cross-examination the plaintiff attributed the sale of the business to a combination of factors – very long working hours for her husband, their belief that, after nine and half years of operation the business had peaked and required investment of more money to hire other employees and their inability to put more effort into the business.[35] So far as the plaintiff's contribution was concerned she felt that she could not do more in the business because, at the time, she was also “running” a family of three children (aged between 2 and 15 years) and her work capacity was limited by pain.
[35]TN 39
29 However, whilst at hearing the plaintiff appeared slow to accept this, she nonetheless agreed that, in August 2010, she told Mr Klug, that the decision to sell the business was in no way related to any sequelae or consequences from her injury.[36]
[36]TN 39-40 and Exhibit P1, 108
30 Whatever the state of the plaintiff's recall at the time she spoke to Mr Klug, the history of her treatment and the complaints made, as recorded by the chiropractor, particularly in correspondence sent by him to the TAC on 8 September 2005, 16 August 2006 and 11 September 2009 tell a different story. This correspondence indicates that both before and after the sale of the business the plaintiff reported and received treatment (which included an 8 month trial of acupuncture treatment in 2007) for injury-related poor neck function.[37] For instance, Dr Bartolo advised:
· in August 2006 that, "During the course of 2005 and 2006 Robyn's treatment needs have not varied. Robin continues to need to manage her poor neck function which impacts heavily on her normal activities of daily living. Robin is trained as a Hair Dresser and only completes 4 to 6 clients per week in an extremely spread out manner as a result of her neck complaint. Robin also helps her husband in the family business (Bakery) however she is only able to manage short shifts at the counter selling and definitely no heavier lifting where the baking occurs…;"[38] and
· in September 2009 that, the plaintiff was unable to pursue a career in hairdressing because she could only tolerate 4 to 6 haircuts per week spread out over many days, if she saw three hairdressing clients on a single day, even simpler styling and cutting activities escalated her symptoms and even light work over an eight hour shift in her part-time newsagency customer service job "almost guaranteed significant neck pain" and precluded later engagement in home duties.[39]
[37]Exhibit P1, 42-47 and 50-52
[38]Ibid, 46
[39]Ibid, 51
31 Accepting for the moment that her symptomatic neck condition likely contributed to the plaintiff's decision in 2007 to sell the bakery, the link between this condition and her decision in 2009 to reduce her days of work to 2 days per week is less straightforward due to the likely contribution of her back condition. For instance, the plaintiff's responses to cross-examination and re-examination indicate that this decision was, as the plaintiff also told Mr Dickens in February 2011, the result of increasing back problems and a need to recuperate after undergoing a hysterectomy.[40] Indeed the plaintiff told the Court that two days per week was all she felt she could cope with.[41] However, the plaintiff also made clear that her impaired neck function (stiffness, pain and problems concentrating) were responsible for the ongoing reduction in the days worked.[42]
[40]TN 40 and 43 and Exhibit D2, 19
[41]TN 43
[42]TN 43-44
32 Currently, in addition to working part-time with the newsagency the plaintiff also keeps the books (“just putting figures in the computer” at home[43]) for her husband’s business as a sub-contract labourer and she splits income with him. Accordingly, leaving to one side the income earned in each year since the accident,[44] I was satisfied that as claimed, ongoing impaired functioning of the plaintiff’s neck probably has interfered with the plaintiff’s work capacity to a material degree.
[43]TN 41-42
[44]Exhibit D1
The consequences ascribed to injury to the plaintiff's cervical spine
33 Leaving to one side for the moment the question of whether or not the plaintiff's current condition is due solely (or mostly) to constitutional factors, as I have already noted, at hearing the plaintiff relied on the comparatively significant increase in her reported symptoms and treatment and impaired functioning (affecting her work, domestic and recreational activities) to establish impairment that for the purposes of the Act was in its consequences serious.
34 For instance, the plaintiff deposed to:[45]
[45]Exhibit P1, 13-14 [23], [25]-[27] and 17 [2], [4]-[7]
· symptoms which include constant but variable neck pain extending to her right shoulder and arm to the extremity of her arm with intermittent numbness affecting the fingers of her right hand. The plaintiff also mentioned lesser pain extending through into her left shoulder. She linked the effect of the injury on her right arm and hand with a tendency to drop things from her right hand. The plaintiff also said that despite using night strength Mersyndol, she experienced increasingly disturbed sleep and difficulty in getting comfortable in bed.
· Experiencing frequent, virtually daily headaches which can last for hours at the time. If at home, these headaches are treated with medication and rest, although the plaintiff said that when at work she continued working notwithstanding pain. Allowing for both her responses under cross-examination and the medical evidence I was satisfied that before and since the accident the plaintiff has suffered migraine headaches, on average, a couple of times a year which "knocked" her out for the day and require strong pain killing medication and rest.[46] However, the headaches to which the plaintiff deposed in her affidavit are cervicogenic headaches which she and her treating doctors attribute to the injury to her neck.
[46]TN 29
· Requiring medication (which I infer was used principally to treat neck pain) depending on the severity of her symptoms 2 to 6 Nurofen tablets daily and 1 to 2 Mersyndol tablets 4 to 5 nights per week and the anti-inflammatory, Voltaren (non-prescription) as required.
· Requiring regular treatment from both her chiropractor and acupuncturist every 3 to 4 weeks and attendance on her general practitioner, Dr Barson as required.
· Problems at work and a need to rest the following day because she has to stand for most of the day, although with a sympathetic employer she is able to avoid heavy lifting tasks at the newsagency.
· Restrictions on her social, recreational and domestic activities inasmuch as sitting or standing for extended periods apparently increases her levels of pain and she needs to avoid lifting tasks wherever possible.
35 The affidavit sworn by the plaintiff’s long-standing friend,[47] generally supported the plaintiff’s evidence that she no longer functions as well as she did before the accident. For example, the plaintiff restricted her driving to short trips only, she needed to be driven to appointments, on numerous occasions she had observed the plaintiff taking medication and the plaintiff frequently complained of pain, restriction and severe headaches which she attributed to particularly her neck injury.
[47]Exhibit P1, 20
36 Had there not been evidence of radiological investigation of the plaintiff’s neck in the months preceding the accident, Ms Kettle’s declaration of her belief that prior to injury the plaintiff had not suffered any disability affecting her neck, may have carried more weight.
37 The consequences described above, on which the plaintiff elaborated during medical examinations were largely unchallenged, no doubt because the defendants submitted that the plaintiff’s symptoms were either solely or mostly driven by the underlying disease process affecting her spine. Nevertheless, if, so the defendants submitted, the accident continued to contribute to these symptoms, albeit to a small extent, the consequences of impairment due to the aggravation injury were not at least very considerable.
Pre-existing history of back problems prior to September 2002
38 At this juncture it is convenient to discuss the plaintiff’s pre-existing back and neck condition. The TAC form for compensation indicated, among other things, that before the accident, the plaintiff suffered from lower back pain and neck pain for which she had required treatment from a chiropractor or physiotherapist.[48] Whilst the plaintiff was unable to recall completing the form she nevertheless agreed that the form was signed by her and its content was true and correct. [49]
[48]Exhibit P1, 150-161 and TN 31.
[49]TN 32
39 Both through her affidavit and oral evidence the plaintiff acknowledged earlier back and neck problems, (the latter associated with occasional migraine headaches) which from time to time (approximately 3 to 4 times per year) required visits to her chiropractor, Dr Bartolo. Her problems were however, “more often than not” in her lower back and involved occasional "general stiffness" and "tightening" brought on by hairdressing, house work or doing too many chores all at once. The symptoms, she added, were treated with massage and "on occasions a manipulation". [50]
[50]Exhibit P1, 8, [5] and TN 23-24
40 When cross-examined about chiropractic treatment for her neck, the plaintiff responded by saying that she had seen Dr Bartolo a few times a year for a stiff or "achy" neck and at these sessions, “[t]here would have been occasions when he would have manipulated my neck but more often than not it was just massage… And like stretching.”[51] The plaintiff also spoke of the migraine headaches suffered by her both before and since the accident, which as I have said, were distinguishable from the "frequent, virtually daily, headaches.." experienced by her since the accident.[52]
[51]TN 24-25
[52]Exhibit P1, 17 [2]
41 Some five months prior to the accident, Dr Bartolo referred the plaintiff for an x-ray of her cervical spine. Uncontroversially, this showed evidence of degenerative disease reporting:
“… Moderate degenerative change in the mid and lower cervical region with some loss of disc height and early osteophyte formation from C4/5 down. There are no cervical ribs and the intervertebral foramina are all of a good size. There is no bone destruction or bony canal stenosis. There is splinting of the mid cervical region.
COMMENT: Early to moderate degenerative change in the mid and lower cervical spine.”[53]
[53]Exhibit D1, 42.
42 The plaintiff could not recall this investigation, the nature of her complaints in April 2002 or any discussion of the results of the investigation with her chiropractor (“My recollection is no, but upon reading the information I did have an x-ray prior to the accident”[54]).
[54]TN 25-26
43 I think it clear from the plaintiff's evidence and the histories obtained by a number of the medico-legal specialists many years after the accident (as for example, specialists retained on behalf the plaintiff, neurosurgeons, Mr Klug and Mr Brownbill and orthopaedic surgeon, Mr Khan[55]) that when asked about her past medical history, the plaintiff had not recalled any prior neck problems or investigation of her cervical spine. This could be due to the passage of time or, as her counsel submitted, because of the minor nature of the problems experienced prior to the accident. However, in as much as the symptoms in the plaintiff’s neck, not her back, had warranted radiological investigation in the months preceding the accident, I was not satisfied that her symptoms were appropriately characterised as "minor".
[55]TN 26-29
44 Whatever the reason may be, as a consequence of the plaintiff’s failure to relate her earlier medical history, many of the doctors including some treating doctors and medico-legal specialists have based their opinions on an incomplete history. This is not to say however that, when formulating their opinions, each doctor was not aware that any injury suffered was likely superimposed on an already degenerate cervical spine, rather many proceeded on the incorrect assumption that the plaintiff's condition had been asymptomatic (or as rheumatologist, Mr Stockman said after assessing the plaintiff in November 2011 at the request of her solicitors, “virtually asymptomatic”[56]) and without the advantage of considering the underlying pathology post-accident together with that reportedly shown by the April 2002 film.
[56]Exhibit P1, 78
45 In any event, as I have already said, in this application the plaintiff relied on the evident contrast between what her counsel described as relatively modest pre-accident pathology and symptoms affecting her neck and the plaintiff’s symptoms and treatment post-accident, which I discuss next[57] ("I can't remember the symptoms back in 2002 because the symptoms now are currently – they’re daily, they’re nightly, they’re waking me up at night. Compared to back then, they weren’t like that or else I would have remembered them"[58]).
[57]TN 87-88
[58]TN 45
Treatment and early medico-legal assessment
46 As a result of the accident, the plaintiff was transferred by ambulance to Royal Melbourne Hospital and kept overnight for observation. Radiological investigations, including x-ray film and CT scans of the plaintiff’s cervical spine were obtained. The latter (as amended) among other things, reported: "Narrowing of the C4/5 and C5/6 discs is evident. There are small marginal osteophytes posteriorly at C5/6. No significant disc protrusion is evident. There is no bony or soft tissue foraminal narrowing of significance at any level." [59] The plaintiff was given a hard cervical collar to wear.[60]
[59]Exhibit D2, 43
[60]Exhibit P1, 9 [10]
47 Within a week, at the request of her treating chiropractor, Dr Bartolo, the plaintiff underwent further x-ray examination of her cervical spine.[61] This again revealed degenerative pathology - "There is disc narrowing between C4 and C7 with a little marginal osteophyte formation around endplate. There is little restriction of movement on flexion and extension at these levels. Nerve root foramina are patent and there are no cervical ribs. The atlanto-axial joint is normal."
[61]Exhibit D2, 45
48 Between 30 September 2002 and 10 October 2002, general practitioner, Dr Zagarella, treated the plaintiff for ongoing musculoskeletal problems following the accident.[62] Initially she presented with neck and arm pain for the treatment of which he prescribed gentle physiotherapy and muscle relaxant anti-inflammatory medication. During further consultations on 3 and 10 October 2002 the plaintiff apparently indicated some improvement (although on the last of these dates she complained of elbow pain and some tingling in the arms and, on examination, the doctor found "some restriction of lateral neck movements related to pain").Dr Zagarella recommended ongoing physiotherapy.
[62]Exhibit P1, 35-39
49 On 8 October 2002 the plaintiff attended the Trauma & General Surgery Clinic at The Royal Melbourne Hospital. The Intern who conducted the review reported,[63] among other things, that the plaintiff had: "recovered well since her discharge and she really now complains of only mild general tenderness. On examination today, a neurological examination was performed which was normal. The only symptom was some mild external tenderness. On examination of her neck, she had no midline tenderness and a good range of movement of her neck with no neurological symptoms." On this occasion it was recommended that the plaintiff continue to wear a soft collar for another week and at the end of this period return to Dr Zagarella for review.
[63]Exhibit D2, 11
50 Between 9 December 2002 and 5 June 2003 there were 7 further consultations with Dr Zagarella for treatment of other conditions, including treatment of the plaintiff's emotional state due to relationship problems. According to this general practitioner, during these consultations the plaintiff had not presented with ongoing neck or arm problems, nor had she requested the provision of any further medical certificates. The latter evidence accords with the plaintiff's evidence that she returned to work within months of the accident.
51 However, there appears to have been a hiatus of some 6 to 8 months before in early 2004 the plaintiff commenced seeing another general practitioner, Dr Barson to treat her neck condition and driving phobia. Whilst the plaintiff attributed this delay to problems in obtaining an appointment with Dr Zagarella this does not explain the likely failure to discuss her neck condition in the six months during which she consulted with him between December 2002 and June 2003. In drawing attention to this, I have also taken into account the indication in the materials that throughout this period, the plaintiff probably did as claimed, continue to receive regular chiropractic treatment. This suggested to me that her failure to seek ongoing medical treatment from her general practitioner probably had more to do with the plaintiff’s preference for chiropractic treatment, than with any alleged difficulty in obtaining an appointment with her doctor.
52 Sixteen months after the transport accident the results of CT scans of the cervical spine obtained at the request of Dr Barson on 19 February 2004 were reported as showing mild or minor cervical canal stenosis and suspected disc prolapses at levels C3/4 to C6/7. MRI investigation was recommended.[64]
[64]Exhibit P1, 25-26
53 However, the radiologist's report following MRI imaging obtained by Dr Barson on 24 March 2004, whilst confirming the CT findings of mild central canal stenosis at four levels and noting mild foraminal stenosis at the left C4/5 and C5/6 and right C6/7 levels, nevertheless reported no evidence of cervical cord compression or impingement to the exiting cervical nerve root or abnormal cervical cord signal.[65]
[65]Ibid, 27
54 Neurosurgeon, Mr Thien examined the plaintiff once on 9 July 2004[66] on referral from Dr Barson, ostensibly to determine whether surgery was warranted. He was not given a past medical history of any condition affecting the plaintiff’s neck or back.
[66]Ibid, 70-73
55 Based on this single consultation, when he reported to the plaintiff’s solicitors in March 2010, Mr Thien opined that a flexion-extension injury suffered as a result of the accident had aggravated cervical degenerative spondylosis and that this condition was further aggravated by the plaintiff's work, requiring as it did, prolonged neck flexion. He predicted ongoing variable pain, which he hoped would reduce in severity with the passage of time.
56 Notably, when Mr Thien examined the plaintiff, among other things, he concluded that:
· the MRI scans revealed "a moderate degree of spondylosis without evidence of canal stenosis in the mid-cervical spine at C4-5, C5-6 and C6-7. In particular, I also noted a right-sided C6-7 posterolateral disc prolapse. There was also foraminal stenosis, which appeared reasonably symmetrical at C4-5 and C5-6." This appears to be the interpretation of the images on which the plaintiff relied in her particulars of injury outlined at the commencement of this judgment. Accordingly, whilst the earliest CT scans obtained by the hospital and mentioned above, had not ruled out disc protrusions (“No significant disc protrusion is evident”), some 16 months after the accident, MRI imaging reportedly showed prolapse at the C6-7 level of the cervical spine. At least one of the plaintiff’s medico-legal specialists, orthopaedic surgeon, Mr Khan, who also had Mr Thien’s report, appears to have relied on some of the radiology when he concluded that mild to moderate disc prolapses were caused by the accident.[67] However, in the absence of further expert consideration of the radiology including the most recent images, I am unable to conclude that the accident likely caused the disc pathology to which Mr Thien referred.
[67]Ibid, 98
· Ongoing treatment with the plaintiff's chiropractor was appropriate, as was the plaintiff's use of analgesic and anti-inflammatory medication.
· The self-employed plaintiff was managing her workload.
· Whilst there was restriction of the plaintiff's ability to enjoy social and recreational activities this had not appeared to him to be having a major impact.
· The plaintiff would have ongoing issues with pain with no certainty of it settling over the years to come.
57 Some six months after Mr Thien's assessment orthopaedic surgeon, Mr Dooley examined the plaintiff at the request of the TAC.[68] Notably, when he assessed the plaintiff Mr Dooley:
[68]Exhibit D2, 2-5
· was informed by the plaintiff that prior to the accident she had chiropractic treatment for both low back pain and intermittent cervical spine pain and migraine headaches.
· Did not appear to have any earlier film/reports or the results of the MRI investigation in 2004. However, based on the CT scans obtained in February 2004 Mr Dooley noted degenerative change and disc bulges without any evidence of definite nerve root entrapment.
· Concluded that the mechanism of the accident was consistent with a soft tissue injury to the plaintiff's cervical spine involving musculoligamentous damage and aggravation of pre-existing and previously symptomatic degenerative disc disease.
· Found the plaintiff to be a sensible and genuine historian whom he did not believe to be exaggerating her symptoms. This favourable assessment of the plaintiff's presentation is repeated throughout the medical evidence.
· Expressed his view that as a general rule it was reasonable to fund chiropractic treatment for up to three years after the accident and in this case at three weekly intervals.
58 By a letter dated 20 January 2006 Mr Dooley indicated his support for ongoing chiropractic treatment once every three weeks, as well as participation in a gymnasium program.[69]
[69]Ibid, 6
59 The plaintiff was next examined by Mr Dooley on 2 November 2006 at which time he:[70]
[70]Ibid, 7-10
· endorsed ongoing chiropractic treatment once every three weeks because, by her account, this improved the plaintiff's pain, decreased the need for analgesic intake and allowed her to keep working in the family bakery. I note in passing that the plaintiff’s reports in this regard are consistent with her claim that her symptomatic cervical spine had impacted on her capacity to work in the bakery business prior to its sale.
· Accepted that the plaintiff's cervical spine pain was mediated by organic factors and that her orthopaedic injury was stabilised.
· Essentially reiterated his earlier diagnosis, adding his opinion that, the plaintiff would continue to note intermittent cervical spine pain, although Mr Dooley did not expect her current condition to deteriorate with time. I took the latter to mean that Mr Dooley did not expect the plaintiff’s condition to alter with the passage of time and it follows from this that he contemplated ongoing symptoms requiring treatment over the long term.
60 In March 2008 specialist in sports medicine, Dr McGivern examined the plaintiff at the request of the TAC. This was to determine the extent to which, if any, the plaintiff required ongoing chiropractic treatment.
61 At that time, relying on the plaintiff's account that regular chiropractic treatment enabled her to maintain an active domestic and work lifestyle, her examination results and on the CT and MRI film and reports obtained in 2004, Dr McGivern concluded that: "it would be difficult to argue that the effects of the accident have resolved and to withdraw chiropractic treatment".[71]
[71]Exhibit P1, 166
62 Whilst Dr McGivern was one of a number of specialists who had not been given a history of treatment of any neck symptoms prior to the accident, she nevertheless articulated her suspicion that: "cervical spondylosis present prior to her accident (was) responsible for much of (the plaintiff's) current symptomatology."[72] This opinion, so the defendant submitted, indicated that by 2008 any accident-related contribution to symptomatic cervical spondylosis was probably minimal.[73] This submission, however, ignores the nature and level of the plaintiff’s reported symptoms since the accident.
[72]Ibid, 167
[73]TN 69
63 On 27 October 2009 the plaintiff was again assessed on behalf of the TAC, this time by another chiropractor, Dr Werth.[74] As it turns out Dr Werth was one of a small number of specialists to obtain a history of periodic problems affecting the plaintiff's neck prior to the accident and to have also accessed radiological investigations, which included the earliest x-ray investigation in April 2002 and the results of the CT and MRI investigations in 2004.
[74]Exhibit P1, 168-175
64 Dr Werth concluded that the reported symptoms affecting the plaintiff's neck (neck pain, right arm pain and cervicogenic headaches), which the plaintiff claimed caused difficulty with activities that required prolonged static load to the neck area such as elevating her arms whilst hairdressing and prolonged counter work at the newsagency were: "organically based with the injury being superimposed on underlying degenerative changes of the cervical spine which may, at least in part, account for the protracted nature of her condition. It is reasonable to attribute current symptoms to the effects of the transport accident."[75] Accordingly, notwithstanding his knowledge of the earlier radiology, just over 7 years after the accident the defendants’ chiropractor considered that the effects of the aggravation injury were responsible for the plaintiff’s symptoms, which required ongoing treatment.
[75]Ibid, 173
65 Whilst the plaintiff did not tender or seek to rely on this report, I note that on 9 August 2010 the plaintiff returned to Professor Kaye, this time for treatment of her whiplash injury which since the accident, so she reported, had caused: "persistent neck pain with intermittent exacerbations and numbness and radiating down the right arm. There has been only minimal arm pain. She also complains now of numbness radiating over the right side of the head and into the face."[76]
[76]Exhibit D2, 15
66 Professor Kaye's examination indicated minor restriction of active cervical spine movements without focal neurological signs in plaintiff's upper or lower limbs and no long tract signs. However, prompted by the plaintiff's complaints of head and facial symptoms and it seems only as a precautionary measure, Professor Kaye ordered MRI scans of the plaintiff's cervical spine and brain. These scans were obtained on 21 August 2010 and, as the radiologists’ reports tendered by the plaintiff show, on 16 September 2010 another radiologist compared this film with the earlier CT and MRI film obtained in 2004. Without repeating in full the findings reported it appears that they disclosed the following:[77]
[77]Exhibit P1, 28
· as to the MRI cervical spine scans –
"Normal alignment.
Anterior indentations on the thecal sac at the C3/4, C4/5, C5/6, and the C6/7 levels.
The canal remains capacious. No evidence of canal stenosis.
No abnormal signal within the cord.
Mild foraminal stenoses of the left C5, left C6, and right C7 and right C 8 nerve roots.
· As to the comparison made with the earlier film –
"Multi-level cervical intervertebral degenerative changes, including intervertebral disc desiccation, annular bulge/protrusion, mild PLL thickening, mild marginal osteophytic spurring and facet joint hypertrophy has shown minimal interval change, with more marked right-sided neural exit foraminal encroachment and borderline right C4 nerve root impingement now evident at C3/4.…"
67 No further report or correspondence from this treating neurosurgeon or, for that matter, from the general practitioner who provided the referral was tendered. The defendants nonetheless submitted that Professor Kaye's opinion, offered to the general practitioner before the further investigation ordered by him was completed ("It is likely that the cervical symptoms relate to local degenerative change, and I doubt that there is any significant or sinister pathology…"[78] for the treatment of which he recommended that the plaintiff participate in a very gentle physiotherapy program), provides persuasive evidence from a treating surgeon that the plaintiff’s ongoing symptoms were likely due to underlying degenerative disease, rather than the effects of accident-related aggravation injury.[79] His opinion does give some credence to the suspicion voiced the year before by Dr McGivern and lends weight to the later medico-legal evidence to this effect, subject to the rider that Professor Kaye was never specifically asked to address questions pertinent to the resolution of this application or to comment on any contrast between the before and after radiology.
[78]Exhibit D2, 15
[79]TN 70
68 Allowing for the content of her reports, it is unlikely that the treating general practitioner, Dr Barson knew that during 2009 and 2010 respectively the plaintiff had been referred by another general practitioner to a different neurosurgeon for treatment of her lower back and cervical spine conditions or, that she fully understood the plaintiff’s history, at least in respect to her neck condition ("Ms Huf's neck pain dates to the day of the accident, in that since that time she has had ongoing symptoms in the neck region. The accident is very likely to have been causative of her current symptoms."[80]).
[80]Exhibit P1, 32-33
69 In her most recent report dated 3 March 2012 the treating general practitioner, Dr Barson, diagnosed chronic pain post whiplash injury, which she thought was likely to leave the plaintiff "with a significant degree of ongoing pain and limitation of activities indefinitely." Among other things, in this report the doctor noted that the plaintiff had reported that:
· pain from her neck injury had worsened, rating it as from 4 to 8 out of 10.
· Pain, (which she described as being in the right side of her neck and the upper fibres of the right trapezius muscle and radiating to the right temporal region) regularly woke her at night.
· She needed to take Nurofen 2 to 6 tablets daily and one Mersyndol tablet 4 to 5 nights per week.
· Her migraine headaches were occurring more frequently – 3 to 4 times per year, whereas in the past prior to the accident she had experienced these headaches less than twice a year. However, since the accident the plaintiff suffered another type of headache which occurred about 20 days per month and involved a hot throbbing pain commencing in and radiating from the right temporal region. This pain often woke the plaintiff, the pain could last a few days and it often required acupuncture or chiropractic treatment.
· She needed to limit her hours of work as a hairdresser and a sales assistant in a newsagency and that whilst she was managing two days per week in the newsagency, pain caused difficulty with concentration and she had to restrict hairdressing to about six private clients per week.
· Whilst she could do most things needed around the house, the plaintiff needed to perform household tasks in short bursts over extended periods. However, so far as recreational activities were concerned the plaintiff could no longer play tennis (although under cross-examination the plaintiff conceded that she had stopped playing tennis about nine months before the accident[81]), she had trouble playing table tennis with her children or other games such as ten pin bowling and she felt that her concentration and learning ability were affected by pain.
[81]TN 30
70 By a letter dated 23 April 2012 Dr Barson indicated her support for ongoing chiropractic treatment (currently about every three weeks) for relief of pain.[82]
[82]Ibid, 31
71 The question is to what extent was the treating general practitioner’s assessment compromised by not having also considered the history of earlier neck pain and treatment? In my view probably not to any significant degree, if I accept as I have, the plaintiff’s account that, following the accident there was a material and ongoing change in her symptoms and in the functioning of her neck.
72 No less than seven letters and/or reports were tendered from the primary treator, Dr Bartolo, dated between 28 April 2005 and 1 March 2012. I have already summarised the earliest of these. I don't propose to repeat in detail the content of the reports, as they are repetitive.
73 The the x-ray report obtained on 27 September 2009 was ordered by Dr Bartolo. I infer from this that he commenced treating the plaintiff’s whiplash injury from very soon after the accident. Notably, Dr Bartolo was not required for cross-examination.
74 The correspondence sent to the TAC between April 2005 and August 2006 appears to have been generated by a decision by the TAC to cease funding ongoing chiropractic management ( in August 2006 said to be "approximately fortnightly over the past 3.5 years"[83]) of complications of a whiplash injury ("including – frequent episodes of acute neck stiffness, affecting rotation and extension, episodic light-headedness, frequent headache of occipito-frontal and vertex distribution, reduced ability to elevate the arms above shoulder height, disturbances to sleep due to neck pain and reduced driving ability"[84]). According to the chiropractor (this is also reflected in the plaintiff’s affidavit evidence[85] and her reports to Mr Dooley and Dr McGivern) regular treatment of her neck symptoms had enabled the plaintiff to participate in normal daily activities and work either as a hairdresser or in the bakery business.[86]
[83]ibid, 47
[84]Ibid, 40, 42 and 45
[85]Ibid, 8[5] and 18[5] and [7]
[86]Ibid, 46
75 Analysis of Dr Bartolo's correspondence indicates that the plaintiff continued to undergo regular chiropractic treatment (irrespective of whether this was funded by the TAC) for symptoms which he noted included, frequent cervicogenic head and tension headaches, periodic migraine, neck stiffness, problems raising her shoulders and neck pain. Of course, accepting as I have the plaintiff’s evidence at hearing with regard to the migraine headaches experienced by her before and since the accident, it is unlikely that accident-related injury has had any meaningful impact on her propensity to suffer or be treated for the periodic migraine headaches to which Dr Bartolo refers.
76 The correspondence to the TAC up to and including September 2009 reveals that:
· in addition to their impact on her employment activities (including her part-time work in the newsagency), the constellation of symptoms described reportedly also affected the plaintiff’s ability to drive and to engage in domestic, social and recreational activities.
· Chiropractic treatment of the neck symptoms throughout 2009 was on an as needed basis and had been consistently sought by the plaintiff every two to three weeks.
· Using acupuncture during an 8 month trial in 2007 had provided some relief of discomfort without eliminating the need for manipulation. Notably, the report from an acupuncturist, Mr Jeldres confirms that between 12 June 2007 and 14 January 2008 he treated the plaintiff who reported "short lived respite" from significant pain and complications following a whiplash injury.[87]
· According to the plaintiff analgesics and anti-inflammatory medication had been of limited utility in managing her chronic neck pain.
[87]Exhibit P1, 61-69
77 In her most recent affidavit the plaintiff deposed that in addition to attending her general practitioner, Dr Barson, as reported she still found chiropractic treatment, once every 3 to 4 weeks and treatment from her acupuncturist, Ms Grech, on a 3-4 weekly basis, beneficial.[88] The correspondence from Ms Grech, who commenced treating the plaintiff in November 2009 and from Dr Bartolo generally supports this claim.[89]
[88]Ibid, 17 [4] and [5]
[89]Ibid, 74-75
78 The plaintiff submitted that Dr Bartolo was best placed to provide an expert perspective of the before and after accident pathology. However, as far as I can tell, the most recent radiology on which the plaintiff relied at hearing were the results of the MRI scans from 2004, as interpreted by the neurosurgeon, Mr Thien in July 2004 and the results of the repeat scans in August 2010, including the radiologist’s report of the comparison he made with the 2004 images on 16 September 2010.
79 From reading his reports, apart from the cervical spine x-rays obtained by Dr Bartolo before and after the accident, on 19 April 2002 and 27 September 2002 respectively, and the MRI scan results for the lumbar spine obtained by him on 16 September 2009, I was unable to ascertain on which, if any, of the other diagnostic imaging or reports Dr Bartolo relied when, on 31 March 2010, he advised the plaintiff’s solicitors as follows:[90]
"The functional problems and the pain syndrome Robyn presents with are consistent with Chronic Whiplash Associated Disorders and underlying cervical central canal stenosis secondary to multiple disc prolapses and focal IVF encroachment. The whiplash injury sustained by Robin has been critical to the advancing or significant progressive nature of her neck's degenerative disc and osteoarthritic complaints… The widespread nature of the pathology present and the significance of this pathology to its clinical presentation are consistent with an individual whose connective tissues and muscles have not adequately recovered from the whiplash injury and their decompensation has complicated underlying neck degenerative processes present at the time of the accident, by causing the underlying problems to accelerate."
[90]Ibid, 53
80 Without more I have not relied on this assessment of the extent to which the degenerative disease had progressed or, for that matter, on Dr Bartolo’s statement in March 2012 to the effect that the degeneration in the pathology in the plaintiff’s neck was of a person two decades her senior.
81 However, leaving to one side for the moment any discussion of the radiology, Dr Bartolo’s reports on 31 March 2010 and 1 March 2012 clearly indicate the significant contrast between the plaintiff’s neck function and treatment before and since the accident by confirming, among other things, that the plaintiff has continued to present for regular chiropractic treatment of her neck symptoms and that she complains of ongoing impact on her capacity to work, on her ability to function domestically (“Robyn needs more help with household chores because pain prevents her from completing these herself”[91]) and on her recreational activities (“Robyn cannot play sport due to her neck which she would love to be involved with…”[92]). His opinion that the plaintiff is unlikely to have a significant improvement in her level of impairment given the minimal improvement shown over the 9 1/2 year period since the accident, also assists the plaintiff in establishing that impairment of her neck function is long-term.
[91]Ibid 59
[92]Ibid 60
The medico-legal evidence
82 Turning next to the medico-legal evidence obtained between 2010 and 2012, I note that at the request of the plaintiff’s solicitors she was assessed by orthopaedic surgeon, Mr Khan on 17 May 2010 and on 7 November 2011,[93] by neurosurgeon, Mr Klug on 27 July 2010 and 9 November 2011,[94] by neurosurgeon, Mr Brownbill on 3 November 2011[95] and by rheumatologist, Dr Stockman on 15 November 2011.[96]
[93]Ibid, 79-90 and 92-100
[94]Ibid, 107-113 and 116-120
[95]Ibid, 101-106
[96]Ibid, 76-78
83 As the defendants correctly submitted, none of these specialists appear to have been aware that pre-accident, in addition to regular chiropractic treatment of back pain, the condition of the plaintiff’s cervical spine had been of sufficient concern to require radiological investigation (“She did not have any past history of known neck pain before her transport accident,[97]” “..aside from the previously mentioned back complaint, she was in good health,”[98] …she had noted occasional neck pain but there had not been past neck injury. She received chiropractic for the lower back but not for the neck. She had not taken any time off or received medical treatment for the neck,“[99] and “..virtually asymptomatic cervical disc degeneration and spondylosis...”[100]).
[97]Mr Khan in November 2011, ibid, 96
[98]Mr Klug, ibid, 109
[99]Mr Brownbill, ibid, 101
[100]Dr Stockman, ibid, 78
84 Based on the evidence before the Court, notwithstanding the plaintiff's inability to recall this, in the months preceding the accident the symptoms affecting her cervical spine, were probably more than minimal and, as I have said, were sufficiently worrying to warrant radiological investigation. In view of the incomplete history on which they each relied the question is to what extent, if any, the Court is able to rely on their consensus that the accident has caused long-term and significant aggravation of pre-existing degenerative cervical spondylosis[101] (and, in Mr Khan’s opinion, probably also caused “mild to moderate disc prolapses on the right hand side particularly at the C6-7 level but to some extent C5-6 level”[102])?
[101]Exhibit P1, 78, 85, 104 and 111
[102]Ibid 85
85 Dr Stockman’s conclusion that pain in the plaintiff’s right arm was probably radicular in origin was not shared by the surgeons, Mr Khan, Mr Brownbill and Mr Klug (or for that matter, by the defendants’ medico-legal experts), nor was his view that the injury had also “significantly” accelerated the plaintiff’s underlying condition reflected in the interpretation of the radiology offered by particularly Mr Khan and Mr Klug. It appears that Mr Brownbill’s understanding of the radiology was largely based on the matters stated in the reports of the general practitioner, Dr Barson and the neurosurgeon, Mr Thien.
86 Evidently, Dr Stockman considered the x-ray ordered by the chiropractor following the accident (but not the amended CT scan results from the hospital), the results of the 2004 MRI scans, the results of the 2010 MRI scans and, allowing for the matters repeated in his report, he probably also had regard to the report from the radiologist who, on 16 September 2010, compared the 2004 CT and MRI images with the 2010 MRI images.[103] This radiologist’s observations were noted earlier in this judgment.
[103]Ibid, 78
87 On the other hand, Mr Khan considered reports of the results of the 2004 CT and MRI scans and of the August 2010 MRI scans (the latter before the comparison with the earlier scans was also reported on 16 September 2010) and in November 2011 he expressed his opinion that with the passage of time there had not been “a great deal of changes” noted in the most recent MRI scans.[104]
[104]Ibid, 94
88 Having previously considered the film of the MRI scans obtained in 2004 and the reported result, with which he expressed his agreement, Mr Klug was also asked for his comments on the reported results of the MRI scans obtained on 21 August 2010, prior to the comparisons made by another radiologist on 16 September 2010.[105] Mr Klug thought the findings “somewhat similar”, although Mr Klug also noted what he considered to be a difference in interpretation between the reports, inasmuch as the radiologist in August 2010 had not also found evidence of spinal canal stenosis.
[105]Ibid, 114-115
89 The most recent specialist assessment undertaken on behalf of the defendants is found in the reports of orthopaedic surgeon, Mr Dickens who examined her on 7 February 2011 and 13 March 2012,[106] of psychiatrist, Dr Ingram who examined her once on 17 February 2011[107] and occupational physician, Dr Yong who examined the plaintiff in March 2012.[108]
[106]Exhibit D2, 16-29
[107]Ibid, 30-34
[108]Ibid, 35-41
90 The psychiatrist’s evidence establishes that mild phobic and depressive symptoms probably still impact on the plaintiff’s domestic and leisure activities, but not her work capacity, which Dr Ingram said is restricted by chronic neck pain.[109] Ultimately, as the Court of Appeal said in Richards v Wylie,[110] the plaintiff’s mental response to impairment of her cervical spine must also be evaluated when measuring the seriousness of the consequences of accident-related organic impairment of the plaintiff’s cervical spine.
[109]Ibid, 34
[110][2000] 1VR 79, 87 [17]
91 Notably, the plaintiff accepted that prior to finalising their opinions both Mr Dickens and Dr Yong had considered pre-accident and later radiology including the MRI scans obtained in 2010, although Dr Yong appears to have been the only specialist equipped with the radiology obtained by the hospital on the date of the accident.
92 This meant that, despite the likelihood that these specialists were also given to understand that pre-accident either neck pain had been minimal ("although there was the occasional symptom requiring chiropractic adjustments these were of no great consequence according to the patient") [111] or that there had been no previous significant neck conditions,[112] arguably having considered the underlying pathology before and after the accident they were somewhat better placed than other doctors (including the treating general practitioner and chiropractor) to offer expert opinions on the nature and extent of the degenerative process before the accident and to formulate an opinion on whether any aggravation injury continued to contribute to impairment of the plaintiff’s degenerate cervical spine.
[111]Exhibit D2, 18 and 20
[112]Ibid, 38
93 Mr Dickens diagnosed a soft tissue injury to the cervical spine as a result of the accident.[113] I do not accept, as was submitted by the plaintiff, that there was an apparent inconsistency between his reports. In his first report, whilst indicating his view that the problems emanating from the plaintiff neck were now those of the natural history of a pre-existing problem, temporarily impacted by the injury sustained in the accident, Mr Dickens also added: "I would have thought the injuries resulting from the accident would have resolved by now but we are still having problems due to the underlying degenerative arthritis in the cervical spine. I believe that the injury has aggravated that."[114]
[113]Ibid, 26
[114]Ibid, 21
94 However, having also received at least a copy of the x-ray report for the film obtained in April 2002 Mr Dickens relevantly stated:[115]
[115]Ibid, 28
"There is no doubt that this lady still has ongoing cervical spine symptoms. We know that there were degenerative processes going on in the cervical spine before the accident and the accident cause (sic) an aggravation of those degenerative cervical problems. The impact of the accident would have substantially resolved by now and the condition that she complains of in the cervical spine is almost certainly predominantly the natural history of the degenerative changes in the neck which were preceding the accident and have deteriorated with time.…
I found this patient to be quite straightforward and genuine. I believe that the accident has had an impact on her cervical spine pathology certainly initially and for some time subsequent to the accident but it is now almost 10 years since the accident and the effect of the accident is probably minimal now and we're simply seeing the natural history of her cervical pathology."
95 Having read Dr Yong's report I noted the following that:[116]
[116]Ibid, 35-41
· he identified a degenerative neck and back condition.
· Apart from the reports relating to the radiology obtained between April 2002 and August 2010 Dr Yong evidently reviewed the images obtained in September 2002, in February and March 2004 and in August 2010. If, as suggested by the plaintiff Dr Yong did not also take into account any reported prolapse or prolapses in plaintiff cervical spine, he nonetheless agreed that the most recent MRI scans obtained in August 2010 showed "no overt neurocompressive lesion".[117]
· After considering the report of the 19 April 2002 film Dr Yong concluded that the plaintiff "already had moderate degenerative change in the mid to lower cervical region prior to the motor vehicle accident", to which a number of factors had contributed, namely pre-existing constitutional factors, increasing age and the accident in 2002. The latter he thought may have contributed to an aggravation of the plaintiff's condition, although in his view, given the nature of her condition and the passage of time the effect of the aggravation injury had ceased.
[117]Exhibit P1, 28
96 I was the unable to discern from reading the evidence of particularly Mr Dickens and Dr Yong at what stage during the last 10 years the aggravation injury resolved or substantially resolved such that the plaintiff’s consistent and long-standing complaints of pain and disability were no longer or not substantially contributed to by the aggravation injury.
97 To summarise there is division between the doctors on whether the effect of the aggravation injury was temporary and, where they had viewed any images, there is a lack of consensus in their interpretation of these. There is also division between the defendants’ specialists as to whether the effects of the aggravation injury have fully resolved. However, the doctors largely agree that the accident aggravated the underlying degenerative disease, which they each appear to have understood was present at the time of the accident.
98 Notwithstanding the incomplete histories given, I have preferred the evidence of the plaintiff’s experts and her treating doctors that the accident caused both long-term and significant aggravation injury to the cervical spine. This is in large part due to having in this application accepted the plaintiff’s evidence (which has been supported by particularly the treating chiropractor) of the unremitting nature of her symptoms and the escalation in these and her treatment needs since the accident. Essentially, the plaintiff has established as she was required that, as a result of the accident, she suffers from a long-term impairment of her cervical spine due to aggravation of pre-existing degenerative disease.
Does the plaintiff experience consequences today that are Humphries serious?
99 In my view the plaintiff’s evidence that, despite regular treatment, she suffers persistent chronic pain and frequent, virtually daily headaches, must, as the Court of Appeal observed in Transport Accident Commission v Kamel[118] raise a real prospect of a very considerable consequence.
[118][2011] VSCA 110, [68]
100 Without revisiting these, I have measured the seriousness of the consequences by reference to the consequences (set out earlier in this judgment) to which I could be satisfied impaired functioning of the plaintiff’s neck contributed. For instance, I have not treated the migraine headaches as a consequence of the accident. However, where as in this application, the pressure of working in the bakery no longer precluded a return to playing this sport,[119] the plaintiff’s inability to return to play tennis remains a relevant consideration in determining as a whole that the consequences of impairment are at least very considerable. This determination also involved allowance for the plaintiff’s mental response to impairment of her cervical spine.
[119]Exhibit P1, 9 [9]
Orders
101 Accordingly, pursuant to s 93 of the Act, leave is granted to the plaintiff under s 93(17)(a) to bring common law proceedings for the recovery of damages for injury suffered to her cervical spine in the transport accident on 20 September 2002.
0
3
0