Schnerring v Transport Accident Commission
[2020] VCC 468
•24 April 2020
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03467
| JENNIFER MAY SCHNERRING | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 16 and 17 March 2020 | |
DATE OF JUDGMENT: | 24 April 2020 | |
CASE MAY BE CITED AS: | Schnerring v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 468 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – reliance solely upon paragraph (c) of definition Transport Accident Act 1986, s93(17) – pain and suffering consequences only relied on – leave not granted
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie [2000] 1 VR 79; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Ozkul v Victorian WorkCover Authority [2017] VCC 1193; Bezzina v Phi [2012] VSCA 161
Judgment: Leave not granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr A D Clements QC with Ms F A L Ryan | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Mrs Schnerring was born in 1964 and educated to Year 11 at Warrnambool College. (Plaintiff’s Court Book (“PCB”) 3, paragraphs 4-5)
2 In 2003, she commenced work as a casual retail assistant at Sussan’s in Liebig Street, Warrnambool, working from four to ten hours per week. Her duties included unpacking items, fixing displays and attending customers. (ibid, paragraph 7)
3 On 18 November 2011, Mrs Schnerring was in a car driven by her husband along the Cobden/Warrnambool Road travelling to Geelong. Mr Schnerring’s car was struck by a vehicle emerging from Ayreford Road, striking the left-hand side of the car. This caused the Schnerrings’ car to veer to the right and collide with an oncoming car. The Schnerrings’ car rolled. Surprisingly, Mr Schnerring was unhurt, but Mrs Schnerring was taken to Warrnambool Base Hospital complaining of pain on her left hand side. (ibid, paragraph 10)
4 An x-ray taken at the hospital found:
“… minor loss of disc height at C4/5, C5/6.
There is no fracture or dislocation seen and the pre-vertebral soft tissues appear normal.
No significant neurocentral or facet joint degeneration is demonstrated … .”
(PCB 63)
5 On 22 November 2011, Mrs Schnerring attended her general practitioner, Dr Tim Slattery, at Cambourne Clinic in Warrnambool. (ibid, paragraph 22). She also attended physiotherapist, Franco Cavalieri.
6 In February 2012, at the request of Dr Slattery, Mrs Schnerring underwent an x-ray of her thoracic spine and CT scan of her neck. (PCB 3-4, paragraph 14, 64). As to the thoracic spine, the x-ray was unremarkable, with normal curvature being maintained and body heights appearing normal. Multi-level degenerative changes were seen. The scan of the cervical spine, which again found normal curvature maintained, and in contrast to the earlier investigation, normal height was found to have been maintained in the “vertebral bodies”. No fracture was identified and “the cervical spinal canal appears within normal limits”. No bulges were found and no fracture was seen. “The soft tissues of the neck reveal no definite abnormality”. The overall impression was “mild degenerative changes in the cervical spine”. (PCB 64)
7 Mrs Schnerring was then referred to a pain specialist, Dr Murray Grave, whom she attended on 16 April and 14 May 2012. (PCB 4, paragraph 16). She had further reviews by Dr Grave for pain in her left shoulder and neck and her upper back on 5 June, 17 July, 11 September and 5 December 2012. (ibid, paragraph 17). Meanwhile, on 24 May 2012, she had been referred to orthopaedic surgeon, Mr Alexander Sutherland, who performed an arthroscopy on her left knee on 30 May 2012 as a result of an unrelated injury or disorder. (ibid, paragraph 16)
8 Meanwhile, Mrs Schnerring had continued in her work at Sussan’s but found a second job in clothing retailing at an outlet known as “Oranges & Lemons” in Kepler Street, Warrnambool, working eight to twenty hours. She continued in this role until Oranges & Lemons closed in 2015. (ibid, paragraph 18)
9 In 2013, Mrs Schnerring was referred to a pain specialist at St John of God Hospital in Warrnambool, Dr Neels du Toit. He prescribed Neurontin and then Lyrica. There was discussion of the doctor performing a medial branch block of the lower cervical facet “with a view to ultimately undergoing radiofrequency denervation”. This contemplated surgery never occurred. (ibid, paragraph 19). Also in 2013, Mrs Schnerring underwent a rehabilitation program at St John of God Hospital, which included hydrotherapy. (ibid, paragraph 20)
10 In September 2016, at the request of Dr Slattery, an ultrasound was performed on Mrs Schnerring’s left shoulder, which detected “a 4-mm partial-thickness tear of the supraspinatus tendon” (PCB 66) as well as a thickened subacromial subdeltoid bursa.
11 In September 2016, Mrs Schnerring had “an ultrasound-guided injection” to her left shoulder which provided some temporary relief, with the symptoms eventually returning. (PCB 5, paragraph 23). Also in September 2016, she consulted Mr Sutherland and had a right knee arthroscopy on 10 October 2016. (ibid, paragraph 24)
12 In October 2016, Mrs Schnerring commenced with a different physiotherapist but did not persist, because this therapist treated only her left shoulder and not her neck. (ibid, paragraph 25). She also received physiotherapy from two other physiotherapists in 2017. (ibid, paragraph 26). She suffered pain and discomfort when travelling to and from Ballarat with her son, who was studying Year 11 in a school there. (ibid, paragraph 27)
13 Continuing to work her usual hours at Sussan’s following the closure of Oranges & Lemons, Mrs Schnerring obtained part-time employment in another fashion outlet in Warrnambool, “Boolistic”, working ten to twenty hours per week. She said this work entailed “more physical work … with moving displays and handling merchandising and fixtures” than she performed at Sussan’s. She therefore found it more difficult “because of [her] injuries”. She said it was necessary for her to continue work because of the family’s financial commitments, with four children undergoing education at different stages. (ibid, paragraph 29)
14 As at the date of swearing an affidavit in February 2019, she said she continued to suffer “ongoing pain in my left shoulder with restricted movements and weakness in my left arm. I have ongoing pain in my neck and upper back which can result in headaches.” She said: “I am in pain everyday (sic) and this makes me think about the accident.” (PCB 5-6, paragraph 30)
15 Mrs Schnerring said pain in her left shoulder and neck and upper back affected her “ability to sleep most nights”. She said she could not get comfortable in bed and after a restless night “invariably wake up fatigued”. (ibid, paragraph 31). She said at that stage she had difficulty “sitting for prolonged periods of time and where possible tended to lie down on my right hand side on the couch”. (ibid, paragraph 32)
16 As at February 2019, Mrs Schnerring said she tried to manage her pain, taking daily doses of Voltaren and Nurofen three or four times a day, together with Lexapro to treat anxiety. She uses a spray “Zen” on “the affected area” which she found more satisfactory than gel. She used heat bags in bed and found a hot shower morning and night helped relieve her symptoms. (ibid, paragraphs 35 and 36)
17 As to her daily activities, she said she had always been “a sporty type person” playing netball and basketball. She said her knees would prevent her returning to those sports but she “certainly would have been able to play golf and I had the intention of taking up golf … but because of my left shoulder, neck and upper back problems, I would not be able to take up that sport now”. (ibid, paragraph 38). Mrs Schnerring said she walked her border collie holding the lead with her right hand, but had difficulty walking her parents’ dog because his lead needs to be held with both hands. (ibid, paragraph 39)
18 In the past, Mrs Schnerring had been able to join her husband in carrying out renovation work being “able to assist in all aspects of … renovations including painting, paving and chipping bricks”. She said she was unable to do that work now. (PCB 7, paragraph 41). She said she was restricted in her domestic tasks, finding difficulty in moving furniture out of the way. She also encountered difficulty making the bed, including “flapping the doona”. (ibid, paragraphs 42-43). She said she experienced difficulty straining vegetables and lifting heavy pots. She had difficulty reaching in and out of the oven when she tried to pull out a roast. (ibid, paragraph 44). She had difficulty hanging washing out on the line and had to resort to the clothes dryer for large items. (ibid, paragraph 45). She also encountered difficulties in grooming. In particular, managing her hair, which she was required to “put … up in a ponytail”. (ibid, paragraph 46). She encountered difficulty putting on her bra, having to do it up at the front and swivel it around. (ibid, paragraph 47)
19 She now needs help from her husband or daughter doing the shopping because of the heavy weight of the bags. (ibid, paragraph 48). She has had to abandon her interest in craftwork such as embroidery and crocheting. (ibid, paragraph 49). She was also restricted in carrying out “gardening activities such as reading, digging and pruning hedges”. She has had to purchase a light leaf blower which she can manage to use with her right hand. (ibid, paragraph 50)
20 Mrs Schnerring swore a further affidavit on 12 February this year. In the twelve months since her previous affidavit, she said that her symptoms had “not improved and, if anything, [had] worsened”. (PCB 9, paragraph 2). A cortisone injection in her left shoulder carried out at Warrnambool Base Hospital provided no lasting relief. (ibid, paragraph 3). She said she continued taking Voltaren daily with Panadol “for headaches”. Her sleep continues to be disturbed by the pain and she takes “an analgesic calmative, which contains codeine”. (ibid, paragraph 4). She had relinquished her work at Boolistic because her:
“… duties there were more to do with window/displays … Sometimes the pain in my shoulder was so bad after work that I simply drove my car, which was a manual, in second gear all the way home, which is about 2 blocks away.”
(PCB 10, paragraph 5)
21 Mrs Schnerring had recently replaced the manual car with one having an automatic transmission. She said she was able to continue working at Sussan’s because that work was predominantly serving customers. (ibid, paragraph 6)
22 When she and her husband went on holiday to Bali in October 2019, she found the six-hour flight “difficult” and she was very uncomfortable. She had to keep getting out of her seat to move about whilst relying on painkillers and a special pillow. She said her pain prevented her from engaging in physical activities whilst in Bail. (ibid, paragraph 8). A visit to her sister’s home in Anglesea was marred by pain when she sat or lay on a deckchair. (ibid, paragraph 9). As a result, her husband has to undertake “the bulk of the driving” when they are on holiday. (ibid, paragraph 10). She has to call on help from her husband when she is vacuuming. (ibid, paragraph 12). She complained of an inability to perform “tasks such as scrubbing the toilets and shower” and her husband has to do this work for her, as well as undertaking with their daughter “the big shopping generally”. (PCB 11, 14-15). She said apart from having to give up embroidery and jewellery making as crafts, she had had to relinquish mosaic work and preparing greeting cards and canvasses, which she could sell in local shops. (ibid, paragraph 16)
23 Mr Greg Schnerring, the husband of Mrs Schnerring, swore an affidavit on 14 February this year generally corroborating Mrs Schnerring’s account of her activities of daily living. As to her sleep patterns, Mr Schnerring said “It is common for her to be awake during the night tossing and turning and not being able to fall asleep”. (PCB 14, paragraph 7). He observed her use of painkillers. He noted a drop off in entertainment of guests at their house. (ibid, paragraph 9)
24 According to Mr Schnerring, he and his wife attend a number of VFL matches in Melbourne and Geelong where two of their sons are players. He said his wife, when travelling to these matches, usually used “a number of pillows and cushions in order to get comfortable. This is only something that she has started doing after the accident.” (PCB 15, paragraph 14)
25 Mr Schnerring said that when he and his wife have attended AFL matches in Melbourne or Geelong, she finds it a challenge and they have to be “conscious of her pain levels”. In 2019, at the first match of the year between Geelong and Collingwood, he “observed that she was crying whilst watching the game” as a result of her pain. (PCB 16, paragraph 15)
26 Solicitors acting for Mrs Schnerring have commenced the present proceeding seeking leave pursuant to s93(17) of the Transport Accident Act 1986 to commence a proceeding to recover damages for negligence based upon a finding that Mrs Schnerring has suffered a “serious injury” as defined in that section as constituted by injury to her left shoulder and injury to her spine.
27 Counsel for Mrs Schnerring, Mr Jonathan Brett and Mr Gino Pierorazio, relied solely on the pain and suffering consequences of those injuries to make good the contention that she had suffered a serious injury.
Expert opinions
28 Mrs Schnerring’s care and treatment has been managed since the accident by general practitioner, Dr Tim Slattery, who provided a number of reports by way of letters.
29 In a letter dated 23 October 2017 to her solicitors, the doctor noted an initial attendance for treatment relative to these matters at his surgery on 22 November 2011. He found her “physically stable but profoundly stressed and anxious with severe insomnia issues”. He prescribed medication for psychological issues.
30 In February 2012, he saw her again following physiotherapy treatment “in regard to ongoing neck pain”. The x-rays which he ordered were “normal of her neck” but she remained “tender in the posterior low neck of the left lateral side”. She required non-steroidal anti-inflammatories by way of Mobic. A CT scan disclosed degenerative changes “but nil else”.
31 Mrs Schnerring was then referred to “a musculoskeletal physician, Dr Murray Grave. He noted a referral to sports medicine physician, Dr Neels du Toit, in 2013 and a trial on Neurontin, which he said Mrs Schnerring “did not tolerate”. Likewise, Lyrica. He noted that she underwent a rehabilitation program. (PCB 18)
32 The doctor reported ongoing psychological issues and said: “She has some ongoing left shoulder pain which she reports as being present past the motor vehicle accident.” (PCB 19). He referred to the ultrasound-guided injection to her left shoulder. He said “her condition is currently stabilised”.
33 The doctor continued:
“She is … particularly in the first 12 months significantly impacted in regards to her function due to her neck pain, this would be somewhat less now. Though she still has trouble with shoulder from time to time. Her capacity of employment may have been limited significantly especially in the first 12 months. Although currently in the (sic) reasonable stable she would require significant modifications in her activities.”
(ibid)
34 He said there were no current restrictions as to hours or duties. He said Mrs Schnerring was:
“… in a position now to return to her normal activities but would need to be mindful of the neck and shoulder pain and lower threshold towards stress and anxiety.”
(ibid)
35 A further report by way of letter to the solicitors dated 23 June 2018 appears to cover the same ground. (PCB 20-21)
36 An update report of 26 April 2019, once again addressed to the solicitors, reported that Mrs Schnerring “still has some ongoing pain associated with her neck at times …”. He said her prognosis “remains uncertain” and “her neck pain whilst better than it was, is ongoing and required ongoing physical therapy”, including “Mobic plus or minus Lyrica. As well as physiotherapy.” He said that whilst Mrs Schnerring continued to be able to work her normal hours “the injuries which she has sustained significantly limit [her] capacity for recreational activities and relaxation”. (PCB 23)
37 In another follow-up letter dated 2 December 2019, the doctor said “my responses are as previous”. (PCB 24)
38 Dr Murray Grave, a musculoskeletal physician, provided a report to Mrs Schnerring’s solicitors by letter dated 23 August 2018. The doctor reported having seen Mrs Schnerring for treatment “on six occasions. The last time that I saw [her] was on 5/12/2012 almost six years ago.” (PCB 30). He said that upon examination on 16 April 2012, she exhibited “a tilt of the neck to the left and a tilt of the head to the right”, with the right shoulder appearing “slightly higher than the left”.
39 According to Dr Grave, flexion of the lumbar spine was to 80 degrees with extension to 30 degrees and side bending to 30 degrees. The thoracic spine demonstrated flexing to 60 degrees, extension to 25 degrees and side bending to 30 degrees left and right and “the quadrant test is negative”. The neck showed flexion to 45 degrees, extension to 50 degrees, side bending to 30 degrees “bilaterally”. He said “right side bending caused left side pain and left side bending caused right side pain. The quadrant test is negative.” (PCB 31)
40 He said his impression was “that of a presentation of chronic myofascial pain secondary to road trauma”. (PCB 32). He said he had a strategy “to correct the paradoxical breathing type to restore diaphragmatic breathing which would encourage thoracic cage movement and activation of her core musculature”. (ibid). He said Mrs Schnerring needed to:
“… start by unloading the neck musculature and upper thoracic musculature and trapezius by correcting her breathing type. She did have a head forward position and overactivity of the trapezius. Trapezius trigger points generate headache.”
(ibid)
41 He said that on review on 14 May 2012, Mrs Schnerring told him that “there had been some significant improvement”.
42 On a further review on 5 June 2012, “she described that her pain had changed and that it fluctuated”. He said that he discussed with her “her thoracic pain and her trapezius pain” and that he discussed with her “the mind/body component to this”. (ibid).
43 On a further review on 17 July 2012, he found Mrs Schnerring:
“… continued to make good progress. The pain that she had been experiencing had evaporated to a large degree. She was not bothered by the posterior thoracic pain around the bra strap region. She has been doing her breathing exercises as instructed and she was finding that this was giving her quite significant relief.”
(ibid)
44 Dr Grave said he encouraged Mrs Schnerring to continue her exercises. A further review on 11 September 2012 found that “she had continued to make good progress”. He said “she was no longer requiring physiotherapy”. He said she described sleeping “reasonably well and not taking any prescribed medication” though she might be aware at the end of a busy day “of some discomfort in the medial border of her scapular (sic) region”. He said “her clinical examination demonstrated a good range of movement of her cervical and thoracic spine”. (PCB 33)
45 The final review took place on 5 December 2012. Reasonably progress had continued, though Mrs Schnerring described “an increase in headache after a trip to Shepparton”. The headache was said to be “frontal and occipital” and “dull”. Dr Grave referred to the trauma which Mrs Schnerring had suffered in the transport accident. He continued:
“Consequently there have been a gradual increase in the elevation of her shoulders and shortening of the neck with a degree anterior protuberance of the neck. This posture is often a response to anxiety and stress.”
(ibid)
46 He said “cervical spine motion demonstrated flexion to 45 degrees, extension 50 degrees and side bending 30 degrees bilaterally. The quadrant test is negative”. (ibid)
47 He said Mrs Schnerring’s condition was “in relationship to [a] motor vehicle accident causing a chronic myofascial pain syndrome involving the cervico-thoracic spine and left shoulder as well as post traumatic stress disorder”. (PCB 34). He said that Mrs Schnerring “may have benefited from involvement in a pain management program if her pain recurred or flared or did not stabilise”. (ibid)
48 As noted above, Mrs Schnerring underwent physiotherapy from, amongst others, Mr Franco Cavalieri, commencing on 1 December 2011, that is only a few weeks after the collision. Mr Cavalieri provided a report as to his treatment of Mrs Schnerring dated 30 September 2018. According to Mr Cavalieri, Mrs Schnerring’s “worst symptoms were neck pain and headache, with thoracic and shoulder pain”. He said there was also “mild-moderate aching in both upper arms of a non-dermatomal nature”. (PCB 37)
49 On examination, he found restriction and neck rotation and lateral flexion on both sides “and marked restriction of cervical extension”. He said her shoulders were stooped and head and chin “were held in a shunted forward position”. Mr Cavalieri found significant cervical and upper thoracic muscle spasm. He noted also pain and restriction in the low back and “gluteal muscles”. He said “she had no referred or distal leg symptoms”.
50 Most of his initial treatment “was directed to her neck and shoulders as those areas were her most uncomfortable”. In the period December to April 2011 [scil December 2011 to April 2012] he said she attended eleven sessions.
51 Mr Cavalieri gave Mrs Schnerring further therapy in late 2012, stating that she complained “that her neck pain and headaches seemed to be aggravated by physical work”. She found passive activities like driving or keyboard work “particularly aggravating for her neck pain”. There were fourteen sessions in 2013. Mr Cavalieri gave Mrs Schnerring further therapy in 2014 and 2015, commenting “her work and leisure capacity was frustratingly and disappointingly low”.
52 Mr Cavalieri relocated his practice in 2016 and last treated Mrs Schnerring in 2015. He said “at that time unfortunately her prognosis was not good. She had developed chronic pain and recurring headache, and it was likely to continue into the future”. (PCB 37-38)
53 Presumably, upon the basis of a contemplated reliance on Mrs Schnerring’s psychological state as indicative of a serious injury (which in the end has not been pressed), Mrs Schnerring’s solicitor arranged a medico-legal assessment by consultant psychiatrist, Dr Michael Epstein, who conducted his consultation on 11 December 2018 and provided a report of the same date to the solicitors.
54 Dr Epstein took an exhaustive history of the accident, Mrs Schnerring’s treatment and her life events.
55 As to her physical condition in December 2018, Dr Epstein said:
“She complains of intermittent neck pain brought on by holding her head in one position and when driving tries to keep her neck mobile. She has upper back pain especially on the left side going to her left shoulder and the top of her left upper arm. She has reduced abduction and internal rotation of her left shoulder … .”
(PCB 46)
56 He said “her affect was restricted and she appeared mildly depressed and anxious during the course of the interview”. (PCB 48)
57 Dr Epstein diagnosed:
“A mild Post Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the accident, distress with reminders of it, increased concerns with regard to her own safety and security and that of her family, hypervigilance, some emotional withdrawal and a sense of bleakness.”
(PCB 49)
58 The solicitors also arranged for a medico-legal assessment of Mrs Schnerring by Mr Douglas Gardiner, orthopaedic surgeon, who provided a report by way of letter dated 7 January 2020. Mr Gardiner took a history of the injury and the course of treatment as to Mrs Schnerring’s “current complaints”, he said that she:
“… described ongoing neck, upper back and left shoulder symptoms. She described left shoulder symptoms as being over the top of her left shoulder blade that also occurs over the top of the shoulder with attempted use at or above shoulder level.”
(PCB 54)
59 He referred also to restrictions in her ability to carry out home duties, disturbances of sleep and other matters deposed to by Mrs Schnerring in her affidavits and viva voce evidence. (PCB 54-5)
60 On examination, he found;
“There was a full range of spinal movement with no tenderness. Standing and walking on heels and toes was accomplished with no obvious difficulty. There were no sensory or motor abnormalities in the lower extremities.”
(PCB 55)
61 He found “movement and strength of the upper extremities were normal, with a satisfactory grip in both hands but with reduced function of the left shoulder joint”. He measured neck movements as follows:
“Extension 20 °
Rotation 80 ° L side 80 ° R side
Lateral flexion 30 ° L side 30 ° R side.”
(PCB 56)
62 Mr Gardiner found no muscle wasting in the left shoulder as compared to the right with crepitus but less significant than the crepitus in the right shoulder. He found restrictions in left shoulder motion, remarking “There was a significant pain response at extremes of each of these ranges and there was a positive but non-specific impingement sign”. (ibid)
63 He made the following diagnoses:
“1. Traumatic exacerbation of pre-existing, previously asymptomatic cervical spondylosis, accompanied by myofascial injury;
2. Left shoulder reduction in range of movement consistent with radiologically described partial thickness tear of the articular surface of the supraspinatus and subacromial bursitis;
3. Traumatic aggravation of a pre-existing asymptomatic thoracic spondylosis accompanied by myofascial injury.”
(PCB 57)
64 Mr Gardiner found a permanent disability of a moderate degree, noting that since her conditions were previously asymptomatic, they could be regarded as aggravated and accelerated by the transport accident. (PCB 58)
65 Mr Gardiner provided a supplementary report to the solicitors by letter dated 24 February 2020, after the solicitors had submitted to him for his consideration a series of plain x-rays and an ultrasound. Mr Gardiner said:
“The 6 December 2019 left shoulder ultrasound suggests the presence of an old healed tear of the supraspinatus, which is consistent with the previously described tear reported in the 24 June 2016 ultrasound.
The cervical spinal degenerative changes at C4-5 described in the x-ray report of 28 August 2018, differ minimally in description from the CT findings of 17 February 2012, as do the xray findings of 18 November 2011 (the date of the subject transport accident).”
(PCB 61)
66 As a result, Mr Gardiner saw no reason to modify his opinion. (ibid)
67 The Transport Accident Commission required Mrs Schnerring to attend a medico-legal assessment by Dr Anthony Menz, orthopaedic surgeon, on 3 December 2019. He provided a report to the Commission and reported the following:
“Current Symptoms
She would rate her neck pain at rest as about 4/10 and after her days work about 8/10.
Her left shoulder pain, she said, is just constant and chronic and she has a very poor range of movement.”
(Defendant’s Court Book (“DCB”) 35)
68 Dr Menz commented that Mrs Schnerring had “a reasonably good range of movement” of the neck though he found left and right rotation limited to 70 degrees in contrast to the 80 degrees measured by Mr Gardiner. In contrast, he found “a very limited range of movement of her left shoulder”, of which she reported “has been present for several years”. (DCB 36)
69 Dr Menz said:
“Over the last six to seven years she has had a lot of physiotherapy which has been of no benefit to her, she has had one steroid injection into her shoulder which has given her no benefit and she has gone through a pain management rehabilitation program which gave her some minimal improvement.
Overall she feels her neck and shoulder pain is getting worse with time.”
(DCB 37)
70 Dr Menz remarked upon Mrs Schnerring’s “bilateral knee problems … for which she has had arthroscopies”. (ibid). Dr Menz said:
“There are significant inconsistencies between the radiology and my examination. She has minor age-related cervical degeneration which does not account for her significant ongoing symptoms in her neck.
She has a frozen shoulder due to lack of use; there are no significant or specific findings on the shoulder radiology which would cause her chronic stiffness.”
(PCB 38)
71 In light of the lapse of time since the accident, Dr Menz did “not think any further treatment would be of benefit to her”. (ibid)
72 The Transport Accident Commission did not seek to put this report into evidence but did so only upon prompting from plaintiff’s Senior Counsel.
73 The Transport Accident Commission put into evidence a number of radiological investigations, general practitioner referrals by Dr Slattery, and specialist reports relative to ongoing pain and disability concurrent with the transport accident injury and leading to arthroscopies on both of Mrs Schnerring’s knees.
74 It also tendered a report to general practitioner, Dr Slattery, by orthopaedic surgeon, Dr Nick Russell, by way of letter dated 7 May 2019, upon reference relative to her problematic left knee. Dr Russell noted, inter alia, a complaint as at the date of his letter of 7 May 2019 of “trouble driving (manual car), night pain, walking limited to 10 minutes, aggravated with activity and work”. (DCB 31)
75 According to Dr Russell, Mrs Schnerring satisfied “the clinical and radiological criteria to undergo a total knee replacement” and said that Mrs Schnerring was keen to proceed and had signed a consent form. (ibid)
Legal considerations
76 Section 93 of the Transport Accident Act precludes a plaintiff from recovering damages for the results of a transport accident except in accordance with the provisions of the section. Sub-section (2) permits a plaintiff to recover damages for such an injury if the Transport Accident Commission determines the person’s degree of impairment and the injury is a “serious injury”. Sub-section (3) deems an injury to be “serious” if the impairment assessment made by the Commission is 30 per cent or more. Under ss(4), if the determined impairment is less than 30 per cent, then the damages claim may be brought only if the Commission is satisfied that the injury is “serious” and issues a certificate, or a court gives leave to bring the proceeding. Sub-section (6) provides that the court must not grant leave “unless it is satisfied that the injury is a serious injury”.
77 Under s-s(17), the expression “serious injury” is defined as follows:
“In this section—
‘pain and suffering damages’ means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;
‘pecuniary loss damages’ means damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage;
‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) loss of a foetus.”
78 In the present case, reliance is placed solely upon paragraph (a) of the definition.
79 In the early days of the operation of these provisions, the Full Court of the Supreme Court of Victoria gave what has become a hallowed analysis of the operation of these provisions in Humphries & Anor v Poljak [1992] 2 VR 129. In a joint Judgment, Crockett and Southwell JJ said:
“Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be 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’? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications including those the adjudication of which is now our responsibility.”
80 Earlier, on page 114, their Honours had said, speaking of the definition of “serious injury” in ss(17):
“… It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para(a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para(c) … .”
81 In Richards & Anor v Wylie [2000] 1 VR 79, the Court of Appeal set aside a determination of serious injury made by a judge of this Court. The error in the trial judge’s assessment was identified by Winneke P as follow:
“In my opinion, it is implicit in his Honour's conclusions that he was accepting that the respondent’s mental disorders or disturbances were, to a significant degree, producing the symptoms upon which his Honour relied in finding that the respondent was suffering from a long term impairment of a body function … .”
82 Buchanan and Chernov JJA concurred. In his concurring Judgment, Chernov JA stated:
“The requirement formulated by Crockett and Southwell, JJ. in Humphries v. Poljak [9] that, in the context of determining whether the injury sustained by the plaintiff as a result of the accident is a "serious injury" a distinction must be maintained between the physical consequences of the injury and those which have resulted in mental or behavioural disturbances, is a reflection of the wording of s.93(17) of the Transport Accident Act 1986. Thus, so far as is relevant, the consequences of the injury are to be determined by reference to the definition of ‘serious injury’ in either para.(a) or (c). Although the textual distinction between those paragraphs may be simply stated, it will often be a difficult task for the trial judge to determine which of para.(a) or (c) applies for the purpose of establishing whether an injury and its manifestations amount to a ‘serious injury’.
It is likely that in many cases the injuries caused by a transport accident will have physical as well as mental consequences for the plaintiff, with the result that it may appear that either definition could be appropriately applied in determining whether the relevant injury is a ‘serious’ one. In such circumstances, which test is appropriate will fall to be determined by the consideration of what is the dominant cause of the plaintiff's condition. Is it predominantly the result of the physical injuries arising from the accident, or is the dominant cause of the condition the mental and psychological factors flowing from the accident? But whichever test is to be applied, in determining if its requirements have been satisfied, all the relevant consequences for the plaintiff arising from the accident are to be considered. Thus, if it is decided that, in a given case, the test in para.(a) is appropriate because the plaintiff's relevant condition has been brought about predominantly by the relevant physical injuries, in deciding whether the relevant impairment is serious and long term, regard is to be had not only to the physical cause of the impairment, but also to any mental or behavioural disturbances flowing from the physical injury, such as ‘functional overlay’ to which the President refers in his judgment. The same applies where the dominant cause of the plaintiff's condition consists of mental or psychological factors. In such a case, any accompanying physical incapacity may be taken into account in determining whether the plaintiff's mental or behavioural disabilities are serious and long term. But the first task is to decide whether the dominant cause of the plaintiff's condition falls to be determined by reference to the criteria in para.(a) or (c). Such an approach is likely to prevent the tail wagging the dog or creating the ‘anomaly’ to which their Honours referred in Humphries v. Poljak [10] which might otherwise take place as it did in this case. The medical evidence summarised by the President seems to establish that, although the plaintiff suffered a soft tissue injury of the cervical spine, it was the operation of mental and psychological factors that were the dominant cause of his condition. In those circumstances, it was inappropriate to determine the relevant issue by applying the criteria in para.(a) of the definition section. As the President has pointed out, in the circumstances of this case, the question whether the plaintiff suffered a ‘serious injury’ fell to be determined by the provisions of para.(c) and not para.(a).”
83 In the present instance, reliance was placed on behalf of the plaintiff solely on paragraph (a). The effect then is that if pain and restrictions are found to be relevant bodily functions which are predominantly psychologically-driven, as distinct from the consequences of physical injury, such impairments or restrictions must be put to one side and ignored for the purposes of determining whether the plaintiff in this case has sustained a serious injury.
84 If, however, pain and restrictions are found which are predominantly caused by physical injury, it is proper to consider not only the consequences of the physical injury but also any “functional overlay”.
85 In the present case, reliance is placed on behalf of Mrs Schnerring on injuries to two body parts, namely the cervical spine (or neck) and the left shoulder. Mr Brett QC and Mr Pierorazio, on behalf of the plaintiff, contended that it would be proper in determining whether a serious injury was found to exist effectively to combine the consequences of the injuries to these two body parts. This submission, they said, was advanced as a matter of formality because existing Court of Appeal authority required the two body parts to be treated as separate bodily functions for the purpose of the analysis. (Transcript (“T”) 2-3)
86 However, Mr Brett remarked:
“It's quite clear that this is something that’s troubled the courts because the two areas are so close and the symptoms relating to both areas can be so intertwined, the courts have clearly struggled and quite frankly often having identified that you have to have a separate body function they bend over backwards to try and point it to one or the other.”
(T3, Lines (“L”) 9-15)
87 He referred to Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 and Ozkul v Victorian WorkCover Authority [2017] VCC 1193.
Conclusion
88 Mr Brett and Mr Pierorazio placed no reliance upon any loss of earning capacity consequences in support of the view that, judged by its consequences, the injury here was “very considerable”.
89 A summary extracted from Mrs Schnerring’s taxation returns from the year ending 30 June 2008 to the year ending 30 June 2018 showed that her gross income, as disclosed in those returns, increased rather than decreased.
90 We are left then with the pain and suffering consequences to judge whether the injury in question is “serious”. Mrs Schnerring herself said that her neck pain has been the bigger problem, as compared to her shoulder pain. (T54, L1-3)
91 The contention that the neck or, indeed, the shoulder, has been the source of major pain and suffering consequences, much less “very considerable” ones, is embarrassed by the absence of any pathology which would explain the severity of the reported pain and restrictions, as Dr Menz has mentioned. It was not put to Mrs Schnerring in cross-examination that she was malingering.
92 Rather, the major attack in cross-examination was to assert that much, if not most, of the pain and suffering consequences and restrictions in her work and recreational life derived from the state of her two knees, in particular, the left knee. As the narration of facts above shows, in the period since the year 2000, both knees have been subject to arthroscopy.
93 Mr Clements QC submitted that in judging the consequences of this transport accident injury, and whether those consequences should be judged “very considerable”, it was necessary to make the assessment in light of other unrelated injuries and limitations.
94 Mr Clements and Ms Ryan referred to the decision of Harper JA and Beach AJA in the Court of Appeal in Bezzina v Phi & Anor [2012] VSCA 161. In Phi’s Case, in the course of dismissing an appeal from a Judgment of her Honour Judge Cohen in this Court, their Honours said:
“In assessing whether each claimed serious injury satisfied the ‘very considerable’ test, her Honour was required to examine the impact of the injury on the applicant as a whole. Far from her Honour’s approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries.”
[2012] VSCA 161 [23]
95 Mr Clements and Ms Ryan contended that since Mrs Schnerring’s knee disorders precluded her for instance from kneeling to clean the bath, shower or toilet at her residence, it was not to the point and not a relevant consequence to consider an allegation which they did not admit, that her neck and shoulder would also have precluded her. Their contention as to the various alleged restrictions was that they were more properly attributable to the knee disorders, which they said should be regarded as far more significant than the neck and the shoulder, because they had required repeated attention and operative intervention.
96 Mrs Schnerring was cross-examined at length about her left knee. Again, since the knee disorders precluded Mrs Schnerring from kneeling or squatting, she would, independently of the consequences of this transport accident injury or injuries, have been precluded from weeding in the garden or scrubbing the bath or toilet. (T49, L21-31)
97 Mrs Schnerring admitted that the knees, independently of the neck or the shoulder, limited her comfortable walking to half an hour. (T44, L3-5). Likewise, she was precluded from prolonged standing simply by her knee disorders. (ibid, L9-14)
98 Mrs Schnerring admitted that left knee pain disrupted her sleep independently of any problem with the neck or the shoulder, then sought to go back on that admission, but eventually agreed with the proposition. (T41, L5-19)
99 Mr Clements and Ms Ryan contended that the almost total absence of references to Mrs Schnerring’s knee problems, in particular with her left knee, in the two affidavits which she swore should be regarded as destructive of her credit. In particular, they said it was striking that she omitted to mention having sought advice and received clearance for a full knee replacement for the left leg. (DCB 31)
100 Mrs Schnerring replied that the pain and restrictions which led her to seek advice from Dr Russell she believed were the result not of pain emanating from her left knee but rather from sciatic pain following the course of a nerve down her left leg. After six months with treatment in the form of Lyrica and physiotherapy this had resolved and so the proposal for a knee replacement was not acted upon. (T36, L26-27; T59, L24-31)
101 In re-examination, Mrs Schnerring said that she did not choose the words in the affidavit herself. She gave instructions for the second affidavit to Junior Counsel in August 2019, even although the affidavit was not sworn until February 2020, by which time the bout of “sciatic pain” to which she referred had abated. (T60). She said she was unaware, given that her application related to the neck and left shoulder, that she was under any obligation to make a particular disclosure relative to the knees.
102 Mr Brett and Mr Pierorazio said that I should accept Mrs Schnerring as “a truthful witness who made concessions about a number of things, sometimes too much concession but who should be accepted as very much a witness of credit”. (T97, L9-12)
103 In light of Mrs Schnerring’s nomination of the neck as the fundamental seat of her problems rather than the shoulder, I believe it appropriate to attribute the transport accident-related consequences to this injury. I accept the submission made by Messrs Brett and Pierorazio that Mrs Schnerring should generally be regarded as a witness of truth. As a general rule, she did make reasonable and proper concessions, with one exception, where she attempted to go back on her admission as to the consequences for her sleep or left knee pain.
104 Her description of the visit to Dr Russell as the result of the onset of sharp but relatively short-lived sciatic pain seems at first to be a plausible evasion rather than a truthful account. Ultimately, however, I believe I should accept it. Dr Russell took the history “pain refers to leg and thigh generalised and posterior knee pain”. This is consistent with the pain which a lay person could plausibly attribute to sciatica, whether or not that is ultimately an accurate attribution.
105 Mrs Schnerring sought out a new orthopaedic surgeon, rather than the one who had previously operated upon her, seeking a second opinion. Agreeing to radical surgery, as recorded in Dr Russell’s report, she ultimately did not proceed. (T24, L8-16; T28, L13-15)
106 Her conduct is therefore consistent with a short-term flare-up of something different from the disability with which she had been living for years. Ideally, litigants should be imbued with the need not merely to tell the truth but the whole truth, as the standard oath requires. Mrs Schnerring’s conduct in swearing the two affidavits, and one would think in providing instructions for them, and perhaps failing to suggest a modification was required to the 2019 affidavit in light of the consultation with Dr Russell, falls short of the ideal. Nevertheless, I do not believe I should treat Mrs Schnerring as having an impaired credit.
107 As recorded above, Dr Slattery, who has been uniquely placed as treating general practitioner over a number of years, to observe the progress of Mrs Schnerring’s pain and disabilities, recorded that her neck pain had improved over time. Mrs Schnerring denied this. (T53, L23-28). Dr Grave also reported a reduction in pain.
108 Pain is an entirely subjective matter. The statement “I feel your pain” can be no more than metaphorical. Nevertheless, I am inclined to think that a treating general practitioner with care of a patient over a period of years is better placed to give a dispassionate and independent opinion on this subject than the patient herself. Likewise a specialist physician like Dr Grave, who saw Mrs Schnerring on a number of occasions.
109 I agree with Mr Clements and Ms Ryan that the seriousness of the consequences of this transport accident injury must be judged in light of the condition and circumstances of the plaintiff, including the consequences of pre-existing and unrelated injuries disability.
110 The significance, therefore, of interruptions to sleep and constraints on the ability to perform domestic chores and engage in recreation must be read down in light of the restrictions and pain to which Mrs Schnerring would have in any event been subject independently of the transport accident.
111 Mrs Schnerring has been able to continue with her pre-accident employment. She has suffered no loss of earning capacity. Many of the restrictions in her daily and recreational life of which she complained are at least partially caused by the unrelated pain and restrictions deriving from her knees. Many if not all of the restrictions in her life which she has suffered would have been obtained independently of the transport accident.
112 In those circumstances, the pain and suffering consequences of this transport accident do not meet the “very considerable” test required for a finding of serious injury.
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