Sette v Transport Accident Commission
[2014] VCC 186
•4 March 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00878
| MARIA SETTE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 February 2014 | |
DATE OF JUDGMENT: | 4 March 2014 | |
CASE MAY BE CITED AS: | Sette v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 186 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pre-existing neck condition – whether it had been aggravated – whether the prior neck condition resulted in an impairment of function – determination of the impairment of function resulting from the aggravation – incomplete medical histories given to medico-legal assessors – whether opinions of any value
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: The Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes with Ms J Federico | Arnold, Thomas & Becker |
| For the Defendant | Mr D Myers | Solicitor to the Transport Accident Commission |
HIS HONOUR:
The proceeding
1 By an Originating Motion filed 26 February 2013, the plaintiff seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence a proceeding at common law to recover damages for injuries which she suffered in a transport accident which occurred on 9 April 2006.
2 The plaintiff claims that she has suffered a serious long-term impairment or loss of the function of her neck.
3 Ms J Forbes of Counsel appeared with Mr J Frederico of Counsel for the plaintiff. Mr D Myers of Counsel appeared for the defendant.
4 The following evidence was adduced during the hearing of the application:
· The plaintiff was called to give evidence and was cross-examined.
· The plaintiff tendered her Court Book (“PCB”), pages 5-12 and 15-56: Exhibit A.
· The defendant tendered a letter of instruction from the solicitors for the plaintiff addressed to Mr Craig Timms, neurosurgeon, dated 23 November 2012: Exhibit 1.
· The defendant tendered its Court Book (“DCB”), pages 1-251: Exhibit 2.
The transport accident
5 On 9 April 2006, at about 5.00am, the plaintiff was driving her car along the Monash Freeway at about 100 kilometres per hour. Unbeknownst to the plaintiff, ahead of her were two cars which had been involved in a transport accident. One of those cars came to rest in her lane. She collided into that car.
6 As a consequence of the transport accident, the plaintiff suffered an injury to her neck.
The issues
7 The plaintiff had previously suffered problems with her neck in 1989 as a result of the transport accident, and in January 1995 and April 2005, in the course of her employment. The defendant submitted that the medical evidence demonstrated that the plaintiff was troubled by the injury to her neck from about 1989 and up to the time of the occurrence of the subject transport accident.
8 The first issue raised by the defendant was that the injury which the plaintiff suffered in the subject transport accident is an aggravation of a pre-existing condition which the plaintiff has suffered with her neck, and therefore, the plaintiff bears the onus to satisfy the principle of law stated in Petkovski v Galletti [1] to satisfy me that she has suffered a serious injury. I will refer to that principle of law later in these reasons.
[1] [1994] 1 VR 436
9 The second issue is that the plaintiff did not disclose the full extent of the prior trouble she had with her neck in her affidavits nor to examining medical practitioners who offered opinions on what injury the plaintiff suffered in the subject transport accident.
10 The third issue is whether the plaintiff suffered any identifiable pathology to her neck in the subject transport accident which resulted in weakness in her dominant right arm or whether the weakness has been caused by the onset of Parkinson’s disease.
11 The plaintiff submitted that the three issues raised by the defendant are adequately dealt with by the evidence of the plaintiff and the medical evidence. More particularly, that the evidence discloses that at the time of the occurrence of the subject transport accident, the plaintiff was not troubled by her prior neck condition to any material degree. Additionally, if that was my finding, then I could accept the opinions of the medical practitioners who have considered what injury the plaintiff suffered in the subject transport accident without reservation.
12 The foregoing issues require me to traverse a significant body of medical evidence going to the condition of the plaintiff's neck prior to the occurrence of the subject transport accident.
The prior neck condition
13 In her first affidavit, the plaintiff said that when she was 18 years of age, she suffered an injury to her neck in a transport accident. Given that the plaintiff was born in 1967, that would mean that the transport accident occurred in 1985. However, the plaintiff corrected that estimate to it having occurred in 1989. She said nothing else about that injury.
14 In the same affidavit, the plaintiff said that she suffered an injury on 4 January 1995 when she was working as a prison officer. She missed a step, resulting in a fall. She suffered bruising to her coccyx and jarring to her neck. She said she had a little time off. She had ongoing treatment so that she could continue working. She added that the injury she suffered to her lower back persisted longer than any symptoms which she experienced to her neck.
15 The plaintiff did not refer to the injury she suffered to her neck in April 2005 in that affidavit. The first reference she made to that injury was in her second affidavit. She referred to an examination undertaken by Mr Dickens, orthopaedic surgeon, on 20 January 2014. He was engaged by the defendant to undertake a medico-legal examination of the plaintiff. In the body of his report dated 21 January 2014, he brought the occurrence of that injury to her attention. The plaintiff told him that she had forgotten about it. He also recorded that the plaintiff was adamant that at the time of the subject transport accident, she had no major issues with her neck. In her second affidavit, she referred to the revelation made by Mr Dickens. She said that she did not remember suffering that injury.
16 Mr Myers cross-examined the plaintiff at some length regarding the condition of her neck prior to the occurrence of the subject transport accident. I do not propose to repeat much of what the plaintiff said in answer to the cross-examination, but I do intend to refer to the medical evidence which demonstrates the treatment which the plaintiff had for her neck.
17 The incident of 4 January 1995 led the plaintiff to obtain treatment from Dr Richardson, chiropractor. In a report dated 12 August 2004, he said that the plaintiff first consulted him on 27 November 1995 complaining of migraine-style headaches and lower back and neck pain. The plaintiff told him that she had been involved in a prior transport accident, which I infer must be the transport accident which occurred in 1989.
18 At the time of his examination, Dr Richardson recorded the following:
“… She now described the pain in her back and neck as tight, burning and aching, making her feel nauseous and causing muscle spasm throughout her spine, leading to migraine styled headaches. The injuries may be aggravated without cause, when she is tired or when she has not able to remain active or mobile enough. The back and neck pain and migraines can be relieved by heat, general exercise and spinal manipulation. … .”[2]
[2]DCB 3
19 His examination of the plaintiff revealed:
“… Examining her neck, cervical compression elicited pain around the C7/T1 vertebral joints, traction relieved pain. Range of movement was restricted around the C7/T1, C6/C7, C5/C6 and suboccipital joints in all planes. Suboccipital muscle spasm was palpable. Joint play was restricted and painful at the C7/T1, C6/C7, C5/C6 Occ/C1/C2 vertebral joints.
A diagnosis of previous sprain strain injuries to the L5/S1, C7/T1, C6/C7 and C5/C6 vertebral joints was made with secondary early osteoarthritic changes to those joints causing the vertebral joints pain, stiffness and associated muscle spasm and migraines. … .”[3]
[3]DCB 3
20 Dr Richardson concluded:
“Miss Sette's prognosis is guarded. Spinal manipulation proves effective in reducing the above symptoms when they arise, it is not a cure for secondary osteoarthritic changes to vertebral joints following trauma. Treatment is of a supportive nature designed to reduce the vertebral joints pain and stiffness, associated muscle spasm and migraines as they occur. Miss Sette's condition is likely to be ongoing.
These injuries, being the secondary osteoarthritic changes to the above-mentioned vertebral joints of Miss Sette’s back are significantly related to her employment at the Office of Correction and the fall she sustained on 4th of January 1995.”[4]
[4]DCB 4
21 The plaintiff made a Claim for Compensation dated 11 January 1995 relevant to injuries suffered to her neck and lower back.[5] Her claim was referred to conciliation.[6] In a statement accompanying the referral to conciliation she said:
“… My condition has been constant but due to work commitments and personal obligations it made it almost impossible to get to see my chiropractor in the hours he was open. … .”[7]
[5]DCB 117-118
[6]DCB 119
[7]DCB 120
22 It would appear that the reason for the conciliation was because there was an issue as between the plaintiff and the insurance agent whether the plaintiff required further chiropractic treatment. She had ceased having chiropractic treatment for some time due to, as she said in the statement, her work commitments. What she said in the statement regarding the condition being constant appears to be a reference to both the injuries to her neck and lower back.
23 In April 2005, the plaintiff was employed by Crown Casino. She reported a straining injury to her neck and shoulder on 3 April 2005. She made a Claim for Compensation dated 4 May 2005 in which she described the mechanism of the injury as the necessity to reach at card tables.[8]
[8]DCB 123-125
24 The plaintiff saw Dr Weyland, general practitioner, on 4 May 2005, who provided her with a Certificate of Capacity in which he diagnosed a cervical facet joint strain. He imposed work restrictions on the plaintiff that she not work at large poker tables. He recommended that she be referred to a physiotherapist for treatment.[9]
[9]DCB 126-127
25 Dr Weyland provided the plaintiff with further Certificates dated 6 May 2005, 9 May 2005, 24 May 2005, 31 May 2005, 6 June 2005 and 14 June 2005.[10] The next Certificate was provided by Dr Richardson and was dated 2 July 2005. His diagnosis was different from the diagnosis made by Dr Weyland. He referred to the plaintiff having suffered a sprain strain injury to the cervicothoracic spine with associated cervicogenic headaches.[11]
[10]DCB 128-139
[11]DCB 140-141
26 Dr Weyland provided the plaintiff with further Certificates dated 12 July 2005, 1 August 2005, 8 August 2005, 23 August 2005, 13 September 2005, and 17 October 2005.[12] In a number of those Certificates, the plaintiff was certified as fit for modified duties,[13] and in some others, she was certified as being unfit for duties.[14] In the Certificate dated 8 August 2005, Dr Weyland imposed work restrictions on the plaintiff that she have breaks for 20 minutes every 80 minutes, work on small tables, and that she work no more than five days consecutively.
[12]DCB 142-155
[13]12 July 2005, 8 August 2005, and 23 August 2005
[14]1 August 2005 and 17 October 2005
27 A schedule of payments was obtained from Crown Casino which sets out the treatment which the plaintiff had from 1 June 2005, concluding on 12 September 2006. That treatment included chiropractic and medical treatment. In that period, the plaintiff had 62 chiropractic and medical consultations.[15] She was paid weekly payments of compensation for absences from her work from 4 April 2005 to 17 October 2005. She was absent for 215.20 hours and was paid $3,982.34 by way of weekly compensation. It is not clear whether that is a gross or net figure.[16]
[15]DCB 156-157
[16]DCB 158
28 The plaintiff suffered further injury in her employment with Crown Casino. She made a claim dated 2 February 2006 in which she said that she suffered a sharp pain in January 2006 in her lower back while stretching “trying to save” her neck and shoulder.[17] The plaintiff saw Dr Chandrananth, general practitioner, who provided her with a Certificate of Capacity dated 29 January 2006 relevant to a lower lumbar back strain.
[17]DCB 159-161
29 The plaintiff was referred to Mr Maister, physiotherapist, for treatment for that claimed injury. In a Certificate of Capacity he provided dated 10 February 2006, his diagnosis was a lumbar and thoracic injury, and also cervical pain causing severe headache. He noted on the Certificate that the plaintiff was unable to work because her cervical pain and headache were aggravated by her work activities.[18] He certified her as unfit for work on 10 and 11 February 2006. The next Certificate of Capacity he provided dated 14 February 2006 does not refer to the plaintiff’s neck,[19] nor do subsequent Certificates of Capacity provided by Dr Chandrananth dated 23 February 2006, 3 March 2006 and 8 March 2006.[20]
[18]DCB 170-171
[19]DCB 172-173
[20]DCB 174-179
30 Dr Chandrananth provided a Certificate of Capacity dated 8 March 2006 in which he diagnosed a neck strain and headache and certified the plaintiff as unfit for work on 7 and 8 March 2006.[21] Subsequent Certificates of Capacity dated 11 March 2006, 16 March 2006 and 3 April 2006 do not refer to the plaintiff’s neck.[22]
[21]DCB 180-181
[22]DCB 182-187
31 A second schedule of payments was obtained from Crown Casino which sets out the treatment which the plaintiff had from 16 March 2006 to 21 December 2006. Those payments must have been made for treatment referable to the claims for injury made by the plaintiff against Crown Casino. In that period, the plaintiff had 58 physiotherapy and medical consultations, and three consultations with an occupational therapist.[23]
[23]I have excluded payment of chemist accounts and other attendances covered by the earlier schedule of payments
32 The clinical notes of Dr Chandrananth reveal that in 2006, the plaintiff attended on 1 February 2006 complaining of soreness in her neck, and on 8 March 2006, was complaining of neck stiffness.[24] It would appear from the clinical notes that in January, February and March 2006, the plaintiff was significantly troubled by lower back pain.
[24]DCB 69-70
33 Mr Myers put all of the foregoing medical evidence to the plaintiff. It was not my impression that she disagreed that the medical evidence demonstrated the problem she was having with her neck from 1995 when she was first treated by Dr Richardson, and then from 2005, when she was treated by Dr Weyland and Dr Chandrananth. Mr Myers submitted that the medical evidence, together with the plaintiff's evidence, demonstrated that even as late as February and March 2006, the plaintiff was still troubled by neck pain.
The subject neck injury
34 In her first affidavit, the plaintiff said that she was removed from the scene of the subject transport accident by ambulance and was taken to the Dandenong Hospital. An x-ray was taken of her neck.[25] She was placed in a neck brace. She was discharged without the necessity for any further treatment at the hospital.
[25]PCB 15
35 The plaintiff saw Dr Chandrananth on 11 April 2006. She told Dr Chandrananth that she had been involved in the subject transport accident. It would appear from the entry in Dr Chandrananth’s clinical notes that the plaintiff complained of pain in her neck and “back”. The plaintiff was prescribed Ducene for pain relief. The plaintiff attended Dr Chandrananth again on 13 April 2006. She noted that the plaintiff told her that her neck was much better and, on examination, Dr Chandrananth found slight restriction of movement. The plaintiff saw Dr Chandrananth on 13, 17, 27 April 2006 and 4 May 2006. The plaintiff told her that she was suffering from right knee and leg pain at those consultations. The plaintiff saw Dr Chandrananth on 8 May 2006 when she told Dr Chandrananth that most of the pain she was experiencing, I assume from the subject transport accident, had resolved.[26]
[26]PCB 71-72
36 In the period when Crown Casino accepted liability to pay for the plaintiff's medical and like expenses referred to in the second schedule, that is, from 16 March 2006 to 21 December 2006, the plaintiff saw Dr Chandrananth for headaches and/or neck pain on 6 August 2006, 13 August 2006, 15 August 2006 and 26 August 2006. Dr Chandrananth’s clinical notes are extremely brief in what has been noted. I can only assume that the consultations I have just referred to were for treatment for the neck injury the plaintiff says she suffered in the subject transport accident. What is clear from a comparison between Dr Chandrananth’s clinical notes relevant to treatment for the neck injury and the second schedule, is that the plaintiff was receiving more treatment for her work-related injury than for the injury she suffered to her neck in the subject transport accident.
37 Mr Myers submitted that the only conclusion that is open on the foregoing evidence is that from 2004 and going into 2005 and early 2006, the plaintiff was troubled by a neck condition, and that what treatment she obtained subsequently is consistent with a persistence of that pre-existing neck injury, and far less likely to be referable to an aggravation of that neck injury resulting from the subject transport accident.
The medico-legal assessments
38 The plaintiff was referred to Mr Craig Timms, neurosurgeon, by Dr Paransothy, general practitioner.[27] He provided two reports dated 29 October 2012 and 11 December 2012. He examined the plaintiff on 13 August 2012,[28] and reviewed her on 21 August 2012. He asked the plaintiff whether she had any past medical history, and he recorded that he told her that she had no chronic medical conditions, but suffered from migraine headaches intermittently, and was diagnosed as suffering from Parkinson's disease. She told him that she had been involved in a high-speed transport accident in April 2006 which resulted in her suffering migraines, neck pain and symptoms of sensory deficit and weakness in her right arm.
[27]Dr Paransothy works at the same medical clinic as Dr Chandrananth
[28]Incorrectly referred to him in the body of his first report as 13 August 2011
39 At the time Mr Timms composed his first report, he answered a series of questions which were put to him. In answer to one, he said that the plaintiff did not report any medical or physical abnormalities from which she was suffering prior to the occurrence of the transport accident. Mr Timms did not return to the subject of the plaintiff's prior medical history at the time he composed his second report.
40 Mr King, orthopaedic surgeon, examined the plaintiff on 22 March 2013. He obtained a history from the plaintiff of the fall on 4 January 1995 when she was working as a prison officer, and the injury to her lower back in January 2006 when she was stretching.
41 Mr King's position is somewhat different from that of Mr Timms because he was provided with a report of Mr Marshall, general surgeon, who examined the plaintiff on 13 January 2004. It would appear that the examination was relevant to the injury she suffered on 4 January 1995. Mr Marshall recorded a history that the plaintiff had seen Mr Richardson for some time for treatment, but the tenor of the history gives the impression that she was treated by Mr Richardson for intermittent bouts of lower back and neck pain.
42 Mr Bittar, neurosurgeon, examined the plaintiff on 29 November 2013. The plaintiff told him that she suffered a whiplash injury at the age of 18; that she had chiropractic treatment for about two years before it settled, and thereafter she did not have any ongoing symptoms or treatment requirements.
43 There is precious little medical evidence of what the plaintiff was like before the occurrence of the subject transport accident. The only real insight into that can be derived from the evidence I have reviewed above, and from the only report from Dr Chandrananth dated 12 February 2010. Relevantly, Dr Chandrananth said:
“Ms Sette developed stiffness and neck pain the next day and she was seen by me on 13th April 2006. She was suffering from neck muscle strain related to the accident. I believe Ms Sette sustained neck muscle and cervical spine injury. Currently she has intermittent pain and stiffness. Her neck movements are restricted.
Ms Sette did have occasional neck pain previous to this injury, but her neck sprain has been caused by the accident. Her current symptoms are directly attributable to the motor car accident. She did not have surgery. She has had several treatments with Physiotherapy. She did not have any further investigations apart from the xray done at the Dandenong Hospital.
Currently Ms Sette suffers from recurrent migraines, neck pain and stiffness intermittently due to the whiplash injury. These pains can last for a long time. The effect of the whiplash injury has not been stabilised.”
44 Ms Forbes submitted that I could be satisfied on the basis of this medical evidence and the evidence of the plaintiff that her previous neck condition had essentially resolved. However, in my view, his evidence leaves a critical question unresolved – what was the condition of the plaintiff’s neck prior to the occurrence of the subject transport accident? In my view, there is no persuasive evidence which demonstrates that it is probable that her previous neck condition had essentially resolved.
45 The fact that the plaintiff did not inform Mr Timms, Mr King and Mr Bittar of the full history of her previous neck condition placed them in a position where they accepted that she had no significant medical history, and therefore, they were dealing with the primary injury to her neck rather than an aggravation of her neck which would then require them to turn their minds to the levels of contribution of the previous neck condition and the aggravation to condition she presented with when they examined her.
46 Dr Chandrananth’s opinion in his report does not advance the position of the plaintiff very much further. What is absent is whether Dr Chandrananth knew of the treatment which was paid for by Crown Casino.
47 The only medical opinion which is based upon a more complete history of the plaintiff’s prior neck condition is the opinion given by Mr Dickens, orthopaedic surgeon. Mr Dickens examined the plaintiff on 24 January 2014. In the letter of instruction forwarded to him by the defendant dated 9 January 2014,[29] there is a schedule of some fifteen documents sent to him for his consideration. However, what he did not have was the report of Mr Richardson and the schedules of the treatment paid for by Crown Casino. It would appear that the medical evidence which Mr Dickens did not have was obtained by the defendant by a subpoena subsequently.
[29]DCB 116a-116c
48 Armed with most of the history of the plaintiff’s prior neck condition, Mr Dickens diagnosed that the plaintiff had suffered from a soft tissue injury to her neck, resulting from the subject transport accident, in the presence of degenerative changes at multiple levels in her neck. Relevantly to her past history, he then said:
“ I believe that she most certainly had symptoms in the cervical spine in the past and at the time of the accident and shortly afterwards and now there is evidence that she had degenerative changes at multiple levels in the cervical spine and that the accident has resulted in an aggravation of that underlying pathology. There is no associated radiculopathy but it is not uncommon after an accident where preexisting degenerative changes have been noted that the symptoms can become chronic and difficult to manage and I suspect that is the case in this particular patient who to my assessment does not appear to have any evidence of embellishment of her symptoms.”[30]
[30]DCB 115
49 On the critical issue of causation, he said:
“… On the basis of the history provided to me I am unable to make an estimate of a pre-accident impairment and therefore it would be impossible for me to provide you with an apportionment.”[31]
[31]DCB 115
The principles of law
50 In Petkovski v Galletti,[32] Southwell and Teague JJ made the following relevant observation:
“The accident did not cause the pre existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”[33]
[32][1994] 1 VR 436
[33]at 444
51 And later, when dealing with the quality of the aggravation necessary to demonstrate that the impairment consequences are serious, they said:
“The matter may be tested in this way: let it be assumed that the claimant was at the time of the relevant accident already suffering from a ‘serious injury’; and that the accident aggravated his condition to a minor extent. If the reasoning of the learned trial judge were to be applied, the claimant must be given leave to pursue the claim for that minor aggravation. We cannot accept that as correct. The clear intention of the Parliament in passing the Act was to prevent such minor claims.”[34]
[34]at 444
The pre-existing condition
52 The evidence which I have summarised in paragraphs 13-32 appears to me to demonstrate that the plaintiff had a very troublesome neck condition at times. Not one medical practitioner in this proceeding was provided with all of that evidence. There is not one medical practitioner, therefore, who has provided an opinion regarding the injury the plaintiff suffered to her neck resulting from the subject transport accident which adequately identifies the injury suffered by the plaintiff before the subject transport accident to enable me to determine the extent to which it impaired the function of her neck.
53 The closest that the medical evidence gets to that position are the opinions of Dr Chandrananth and Mr Dickens. However, I am not satisfied that they had all of the evidence which they needed in order to properly understand the nature of the plaintiff's prior neck condition.
54 The difficulties for the plaintiff in satisfying me that she has suffered a serious long-term impairment of function of her neck are essentially the following:
· How is the plaintiff's prior neck condition to be identified, that is, as a pathological or anatomical process?
· If the plaintiff did suffer an ongoing prior neck condition, has it been aggravated by the subject transport accident?
· If an aggravation occurred, how is that to be identified; that is, what is the pathological or anatomical process which has been aggravated?
· What impairment of function resulted from the prior neck condition?
· What impairment of function has resulted from the aggravation?
55 These questions must be answered in order to meet the demands of the test enunciated in Petkovski. On my analysis of all of the evidence, that exercise has not been undertaken. The closest analysis is that of Mr Dickens which I do not think advances the plaintiff’s case very far at all because he candidly said that he is unable to apportion responsibility for the complaints made to him of pain and disablement resulting from the aggravation of the plaintiff’s prior neck condition.
56 I return to the submission made by Ms Forbes that I should accept that, essentially, the plaintiff's prior neck condition had resolved prior to the occurrence of the subject transport accident. The reason why I reject that submission is made plain by the opinion of Mr Dickens. How can I reach a conclusion that it has resolved, when Mr Dickens, armed with a fair proportion of the evidence I had before me, concluded that there was a prior neck condition which had been aggravated?
Parkinson's consequences
57 Regrettably for the plaintiff, she has been diagnosed with Parkinson’s disease. Mr Myers and Ms Forbes agreed that the opinion of Professor Stephen Davis, neurologist, is representative of the opinions expressed by number of other neurologists of the diagnosis of Parkinson's disease. Professor Davis examined the plaintiff on 11 December 2013. In his report dated 11 December 2013, he said that his examination disclosed:
“On the examination couch, she did exhibit cogwheel rigidity at the right wrist which was provoked by various movements of the left arm. There was evidence of bradykinesia with rapid movements of the right hand. Muscle power was normal as were reflexes and coordination. Plantar responses were flexor. Lower limb examination was unremarkable although I thought that there was slightly increased tone in the right leg and slowness of foot tapping movements.”[35]
[35]DCB 100
58 Professor Davis then said:
“I would agree with the other neurologist that she has tremor-dominant idiopathic Parkinson’s disease and she has had the standard investigations … In my view, she has the full hand of Parkinsonian signs with tremor (asymmetrical and predominantly resting) cogwheel rigidity and bradykinesia. The clinical course has been relatively benign thus far and she apparently has not tried any medication for the condition … .”[36]
[36]DCB 100
59 Mr Timms, neurosurgeon, was of the opinion that the mild weakness he found on the plaintiff’s right arm, and the decreased sensitivity on the right side at C5-6 and C6-7 were consistent with the following:
“ Ms Maria Sette is likely to suffer a cervical whiplash injury from her motor vehicle accident in April 2006, which resulted in neck pain and right arm radiculopathy where I believe [there] is neural compression of disc and osteophyte formations at that levels of C5-6 and also at C6‑7.”[37]
[37]PCB 26
60 Mr Timms arrived at that opinion based upon an MRI scan which was taken on 19 August 2012.[38] He considered that the plaintiff’s symptoms were likely to fluctuate depending on her level of activity. It would appear that he also considered that her symptoms would worsen, and if that occurred, she might require surgical treatment.[39]
[38]PCB 28-29
[39]PCB 26
61 Mr King considered that the plaintiff had suffered from an injury to her neck and a brachial neuralgia. He considered that she had been left with a mild impairment of her neck and right upper limb function due to a combination of chronic mild neck pain and mild diffuse, but rather atypical brachial neuralgia. He did not consider that any specific treatment was indicated.[40]
[40]PCB 34g
62 Mr Bittar considered that the plaintiff had suffered an aggravation of cervical spondylosis with persistent neck pain. He considered that she needed regular chiropractic treatment and myotherapy, and that she should continue using analgesic medication. It would appear that he considered that the difficulties the plaintiff was experiencing with her right arm were caused by her Parkinson’s disease, and that her capacity to work was not affected by the injury to her neck, although, he considered that an increase in her workload would lead to an increase in neck-related symptoms an associated disability.[41]
[41]PCB 39-40
63 As can be seen from the foregoing, there is a difference of opinion regarding whether the neck injury as described by Mr Timms and Mr King has resulted in an impairment of the function of the plaintiff’s right upper limb, and Mr Bittar, who appears to consider that that impairment of function is due to Parkinson’s disease. Mr Dickens found no sensory loss in the upper limbs, but did find a global weakness in the strength in the plaintiff’s right arm.
The impairment consequences
64 In the plaintiff’s first affidavit, she described the impairment consequences of the subject transport accident as follows:
· Worsening pain and weakness in the right arm.
· Regular pain in the neck restricting her capacity to turn her neck.
· Impaired ability to deal cards with her right upper limb, and an impaired ability to use her right arm when toileting, blowing her nose, holding a blow dryer, chopping vegetables, undertaking food preparation, brushing her teeth, applying make up and writing.
· The necessity to take more sick days because of fluctuating symptoms, which I assume is a reference to symptoms of the neck and the right upper limb.
· Struggling to hold a pen to meet the necessity to record patrons and card games.
· Reduction in her days of work from five days down to four days.
65 In her second affidavit, the plaintiff described the treatment she presently has provided by a chiropractor. The major problem that she referred to in that affidavit appears to be more related to her lower back. She takes medication to treat her neck pain, and applies tiger balm onto her neck a couple of times a week in order to gain relief from the pain.
66 A significant portion of the plaintiff’s first affidavit, and, to a lesser extent, in her second affidavit, is devoted to the impairment of function of her right upper limb. According to Professor Davis, and indeed the other neurologists, that impairment of function is due to the Parkinson’s disease. The neural compression and the brachial neuralgia referred to by Mr Timms and Mr King respectively have resulted in weakness in the plaintiff’s right upper limb, but the grade of that weakness and the manner in which it impairs the function of the plaintiff’s right upper limb is not described by them. Nor is the weakness in the right upper limb found by Mr Dickens.
Disposition
67 The failure of the plaintiff to inform the examining medical practitioners of the full extent of the treatment she obtained for her prior neck condition is troubling. Mr Myers did not submit that the plaintiff was not creditworthy, but he did submit that the plaintiff is unreliable. For reasons which will become plain, I do not consider that it is necessary for me to determine whether the failure of the plaintiff to disclose matters going to her prior neck condition render her lacking creditworthiness.
68 The first issue is quite obviously the failure of the plaintiff to disclose matters going to her prior neck condition, and whether that failure renders the opinions of Mr Timms, Mr King, Mr Bittar and Mr Dickens of doubtful value. I think it does because, as I have already observed, Mr Dickens considered that the plaintiff’s prior neck condition was relevant because he concluded that she did have a prior neck condition which had been aggravated, but that he was unable to quantify the aggravation in order to undertake an apportionment.
69 That leads to the second issue which is an inability on my part to conclude that the plaintiff’s prior neck condition had resolved. There is simply no evidence to satisfy me that that is the case. The best evidence of the nature of the prior neck condition is that of Dr Chandrananth in a report which is four years old which I think suffers from the same problems as the opinions expressed by Mr Timms, Mr King and Mr Bittar; that is, the lack of a full history of the plaintiff’s prior neck condition.
70 The third issue relates to whether I accept that at least, the subject transport accident resulted in some pathological change in the plaintiff’s neck, resulting in weakness in her right upper limb. Mr Timms considered that the pathology demonstrated on the MRI scan was the cause of the plaintiff's neck pain and right upper limb weakness. Mr King provided a different diagnosis, but considered that the brachial neuralgia was the cause of the plaintiff’s right upper limb weakness. Mr Dickens found right upper limb weakness was confirmatory of the finding made by Mr Timms and Mr King.
71 I think the plaintiff probably did suffer an aggravation of the pre-existing condition of her neck; however, I am unable to determine the extent of the impairment of the function of her neck prior to the occurrence of the subject transport accident, and it follows that I cannot determine the extent of the impairment of the function of her neck resulting from the subject transport accident. I am, however, satisfied that she has suffered pathology in her neck which was not present before the occurrence of the subject transport accident which has resulted in weakness of the right upper limb, but I am unable to determine the extent of that weakness given that the neurological evidence appears to me to demonstrate that a large part of the loss of function of her right upper limb is due to Parkinson’s disease.
72 I have carefully read the transcript of the plaintiff’s evidence. The tenor of her evidence was that she did suffer a prior neck condition consistent with a history of treatment which I have summarised above. She essentially agreed that the symptoms of impairment of function of her neck which she suffers from now are similar to those which she suffered previously as demonstrated by that history of treatment.
73 Even if I were to conclude that there was an aggravation and that it has resulted in new pathology resulting in weakness in the right upper limb, it falls short of evidence which clearly demonstrates the comparison which I must make of the impairment of function before and after the occurrence of the transport accident.
74 It is for the foregoing reasons that I am not satisfied that the plaintiff has discharged the onus that she bears to prove that she has suffered a serious injury.
Conclusion
75 For the reasons set out above, the order I make is that the plaintiff’s Originating Motion be dismissed with costs.
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