Skinner v Transport Accident Commission
[2021] VCC 2077
•20 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05501
| CANDIDA SKINNER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 July 2021 | |
DATE OF JUDGMENT: | 20 December 2021 | |
CASE MAY BE CITED AS: | Skinner v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2077 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Pain and suffering damages – serious long-term impairment to the spine –neck injury - right shoulder injury - disentangling – aggravation – whether serious - long terms mental disorder
Legislation Cited: Transport Accident Act 1986
Cases Cited:Dordev v Cowan [2006] VSCA 254; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129; McKenzie v Peak Engineering [2014] VSCA 67; Mobilio v Balliotis [1998] 3 VR 833; Noonan v Victoria [2013] VSCA 289; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie [2000] VSCA 50; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Transport Accident Commission v Zepic [2013] VSCA 232.
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr C A Sidebottom | Zaparas Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms J E Clark | Wisewould Mahony |
HIS HONOUR:
Overview
1This Serious Injury Application was heard via Zoom with the consent of the parties.
2The plaintiff was involved in a transport accident on 3 June 2014. The accident occurred as she was turning onto Kingston Avenue from Langs Road, Ascot Vale. She says she was giving way to the right as is required at this intersection. After turning left from the give way sign, she proceeded in her lane. She was hit by a car driven on the wrong side of the road. The other vehicle hit the front driver’s side of the plaintiff’s car. Names between drivers were not exchanged. Police were not notified nor did they attend the accident and the plaintiff did not require an ambulance. She made contact with her husband who arrived to help her.
3The plaintiff did not see any doctor for any matters related to the accident for approximately six months.
4The plaintiff seeks the grant of a serious injury application pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
5The Application was pursued on the following basis:[1]
(i) Sub-section (a) of the definition of serious injury being injury to the plaintiff’s cervical spine as well as a separate injury to the right shoulder; and
(ii) Sub-section (c) of the definition of serious injury occasioning a psychiatric condition.
[1]The particulars of injury filed by the plaintiff rely upon:
6Although the treatment of the spine as a single body function is not controversial,[2] nonetheless, the defendant put in issue the extent that the transport accident is the author of the plaintiff’s pain experienced in her neck in light of a long history of pre-existing low back or lumbar pain as well as some past accounts of neck pain. In short, the defendant argued, the plaintiff had failed to disentangle the consequences from her compensable and non-compensable injuries. Ultimately, I have concluded that I do not accept the defendant’s argument on this issue and I am satisfied that the plaintiff is entitled to the relief sought, but I will need to return to and address the defendant’s submissions in some detail in order to fully explain my reasons.
[2]See: Transport Accident Commission v Zepic [2013] VSCA 232.
7The plaintiff was represented by Mr J Mighell QC and Mr C Sidebottom of counsel. The defendant was represented by Mr W R Middleton QC and Ms J Clark of counsel.
8The evidence relied upon by the plaintiff in support of the application comprised:
Medical Reports
· Medical reports of Dr Mahinda Samararatna dated 6 May 2015,[3] 18 September 2015,[4] 13 August 2019[5] and 21 April 2021.[6]
[3]Exhibit P2, Plaintiff’s Court Book (‘PCB’) 27-28.
[4]Exhibit P2, PCB 29-30.
[5]Exhibit P2, PCB 31-32.
[6]Exhibit P2, PCB 33-40.
· Medical report of Kate Tremlett to the Transport Accident Commission, undated.[7]
[7]Exhibit P3, PCB 41-43.
· Medical report of Austin Vo dated 13 August 2019.[8]
[8]Exhibit P4, PCB 44-46.
· Medical report of Dr Symon McCallum dated 17 August 2019.[9]
[9]Exhibit P5, PCB 47-50.
· Medical report of Professor Richard Bittar dated 7 September 2019.[10]
[10]Exhibit P6, PCB 51-54.
· Medical report of Anna Sfyris dated 13 November 2019.[11]
[11]Exhibit P7, PCB 55-61.
· Letter from Ms Anna Sfyris dated 16 June 2020.[12]
[12]Exhibit P8, PCB 62-63.
· Mental Health (Psychology) Treatment Plan of Anna Sfyris dated June 2020.[13]
[13]Exhibit P9, PCB 64-73.
· Medical Report of Dr Sunil Datta dated 29 August 2020[14] and 9 March 2021.[15]
[14]Exhibit P10, PCB 74-77.
[15]Exhibit P10, PCB 78
Radiology
· CT neck dated 30 January 2015.[16]
· MRI cervical spine dated 2 February 2015.[17]
· MRI cervical spine and MRI right shoulder dated 21 May 2018.[18]
Medico-legal reports
· Joint Medical Examiner Report of Dr Nicholas Ingram dated 26 November 2019.[19]
· Independent Medical Examiner (“IME”) Report of Dr Nicholas Ingram dated 3 June 2021[20] and Supplementary Independent Medical Examiner Report of Dr Nicholas Ingram dated 18 July 2021.[21]
· Independent Medical Examiner Report of Mr Mohammed Awad dated 7 May 2021.[22]
· Independent Medical Examiner Report of Mr Arshad Barmare dated 8 October 2020.[23]
· Independent Medical Examiner Report of Dr Ash Takyar dated 8 September 2020.[24]
[16]Exhibit P11, PCB 79.
[17]Exhibit P11, PCB 80.
[18]Exhibit P11, PCB 81-82.
[19]Exhibit P12, PCB 95-102.
[20]Exhibit P12, PCB 103-106.
[21]Exhibit P12, PCB 138-139.
[22]Exhibit P13, PCB 107-111.
[23]Exhibit P14, PCB 112-123.
[24]Exhibit P15, PCB 124-128.
Lay evidence
9The plaintiff adopted her affidavits and was cross-examined.
10The plaintiff swore three affidavits. [25] She adopted their contents. They comprised her evidence in chief.
[25]Exhibit P1, Affidavit of Candida Skinner affirmed 23 March 2020, PCB 14-23, Further Affidavit of Candida Skinner affirmed on 24 May 2021 PCB 24-26 and Further Affidavit of Candida Skinner affirmed 19 July 2021 PCB 140-143.
11The plaintiff also relied on an affidavit from her husband Noel Skinner sworn 19 July 2021.[26] The affidavit was filed late and outside the times prescribed by orders of Judicial Registrar Gurry. I did not consider the contents of the affidavit caused any appreciable prejudice to the defendant and I granted leave to the plaintiff to rely upon the affidavit but permitted the defendant to cross-examine Mr Skinner if it wished. The defendant did not cross-examine Mr Skinner. The affidavit’s effect was largely corroborative of the plaintiff’s account of the consequences upon which she relies since the transport accident by way of her pain and suffering. Mr Skinner also commented on and endeavoured to give context to surveillance dated 1 May 2021 that was relied on by the defendant. I will address the surveillance later in my reasons.
[26]Exhibit P16, PCB 144-145.
12The defendant relied on the following evidence in opposing the plaintiff’s application:
· Report of Mr Rodney Simm dated 21 April 2021.[27]
· Goonawarra Medical Centre Clinical Record Extracts.[28]
· Letter from Dr Samararatna to Natasha Seiler dated 8 November 2000.[29]
· Referral for CT cervical spine dated 6 November 2003.[30]
· Medical certificate dated 24 May 2005[31] and 21 January 2014.[32]
· Notes of Ms Van Raay dated 13 August 2014, 26 November 2014, 12 December 2014, 8 July 2014 and 9 March 2016.[33]
· Independent Medical Examiner Report of Mr Stephen Doig dated 23 November 2016.[34]
· Surveillance dated 19 April 2021 and 21 April 2021.[35]
[27]Exhibit D1, Defendant’s Court Book (‘DCB’) 5-14.
[28]Exhibit D2, DCB 15-66.
[29]Exhibit D3, DCB 76.
[30]Exhibit D4, DCB 77.
[31]Exhibit D5, DCB 78.
[32]Exhibit D5, DCB 79.
[33]Exhibit D6.
[34]Exhibit D7, PCB 83-85.
[35]Exhibit D8.
13I have read and considered all of the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff, the submissions and addresses of counsel, and the transcript of the proceeding. Insofar as the medical material is concerned, I intend to refer only to such parts of the records or reports as is necessary to assist me in the resolution of the issues and relied on by the parties.
Psychiatric condition
14It is convenient if I address the claim made under paragraph (c) first.
15Mr Mighell submitted that there existed a sufficiency of evidence to permit a finding that as a result of the transport accident the plaintiff has suffered a psychiatric injury in the form of a Chronic Adjustment Disorder and a Post-Traumatic Stress Disorder. Mr Mighell contended that the medical evidence from both treating and independent medico-legal examiners supports such a conclusion.
16Mr Mighell argued that the plaintiff’s psychiatric condition requires ongoing counselling and treatment by both a treating psychologist, Ms Anna Sfyris, and a treating psychiatrist, Dr Sunil Datta. Furthermore, the plaintiff continues to be prescribed prescription medication of both duloxetine and Seroquel. In short, senior counsel submitted that the plaintiff suffers from a long-term behavioural disturbance or disorder that is severe. The defendant made limited submissions on the ground (c) limb,[36] and that reason for that was because it submitted that I should prefer the opinions expressed by Dr Ingram that any primary mental-type injury caused by the transport accident was not severe and that the plaintiff’s emotional complaints should be more appropriately considered as secondary to a chronic pain condition.
[36]Transcript (‘T’) 126-128.
The Mental health evidence
17Ms Sfyris diagnosed the plaintiff with PTSD and an Adjustment Disorder with a guarded prognosis.[37] The plaintiff remains under her care. In her report dated 13 November 2019[38] she said the plaintiff’s psychiatric condition manifested itself with the following symptoms:
[37]Exhibit P7, PCB 61.
[38]Exhibit P7.
(i) Panic and anxiety as a driver and passenger;
(ii) Hypervigilance;
(iii) Accident related nightmares;
(iv) Lack of focus and concentration;
(v) Anger outbursts;
(vi) Feeling overwhelmed;
(vii) Excessive worry;
(viii) Crying easily;
(ix) Irritability;
(x) Depression;
(xi) Frustration.[39]
[39]Exhibit P7, PCB 57-59.
18In her report to Dr Samararatna dated 13 November 2019, Ms Sfyris said that she conducted sessions with the plaintiff on 5 August, 21 August, 16 September, 23 September, 23 October and 30 October 2019.[40]
[40]Exhibit P7, PCB 57.
19By letter to Dr Samararatna dated 16 June 2020[41] Ms Sfyris wrote that psychometric measures completed by the plaintiff on 15 June 2020 revealed ongoing traumatic symptoms related to the accident. DASS‑21[42] scores indicated depression and anxiety in the severe range and stress symptoms in the extremely severe range. The plaintiff recounted ongoing chronic pain which is disabling and negatively impacts her mood and her ability to complete basic tasks of daily living. Ms Sfyris thought the plaintiff’s condition warranted a referral from Dr Samararatna to a psychiatrist for an opinion on possible pharmacotherapy and treatment options.
[41]Exhibit P8.
[42]A set of three self-report scales designed to measure the emotional states of depression, anxiety and stress.
20Dr Datta is a psychiatrist who provided reports dated 29 August 2020[43] and 9 March 2021.[44] He diagnosed the plaintiff as suffering from an Adjustment Disorder together with some features of PTSD.[45]
[43]Exhibit P10, PCB 74-77.
[44]Exhibit P10, PCB 78.
[45]Exhibit P10, PCB 76.
21In his report dated 29 August 2020, Dr Datta wrote:
“At the moment [the plaintiff] continues to be troubled by her chronic neck pain and shoulder pain. She also has an extreme degree of anxiety and she noticed that she’s very irritable and angry in comparison to how she was earlier. She has disturbed sleep and displays hypervigilance. This is particularly evident when she’s in a car when she’s noticed to be nervous and agitated and jumpy. She overreacts emotionally especially when she’s in the car but otherwise as well. She can go and drive the automatic car but cannot drive the manual car as she is both in pain physically, and emotionally she’s extremely nervous in a manual car. This is in great contrast to the way the was earlier because she was someone who used to drive race cars as well. She’s noticed to be quite preoccupied as well, and absent-minded.
The report from her husband is that it is very difficult for anyone to drive the car when she is sitting in it as she is paranoid about having an accident, gets very fearful when someone is approaching them from behind and is particularly nervous on rainy days or when the visibility is poor. All these fears relate to having an accident.
She also gets very frustrated because she cannot do the things that she is to love, including bike riding, as it causes a lot of pain for her, and she cannot do cooking on account of the fact that her hand movements are slightly restricted by the pain. In particular she used to love baking, and she is slightly restricted in this regard which leads to a lot of frustration within herself.”[46]
[46]Exhibit P10, PCB 75.
22In his 9 March 2021 report, Dr Datta wrote that the plaintiff’s medication was altered from Zoloft (sertraline) to duloxetine[47] 30 mg. He wrote that the plaintiff had been through a few surgical procedures[48] and had been undergoing some rehabilitation that he considered had, together with her new medication, resulted in the plaintiff feeling better. He said that she continued to experience side effects like dizziness and some nausea, but she told him that her mood was better and she was not crying as much. Dr Datta suggested that she should continue therapy with Ms Sfyris and that she should remain on 30 mg of duloxetine for a further 3 to 4 weeks, following which duloxetine could be increased to 60 mg a day.
[47]A prescription anti-depressant medication.
[48]In cross-examination the plaintiff was not aware of any surgical procedures.
23Dr Ingram is a psychiatrist who provided three reports dated 26 November 2019, 3 June 2021[49] and 18 July 2021.[50] In his first report he diagnosed the plaintiff as presenting with residual symptoms of PTSD and mild symptoms of a chronic adjustment disorder with depressed mood. He wrote that the plaintiff had not been working and she explained that she did not intend to return to the workforce. She lived at home with her husband and, although she had become more limited because of her pain, she tried to do what she could, but things had become more difficult because of her pain. She had worked as a personal care attendant until a few years before the accident, but had then given up work, and at the time of the accident her main interest had been looking after her two young granddaughters, aged two and one, for whom she had cared five days a week. She said this had been quite demanding work, but she had enjoyed it. She had also started going on regular bike rides, for up to two or three hours, which she explained helped with her back pain. This had become more difficult after the accident because of her neck pain, but she had persevered.
[49]Exhibit P12, PCB 103-106.
[50]Exhibit P12, PCB 138-139.
24Ms Skinner described a number of psychological problems to Dr Ingram that had developed since the accident. She said that she had felt low at times, usually when her pain had been worse, when she had become frustrated by her physical limitations. Her low mood would come on every few weeks and lasted for some hours, unless she had been able to make the effort to make herself do something. However, she had still been able to enjoy herself at other times, especially when she had been with her grandchildren. Her motivation had remained normal, though it had become harder to get interested in things and she thought she had become a bit more withdrawn than in the past, in part because of embarrassment because of the fact that she had become more short-tempered and irritable. She had cried occasionally, related to her frustration with not being able to do things and because of her irritability. She had not had suicidal thoughts.
25She had found it difficult to get to sleep at night because of her pain, and she had also woken up during the night because of the pain, and had then found it hard to get back to sleep. Initially after the accident she had had frequent nightmares, but these had become much less common now, and had only been occurring once every two months. Her appetite had increased when she had been in pain and there had been some increase in weight. Her energy level had been low, mainly because she had been sleeping poorly. She had felt angry about what had happened. She had sometimes been “snappy” with her friends, for which she had felt embarrassed.
26Her anxiety had mainly arisen when she had been in the car but she had not had any panic attacks. Initially after the accident she had had frequent flashbacks, though these had become less common with time and now only occurred if she had been driving over the road where the accident occurred.
27Dr Ingram felt that the plaintiff was suffering from a mild chronic adjustment disorder with depressed mood and anxiety, as a secondary consequence of the accident, and residual symptoms of a post-traumatic stress disorder and phobia of driving, as a primary consequence of the accident.
28Dr Ingram did not think her psychological symptoms would affect the plaintiff’s capacity to work in any way but that they “do have some impact on her ability to engage in and enjoy her domestic and leisure activities”.[51]
[51]Exhibit P12, PCB 100.
29In Dr Ingram’s second report, dated 3 June 2021,[52] he noted that the plaintiff’s pain was unchanged since he had last seen her. He reported that the main problem had been constant pain in her neck that had become worse with sitting for too long or activities that had involved her bending her neck such as using a computer or driving for more than a short distance. She had not been taking any painkillers, though had sometimes used a TENS machine.
[52]Exhibit P12, PCB 103.
30He commented that the plaintiff lived at home with her husband and, although she had become more limited because of her pain, she had still tried to do what she could. She said she “pottered” around the house, and she had still tried to do some cooking, though this was less than in the past, as doing so had led to an exacerbation of her neck pain, and it had also been harder for her to do housework. She told Dr Ingram that she still tried to go for a bike ride every week, which she enjoyed, though it had become more difficult because of her pain. This account of the frequency of the plaintiff’s bike riding was less than reported to Dr Ingram in the course of their first consultation, but is, however, largely consistent with her oral evidence.
31He reported that the plaintiff made the effort to get up and dressed every day, although sometimes she could not be bothered to have a shower. She had not seen much of her grandchildren as they were at school, although she had seen them at the weekends, which she enjoyed. Driving had been made harder because of the pain in her neck, and there had also been significant anxiety when she had been in a car and she had worried about having another accident, especially when she had been a passenger. Her sexual life had also been affected, in part because of the pain and in part because of a loss of interest.
32The plaintiff told Dr Ingram that her main psychological problem had been the anxiety she had felt when in a car, especially if she had been trying to overtake a truck. At times this had led to a shortness of breath, though there had not been any panic attacks. She also experienced nightmares every week or so of someone being injured in an accident.
33As well as the anxiety, she said that about twice a week she felt down, and that she related this to her pain and the fact that she had not been able to drive as freely as in the past. However, she had still been able to enjoy herself with the children and her grandchildren, and her husband had been supportive.
34Dr Ingram reported that associated with the plaintiff’s depression, her motivation had been a little less than in the past and she had become a bit more withdrawn than previously and she sometimes felt tearful, although she had not had any feelings of hopelessness or suicidal thoughts.
35She had found it difficult to get to sleep and had also woken during the night, mainly because of her pain, but also because of anxious thoughts. Her appetite had remained normal and her weight steady, but her energy levels had been low, which she had related to her poor sleep. Her memory and concentration had also been affected and she had found it more difficult to read.
36The plaintiff explained to Dr Ingram that she felt angry at the driver who had caused the accident and that because of his carelessness she was now beset with chronic pain and it had been harder to enjoy life. She thought she had become more irritable and short-tempered. She was no longer experiencing flashbacks.
37The plaintiff told Dr Ingram that she had been seeing a psychologist once a fortnight who had tried her on Zoloft and more recently duloxetine and her dosage had recently increased to 60mg.
38Dr Ingram’s opinion was that the plaintiff presented with residual symptoms of a post-traumatic stress disorder and a phobia of driving, which he attributed to be a direct consequence of the transport accident. He thought Ms Skinner also has mild symptoms of a chronic adjustment disorder with depressed mood, which he considered was a secondary consequence of the accident and her subsequent chronic pain.
39Dr Ingram wrote that the plaintiff’s main problem was her chronic pain and the limitations resulting from it. He thought it was unlikely there would be much further improvement in her pain.
40Psychologically speaking, Dr Ingram reported that the plaintiff still becomes anxious in a car and still has nightmares about the accident, with little change in these symptoms in the last year or two. He considered it reasonable that she continue to see her psychiatrist and have trials of antidepressants, though, given the lack of change in the last two years, Dr Ingram thought the plaintiff’s symptoms could be regarded as substantially stabilised.
41In his third report, Dr Ingram referred to Dr Ash Takyar’s report dated 8 September 2020.[53] Dr Ingram thought that there had been some improvement in the plaintiff’s condition between the time Dr Takyar assessed the plaintiff and his assessment of her in June 2021, but that she was still having problems with her concentration and difficulty reading and there had been some loss of motivation and, therefore, she would find it difficult to work because of these restrictions although “the main limitations in her working seem to be her pain and the fact that she had not been interested in working”.[54]
[53]Exhibit P15, PCB 124-128.
[54]Exhibit P12, PCB 138.
42Dr Takyar diagnosed the plaintiff with a PTSD and an Adjustment Disorder with Depressed Mood (chronic) based the criteria for DSM-5. He felt that realistically Ms Skinner did not have a capacity for work because of her PTSD and depressive symptoms. He did not regard the plaintiff’s mental state condition as yet stable and that some aspects of her treatment were just beginning, and he could not estimate when a psychiatric occupational capacity might return, but he recommended a 12 to 18-month psychiatrically supervised treatment with a clinical psychologist.
43In addressing the severity of the plaintiff’s diagnosed mental affliction, Mr Mighell referred to Dr Takyar’s opinion that if the plaintiff were to try to return to work she would not realistically have the capacity to do so because of her PTSD and depressive symptoms.[55] Dr Takyar’s opinion is expressed more starkly than Dr Ingram’s. The force of the submission was this: although the plaintiff has expressed an intention to not to return to work and her application does not involve a loss of earning capacity, nonetheless, in assessing the severity of the psychiatric injury suffered by the plaintiff as a result of the transport accident, the opinion that such is the effect of it that it would preclude the plaintiff from an employment capacity is a relevant consideration. I accept it is a relevant consideration.
[55]Exhibit P15, PCB 128.
44The plaintiff said in her oral evidence that she had commenced seeing Ms Sfyris on 16 July 2019 but had seen a psychologist otherwise in 2019 as part of a pain-management course at Wyndham Private Hospital.[56] She said she most recently saw Ms Sfyris and Dr Datta a week ago.[57]
[56]T40.
[57]T72.
Finding
45Upon a consideration of all the evidence, I am satisfied that the plaintiff’s mental state is a direct function of and caused by the physical injuries sustained in the transport accident. The probable and appropriate diagnosis is PTSD and a chronic adjustment disorder.
46In reality, the principal differences between Dr Takyar and Dr Ingram, are in their respective assessments of the severity to the plaintiff in the manifestation of symptomology of the primary psychological diagnosis as opposed to a pain condition having arisen independently or by way of a secondary component. Dr Ingram wrote that:
“Psychologically she continues to be anxious when driving. Occasional nightmare about the accidents. Also becomes depressed at times related to the pain and limitations and difficulty driving.”[58]
[58]Exhibit P12, PCB 105.
47Dr Ingram further said:
“Psychologically she still becomes anxious in a car, still had nightmares with there having been little change in their symptoms in the last year or two. I think it reasonable that she continue to see the psychiatrist and have trials of antidepressants but given the lack of change, my theory is I think her symptoms could be seen as being substantially stabilised.”[59]
[59]Exhibit P12, PCB 105.
48In answer to certain questions asked of Dr Ingram by the plaintiff’s solicitors, he said this:
“Ms Skinner is suffering from residual symptoms of post-traumatic stress disorder and a phobia of driving and mild symptoms of chronic adjustment disorder with depressed mood. The PTSD and phobia are a direct consequence of the accident and the chronic adjustment disorder is a secondary consequences of accident and Ms Skinner’s subsequent chronic pain.”[60]
[60]Exhibit P12, PCB 106.
49I note that Dr Ingram wrote to the plaintiff’s solicitors in his 3 June 2021 report that:
“I think Ms Skinner’s psychological problems have a modest impact on her ability to engage in and enjoy her domestic and leisure activities.”[61]
[61]Exhibit P12, PCB 106.
50In consideration of where the consequences to the plaintiff of her mental injury fall to be assessed in terms of range, I have taken into account that despite Dr Ingram’s assessment that the consequences of her PTSD are “residual “and there is a modest impact on her ability to engage in and enjoy her domestic and leisure activities, that description should also be fairly regarded together with the plaintiff’s evidence that she had never had occasion to take antidepressants prior to the transport accident.[62] She now does. I have had regard to the fact that she is currently taking duloxetine 60 mg one tablet in the morning for anxiety and one half a 25 mg Seroquel at night for sleep.[63] I am satisfied the restrictions and limitations imposed on the plaintiff’s involvement with driving and sharing the pleasure derived from car rallies with her husband is a direct consequence for her, and one that is adversely determinative in her enjoyment of life. I accept that the direct effect on the plaintiff psychologically speaking has caused her, and continues to cause her, to experience nightmares and emotional upset by way of the symptomology identified by Dr Datta, and that the psychological condition has also adversely affected her intimate relationship with her husband.
[62]T24
[63]T73.
51I am satisfied that the sum total of the evidence is that the transport accident has caused a mental injury by way of PTSD with a depressed mood and anxiety disorder, and it is one for which the plaintiff continues to take prescribed anti-depressant medicine, but nonetheless, she still experiences symptoms related to the transport accident and that it is also considered warranted that she continues to attend on Ms Sfyris and Dr Datta for treatment. Although the plaintiff’s condition appears to have stabilised, I am satisfied that for relevant purposes her condition is long term. I prefer the account of Dr Takyar that the objective severity of her diagnosed mental condition is such that she would not have a work capacity because of it. Overall, I am satisfied that the plaintiff’s mental disorder may be assessed as severe, meaning more than serious.[64]
[64]See: Noonan v Victoria [2013] VSCA 289; Mobilio v Balliotis [1998] 3 VR 833.
The Spine and Right shoulder
52I am satisfied that the plaintiff is entitled to the grant of a certificate for pain and suffering damages under paragraph (a) of her application. The most significant amount of time taken in the course of the hearing was directed to the extent of impaired function of the plaintiff’s cervical spine by way of injury to her neck, and also, whether the plaintiff had proved she had suffered an injury to her right shoulder with associated impaired function caused by the transport accident.
53Mr Mighell argued that the plaintiff suffers from a serious injury to the neck because of aggravation to the function of her cervical spine caused by the transport accident.
54Mr Mighell separately argued that I could be satisfied that the plaintiff suffered a right shoulder injury in the transport accident involving the production and/or aggravation of a SLAP tear and long head of biceps tendinopathy that itself amounts to a serious injury by way of a diminished or impaired function of the right shoulder.
55Mr Mighell submitted, in the alternative, that the plaintiff’s right shoulder injury can be aggregated with her neck injury on the basis of referred pain from her neck to the right shoulder and, on such a basis, the right shoulder injury may be treated as part of the impairment to the function of the cervical spine caused by the transport accident. Despite opening on this analysis, and not having abandoned the argument, ultimately the case that Mr Mighell pressed in final address was that the transport accident caused an injury to the function of the neck by way of an aggravation injury to the cervical spine and it is this that amounts to a serious injury. However, it is necessary that I address each iteration of argument that was advanced.
Application of legal principles
56The defendant submitted that the circumstances of the case called for a disentangling of a number of other organic conditions. It is trite but true that the law may only reward a plaintiff for the consequences of a compensable injury. In light of the manner in which the case was defended by the TAC, some analysis of principle is required.
57In Humphries & Anor v Poljak,[65] the Full Court of the Supreme Court said this:
“It is impermissible in an attempt to ascertain if a “serious long term impairment” has been shown to exist to look to a number of “impairments” not any of which is a “serious long-term impairment” and treat them as acting in total, as it were, so as to meet the requirement of the definition. A body function must be identified. That done, the inquiry to be made is whether that function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.”[66]
[65][1992] 2 VR 129.
[66]Ibid 138 (Crockett & Southwell JJ).
58There is no medical evidence that injury to the separate functions of the plaintiff’s neck and to the right shoulder acted in concert. The majority of the medical evidence is that the plaintiff suffered a separate injury to her right shoulder. Of course, Mr Simm does not believe that the plaintiff suffered an injury to the right shoulder, but rather that the right shoulder pain is referred pain from the neck. His is a singular opinion. Mr Mighell observed that whilst the plaintiff could rely on Mr Simm’s analysis in support of the neck, that frankly, that had not been the plaintiff’s case regarding the aetiology of the right shoulder. On the whole of the medical evidence, I am satisfied the right shoulder and the neck call to be considered as separate injuries affecting separate body functions and determinations are called to be made in regard to each.
Disentanglement – McKenzie v Peak Engineering[67]
[67][2014] VSCA 67 (‘Peak Engineering’).
59In 2004, Mr McKenzie suffered injury to his left hand in the course of his employment with Peak Engineering Pty Ltd. In 2008, he suffered injury to his left knee working for a subsequent employer. In 2012, Mr McKenzie applied to this Court for a serious injury certificate based on the pain and suffering consequences flowing from his left hand injury. At first instance, he was successful. The trial judge did not accept the defendant’s submission that the real pain and suffering consequences experienced by Mr McKenzie were produced by his left knee injury. The trial judge stated at [34]:
“I do not accept that I am required to look at the pain and suffering consequences produced by the plaintiff’s left knee. The pain and suffering consequences produced by the plaintiff’s left upper limb and his left knee are very different. There are very few consequences contended for by the plaintiff which are contributed to by both the injury to the left upper limb and the left knee, save, for example, the interference with the plaintiff’s sleep.”
60The defendant appealed. It was submitted that the trial judge was bound to identify, and exclude, the continuing consequences for Mr McKenzie of the knee injury; and when the consequences properly referable to the 2004 hand injury were identified, they could not reasonably be viewed as satisfying the statutory test.
61The Court of Appeal upheld both grounds, setting aside the judgment and ordering that the serious injury application be refused. In relation to the exercise to be undertaken, Maxwell P stated at [24]:
“In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
62His Honour added that it is possible to imagine a case where the consequences of the compensable injury and the separate injury are so clearly distinct that no “disentanglement” is necessary. However, that was not the case before the trial judge, as there was evidence that some of the relevant pain and suffering consequences were attributable to both the plaintiff’s knee injury as well as the hand injury.
63In the application before me the distinction with Peak Engineering is that I am satisfied that the separate injuries suffered by the plaintiff to her neck and to her right shoulder each occurred as a result of a single transport accident. The injuries are to separate body functions. Thus the question is whether either of them amounts to a serious injury.
64The plaintiff had no evidence of right shoulder impairment prior to the transport accident, whereas there is a history of limited sorts of previous neck pain.
65I have approached the determination of the plaintiff’s application on the basis of the law in Peak Engineering and that my task is to identify the particular injury or injuries suffered by the plaintiff in the transport accident, then consider the body function associated with it or them, and exclude comorbidities, exclude any psychiatric conditions otherwise than in the sense permissible in accordance with Richards v Wylie,[68] and exclude other injuries and determine if a particular injury of itself has resulted in serious consequences.
[68][2000] VSCA 50.
Right upper limb[69]
[69]The upper limb comprises the upper arm, the forearm the lower arm, and the hand.
66As far as the function of the plaintiff’s right upper arm is concerned, the best evidence and the preponderance of it, is that the plaintiff was diagnosed with carpal tunnel syndrome sometime after the transport accident, but not because of it, but that in any event, following a surgical release the plaintiff’s problem with her right upper limb has largely resolved. That analysis and the condition of the right upper limb was not challenged by the plaintiff in evidence or by her senior counsel in his final address. The plaintiff did not pursue by way of argument that the right upper limb, that is, her arm, was injured in the transport accident.
The Neck injury
67Mr Mighell made a series of submissions that the evidence adduced sufficiently and separately identifies consequences to the plaintiff of an injury to her neck from those of her right shoulder injury and that these consequences occasioned to the plaintiff’s neck injury are more than significant and marked.
68Mr Mighell relied on the following account by the plaintiff and derived from her serious injury affidavits:
(a) Ongoing chronic neck and inter-scapular pain. The plaintiff described never being free of pain.[70] She experiences pain flare ups.
[70]Exhibit P1, PCB 141.
(b) Cervicogenic headaches.[71] These are experienced on a daily basis and vary in intensity. The plaintiff explained that when beset with such headaches there is barely anything she can do.[72]
[71]A chronic headache that arises from the atlanto-occipital and upper cervical joints.
[72]Exhibit P1, PCB 141.
(c) A need for periodic pain relief including Panadol and Panadeine Forte.
(d) Restrictions upon the ability to sleep and with zolpidem prescribed for sleep.[73]
[73]See record of prescribed medication for sleep in report of Mr Awad 7 May 2021, Exhibit P13, PCB 108.
(e) Restrictions upon daily activities caused by the impaired function of the cervical spine injury including:
(i)cake making and decorating;[74]
(ii)participating in the BMW Car Club;[75]
(iii)all activities that require prolonged neck flexion or extension.[76]
(f) Resultant right arm symptoms.[77]
(g) Restrictions upon housework and gardening.
(h) Restrictions upon sitting for long periods or standing for long periods.
(i) Restrictions upon seeing[78] and caring for her grandchildren.
[74]Exhibit P1, PCB 21.
[75]Exhibit P1, PCB 22 and T80, Line (‘L’) 10-18.
[76]Exhibit P1, PCB 20.
[77]A consequence that I have excluded as on the evidence better associated with the resolved carpal tunnel.
[78]No evidence was led that the plaintiff had been precluded from seeing her grandchildren as a result of the neck (or indeed, the right shoulder) injury. Exhibit P1, PCB 15.
Right shoulder injury
69Mr Mighell submitted that I could also be satisfied that the plaintiff suffered an injury in the transport accident that caused impaired function to her right shoulder and if I was not persuaded that the injury could be aggregated with her neck injury, then I could be satisfied that the plaintiff suffered a separate right shoulder injury in the transport accident by way of the production and/or aggravation of a SLAP tear[79] and long head of biceps tendinopathy that itself amounts to a serious injury. Mr Mighell argued that such a finding is supported by the MRI scan of the plaintiff’s right shoulder dated 21 May 2018[80] together with the opinion of the plaintiff’s treating orthopaedic surgeon, Mr Vo.
[79]An injury to the labrum of the shoulder.
[80]Exhibit P11, PCB 81-82.
70I have already mentioned that Mr Simm, who examined the plaintiff on behalf of the defendant, is of a contrary opinion and that the plaintiff’s right shoulder pain is referred cervical pain. I address Mr Simm’s opinion more fully elsewhere in these reasons. However, Mr Mighell submitted that the weight of the medical evidence is contrary to Mr Simm’s view and is sufficient on the balance of probabilities to support a finding that the transport accident has resulted in a separate right shoulder injury with impaired function.
71Mr Mighell relied upon the following evidence in furtherance of his submission.
72Mr Vo, the plaintiff’s treating orthopaedic surgeon in a report dated 13 August 2019[81] concluded that “it is therefore likely that the motor vehicle accident resulted in aggravation of her right shoulder subacromial bursitis, SLAP and long head of biceps tendinopathy[82].”
[81]Exhibit P4.
[82]Long head of biceps tendonitis is an inflammation or irritation of the upper biceps tendon.
73Mr Mighell also referred to the opinion of Mr Barmare, an independent orthopaedic specialist, who examined the plaintiff at the request of the defendant. In his report dated 8 October 2020[83] he said of the plaintiff that “she has got right shoulder intra-articular biceps pathology in the form of a SLAP tear which is also giving rise to impingement and is the reason for her predominant functional incapacity with the right upper limb.”[84] Elsewhere in his report, Mr Barmare concluded, “Yes, I am of the opinion the accident on 03.06.2014 resulted in Ms Skinner’s current neck and right shoulder condition and incapacity.”[85]
[83]Exhibit P14.
[84]Exhibit P14, PCB 117.
[85]Exhibit P14, PCB 120.
74Mr Mighell lastly referred to the opinion of Dr Samararatna, who, in his report dated 21 April 2021,[86] expressed the opinion that the plaintiff’s transport accident injuries included right shoulder pain most likely due to a SLAP tear injury.[87]
[86]Exhibit P2, PCB 33-40.
[87]Exhibit P2, PCB 35.
Right shoulder treatment
75The plaintiff is not receiving treatment for her right shoulder. The evidence to date is that the plaintiff’s right shoulder injury has been treated conservatively, and that such previous treatment has been a combination of Feldenkrais treatment, acupuncture, physiotherapy, pain management by way of Panadeine as required, and an ultrasound-guided cortisone injection in December 2018. None of these treatments appear to have led to any significant improvement for the plaintiff’s right shoulder.
76Despite the lack of current treatment, Mr Mighell pointed to a likelihood that the plaintiff will require more invasive forms of treatment for her right shoulder condition. This potentiality was addressed by Mr Barmare who considered that there might be a need for further investigations such as intra-articular injections as well as a potential benefit to be obtained from arthroscopic surgery or a biceps tenotomy or tenodesis surgical procedure.[88]
[88]Exhibit P14, PCB 118.
77Finally, Mr Mighell pointed to an absence of evidence that the plaintiff’s right shoulder function was symptomatic prior to the transport accident.
78On the basis that the right shoulder injury did result from an injury in the transport accident, Mr Mighell relied on the following consequences to the plaintiff because of her right shoulder injury in support of it meeting the narrative test for range:
(i) Ongoing pain within the right shoulder;
(ii) Restricted movement within the right shoulder;
(iii) Restriction with activities that involve pushing, pulling and overhead movements;
(iv) Restrictions on heavy lifting;
(v) Interference with ability to cook, stir, use a computer, wash hair, put a bra on and play with grandchildren;[89] and
(vi) Restriction on ability to undertake housework such as cleaning and sweeping.[90]
[89]Also a consequence attributable to the neck.
[90]Also a consequence attributable to the neck.
The Defendant
79The defendant contended that the plaintiff did not suffer a serious injury as a consequence of the transport accident. The defendant said the plaintiff’s back, in particular her lumbar spine, was in a very bad and degenerative non-compensable state for many years prior to the transport accident. Furthermore, the defendant argued, the evidence suggested that the plaintiff is still troubled by low back pain and had been symptomatic for the lumbar region before the transport accident. The defendant further contended that the plaintiff had been symptomatic in the cervical spine region with neck pain prior to the transport accident.
80The defendant submitted that there is an absence of sufficiently reliable evidence that the transport accident either caused a cervical injury or, more particularly, aggravated the function of the plaintiff’s neck. In any event, the defendant submitted, the plaintiff had not distinguished the inhibiting pain and consequences of her pre-existing and continuing lumbar degeneration from her cervical and/or right shoulder pain. Furthermore, the defendant relied on the opinion of Mr Simm that the plaintiff’s right shoulder injury calls for separate consideration to any cervical spine injury and that when that exercise is performed, I should be satisfied that the plaintiff has not proved on the requisite standard that it is an injury that arises as a result of the transport accident.
Causation and the cervical spine condition
81The question whether the plaintiff’s neck and right shoulder injuries were caused by the transport accident was the subject of substantial contentions advanced by the defendant and because of it, it has proved necessary to determine whether the plaintiff established the cause of injury against a significant amount of medical evidence put in evidence.
82Mr Mighell submitted that I should readily discard any notion implied by the defendant that the circumstances of the accident are inconsistent with the plaintiff’s injuries. Mr Mighell submitted that I should be satisfied that the plaintiff suffered a serious aggravation injury to her cervical spine caused by the transport accident and she suffered an injury to her right shoulder.
83Mr Middleton cross-examined the plaintiff about her recollection of the circumstances of the accident. To the extent the examination was directed at casting doubt on the accident as sufficient to give rise to the injuries relied on by the plaintiff or that there exists such discrepancy about the timing of the onset of the plaintiff’s neck and right shoulder symptoms that an attribution of cause should be found wanting, then I am not satisfied it achieved that end. Of the medical opinions, only Mr Simm has raised a question along these lines.
Classifying injury
84Mr Mighell contended that in all probability the plaintiff suffered a whiplash injury that has aggravated and/or rendered symptomatic pre-existing degenerative changes to her spine.
85Mr Mighell submitted that such evidence as exists of the plaintiff suffering from pre-existing neck pain is unconvincing, but in any event, such instances of it are insignificant. In support of this submission, Mr Mighell referred to the extensive clinical notes from the Goonawarra Medical Centre[91] and the plaintiff’s general practitioner, Dr Samararatna, commencing as far back as 7 June 1990, and the absence of a record of neck pain from at least 2003 to the date of the accident in June 2014.
[91]Exhibit D2, DCB 15-66.
86Mr Mighell submitted that although the plaintiff was referred for an x-ray in 2003 (it would seem by Dr Samararatna), there is no evidence to suggest that she required ongoing medical treatment for neck pain. Moreover, Dr Samararatna said that plaintiff had a healthy life prior to the accident.[92]
[92]Exhibit P2, PCB 36.
87Mr Mighell referred to other medical records called in aid of his submission. He referred to Kate Tremlett, physiotherapist and Feldenkrais practitioner, who treated the plaintiff for back pain prior to the transport accident, and who wrote in an undated report to the TAC that “she had no neck pain or problems prior to this accident”.[93]
[93]Exhibit P3, PCB 43.
88Lastly, on this point, Mr Mighell submitted that I should accept the plaintiff’s evidence that she is unable to remember suffering neck pain prior to the accident.
The Plaintiff as an historian
89Mr Middleton submitted that as far as the plaintiff’s neck and pre-injury history is concerned the medical reports upon which she relies should be treated as cautionary because of their inclusion of a number of inaccuracies. There is some attraction in Mr Middleton’s submission. I will explain why.
90I accept that the plaintiff was not the best of historians. However, in assessing the reliability of her oral evidence, I have taken into account that the proceeding was conducted remotely via Zoom, and that a good deal of relevant medical history about which Ms Skinner was questioned occurred prior to the transport accident (which itself occurred a lengthy time ago). I have also assessed the plaintiff’s evidence mindful of having been satisfied that she has an injury that satisfies the requirements required under paragraph (c) of the definition.
91The fact of a fallible memory or a diminished capacity to concentrate is not evidence of dishonesty but it may render certain evidence unreliable. I am mindful of what was said by the Court of Appeal in Dordev v Cowan[94] in relation to a plaintiff’s credit in such a case. As Chernov JA said,[95] a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[94][2006] VSCA 254.
[95]Ibid [14].
Prior history of neck pain
92Mr Mighell submitted that I should accept the plaintiff’s evidence of an inability to recall suffering from neck pain prior to the transport accident. There is objective evidence that the plaintiff experienced pain in her neck prior to June 2014. Indeed, the plaintiff deposed in her first affidavit that as far back as 1998 she suffered an injury to her back and neck when she was assaulted by a client at work.[96] For example, a clinical note from the Goonawarra Medical Centre on 27 July 1998 notes low back pain and neck pain. Despite this, when cross-examined the plaintiff refuted any neck pain prior to the June 2014 transport accident.
[96]Exhibit P1, PCB 16. See also Goonawarra Clinical Note 13 May 1998 DCB 24.
93The plaintiff also deposed in her first affidavit[97] that she had suffered a disc herniation at L4/5 for which she was treated with analgesics, osteopathy and physiotherapy, and also that she had been made aware of a clinical note that she had suffered from some neck pain for about six months afterwards, although she could not remember it.
[97]Exhibit P1, PCB 16.
94The plaintiff further deposed that she had been told of a clinical note of a referral for radiology in relation to a tender cervical spine on 6 November 2003, (the Dr Samararatna referral) but that she had no memory of it.[98]
[98]Exhibit P1, PCB 16.
95Overall, I am satisfied these deficiencies of memory by the plaintiff should be regarded as simply that. In the face of admissions made by the plaintiff in her affidavits to the existence of these records, and of accounts of past neck pain, there was nothing to be gained by her, for example, feigning an absence of memory in the course of the hearing of her application. I am not persuaded that she did so deliberately.
96Kate Tremlett’s undated report made to TAC included the comment that the plaintiff had not experienced neck pain or problems prior to this accident.[99] She wrote that the plaintiff “most certainly did not suffer from numbness in the right hand or arm and that it seems most likely that these symptoms are a direct consequence of the whiplash injury she sustained”.[100] Putting aside for the moment Ms Tremlett’s diagnostic attributions for right hand or arm complaint, her recounting of an absence of neck pain is, as Mr Middleton adverted to, historically inaccurate.
[99]Exhibit P3, PCB 43.
[100]Exhibit P3, PCB 43.
The Neck
97I am satisfied that the plaintiff suffered from neck pain prior to the 3 June 2014 transport accident.
How symptomatic was the plaintiff’s neck prior to the accident?
98Although I have found that the plaintiff’s cervical spine was not asymptomatic at all times before the transport accident of June 2014, and that there is some record that she had suffered from neck pain, I am also satisfied that her neck had been asymptomatic for pain for an indeterminate but nonetheless very lengthy period of time before the transport accident. There is no clinical record of neck pain from at least the referral in 2003 until a point in time after the 3 June 2014 transport accident. Indeed, the references to neck pain in the clinical notes from the Goonawarra Medical Centre are exceedingly limited.
Aggravation injury cervical spine
99Overall the neck injury from the transport accident probably calls to be assessed as an aggravation of a previously and largely asymptomatic cervical spine condition. The parties did not argue to the contrary and, indeed, both senior counsel adopted this approach as appropriate. Therefore, the question is reduced to whether any additional impairment by way of an aggravation to the cervical spine caused by the transport accident is itself serious and permanent. In Petkovski v Galletti[101] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused.”[102]
[101][1994] 1 VR 436.
[102]Ibid 443 (Southwell and Teague JJ).
100Mr Middleton submitted that in accordance with the principle expressed in Petkovski v Galletti, it is necessary to identify each injury that afflicts the plaintiff, identify and separate the impairment consequences for each injury, and identify whether the additional impairment caused by any aggravation from the transport accident of June 2014 itself qualifies as a serious injury as that requirement is understood in law. Thus, as Mr Middleton submitted, it is necessary to isolate the plaintiff’s cervical spine condition and measure any consequences to it from the transport accident separate from any consequences occasioned to the plaintiff by her pre-existing and non-compensable lumbar spine condition or any separate injury to her right shoulder suffered as a result of the transport accident. That approach is undoubtedly correct, but that is not to say, however, that separate physical injuries suffered in a single transport accident may not each be productive of the same or similar symptoms or expression of pain and limitation and thereby enabling one or the other of them to satisfy the statutory test for seriousness whether as an injury or as an aggravation injury.
The Identification of other injuries
101Despite neither the plaintiff nor defendant suggesting that the plaintiff’s lumbar and cervical spine should be disaggregated as one body function, Mr Middleton contended that the effects, if any, occasioned by an aggravation to the plaintiff’s spine caused by the transport accident in June 2014 and relied on by the plaintiff appeared to be based on the cervical spine despite references such as from Professor Bittar to the transport accident having also possibly aggravated the plaintiff’s lumbar spine. Mr Middleton acknowledged that as far as the lumbar spine is concerned, although the plaintiff prior to the transport accident did, and still suffers from lower back pain, she did not press that she was beset with it as a result of the transport accident.
102The plaintiff’s affidavit evidence focussed on the effects to her of her neck injury and shoulder injury arising from the transport accident and not to any consequences occasioned to her by her lower back. A review of the evidence undoubtedly reveals that the plaintiff’s lumbar spine with resulting low back pain has been implicated in the years before the transport accident and has also been subject to treatment. Also unquestionably, the plaintiff continues to suffer bad back pain. She said she was an avid bicycler rider. She still rides bikes. She said that when she does so, although she suffers neck pain, it is worth tolerating because the riding helps alleviate her back pain. However, and importantly it seems to me, the lumbar spine is not implicated as the author of the many impositions and limitations said to have been caused by the transport accident.
The Treatment of the lumbar spine and right shoulder
103It is helpful to examine the course of recorded complaints by the plaintiff and treatments.
Kate Tremlett, physiotherapist, undated report to TAC
104Ms Tremlett treated the plaintiff for back pain prior to the transport accident.
105The plaintiff first attended on Ms Tremlett for Feldenkrais treatment in response to neck problems in December 2014; that is, six months after the transport accident. Prior to this date there is no record of treatment for the plaintiff’s neck or for a right shoulder condition.
106The fax header from Ms Tremlett’s undated report suggests that it was sent to the TAC on 10 May 2015. Although I agree with Mr Middleton’s submission that in her undated report to TAC, Ms Tremlett strayed beyond her expertise by giving expression to certain neurological opinions, her account is nonetheless useful, because she recorded that the plaintiff presented to her in December 2014 with a limitation of range of all her cervical spine movements, especially rotation, both right and left and extension. Ms Tremlett added that the plaintiff had a great deal of muscle spasm in the whole neck and shoulder region. Ms Tremlett described this as “tension in the musculature” that was generating a “shortening, compressive force in the cervical spine, most likely contributing to right nerve compression and thus her neural symptoms.”[103]
[103]Exhibit P3, PCB 42.
107Ms Tremlett had not seen x-rays or CTs, but she did note a copy of a report of a CT scan undertaken on 29 January 2015 that described normal vertebral alignment, with mild multi-level degenerative disc disease and facet joint arthropathy and mild right-sided foraminal stenosis[104] at C3/4 secondary to osteophytes and facet joint hypertrophy[105] with a mild disc bulge at C3/4 level. Ms Tremlett considered the plaintiff’s presentation as “due to the whiplash injury sustained in June 2014”.[106]
[104]The narrowing of the cervical disc space caused by enlargement of a joint in the spinal canal.
[105]Facet Joint Osteophytes: Bone spurs that develop surrounding the facet joints, which help connect two adjacent vertebrae together.
[106]Exhibit P3, PCB 43.
108Separately from criticising Ms Tremlett for descending into areas beyond her expertise, Mr Middleton highlighted her account of the plaintiff’s presentation on attendance with a limitation of range of all her cervical spine movements, especially rotation, both right and left and extension. Mr Middleton contended that this was inconsistent with the plaintiff’s account of being an avid bike rider. As Mr Middleton put it, rotation and extension are fundamental physical capacities required of a bike rider.
109Allied to this, Mr Middleton’s criticism of Ms Tremlett extended to her account that the plaintiff complained of “strong neck pain” and was unable to turn her head, but that she had become fitter and stronger and was riding her bike for regular exercise. Mr Middleton noted an absence, for example, in Ms Tremlett’s report of the plaintiff’s bike riding being associated with neck pain, despite the plaintiff’s evidence to the Court that she suffered neck pain when bike riding, but it was pain that she tolerated because of the relief it brought to her problematic lower back.[107] I have trodden warily in drawing affirmative opinions or adverse inferences from an omission in a report when one does not know the questions asked of the author.
[107]T80, L25-30.
110However, I have noted that the plaintiff deposed that she had “stopped riding completely until the end of 2015” and since then has been “limited in the amount of bike riding I do”.[108] The plaintiff’s timeline is difficult to reconcile with Ms Tremlett’s report sent to TAC on 10 May 2015 that the plaintiff “has become fitter and stronger and rides her bike for regular exercise…” The plaintiff was not questioned about this apparent anomaly.
[108]Exhibit P1, PCB 23.
111The plaintiff’s account of suffering from neck pain when bike riding but it being something she endured because of its ameliorating effect on her low back pain, on first impressions is odd, and it is an account that logically invites a consideration whether the plaintiff’s pre-existing non-compensable lower back condition was causing her greater grief by way of pain than was her neck. I have given that matter consideration but discounted its significance because the fact of the matter is that the very considerable impediments to the activities of daily life about which the plaintiff testified to and relied upon are attributable to the neck and/or to the shoulder and not to the lower back. The plaintiff’s low back pain might be significant but the statutory determination of the existence of a serious injury caused by a transport accident is not defeated because a plaintiff is suffering from an unrelated and non-compensable injury that is manifested by way of pain albeit attendant with different consequences. Indeed, beyond the experience of pain, the evidence did not disclose, for example, much by way of the lower back occasioning limitations on the plaintiff’s activities of living.
Additional medical evidence of the cervical spine
112Otherwise than by reference to Ms Tremlett, Mr Mighell also relied on the following medical evidence as relevant to a cervical spine aggravation injury caused by the June 2014 transport accident.
Reports of Dr Samararatna
113Dr Samararatna provided four reports upon which the plaintiff relied. I have already briefly mentioned that in the first of them, addressed to TAC and dated 6 May 2015, Dr Samararatna commented that he did not see the plaintiff until 29 January 2015, a period of more than 7 months after the transport accident. On the date of first attendance the plaintiff complained of a stiff cervical spine, especially in the mornings, and paraesthesia in her right arm which she attributed to the transport accident. These complaints are consistent with the plaintiff’s account of presentation recorded by Ms Tremlett. However, there was no specific mention made by Dr Samararatna of the plaintiff’s right shoulder. Dr Samararatna wrote that he arranged a CT scan the next day, the results of which disclosed multilevel chronic degenerative disc disease and facet joint arthropathy with mild right-sided foraminal stenosis at C3/4 and with mild disc bulge.
114Dr Samararatna’s report of 6 May 2015 explained how the plaintiff consulted him during February and April 2015 and on these occasions she continued to complain of neck pain and of paraesthesia in her right arm. Dr Samararatna’s note of the plaintiff’s attendance on 27 April 2015 was of “insomnia and anxiety due to MCA paraesthesia in the R arm”.[109] The plaintiff’s reason for attending was recorded as “Anxiety”[110]. Dr Samararatna prescribed Valium 5mg 1 tablet daily. Temaze Tablets, 10mg 1 tablet at night, had been earlier prescribed on 16 February 2015. Dr Samararatna noted that the plaintiff was also taking Panadeine Forte 2 tablets twice a day.[111]
[109]Exhibit D2, DCB 56.
[110]Exhibit D2, DCB 56.
[111]Exhibit P2, PCB 31.
115The first recorded complaint by Dr Samararatna that included right shoulder pain is 5 May 2015, almost a year after the transport accident. On this occasion he wrote that on examination the plaintiff’s left lateral flexion neck movement was normal, and there was limited right lateral flexion with limited anterior flexion post extension of the neck. Shoulder pain was noted, together with the previously recorded presentation of paraesthesia that was now radiating distally along the plaintiff’s right arm.
116Dr Samararatna recommended that the plaintiff continue with her current medication together with twice weekly physiotherapy from Ms Tremlett, although the plaintiff told him that due to financial difficulty, she could no longer afford to attend physiotherapy.
117Dr Samararatna’s report to TAC dated 6 May 2015 mentioned that the plaintiff had suffered from a pre transport accident injury of intermittent lower lumbar pain dating back to 1995 with disc herniation at L4/L5 but that it had responded well with analgesics, osteopathy and physiotherapy. Dr Samararatna did not consider that the plaintiff’s pre-existing injury of the lower lumbar had been aggravated by the transport accident. Furthermore, he did not believe either that the lower lumbar was impacting the plaintiff’s current complaints.
118Dr Samararatna also reported that the plaintiff had no past history of neck or right shoulder pain on record.
119Dr Samararatna also advised TAC that the plaintiff suffered from pre-existing underlying multilevel chronic degenerative changes in her cervical spine and that in all probability these degenerative changes had been aggravated by the transport accident. He also considered that the disc bulge identified in the CT scan at C3/4 had been caused by the transport accident.
120In a further report to the plaintiff’s solicitors dated 18 September 2015,[112] Dr Samararatna repeated the history detailed in his report of 6 May 2015. He explained that he had reviewed the plaintiff again on 25 June 2015. She said she had not attended physiotherapy due to financial problems. He made a referral to Ms Tremlett.
[112]Exhibit P2, PCB 29.
121In another report dated 13 August 2019, Dr Samararatna said he had reviewed the plaintiff on 5 May 2015, but otherwise it largely consisted of a recitation of earlier commentary.
122Dr Samararatna provided a report dated 21 April 2021 to the plaintiff’s current solicitors[113] in which he referred to “numerous other conditions not related to the injury in 2014” including a “carpal tunnel syndrome repair”.[114] Having been asked to identify all of the injuries he considered the plaintiff had suffered or that he believed had been aggravated by the transport accident, he proceeded to diagnose:
· Axial neck pain most likely facetogenic and myofascial causes;
· Right post shoulder pain most likely somatic referred pain from the neck; and
· Right anterior shoulder pain most likely due to SLAP tear.[115]
[113]Exhibit P2, PCB 33.
[114]Exhibit P2, PCB 35.
[115]Exhibit P2, PCB 35.
123Despite Dr Samararatna’s reference in his report to the TAC of 6 May 2015 of an absence of previous neck or shoulder pain, in his report dated 21 April 2021 he wrote that the plaintiff “has a history of neck pain prior to the accident which she was able to cope with. The accident aggravated her neck and right shoulder”.[116] He also wrote that before the transport accident the plaintiff had been “in good health”.[117] She had enjoyed a healthy life which included cycling approximately 25 kilometres a day.
[116]Exhibit P2, PCB 35.
[117]Exhibit P2, PCB 36.
124I am not persuaded that the omission in one report from Dr Samararatna of a history of neck or shoulder pain and a subsequent report in which he referred to a history of neck pain carries with it the implications suggested by Mr Middleton. I think the reference to an absence of neck pain in Dr Samararatna’s 2015 report is explicable when regard is had to the lengthy period of time between the 2003 referral for scan and the June 2014 transport accident, together with the absence of treatment for the same between those two periods of time. In other words, the reference to neck pain that I have earlier recounted, is significantly historical. I do not think anything untoward turns on the reporting. For completeness’ sake, I note that unlike the limited reference to past neck pain, there is no pre-transport accident history of right shoulder pain to report on in any event.
Dr McCallum, Pain Specialist
125Dr McCallum saw the plaintiff on 29 June 2019 and furnished a report dated 17 August 2019.[118] He reported that she presented with a history of lower back pain extending as far back to her 30s. He considered that the transport accident in June 2014 was responsible “for most of the plaintiff’s pain”[119], an expression Mr Middleton submitted was unhelpful because of its lack of precision. I am not troubled by Dr McCallum’s use of language. I think it is understandable that a reference to most of the plaintiff’s pain is a reference to pain that impacts the plaintiff appreciably if not exclusively. Also the non-exhaustive language adopted by Dr McCallum is perhaps not surprising given the ongoing pain associated with the plaintiff’s lower back.
[118]Exhibit P5, PCB 47.
[119]Exhibit P5, PCB 47.
126Dr McCallum wrote that the plaintiff told him that her neck felt stiff “sometimes” and the stiffness was “mainly in the lower back and extended into the interscapular area and it burns”[120] and that this had been the case since the transport accident. The plaintiff further explained to Dr McCallum that “sometimes it is worse when she rides her bike”. She said that “nothing decreases the pain she experiences”. She told him it is at its worst when she wakes up, and is further worsened with extension, and it is at its most acute around the scapular area, and “it can spread down”.[121] She told him that sometimes due to pain she struggles to walk.
[120]Exhibit P5, PCB 47.
[121]Exhibit P5, PCB 47.
127Despite the plaintiff’s significant account of pain in the region of her neck, Dr McCallum wrote that the plaintiff had presented pain-free on the date of consultation.
128Dr McCallum recorded that the plaintiff had undergone nerve conduction studies and a carpal tunnel release which had helped her arm pain.
129Dr McCallum situated the plaintiff’s neck pain in the lower neck and the intrascapular area. He said, it “will probably be muscular in origin. It may be cervical whiplash. Headache she gets from this may be a psychogenic headache. She is anxious. She has some features of trauma. She may be depressed.”[122]
[122]Exhibit P5, PCB 49.
130Dr McCallum was “under the impression that Mrs Skinner’s back pain was made worse after the motor vehicle accident. I also believe that her neck pain and interscapular pain were not present before the motor vehicle accident. They would therefore be responsible for it”.[123] Dr McCallum’s attribution of back pain made worse after the transport accident is not a consequence attributed by anyone else who has seen the plaintiff, other that Ms Ong, a Rehabilitation Specialist, but whose report was not tendered. However, I am not persuaded that a reference by Dr McCallum to an impression he had concerning the back, and of it having been made worse by the transport accident, otherwise undermines the opinions and findings he expressed in relation to consequences.
[123]Exhibit P5, PCB 49.
131Furthermore, Dr McCallum’s assumption that the plaintiff had not suffered from neck and interscapular pain prior to the transport accident, although inaccurate, is not a matter that I am persuaded is an important attribution given the lengthy period the plaintiff was asymptomatic with neck pain as I have elsewhere recorded.
Professor Bittar 7 September 2019 report
132Professor Bittar provided a report dated 7 September 2019 at the request of the plaintiff’s solicitors.[124] He reviewed an MRI of the plaintiff’s cervical spine from 21 May 2018 that demonstrated facet joint degeneration at C2/3, C3/4 and C4/5. At C5/6 there was a shallow broadbased disc protrusion but without neural compression and at C6/7 there was a broadbased disc protrusion but again without neural compression.
[124]Exhibit P6.
133Professor Bittar proffered a diagnosis of:
· probable aggravation of lumbar spondylosis
· aggravation of cervical spondylosis.[125]
[125]Exhibit P6, PCB 52.
134Professor Bittar did not think the plaintiff’s condition would warrant surgical intervention.
135Professor Bittar considered that the transport accident was the dominant contributing factor to the plaintiff’s cervical spine condition. However, as to her lumbar spine condition, he said he had not taken a detailed history surrounding it in order to permit him to offer a confident opinion whether it was substantially related to the transport accident. Instead he wrote, that on the plaintiff’s review undertaken by Dr McCallum and by Dr Olivia Ong, it appeared that the transport accident had aggravated the plaintiff’s lumbar spine symptoms.
136Professor Bittar proffered the additional caveat that he had not taken a history from the plaintiff of the effect of her transport accident related injuries on her daily functioning, leisure activities, personal relationships and family activities. Instead he observed that Dr Ong had written in a letter dated 27 October 2018, that the plaintiff remained independent with her activities of daily living but had reported limited sitting, standing and walking tolerance. Professor Bittar also noted that Dr Ong had mentioned that the plaintiff “still cycles on a mountain bike with suspension once or twice a week and is troubled by broken sleep.”[126]
[126]Exhibit P6, PCB 53.
137As to the plaintiff’s prognosis, Professor Bittar deferred to Dr McCallum who in his report dated 17 August 2019, in addressing the plaintiff’s prognosis, said:
“When we have a patient who has had back pain since the 30s and has not worked since 2010 and is anxious and possibly depressed, the prognosis is likely to be poor.”[127]
[127]Exhibit P5, PCB 50.
138I intrude at this point in the recitation of the medical evidence to comment that neither Dr McCallum’s expression of composite reasons for leading to a likely “poor” prognosis nor Professor Bittar’s deferral to Dr McCallum do much to assist in the exercise of identifying the extent to which I can be satisfied that regard was had by them to a transport accident caused aggravation to the plaintiff’s cervical spine or to her right shoulder.
Mr Awad
139Mr Awad provided an IME report dated 7 May 2021[128] following a request for review by the plaintiff’s solicitors. He diagnosed the plaintiff as suffering from an aggravation of cervical spondylosis and cervicogenic headaches.[129]
[128]Exhibit P13.
[129]Exhibit P13, PCB 109-110.
140Mr Awad said the plaintiff had recounted suffering neck pain and right arm pain since the transport accident. She had undertaken various conservative treatments. She told Mr Awad that she had a pre-existing lumbar condition that she had self-managed and had adopted the same tactics and techniques to try to improve her neck pain and right arm pain. The plaintiff told Mr Awad that her right arm pain developed over time, and when it became more severe she sought the advice of her general practitioner. She had been diagnosed with right carpal tunnel syndrome. She had a surgical release that improved her hand symptoms. However, she also had ongoing shoulder symptoms along with neck pain. Mr Awad did not identify when the plaintiff first presented with shoulder symptoms but he wrote that a cortisone injection into the right shoulder had not helped.
141Mr Awad reported the plaintiff’s symptoms as:
(a) Constant neck pain that she described as a burning type pain in the neck that runs down her spine to her mid-thoracic region. It is constant in nature and between a 6-8/10 in intensity. She associated it with occasional broken sleep because of the pain as well as a limited sitting tolerance due to increased pain. Significant amounts of walking also increased her pain. Nonetheless she cycles.
(b) Right shoulder pain. This is also constant. She describes this as not quite as bad as her neck but has limited mobility in her right shoulder and so has to make adjustments for daily life as a result of this.
(c) Cervicogenic headaches.[130]
[130]Exhibit P13, PCB 108.
142Mr Awad listed the plaintiff’s treatment to have comprised:
(a) TENS machine used to the neck on a regular basis.
(b) Physiotherapy roller work to the right shoulder.
(c) Shoulder rested on a raised right pillow at night.
(d) Panadol as and when required and zolpidem when needed for sleeping.
(e) Acupuncture as and when required.
(f) Psychologist on a fortnightly basis.
(g) Psychiatrist on a monthly basis.[131]
[131]Exhibit P13, PCB 108.
143Mr Awad thought that the plaintiff’s past medical history was non-contributory for neck trauma nor were there any past symptoms suggestive of a pre-existing neck condition, however, he wrote that her past medical history is significant for degenerative lumbar spine issues that she continues to deal with herself. Mr Awad’s report did not suggest that he was aware of any pre-injury neck pain.
144Mr Awad said that the plaintiff described:
“the injury as having a significant impact on her lifestyle from multiple facets. Firstly with regard to her lumbar spine, she has been managing this with bike riding for many, many years and although she continues to bike ride now, she struggles due to neck pain. She has had to adjust the type of bike she rides and what she does with it. She also describes herself as a very keen baker and cook and although she continues to bake and cook, she has had to modify how she does things and the amount of baking and cooking she does in order to not aggravate her neck pain and shoulder pain. The injury has also had a significant impact on her mental health and has given her significant anxiety. She struggles with other aspects including housework which again she is managing but with modifications and some help from her husband who also vacuums now. She is unable to do big shops and does small shops. She describes the injury as also having an impact on the relationship between her and her husband due to her bad temper and anxiety. The intimacy has also been affected”.[132]
[181]Exhibit P12, PCB 96.
[182]Exhibit P14, PCB 113.
[183]Exhibit D7, PCB 83.
[184]T 22, L17-19.
225I do not regard much if anything turns on these variations relied on by the defendant.
226Mr Middleton sought to buttress his submissions by the absence of any note of complaint of neck pain recorded by Ms Van Raay during 2014, 2015 and 2016. The plaintiff’s explanation that because she was seeing Ms Van Raay for unrelated conditions and because when she initially attended on her she did not have any radiological evidence in regard to her neck condition was hard to fathom, particularly given the extent of the pain the plaintiff said she was experiencing by this time.
227Mr Middleton next referred to Dr Samararatna’s first report dated 6 May 2015 addressed to TAC in which he wrote that, “Ms Skinner has a past history of intermittent lower lumbar pain dating back to 1995. With disc herniation at L4/5 which responded well with analgesics osteopathy and physiotherapy. This pre-existing injury does not appear to have been aggravated by her motor vehicle accident and is not impacting on her current complaints.”[185] Mr Middleton contrasted Dr Samararatna’s opinion with the comments of Professor Bittar who thought otherwise concerning the lower lumbar region. In my judgment, a fair reading of Professor Bittar’s report is that he took scant if any direct history from the plaintiff and he seemed content on this, as with other matters, to rely on and defer to the opinions of Dr McCallum and Ms Ong. I do not consider Professor Bittar’s report to be of any assistance to either party.
[185]Exhibit P2, PCB 28.
228To Dr Samararatna’s further comment in his first report that the plaintiff “has no past history of neck or right shoulder pain on record,”[186] Mr Middleton submitted that his statement was wrong and is inexplicable in comparison to his report dated 21 April 2021, in which in response to having been asked to diagnose all injuries “sustained or aggravated as a result of the transport accident” he said:
“Axial neck pain most likely acetogenic and myofascial courses.
Right post shoulder pain most likely somatic referred pain from the neck.
Right anterior shoulder pain. Most likely due to SLAP tear.”[187]
[186]Exhibit P2, PCB 28.
[187]Exhibit P2, PCB 35.
229He added:
“She has a history of neck pain prior to the accident which she was able to cope with. The transport accident aggravated her neck and right shoulder pain”.[188]
[188]Exhibit P2, PCB 35.
230Mr Middleton pointed to a lack of explanation for Dr Samararatna’s altered account from an absence of history of neck pain prior to the transport accident to a history of both neck and shoulder pain.
231I have already addressed this point relied on by the defendant and I am not perturbed by the variation. In any event, on one reasonable interpretation of the clinical record Dr Samararatna’s original comment is accurate, because although there was a referral for radiology, there is no clinical record of pain or of treatment for neck pain for Ms Skinner before the accident.
232Mr Middleton argued that Dr Samararatna’s description of the plaintiff’s pain as chronic and quite debilitating, is open to question given the extent to which she has been able to continue to bike ride. I do not agree that the reliance on the organic component of the claimed injury is refuted by the plaintiff’s very largely reduced account of bike riding.
233Mr Middleton addressed Dr Vo’s opinion dated 13 August 2019 that included, “Candida’s pre-existing non-accident related medical conditions include previous pelvic fracture, right carpel tunnel release in 2017, degenerative cervical disc problems as well as chronic pain.”[189] Mr Middleton submitted that Dr Vo’s comments are confusing but that he appeared to be suggesting that the plaintiff had pre-existing non-transport accident related degenerative cervical disc problems. I do not regard the opinion by Dr Vo as confusing nor obfuscating the exercise required of me by way of a proper assessment in an application such as this.
[189]Exhibit P4, PCB 44.
234Mr Middleton addressed Dr McCallum’s report dated 17 August 2019 and his comments that the plaintiff “was a 57-year-old lady who had a long history of lower back pain. She has had it since the 30s. She had a motor vehicle accident in 2014 and she felt this was responsible for most of the pain. She had a fall and fractured her back and pelvis in 2016.”[190] Mr Middleton criticised as unhelpful the lack of precision in Dr McCallum’s expression “responsible for most of the pain.”[191] I have already dismissed the significance of that description by Dr McCallum.
[190]Exhibit P5, PCB 47.
[191]Exhibit P5, PCB 47.
235Mr Middleton next referred to Dr McCallum’s comment that, “she told me that her neck can feel stiff sometimes. It is mainly in the lower back and it goes to the interscapular area.”[192] Mr Middleton argued that this statement sits oddly with the plaintiff’s account that the pain traverses downwards from the neck and into the intrascapular area. Mr Middleton asked rhetorically why it could not be the case as reported by Dr McCallum that the plaintiff’s pain has its origins in her lower back and was travelling up the spine to the interscapular region, thereby lessening the connection with the transport accident by way of aggravating cause. Mr Middleton submitted that no attempt was made to clarify the issue until a belated effort in the course of the plaintiff’s cross-examination. I accept the purport of the criticism, but standing against it is the plaintiff’s sworn evidence that she did not give such a description to Dr MacCallum. Dr McCallum’s notes stand as evidence of the making of the entry by him, but the note itself is not proof of its accuracy or lack thereof, in the absence of him as the maker of the note testifying. Regardless, and despite the fact of the plaintiff’s memory having already been the subject of earlier comment by me, on balance, I prefer and accept her oral evidence because there are other accounts that are consistent with her evidence of the area of her neck pain and to a lesser extent its path of trajectory. However, why it was not corrected other than by the plaintiff when it was drawn to her attention in cross-examination, as opposed to when she adopted the truth of the affidavit’s contents, I cannot say.
[192]Exhibit P5, PCB 47.
236Mr Middleton submitted that it was a significant matter, and one at odds with the plaintiff’s account of living with constant pain, that when seen by Dr McCallum she had no pain on palpitation in her neck, shoulder, thoracic spine and scapular area, and on examination possessed normal reflexes, power and sensation in the upper limb and a good internal external rotation with no sign of rotator cuff injury. In short, Mr Middleton submitted that Dr McCallum’s findings consisted of an absence of abnormality detected on examination, no neurological compromise and, moreover, the plaintiff was having a good day when examined.
237In summary form, Mr Middleton submitted that Dr McCallum combined unrelated conditions from the transport accident with an undiagnosed condition and suggested that the plaintiff’s prognosis was poor due to her worsened back pain, the fact that she has not worked, and because of anxiety and a possible depressed state, but not because of a neck pain condition.
238Mr Middleton submitted that Professor Bittar’s opinion included that the plaintiff’s back pain was significantly affected by the transport accident. Mr Middleton contended that if I accepted that to be the case, then the plaintiff had failed to demonstrate the extent to which her back pain has produced consequences for her following the accident that are separate from those that existed before the motor accident. I have already expressed my reasons for finding that there is a limited value in Professor Bittar’s report and, in my view, it was unnecessary for the plaintiff to have engaged in the exercise identified by Mr Middleton.
239Mr Middleton further observed that Professor Bittar wrote that, "At the time I reviewed her she complained predominantly of axial neck pain which was worse on neck extension and rotation.”[193] He went on to say, “On examination she did not have any significant spasm or tenderness in the cervical spine and there were no neurological abnormalities.”[194] Mr Middleton submitted that just as with Dr McCallum, Professor Bittar was effectively unable to detect any abnormalities on clinical examination.
[193]Exhibit P6, PCB 52.
[194]Exhibit P6, PCB 52.
240Professor Bittar diagnosed the plaintiff with “probable aggravation of lumbar spondylosis. Aggravation of cervical spondylosis” and as responsible for the plaintiff’s complaints and which he blamed on the transport accident.
241In addressing Mr Awad’s opinion, Mr Middleton observed that he said of the plaintiff that “Her past medical history is non-contributory for any previous neck trauma or any symptoms suggestive of pre-existing neck condition.”[195] Mr Awad also referred to the plaintiff’s lumbar history. He noted that Ms Skinner was suffering constant neck pain, and right shoulder pain, and that although the latter is constant, it is not quite as bad as her neck.
[195]Exhibit P13, PCB 108.
242Mr Middleton submitted that as with Dr McCallum and Professor Bittar, Mr Awad’s clinical examination of the plaintiff was predominantly normal. As can be identified from the following extract, the description of “predominantly normal” is a matter for judgment. Mr Awad wrote that, “On examination she clearly has limited range of movement to the right lateral rotation of the cervical spine. She has reasonably good rotation to the left. Flexion and extension are also somewhat limited. She has overall reasonable power in the upper limbs although the right side is limited due to pain in the right shoulder more than anything else. Sensation is subjectively normal throughout.”[196]
[196]Exhibit P13, PCB 109.
243Mr Middleton next addressed Mr Barmare’s report dated 23 September 2020. He submitted that the recorded restrictions of movement, compared to the video surveillance of the plaintiff taken approximately eight months after his report, depicted the plaintiff engaged in a level of activity inconsistent with his findings, and that his report should not be relied upon as an accurate assessment of the plaintiff’s range of movements.
244The balance of Mr Middleton’s critique of Mr Barmare’s reporting addressed the plaintiff’s history as reported by Mr Barmare in the immediate aftermath of the transport accident along with the defendant’s concentration of some pre-accident history of neck pain. I do not consider Mr Barmare’s opinion is unreliable in the Palmer Tube Mills (Aust) Pty Ltd v Semi.[197]
[197][1998] 4 VR 439.
245As to the Independent Medical Examiner Report of Mr Barmare dated 8 October 2020,[198] Mr Middleton submitted that Mr Barmare appeared justify a position inconsistent with what he said was relevant to his formulation of his opinion in response to two questions that he identified he had been asked. The first question was “Please pay particular attention to the medical records from the Goonawarra Medical Centre which highlight the delay in initial complaint of injury arising from the subject accident.”[199] Mr Barmare responded:
“I have looked at the medical records from the Goonawarra Medical Centre which do highlight the delay in initial complaint of injury arising from the subject accident but as history given to me and as Ms Skinner has mentioned that because of her longstanding low back pain she thought the pain she had, might have a strain or she might have whiplash which would just settle down but since it did not improve and it worsened to a certain extent in about six months that is the time she managed to see her general practitioner. Some of the complaints do not always come up on the day of the injury itself.”[200]
[198]Exhibit P14.
[199]Exhibit P14, PCB 120.
[200]Exhibit P14, PCB 120.
246The second question was “Reference is also made to the medical records from the Goonawarra Medical Centre which highlight the lack of ongoing complaint from around 2016 until 2018.”[201] Mr Barmare states:
“Ms Skinner tells me that she did not complain from 2016 to 2018 with regard to the pain because she was coping with it after the CT scan. She was trying to go off and on to her physiotherapist, that is Kate Tremlett, and she was trying to manage what she could do. She also had issues with financial problems paying for the review and that is the reason she thought she would just manage on her own and that was one of the reasons why she was not complaining much.”[202]
[201]Exhibit P14, PCB 120.
[202]Exhibit P14, PCB 120.
247I do not accept the submission that the extracts are irreconcilable with Mr Barmare’s opinion. By means of like reasoning, I do not accept the submission made by Mr Middleton that the history and diagnosis by Mr Doig is flawed.
248Mr Middleton submitted that bearing in mind the date of Mr Simm’s report and that the video surveillance footage of the plaintiff was obtained a little less than two weeks later, it revealed a capacity for activity that should place an organic component of the cervical spine complaint in jeopardy and rather anchors it as related to a chronic pain syndrome or psychological non-organic component and outside the reach of a claim under paragraph (a) of the definition of serious injury. I do not agree.
Plaintiff’s final address
249Mr Mighell submitted that the plaintiff’s neck if not completely asymptomatic was very significantly so for many years before the accident. Mr Mighell acknowledged that whilst Dr Samararatna’s reporting is open to conjecture, the clinical records do not displace the plaintiff’s experience of neck pain. As Mr Mighell pointed out, as far back to 2003 when the plaintiff was sent for x-ray, there is no evidence that it occurred in the context of cervical complaints whereas there is a history of past attendances by her for back pain. That observation is not entirely correct, as her general practitioner’s request for cervical spine x-ray of 6 November 2003 speaks of “examination, cervical spine, clinical notes, tender cervical spine with reduced movements, paraesthesia symptoms for three days, progressively severe, urgent attention please. Phone the patient ASAP”.[203]
[203]Exhibit D4, DCB 77.
250Ultimately, however, Mr Mighell submitted that any prior neck pain is insignificant, and there is no evidence that it impaired the plaintiff’s ability to participate in day-to-day activities, or caused her any pain let alone on a regular basis. I accept that submission.
251Mr Mighell submitted that the plaintiff specifically addressed the sleep issues attributable to her neck pain in her third and most recent affidavit deposing that, “My sleep is affected by my neck pain. I have difficulty getting to sleep. I wake during the night. As a result, I am tired during the day.”[204]
[204]Exhibit P1, PCB 141 paragraph 6.
252Mr Mighell addressed the matter of Mr Simm’s attribution of the plaintiff’s right shoulder symptoms as referred pain due to her neck injury and contrasted it with the opinions of Mr Vo and Mr Barmare who identified pathology and treatment that has included injections.
253Mr Mighell maintained in final address that the condition of the plaintiff’s right shoulder alone would meet the threshold for serious injury. As to the need to identify and separate out the consequences to the plaintiff attributable to the right shoulder injury as opposed to the neck, Mr Mighell relied on “pain, the nature of the injury and the necessity for ongoing treatment coupled with the fact that it’s the right dominant arm.”[205]
[205]T139, L3-6.
254It is a relevant that the plaintiff is not receiving treatment for her right shoulder although Mr Mighell observed that the orthopaedic surgeons who have seen the plaintiff have acknowledged a SLAP tear to the labrum and the potential for further injections and that a referral to an orthopaedic surgeon has also been canvassed as a possibility. These are matters of broadly expressed speculation.
255Mr Mighell submitted that the defendant had not put the video surveillance to their doctors for comment. He contended that there is no medical evidence suggesting, for example, that the plaintiff’s presentation in the surveillance is inconsistent with the plaintiff’s presentation in a clinical setting. Neither is there any evidence that the surveillance would have caused any medical practitioner to alter their opinion concerning the diagnosis of the plaintiff’s condition. Mr Mighell submitted that the surveillance is but a small snapshot on one day in a 7‑year period since the plaintiff has suffered her injuries.
256Mr Mighell lastly acknowledged that, on the evidence, the consequences to the plaintiff of the neck injury are such that it is to it that the plaintiff’s restrictions on her day-to-day activities arise and are attributable.
Findings
257Whilst there are variations between the plaintiff’s account and certain of the medical histories, for example, such as when Ms Skinner experienced the onset of her neck condition and the disparity in the position and course of direction of her cervical pain, and the absence of reference to prior neck pain, I am not satisfied that they are, when considered individually or collectively, of sufficient moment to preclude a finding that on the balance of probabilities the transport accident caused an aggravation injury to a function of the plaintiff’s cervical spine, namely her neck, and that the aggravation has been accompanied by significant pain and limitation of movement that did not exist prior to the transport accident.
258I am satisfied that the plaintiff had been asymptomatic for cervical neck pain for a very long time prior to the transport accident and at least since November 2003.
259I am satisfied that after that period of time and prior to the transport accident the plaintiff was for all intents and purposes asymptomatic of neck pain. I am satisfied that during this period prior to the transport accident the extent of the plaintiff’s pre‑existing degenerative cervical spine had not resulted in neck pain and reduced function of the neck and, furthermore, the plaintiff was not limited in her capacity to engage in a range of activities that gave her pleasure as well as undertake domestic activities all of which entailed the unimpeded function of her neck or a very substantially unimpeded function of the neck. I am satisfied of this despite the correspondence from Dr Samararatna in response to Dr Kudelka’s assessment in 2000.
260Whilst I recognise the validity of a number of the criticisms made by Mr Middleton of the reports that he dissected, I am not satisfied of their unreliability to the overall task at hand. In having reached that state of satisfaction I have considered whether the absence of observable deficit on clinical examination by, for example, Dr McCallum who reported the plaintiff was having “a good day” is of sufficient weight when combined with the other criticisms levelled at reporting and, in particular to the acupuncturist Ms Van Raay, is on balance sufficient to outweigh the plaintiff’s claim.
261The plaintiff’s application is what is frequently enough referred to as a “gateway” provision. I do not treat that to mean that there is some lesser standard required by way of proof than is prescribed by the statute, but I suspect it does at least contemplate that one ought to remain mindful that there will be aspects of evidence, particularly in medico-legal opinions, and bearing in mind that serious injury applications are almost invariably based on reports and without the attendance by the authors, that will not always be complete or answer all questions that might be raised in the course of addresses particularly as they relate to the human body and its functioning and interrelatedness.
262I have explained why I am satisfied that the aggravation injury to the plaintiff’s cervical spine is the result of the transport accident.
263I consider there is sufficient evidence of the plaintiff having suffered an injury to the right shoulder as evidenced by the pathology of the SLAP tear but that it also appears the transport injury caused an aggravation of right shoulder subacromial bursitis, and as to that, the distinguishing fact is that none of the attendant pain and limitations to which the evidence points as regards the right shoulder existed prior to the transport injury.
264I am satisfied that the transport accident has resulted in the plaintiff suffering a diminution in the extent of her capacity to engage in a range of interests, pursuits and activities by reason of impaired neck function by way of pain and restriction of movement that she was not so restricted by prior to the transport accident.
265I am satisfied that the plaintiff has suffered pain and restriction to the same range of interests, pursuits and activities by reason of the right shoulder injury.
Principles governing assessment of pain and suffering consequences
266I have taken account that in Haden Engineering Pty Ltd v McKinnon[206] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury.
[206](2010) 31 VR 1 (‘Haden’).
267The weight to be attached to the plaintiff’s account of the pain may depend upon an assessment of her credibility.[207] As regards the plaintiff’s credibility, whilst I accept the veracity of her account of the onset of pain and also the range of activities in which she was engaged before the transport accident and of the limitations that have arisen as a result of it, I do suspect that her account of the severity and frequency of pain has in some respects been slightly exaggerated. However, I am not satisfied that the exaggeration was deliberate. I suspect it is to seek out perfection to anticipate that a person beset with recurring pain will invariably furnish an unimpeachable and always auditable account of themselves in court proceedings.
[207]Ibid [12].
268I am conscious that in Haden, Maxwell P observed that the consequences of pain and suffering encompass both a plaintiff’s experience of pain, as well as the disabling effect of pain on a plaintiff’s physical capabilities and enjoyment of life.[208] Even making some allowance for the plaintiff’s account of pain as slightly exaggerated, I am satisfied that the neck pain carries with it a number of disabling or significantly impeded capabilities that previously informed the plaintiff’s enjoyment of life. I have also taken account that in Stijepic v One Force Group Australia Pty Ltd[209] the Court of Appeal stated that the exercise in assessing the statutory emphasis in cases assessing the plaintiff’s pain and suffering consequences from any impairment injury that is proved to have been caused by the transport accident:
“is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other.”[210]
[208]Ibid [9].
[209][2009] VSCA 181.
[210]Ibid [42].
269There are inevitably cases at one end of a range that will just satisfy the serious injury test and cases that will very obviously satisfy the test at the other end. It is enough that a plaintiff need only be assessed within the range.
270I have approached my consideration of the plaintiff’s evidence mindful that in Haden, and subsequently applied in, for example, Sutton v Laminex Group Pty Ltd,[211] that in determining the pain and suffering consequences of an injury, it is necessary to consider not only “what the plaintiff says about the pain (both in court and to doctors)”, but also “what the plaintiff does about the pain (for example, medication, rest, seeking medical treatment)”, as well as “what the doctors say about the extent and intensity of the plaintiff’s pain” and “what the objective evidence shows about the disabling effects of the pain.”[212] Part of the exercise explained in Haden is to assess the intensity of pain which the plaintiff experiences, together with the frequency and episodes of pain.
[211](2011) 31 VR 100, 111-13 [51]-[57].
[212]Ibid [46] quoting Haden (2010) 31 VR 1, 4 [11].
271The plaintiff described intense pain in her neck that is unremitting and constant, and at best it is 6 out of 10, and at worst it is 8 out of 10.[213] As I have alluded to, I think it is more probably the case that the neck pain the plaintiff experiences is more frequently than not falls into the former range than the latter. However, a constant pain of 6 out of 10 is a significant burden for an individual to endure on a permanent and long standing basis. The pain in the shoulder seems to be less than the high end range of pain for the neck.
[213]T40, L28-29.
272In terms of what the plaintiff has shown herself to have done about her pain, it has not been much. I have had regard to the fact that the plaintiff commenced attending on Ms Van Raay from 8 July 2014, that is, about 5 weeks after the transport accident, but made no complaint of neck pain despite the plaintiff’s account that by then she was already in pain. Treatment from Ms Van Raay continued until 2016. However, her notes contain no reference to the plaintiff’s neck pain. However, as I have earlier recorded, I accept the validity of the plaintiff’s account for the absence of treatment and of her adoption of techniques she had used to manage her back until that failed to bring resolution.
273I have also determined that the surveillance footage identifying the plaintiff getting in and out of her car, waiting for family, and bike riding, does not have the broader evidentiary implications that the defendant urged on me. Mr Mighell correctly submitted the footage showed but one occasion of bike riding. Of course a single occasion may be thought of as illustrative of a broader demonstration of the plaintiff’s capacity to participate in an activity that requires a relatively unrestricted neck function by way of repeated flexion and movement. However, the footage is not evidence that the activity is unaccompanied by pain as the plaintiff described was the case but that this was something she was willing to suffer because of the benefits she gained for her lower back.
274I also agree with Mr Mighell that because the surveillance was not asked to be commented on by the defendant’s medical examiners, there is nothing in it that contradicts the matter of the clinical diagnosis of those whose opinions I have preferred.
275I am not satisfied that the provision of the surveillance is incompatible with the plaintiff’s evidence in her first affidavit, of finding it difficult to look up, to look down, to look to the right, and that activities such as holding her neck in a flexed position, looking up and down and to the right, cause her an increase in her pain.[214]
[214]Exhibit P1, PCB 18-19.
276Furthermore, I also accept that the neck injury has reduced the frequency and range and consistency of the plaintiff’s bike riding. The frequency of bike riding, and the distances capable of being covered, and of a need to take stops along the way during an outing is markedly different from prior to the transport accident. I think the plaintiff has proved over the years since the transport accident to have exhibited stoical traits and has eschewed treatments for pain over periods of time for reasons that she explained that included financial limitations. I accept too that such stoicism with neck pain is endured because although her neck pain is made the worse by bike riding, it alleviates her lower back pain.
277In my overall consideration of the plaintiff’s circumstances, I have taken into account that the plaintiff is not receiving prescribed medication for neck pain. Neither is she receiving treatment for her neck. There is no evidence to identify, for example, that she continues to receive acupuncture. As far as non-prescription pain relief is concerned, the plaintiff estimated that she takes about two Panadols three of four times a week.[215] That is not of a high order.
[215]T73, L10-15.
278However, accepting as I have the clinical diagnosis, there is no evidence to suggest interventions or treatments that have been suggested to the plaintiff that she has refused or declined.
279To be added to the mix is the plaintiff’s evidence that I have also accepted of the suffering by way of pain in her neck is aggravated by the ordinariness of everyday activities such as those of prolonged standing or sitting (including driving) or walking too far, and as well, that bending, lifting, twisting and pushing and pulling movements aggravate the pain in her spine. I accept that the neck pain intrudes to a measurable extent on these activities, and that collectively they are not trifling matters.
280I have also considered that the plaintiff said in her first affidavit that she suffered from headaches every second day or thereabouts. By comparison in her third affidavit the plaintiff said the headaches now are occurring every day and they vary in intensity and when they are bad there is barely anything she can do. I note that the increased frequency has not apparently been matched by a commensurate increase in pain relief but that might be explicable because of the variable intensity of pain the plaintiff described.
281I am also conscious of and have had regard to the fact that an interruption to sleep and to be deprived of its recuperative and refreshing benefits is a matter of significance. However, I prefer the clinical notes to which I have referred that provide a persuasive basis that the plaintiff suffered from insomnia prior to the transport accident and indeed this was noted to be the case very shortly before the transport accident. I am not satisfied that the plaintiff’s evidence has established that her sleep has been made measurably worse by reason of the effects occasioned from the aggravation injury caused by the transport accident.
282The plaintiff also placed considerable store on the interference her neck and her right shoulder pain and restricted movement has had on her baking. Mr Middleton in cross-examining the plaintiff suggested to her, almost rhetorically, if she were intending to suggest that this was a matter of serious consequence to her. The plaintiff said that she most certainly did. I see no reason why because the plaintiff derived pleasure for baking and was as committed to it as she explained she was, that a significant diminution in such a capacity, could not sound as a proper consideration in an assessment by way of pain and suffering consequences. I am satisfied that the interference with the neck since the transport accident itself operates in such a manner as to have reduced the frequency and extent of intricate baking the plaintiff can undertake and from which she derived much pleasure. I am satisfied the injury to the right shoulder operates to affect the plaintiff to similar effect. Although the plaintiff still bakes it is not of the standard and of the amount she was capable of before the transport accident.
283I have also considered the accounts of the impact the plaintiff claimed the neck injury has had on her ability and willingness to participate in car rallies either as a driver or as a passenger with her husband because of pain. The plaintiff no longer accompanies her husband on drives along winding roads because they cause her to experience an increase in her neck pain. I accept that the loss of this recreational pursuit engaged in for her as a couple is important. I have also considered the plaintiff’s evidence that she finds it very difficult sitting on an aeroplane for travel as it aggravates her neck symptoms.
284To constitute a “serious injury” the injury must be one that has serious consequences for the plaintiff judged on an objective basis and, when judged by comparison with other cases in the range of possible impairments, it must be capable of being fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[216] In my judgment, and on balance, the evidence of the whole of the plaintiff’s life has been made adversely affected because of the worsening of her cervical spine and that she is now symptomatic with pain and limitation in consequence of it. I am persuaded that the effects are “very considerable”.
[216]Humphries v Poljak [1992] 2 VR 129, [40].
285I am satisfied that the extent of aggravation to the plaintiff’s spine caused by the transport accident gives rise to a serious injury when assessed according to range. I am satisfied that the injury to the plaintiff’s neck qualifies as a serious long-term impairment of a body function.
286Finally, I should add that to the extent it be thought that these reasons have not sufficiently marked out the consequences to the plaintiff of her right shoulder tear or the extent of the effect of any aggravation wrought to her previously asymptomatic right shoulder because of the transport accident beyond those also wrought to her by the neck injury then I would add that I am satisfied that they have included ongoing pain within the right shoulder, restricted movement within the right shoulder, restriction with activities that involve pushing, pulling and overhead movements and limitations on heavy lifting, as well as an interference with ability to cook, stir, use a computer, wash her hair, put a bra on and play with grandchildren and restrictions on ability to undertake housework such as cleaning and sweeping as amounting to a suite of consequences that are markedly and adversely different than prior to the transport accident and on that basis alone would satisfy the test for a serious injury by way of impaired function and pain.
287The plaintiff’s application is granted. I grant leave for the commencement of proceedings for damages for pain and suffering.
288I direct that the parties file a minute of order to give effect to these reasons and to costs as soon as is practicable.
(a) a serious long-term impairment or loss of a body function of the spine;
(b) a serious long-term impairment or loss of body function of the right shoulder; and
(c) a severe long-term mental or severe long-term behavioural disturbance or disorder.
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