Stevancevic v Transport Accident Commission
[2021] VCC 1766
•19 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02246
| DIANA STEVANCEVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 25 October 2021 | |
DATE OF JUDGMENT: | 19 November 2021 | |
CASE MAY BE CITED AS: | Stevancevic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1766 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – pain and suffering – injury to the spine – injury to the hips – aggravation
Legislation Cited: Transport Accident Act 1986
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Johns v Oaktech Pty Ltd [2020] VSCA 10; Kelso v Tatiara Meat Co. Pty Ltd [2007] VSCA 267; Hunter v Transport Accident Commission [2005] VSCA 1
Judgment: Leave granted to the plaintiff to commence a common law proceeding for injuries suffered in a motor vehicle accident which occurred on 27 June 2014
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms P Prossor | Zaparas Lawyers |
| For the Defendant | Mr RH Stanley with Mr S Pinkstone | Lander & Rogers |
HIS HONOUR:
Introduction
1This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The relevant legal principles are well known and are not in dispute. What is in dispute is the application of the legal principles to a voluminous amount of material.[1]
[1]Transcript (“T”) 2, Lines (“L”) 25
2The voluminous amount of material exists because the plaintiff, Diana Stevancevic, has a long and complicated medical history.
3This proceeding is an example of a “serious injury” application with a voluminous amount of material requiring analysis, with cross-examination directed to what is contained in clinical records and a plaintiff – confronted by a complicated 30 year medical history – who, perhaps not surprisingly, can give no meaningful evidence as to the contents of those records, other than to effectively agree that they must be accurate. In that setting, the plaintiff and the defendant then produce competing medical opinion to ultimately arrive at different conclusions.
4Despite the challenges produced by the voluminous and conflicting material, I shall attempt to make this judgment as concise as possible, while still providing an intelligent explanation for the conclusions reached.[2] In that regard, I do not propose to set out in much detail the cross-examination of the plaintiff based on clinical records, because the records speak for themselves.
[2] Hunter v Transport Accident Commission [2005] VSCA 1 per Nettle JA at [21],[28]
Background
5In any event, briefly by way of background, the plaintiff is now 58 years of age. She is separated but living under the one roof with her estranged husband, who apparently no longer speaks to her. She has eight children, two of whom are still living at home.
6The plaintiff was born in Croatia. She migrated to Australia at age seven and completed Year 12. She did various jobs including working with computers in between taking time off work for the birth of her children.
7The plaintiff has had her share of bad luck in her life. On 28 March 1993 when heavily pregnant with her third child, she was involved in a significant car accident when her car was hit at speed by a car that ran a red light. She suffered a range of injuries including a fracture to the right clavicle and a dislocation of the right acromioclavicular joint; a fractured right ankle; fractured ribs; nervous upset. She was hospitalised for some time following that accident and there was understandably concern about the health of her unborn child. Fortunately, the baby was born fit and healthy.
8The plaintiff then went on to have a number of surgical procedures to the right shoulder. She also had intermittent neck pain. By January 1996, she was suffering low back pain bad enough to require a referral to Mr Robert Carey, orthopaedic surgeon.[3] In November 1997, she attended the Dandenong Hospital Emergency Department with a painful left hip after standing up from a chair[4] and radiology revealed mild osteoarthritis of the hips. Over the following years she made complaints of pain in many body parts and required frequent medical attendance.
[3]Plaintiff’s Court Book (“PCB”) 179
[4]PCB 80
9Next, whilst working as an actor, she had a fall in 2008 and fractured her left wrist. By then she had developed significant psychological symptoms and problems with alcohol and gambling. She was involved in several minor motor vehicle accidents with involvement of the police. She gave up all paid work. The clinical notes suggest she required help from her children for tasks around her home.
The accident on 27 June 2014
10In this setting of a complicated medical history, with intermittent symptoms in various body parts, and significant ongoing psychological symptoms, including the breakdown of her marriage, the plaintiff was the passenger in a vehicle driven by her mother on 27 June 2014, when yet another unfortunate event occurred, when the car in which she was a passenger was hit from behind by another car (“the accident”).
11The plaintiff claims that because of the accident she suffered a “serious injury” within the meaning of s93(a) of the Act, namely a “serious long-term impairment or loss of a body function”. She relies separately upon injury to the spine and injury to the hips (the left hip was said to be injured and the right hip to be a consequential impairment) as the “serious injury”. At the time of the accident, the plaintiff was on a disability pension. The basis for a claimed “serious injury” is by reference only to “very considerable” pain and suffering consequences.
12Further, the plaintiff acknowledges that in respect to each impairment claimed to be “serious”, it is an aggravation case, and it is incumbent upon her to establish that the aggravation on its own gives rise to serious injury consequences.[5]
[5]T3, L17-20; Petkovski v Galletti [1994] 1 VR 436
13The defendant disputed that the plaintiff had suffered a “serious injury”. There were pre‑existing hip difficulties and it raised as an issue whether any of the plaintiff’s current hip symptoms are causally related to the accident.[6] In the event that the hip/hips are related to the accident, the defendant next submitted that there has been a good result from hip surgery and/or any aggravation alone does not produce a “very considerable” consequence. Next, in respect to the claimed injury to the spine, the defendant again raised as an issue causation and whether any aggravation produces a “very considerable” consequence.
[6]T12, L1
14The defendant also broadly raised as an issue the “before and after” picture and challenged the position of the plaintiff, which the defendant paraphrased as “Whilst I had some woes I was functioning well and now I am not”.[7]
[7]T13, L2-3
15The proceeding otherwise was conducted in the usual manner. The plaintiff relied on four affidavits sworn by her and otherwise tendered various medical reports and records. The defendant similarly tendered various medical reports and records. The plaintiff was the only witness to give evidence either by way of affidavit or by way of oral evidence.
The background evidence of the plaintiff
16As noted earlier, I do not propose to deal with the evidence of the plaintiff in a lot of detail. The plaintiff swore affidavits on 14 March 2019,[8] 11 December 2020,[9] 10 September 2021[10] and 20 October 2021.[11] Those affidavits set out the plaintiff’s evidence about her life before and after the accident. But only the fourth affidavit, sworn the day before the hearing, makes any proper or logical attempt to deal with her past medical history, although the first affidavit, spread across many paragraphs and in an ad hoc manner, did refer to some of the relevant past medical history.
[8]PCB 19
[9]PCB 30
[10]PCB 33
[11]Plaintiff’s Supplementary Court Book (“PSCB”) page 4
17In any event, in her most recent affidavit, which I set out in full, the plaintiff said:
“1. I am the Plaintiff in these proceedings.
2.I have previously sworn 3 Affidavits in these proceedings, on 14 March 2019, 11 December 2020 and 10 September 2021, respectively.
3. Before the transport accident on 27 June 2014 (the accident) I had experienced intermittent pain in my neck, low back and hips. There were periods when the symptoms were quite bad, and there were also periods where I was symptom free, or the symptoms were at a low level and did not restrict me.
4.Prior to the accident I had not been troubled by neck pain for an extended period.
5.Prior to the accident, on or about 5 February 2014, I had an injection to my lower back. This settled my back pain, such that immediately prior to the accident, I was no longer taking strong prescription pain medication for low back pain.
6.In the years prior to the accident I had not been referred to a specialist or surgeon in relation to my neck, back or hips.
7.After the accident I suffered increasing pain in my hips to the extent that I required a left total hip replacement, a right hip replacement, and revision surgery to my left hip, as outlined in my previous Affidavits.
8.Following the accident I also suffered increasing pain in my neck and back. The pain is now constant and unremitting. I take Targin and Norgesic each day, and have become addicted to this medication. I supplement the prescription medications with Ibuprofen.
9.Each day I experience pain in my low back that travels up to the middle of my back. The pain is worse in the mornings, and is at a level of about 8/10. After I take pain medication, the pain is at a level of about 6/10.
10.The pain in my back causes me to have difficulty with activities requiring lifting, twisting, bending, stooping. I also struggle to sit, stand and walk for prolonged periods.
11.I have daily pain in my neck at a level of about 8/10. The pain travels from my neck into my shoulders.
12.The pain in my neck impacts my capacity for lifting, pushing, pulling, overhead activities and prolonged use of my arms.
13.Prior to the accident I shared responsibility for cooking and cleaning with my daughter.
14.I now struggle with cleaning and household chores due to my neck and back pain. I occasionally wash the dishes, and my daughter carries out the rest of the cleaning.
15.I am limited in the amount of cooking I can do as I struggle to stand for long periods. I now only cook occasionally, and only very simple meals.
16.The pain in my neck and back affects my sleep. I struggle to find a comfortable position, and wake up several times in the night due to pain. This causes me to feel tired and fatigued when I wake in the mornings.
17.Prior to the accident my sleep was impacted by back pain on 1-2 occasions per week.
18.Every day I experience constant and variable pain, which impacts almost every aspect of my life.
19.The pain I experienced in my neck and back prior to the accident was not as severe as it has been since the 2014 accident.”
Credit
18In a case where it is both difficult and critical to get a proper “before and after” picture, it is relevant, in my view, that the plaintiff did not produce an affidavit from any friend or family member to assist in obtaining an accurate “before and after” picture. The defendant submitted that the absence of any relevant lay affidavit was “quite an error and it’s an error which can’t just be swept under the carpet”.[12] The defendant submitted that the Court could draw an appropriate inference that such lay evidence would not assist the plaintiff’s case.
[12]T128, L1-2
19On the issue of the lay affidavit, the plaintiff gave evidence that she had not been asked to arrange for such evidence. She submitted that her credit had not been challenged but otherwise could not advance any further the failure to provide lay affidavit material.
20As has often been noted, the credit of the plaintiff is a highly relevant factor when it comes to the assessment of “seriousness” of a claimed injury.[13] In this application the plaintiff struck me as a thoroughly decent lady, with a very long and complicated history, who was doing her best to answer questions put to her. It is not a situation in which the defendant raises her credit in the sense of some dishonesty on her part, but rather points to her unreliability in light of what is revealed in medical records. Despite my view that the plaintiff did her best, there is no doubt that aspects of her evidence were unreliable. I consider it to be an evidentiary omission that there is no lay affidavit material. But, I do not consider it to be a ‘fatal’ omission, particularly as the long and complicated medical history is best resolved by reference to the evidence from treating practitioners.
[13]Johns v Oaktech Pty Ltd [2020] VSCA 10
21The plaintiff was cross-examined at length about her history. I have read and considered the transcript of her oral evidence. It is unnecessary to refer to it in detail as much of it simply reveals what the plaintiff cannot recall.
22But, to illustrate the point about the unreliability of the plaintiff’s evidence, in re-examination she was told by her counsel that she was going to be asked questions about her level of hip pain before and after the accident. She was then specifically asked “Before the transport accident what was the frequency of the symptoms in your hip” to which she answered:
“I don't recall. It was certainly much more frequent after the accident. I don't recall what the frequency would have been but certainly not as much as after the accident.”[14]
[14]T122, L13-17
A chronology drawn from submissions
23The plaintiff was cross-examined in detail about clinical records. In final submissions, each party drew the Court’s attention to relevant entries in clinical records. The following lengthy chronology of events and medical attendances is extracted from dates referred to by counsel in the final submissions, but it is not an exhaustive summary of the plaintiff’s medical treatment:
· 1993 – plaintiff suffers neck pain intermittently as set out in her first affidavit.[15]
[15]PCB 19-27
· 12 January 1996 – attends Mr Carey, orthopaedic surgeon, with lower back discomfort, clicking as she stands.[16]
[16]PCB 179
· 16 July 2001 – attendance on Dr Penny Gosling, osteopath, complaining of left hip pain and locking, which has been ongoing problem since previous osteopathic treatment in October 1998 with Dr Vicki Lee.[17]
[17]PCB 63
· 9 March 2001 – x‑ray left hip.[18]
[18]PCB 92
· 14 September 2001 – medico-legal report of Mr Kenneth Brearley, surgeon, noting pain throughout the whole of the back, variable, coming on without warning and that the plaintiff said, “At the moment her back pain is one of her major worries”.[19]
[19]Defendant’s Court Book (“DCB”) 246
· 12 April 2006 – clinical note “Pain in her hips but lower back for many years”.[20]
[20]DCB 70
· 14 September 2009 – x‑ray pelvis and low hips.[21]
[21]PCB 94
· 11 May 2011 – bone scan of the lumbar spine.[22]
[22]PCB 95
· 13 May 2011 – clinical note “Tenderness lower back”.[23]
[23]DCB 76
· 9 June 2011 – clinical note “Neck pain and stiffness … intermittent numbness in the hands reports started after a motor accident a few years ago”.[24]
[24]DCB 78
· 14 June 2011 – CT scan of cervical spine.[25]
[25]PCB 96
· 20 July 2011 – note to TAC from treating GP “Neck and upper back pain”.[26]
[26]DCB 22
· 8 December 2011 – clinical note, “Lower back pain, pain and numbness, weakness lower legs”.[27]
[27]DCB 99
· 16 June 2011 – CT scan lumbar spine.[28]
[28]PCB 97
· 14 June 2012 – clinical note “Back pain. Mobic provided. Panadeine Forte”.[29]
[29]DCB 112
· 20 May 2013 – x‑ray of the lumbar spine.[30]
[30]PCB 98
· 30 May 2013 – clinical note “Back pain shooting down leg”.[31]
[31]DCB 140
· 4 September 2013 – clinical note “Right sciatica, distressed with pain”.[32]
[32]DCB 155
· 30 September 2013 – clinical note “Right leg pain. Limping. Panadeine Forte”.[33]
[33]DCB 159
· 7 October 2013 – referral to physiotherapist “Pains in her lower back, right leg”.[34]
[34]DCB 30
· 5 February 2013 – physiotherapist report “Suffering from lower back pain and legs pain”.[35]
[35]DCB 36
· 8 January 2014 – attendance on Dr Lu – referral for CT scan – cervical spine and hips bilaterally.[36]
[36]PSCB 39
· 10 January 2014 – CT scan of cervical spine.[37]
[37]PCB 102
· 5 February 2014 – CT guided left L4/5 facet joint injection.[38]
[38]PCB 138
· 15 April 2014 – attendance on Dr Anna Lu and referred for CT scan both hips, with a note of painful hips, clicking, locking left hip.[39]
[39]PSCB 41
· 27 June 2014 – date of accident.
· 15 July 2014 – attendance at Dr Lu’s clinic for a lower respiratory tract infection. History of cough for two months and referral for chest x‑ray.[40]
[40]PSCB 42
· 22 July 2014 – further attendance at Dr Lu’s clinic presenting with a cough.[41]
[41]PSCB 43
· 28 July 2014 – attendance on Dr Lu presenting with pain down hips and knees. Pain in chest where seatbelt was. Headaches and neck pain. Nausea all the time. Noted that the plaintiff used to have pain in left hip only and referral for MRI at lumbosacral spine, hips and knees. Provided with TAC medical certificate.[42]
[42]PSCB 44
· 26 August 2014 – clinical note “Sore hip” and Panadeine Forte prescribed.[43]
[43]PSCB 45
· 26 September 2014 – clinical note – “Car accident recently. Since then severe neck pain radiating both arms. Pins and needles. Neuropathy”.[44]
· 10 October 2014 – clinical note “Severe pain hip and neck”.[45]
· 30 December 2014 – attendance on Mr Patrick Byrne, orthopaedic surgeon, as a public patient.
· 23 January 2015 – Mr Byrne recommends a left total hip replacement.[46]
· 16 May 2015 – plaintiff undergoes left total hip replacement.[47]
· 10 February 2016 – further attendance on Mr Byrne presenting with right hip pain. There was noted a leg length discrepancy following left total hip replacement.
· 28 April 2016 – right total hip replacement.[48]
· 22 August 2016 – attendance on Mr Craig Timms, neurosurgeon, presenting with pain and reduced range of movement in neck and back. Discussion about cervical fusion if symptoms persist and referral for CT guided lumbar spine injection.[49]
· 12 September 2016 – CT guided left L4-5 facet joint injection.[50]
· 25 May 2017 – left hip revision surgery.[51]
[44]PSCB 46
[45]PSCB 47
[46]PCB 48
[47]PCB 142
[48]PCB 141
[49]PCB 52
[50]PCB 140
[51]PCB 143
24Pausing here, the chronology, as set out, is only the “edited highlights” that, of itself, highlights the long and complicated history and the “aggravation” issues.
Injury to the spine
25The plaintiff claims injury to the spine and acknowledges any claimed injury is an aggravation. In final submission, Leading Counsel (as he then was, now Senior Counsel) accepted that she had symptoms in her back and neck (and for completeness her hips) that, from time to time, waxed and waned and required her to seek medical treatment, but from 2012 through until early 2014, it was her back that was the biggest problem.[52] It was submitted that the clinical records revealed that the neck “really does not get much of a run”[53] in the two years or so before the accident. In that setting, while the plaintiff relied upon the spine as the loss of body function, there was more of a focus on the neck.
[52]T175, L10-14
[53] T175, L20
26Broadly, in respect to the spine, the plaintiff submitted that there had been a dramatic change to the level of pain and frequency of pain after the accident, as compared to the situation before the accident.[54]
[54]T178, L27-31; T179, L1-23
27The plaintiff highlighted the fact that she had a CT-guided facet joint injection in February 2014, which the notes reveal resulted in the cessation of Panadeine Forte that she had been prescribed up until then.
28In her fourth affidavit,[55] the plaintiff said, of that CT-guided injection, that it settled her back pain “such that immediately prior to the accident, I was no longer taking strong prescription pain medication for low back pain”.[56] She then described that since the accident she has had increasing pain in her neck and back, described as constant and unremitting, with the ongoing prescription of Targin and Norgesic each day.[57] She says of the low back pain that it is worse in the mornings and is at a level of 8/10 but after taking the medication it reduces to about 6/10. She says back pain causes difficulty with activity requiring lifting, twisting, bending and stooping. In respect to her neck she described “daily pain in my neck at a level of about 8/10”. She then goes on to describe how back and neck pain impacts her capacity for a range of day to day tasks, such as cooking, cleaning and the like.[58]
[55]PSCB 5
[56]PSCB 5
[57] PSCB 5 at [8]-[10]
[58] PSCB 6 at [12] – [19]
29The plaintiff has for many years been a patient of the Raymond McMahon Medical Centre, where she has consulted a number of general practitioners, including Dr Anna Lu. The notes of the Raymond McMahon Medical Centre (“the notes”) were put to the plaintiff in cross-examination and the plaintiff accepted the accuracy of what was recorded in the notes.
30The notes reveal that for some years before the accident the plaintiff was prescribed strong pain killing medication, including Panadeine Forte. She was also prescribed a range of other medications. The need for those medications is not always explicitly recorded in the notes and does seem to be for a range of conditions. On 23 February 2013 the notes record a diagnosis of low grade osteo arthritis of the left hip and the prescription of Panadeine Forte. But there are also entries in the notes that clearly record back pain. As an example, on 18 April 2013 there is recorded “back pain” as the reason for the attendance[59] with a seemingly corresponding prescription of Panadeine Forte. Another example is the attendance on 30 May 2013[60] for “back pain shooting down leg” and a further prescription for Panadeine Forte. Then on 11 June 2013[61] Lyrica was prescribed, presumably for the shooting leg pain.
[59] DCB 136
[60] DCB 140
[61] DCB 142
31But, the notes also reveal that the stronger pain killers that the plaintiff now requires were prescribed after the accident. A Durogesic pain patch was prescribed on 10 October 2014[62] with a history recorded of “severe hip and neck”. On 25 May 2015[63] Endone was prescribed, although probably at that time for pain after the hip replacement. By 3 March 2016[64] Targin was prescribed, again probably at that time for hip pain. However, at an attendance on 28 July 2016[65] that appears to relate to neck pain, Dr Lu prescribed Targin. Skipping forward, by 15 January 2020[66] a history is recored of the plaintiff still getting severe back pain and that she had requested to go back on to Targin. There are then further entries related to neck pain and the prescription of Targin.
[62] DCB 191
[63] DCB 203
[64] PSCB 55
[65] PSCB 56
[66] PSCB 59
32In a report dated 20 October 2019,[67] Dr Lu briefly sets out the plaintiff’s pre-accident medical history, described by her as osteoarthritis and chronic pain of both hips and lower back, and chronic pain in the neck with mild degenerative changes on imaging. Dr Lu then sets out the accident and the history recorded since the accident, as understood by her. She said that since the accident the plaintiff “has had significant problems with management of her chronic pain in her lower lumbar spine, bilateral knee pain, bilateral hip pain”.[68]
[67]PCB 36
[68]PCB 38
33Next, in an undated report but date stamped 22 September 2020, Dr Lu describes how since the accident the plaintiff had described experiencing deteriorating pain in her neck radiating down her arm, with numbness in her arm, and a referral to Mr Timms, neurosurgeon.[69]
[69]PCB 39
34Then, in a report of 15 August 2021,[70] Dr Lu again sets out matters of relevant history, including that the plaintiff presented on 28 July 2014 (after the accident) complaining of headaches and neck pains associated with constant nausea. Dr Lu says that “this was different to her previous pain as she used to have mainly pain in her left hip only”.[71] She went on to say that the plaintiff had complained of worsening pain in her neck associated with headache and worsened lower back pain after the accident in 2014. Relevant to the critical issue, Dr Lu says:
“… She has suffered from pain in these areas before but not constantly like she was experiencing after the second accident.”[72]
[70]PCB 40
[71]PCB 40
[72]PCB 41
35Dr Lu goes on to note that, after the accident, the plaintiff’s condition significantly worsened, requiring significantly stronger opioid analgesia in increased frequency and quantities, and that the plaintiff was “now dependent on Targin and Norgesic for her chronic pain”.[73]
[73]PCB 42
36Dr John Formoso is also a general practitioner at the Raymond McMahon Medical Centre. He has provided a report dated 19 November 2019.[74] In that report, he describes the accident as involving significant trauma to the knees, hips, cervical and lumbar spine.[75]
[74]PCB 44
[75]PCB 45
37Mr Timms is the neurosurgeon to whom the plaintiff has been referred for treatment. He first saw the plaintiff in August 2016 and reported back to Dr Lu by letter dated 22 August 2016.[76] He describes how the accident had “stirred up” everything again, which I take as a reference to the plaintiff’s earlier pain in her spine and, in particular, the lower back. He says that:
“Essentially, since the motor vehicle accident she has pain in the neck and down both arms, pain in the lower back into the left buttock and down both legs, at times …”[77]
[76]PCB 52
[77]PCB 52
38In that letter, he said that he did not see any need for surgery, but that a CT-guided injection in the lumbar spine might be helpful.
39Mr Timms then reported back to Dr Lu for a second time by letter dated 2 September 2021 after reviewing the plaintiff that day.[78] Based on an MRI scan of the neck, he said that the plaintiff did not require any surgery, but she was still quite symptomatic with neck pain and symptoms into the arms. He said that he thought the focus was now on managing her symptoms with conservative treatment and continued pain management.
[78]PCB 53
40Pausing, the summary of the notes and reports from doctors at the Raymond McMahon Medical Centre are informative and highly relevant to the question of “serious injury”. Those notes reveal many attendances, over many years, for many problems, some of which are unrelated to the accident. Strong pain killing medication, such as Panadeine Forte, was prescribed from time to time before the accident, but the evidence from the notes and reports of treating general practitioners confirms that the very strong pain killing medication, in particular Targin, was prescribed after the accident and is now prescribed for ongoing back and neck pain.
41As Dodds-Streeton JA remarked in Kelso v Tatiara Meat Co. Pty Ltd ongoing chronic pain with the need for frequent medication raises a “real prospect of a ‘very considerable’ consequence”.[79] The objective recording of chronic pain to the plaintiff’s spine since the accident and the regular prescription of strong pain killers is a relevant factor to consider in the assessment of the impairment consequences from a claimed injury.
[79] [2007] VSCA 267 at paragraph [199]
42Indeed, I consider that the plaintiff’s description of ongoing pain in her spine, especially in her neck, with interference for a range of day-to-day activity and the need for ongoing use of strong painkillers, together with the requirement for specialist neurosurgical assessment and the likely ongoing need for conservative treatment, including pain management, is sufficient to determine that the plaintiff has suffered a “very considerable” pain and suffering consequence.
43But, for completeness, I acknowledge that both the plaintiff and the defendant rely upon medico-legal opinion which needs to be considered.
44The plaintiff relied on two reports from Dr Mohammad Awad, consultant neurosurgeon. In a report dated 9 July 2021,[80] Dr Awad recorded that the plaintiff’s past medical history was significant for the previous accident in 1993. He recorded that the plaintiff had ongoing neck issues and minimal lower back pain following that accident, but was functional up until the accident and receiving minimal treatment up until then.[81] He then reviewed various radiological investigations and conducted an examination of the plaintiff before diagnosing that she had suffered the aggravation of both cervical and lumbar spondylosis in the accident,[82] which he went on to describe as a “significant contributing factor to her ongoing pain, disability and requirement for treatment”.[83]
[80]PCB 144
[81]PCB 145
[82]PCB 146
[83]PCB 147
45The plaintiff further relied on a medico-legal report from Mr Justin Wong, orthopaedic surgeon, dated 20 July 2021.[84] Mr Wong also obtained a history of the 1993 accident and of the plaintiff suffering right-sided neck pain, back pain and left hip pain, which he recorded as “much milder than what she experienced after her car accident in 2014”.[85] His report is mostly directed towards the plaintiff’s hip conditions, but he does state that, in his opinion, the accident exacerbated pre-existing degeneration of her hips, lower back and cervical spine.[86] He further states that the plaintiff’s day-to-day activities are now “mostly restricted by her back and neck pain”[87] and that in respect to the hips, she had a “good prognosis”[88] and that it was her “spine that is limiting her rather than her hips”.[89]
[84]PCB 152
[85]PCB 154
[86]PCB 157
[87]PCB 158
[88]PCB 159
[89]PCB 159
46Dr Clayton Thomas, consultant in rehabilitation and pain medicine, assessed the plaintiff on 8 December 2016, at the request of the defendant. In a report dated 21 December 2016,[90] Dr Thomas set out relevant matters of history, his clinical examination, review of imaging and analysis. He recorded that the plaintiff had long-term pain problems and widespread pain, with more of a fibromyalgic-type diagnosis, and that there was a degree of pain and mental health problems that pre-existed this accident, which appeared quite significant.[91] However, he said that he would accept that the accident aggravated her symptoms, and that the plaintiff sustained an aggravation of her widespread pain syndrome. He said “I would accept that this could have led to a de novo development of neck pain and back pain but the hip problems were longstanding”.[92]
[90]DCB 253
[91]DCB 255
[92]DCB 256
47Mr Myron Rogers, neurosurgeon, examined the plaintiff at the request of the defendant and produced a report dated 16 June 2021.[93] He also obtained a history from the plaintiff and conducted an examination and review of relevant radiology before answering specific questions. Relevantly, he said that “[t]here may have been a soft tissue injury to her neck and low back”,[94] but that the plaintiff did not require any surgery.
[93]DCB 259
[94]DCB 263
48The final medico-legal opinion is contained in a report obtained by the defendant from Dr Anthony Menz, consultant orthopaedic surgeon. In the report dated 16 July 2021,[95] Dr Menz also records the history obtained by him, examination findings, and his review of radiology and other relevant documentation. He then states that the plaintiff “sustained soft tissue injuries to her cervical spine and lumbar spine and aggravated her pre-existing hip osteoarthritis”.[96] However, Dr Menz goes on to say that:
“I do not feel that the injury she sustained at that accident is a source of ongoing problems in her neck and her back. She has significant degenerative changes, which are age related, which are the source of her pain and discomfort.”[97]
[95]DCB 277
[96]DCB 283
[97]DCB 283
49Dr Menz supports the conclusion that the plaintiff suffered soft-tissue injuries to her neck and lower back because of the accident, in the setting of underlying degenerative change in the spine, but obviously his report does not support a finding that the plaintiff has any ongoing injury or impairment related to the accident. In respect to his conclusion that the plaintiff’s symptoms now relate to the underlying degenerative condition and not the accident, I do not accept that opinion, primarily because it is against the weight of medical opinion. It is not supported by what the clinical notes objectively reveal, namely increasing symptoms in the back and neck after the accident, now requiring the prescription of strong medication. Further, Dr Menz does not provide a sufficient path of reasoning to explain how and when the injuries from the accident effectively ran their course and how and why current symptoms are explained by the underlying degenerative change in the context of his acceptance that the plaintiff suffered soft tissue injury in the accident.
50Therefore, on balance, the medico-legal opinions support the earlier conclusion that the plaintiff has a “very considerable” pain and suffering consequence by reference to injury to her spine.
Injury to the hip
51The notes reveal the plaintiff has longstanding problems with her hips and radiologically demonstrated osteoarthritis. The first question is whether the plaintiff suffered injury to the left hip in the accident and then, if so, the extent of the injury.
52Having considered all the available evidence, I conclude that the plaintiff’s hips, and in particular her left hip, were, to put it crudely, a ‘ticking timebomb’ before the accident. The medical material is unclear as to the extent that the accident contributed to ongoing symptoms in the left hip and the need for repeat hip surgery and the related surgery to the right hip.
53But ultimately, not much turns on this, because eventually the plaintiff had appropriate treatment and has had a good result from hip surgery. To some extent it is now a “moot” point whether the accident contributed and brought forward the need for hip-replacement surgery, because ultimately the plaintiff had the hip surgery with a good outcome. The totality of the evidence leads to the conclusion that the plaintiff’s hips do not now produce a “very considerable” consequence to her, regardless of whether her current symptoms are related to the accident. As already alluded to elsewhere in these reasons, the plaintiff’s current restrictions for day-to-day activity, in my view, related to the impairment to her spine.
54Accordingly, insofar as the plaintiff relied on injury to the left hip and consequential injury to the right hip, in my view, the medical evidence does not establish a sufficient aggravation from the accident and, in any event, the plaintiff does not have a “very considerable” consequence currently from the injury to the hips.
Summary
55For the reasons set out, I am satisfied that the plaintiff has suffered a “very considerable” pain and suffering consequence by reason of injury to the spine and leave is granted to the plaintiff to commence a proceeding for injuries suffered in the accident of 27 June 2014.
56I shall hear from the parties as to consequential costs orders.
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