Sutton v Transport Accident Commission
[2013] VCC 982
•12 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05755
| PETER SUTTON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 August 2013 | |
DATE OF JUDGMENT: | 12 August 2013 | |
CASE MAY BE CITED AS: | Sutton v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 982 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower spine – whether the consequences are “very considerable” – affect upon employment
Legislation Cited: Transport Accident Act 1986, s93
Judgment: Leave granted to the plaintiff to issue common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr CD Griffin | Maurice Blackburn |
| For the Defendant | Mr G Lewis SC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff was involved in a transport accident on 1 July 2006 (“the transport accident”) when, as a pedestrian, he was struck by a motor vehicle. He suffered an injury to his lower spine, with some referred pain into the buttock and legs. He claims he suffers constant pain which requires regular medication, and for which he has had a range of conservative treatments. He claims his sleep has been affected as a result of the pain and restriction. In particular, he says he is not able to pursue his career in banking as he finds it difficult to sit for long periods operating a keyboard.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injuries suffered in a transport accident on 1 July 2006. The body function said to be lost or impaired is the lower spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s93(17) of the Act.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, several affidavits of the plaintiff, and work associates, medical and radiological reports and various employment-related documents were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff was born in 1964 and is forty-nine years of age.
5 He completed Year 12 and in 1983, obtained work with the Commonwealth Bank, where he remained for twenty years, attaining the position of commercial business manager. In evidence, he said he enjoyed the work and the service he was able to provide to the bank’s customers. He took a voluntary redundancy in 2003 for the purpose of travel overseas and pursued that interest over 2003 and 2004.
6 He is a single man, and prior to the transport accident, undertook all his own cooking, cleaning and other domestic duties and chores. In the 1990s, he developed a sinus problem which required surgery in 2000 and 2004. He had ongoing sinus problems after the transport accident.
7 He enjoyed a range of recreational and social activities, and would attend the cinema several times per week.
8 Upon his return from overseas in 2004, he said it was his hope and expectation to resume work in the banking industry. Initially, he worked with a number of organisations, and then applied for employment with a range of banks including Westpac, AMP and through an employment consulting group, Hayes Consulting.[1] He was not successful in relation to any of those job applications, although obtained interviews with a number of banks.
[1]See exhibit PS2, Plaintiff’s Court Book (“PCB”) 19 – 23
9 In 2005, he commenced work with Myer as a casual worker in both sales and as a storeman. Prior to the transport accident, save in respect of a sinus problem, the plaintiff was generally in good health and in particular, had no significant lower back problems.
The injury sustained in the transport accident and its consequences
10 The plaintiff was a pedestrian when he was struck by a vehicle and landed on the bonnet, breaking the windscreen. He was taken to hospital and discharged later that evening. The next day, he saw his general practitioner, Dr Lisik, complaining of lower back pain, and from an early time, with pain radiating down the left buttock, thigh and calf. He suffered pain in the left ankle, but this has since resolved. He was away from his work at Myer for approximately six months. In August 2006, he was referred by Dr Lisik to Mr de la Harpe, orthopaedic surgeon. Mr de la Harpe recorded that the plaintiff’s back and left leg pain had increased since the accident. He noted no neurological abnormality, and he observed that a CT scan arranged by Dr Lisik of 7 July 2006[2] showed aged-related degenerative change in the lumbar spine, with mild annular disc bulges at lower levels.
[2]PCB 193
11 The plaintiff was also referred to Dr Selvaratnam, physiotherapist, in July 2006. That practitioner treated the plaintiff with a range of treatment programs over a period of approximately eighteen months.
12 In approximately 2007, the plaintiff developed pain in his left foot which was subsequently diagnosed as plantar fasciitis which was considered to be related to an altered gait, related to his back pain. After treatment, this problem resolved. Mr de la Harpe arranged an MRI scan of the lumbar spine which was said to show multilevel disc degeneration.[3]
[3]Defendant’s Court Book (“DCB”) 9
13 The plaintiff has had further physiotherapy treatment from a range of practitioners, including Jayce Gilbert,[4] and with a Pilates practitioner, Mr Jonathan Snowsill.[5] He developed symptoms of Post Traumatic Stress Disorder and was referred to a psychologist. Dr Lisik prescribed a range of medication: Panadol, Nurofen, Panadeine and Mersyndol.
[4]PCB 175
[5]PCB 190
14 In June 2010, the plaintiff was referred to Dr Janaka Seneviratne, a neurologist.[6] To that practitioner, the plaintiff complained of ongoing back pain with left-sided sciatica. He performed nerve conduction studies which were said to demonstrate longstanding mild neurogenic changes in the right L5-S1 innervated muscles. Dr Seneviratne concluded that the plaintiff’s symptoms suggested right-sided lumbosacral radiculopathy by reason of the EMG study. He injected the nerve root to the right L5 disc in January 2011 which provided good symptomatic relief for a short period. He also prescribed Lyrica for nerve pain. He thought there had been some improvement subsequently in relation to the plaintiff’s left leg pain. He arranged a further MRI scan of the lumbar spine which showed degenerative changes, in particular at the L5-S1 disc, without significant nerve root compression. He referred the plaintiff to Mr Rondhir Jithoo, neurosurgeon, for an opinion. In his final report of November 2002,[7] Dr Seneviratne noted the plaintiff was still complaining of lower back pain with radicular pain down, on this occasion, the right leg. He noted the recent MRI scan (of January 2012) did not show any significant nerve root compression. He suggested ongoing conservative treatment including the prescription of Lyrica or Endep. He said it was likely there was some minor nerve root irritation in the lumbosacral region.
[6]PCB 178
[7]PCB 181B
15 The plaintiff saw Mr Jithoo, neurosurgeon, in January 2012. He said that the “striking feature” of the MRI scan of January 2012 was the lack of nerve root compression, although the L5-S1 disc appeared degenerate. He said the plaintiff suffered discogenic pain. He referred to the possibility of a lumbar fusion, but noted the plaintiff was not keen to undertake surgery.
16 At the present time, the plaintiff attends his general practitioner each month or so for certificates, and the prescription of medication. He says he suffers constant lower back pain and that, of recent times, the symptoms in his left leg have lessened, and he has suffered increasing symptoms in the right leg. Low-back symptoms are aggravated by bending, prolonged sitting or standing and raising himself from a seated or lying position. He currently takes medication: Lyrica, Panadol, Nurofen, Panadeine and Mersyndol. Various activities aggravate the pain, and at times it is severe. He claims that his sleep is severely disturbed because of his back pain and he is now not able to get a good night’s sleep. Consequently, he is tired and lethargic throughout the day. In particular, he finds it difficult to sit at a computer for more than 30 minutes. He lives by himself, and undertakes almost all of his own domestic chores and tasks, although finds it difficult with the heavier tasks including mopping or anything which requires bending. He claims to not be able to pursue his interest of overseas travel as he would like, although he has travelled overseas on two occasions since the accident. He attends the cinema less.
17 In relation to his employment, in early 2007, he resumed employment with Myer on light duties. For a period of three months he worked for the Australian Taxation Office (“ATO”). It is clear from emails sent in April 2007,[8] that at the time, the plaintiff was suffering sinus difficulties which impeded him from employment. In evidence, he said he left the job with the ATO because of back problems and associated sleep deprivation. This stands in some contrast with these emails.
[8]exhibits 1 and 2
18 According to his affidavit, it was the plaintiff’s intention to return to work in the banking industry. In September 2007, he obtained a position with a bank, G E Money, where he worked for four to six weeks. Again, in that employment, he was affected by his sinus condition, although it is clear that he also suffered back pain. According to a report of an occupational physician, Dr Jane Wadsley,[9] who examined the plaintiff for G E Money and said he was unfit for a return to work at the time because of his lower back pain. She noted there were restrictions on his employment including lifting of more than 5 kilograms, sitting for more than 15 minutes and being able to work where he could vary his posture. She said she did not think the plaintiff could undertake a full-time training course.
[9]PCB 76
19 In July 2008, the plaintiff obtained a position at the Bendigo Bank, and says that as a result of his lower back pain and the need to frequently change position, he was unable to continue in that employment and lasted only about a month. The difficulties with his lower back at this time are confirmed by the clinical notes of Dr Lisik.[10]
[10]PCB 113 – 114
20 Subsequently, the plaintiff resumed employment with Myer and has worked with that company through to the present time. He works as a storeman, although according to an affidavit of his manager, Mr Michael McCarthy,[11] his work includes that of logistics team leader. He works 33.75 hours per week and earns $43,606 gross per year. In evidence, he accepted that he undertook all the overtime and additional hours that were available. According to the affidavit of Mr McCarthy,[12] he described the plaintiff as a good worker who struggled with the physical aspects of his work and was limited, particularly in relation to lifting and moving articles. Mr McCarthy also observed the plaintiff struggled to stand or sit for long periods, had an office chair which was specially positioned, and had numerous days off work as a result of his back complaints. According to the plaintiff’s affidavit, he says that over the last twelve months he has had about twelve to fifteen days off.
[11]PCB 40
[12]PCB 41
21 The plaintiff has not made application for any other jobs in the banking industry since Bendigo Bank and says that he believes working in the industry would not be possible because of the requirement to sit at a computer screen for lengthy periods of time. In cross-examination, he accepted he had not explored other potential areas of employment. According to a summary of the plaintiff’s wages over recent years,[13] his wages peaked in 2004 at $67,556 gross per year. Since the transport accident, his wages have been significantly less. Because he claims to be unable to work in the banking industry, and with the restrictions placed upon him by his low-back condition, he says he has suffered a significant financial loss.
[13]PCB 202
Medical opinions
22 According to the most recent report of the general practitioner, Dr Lisik,[14] she notes the plaintiff’s lower back pain started after the transport accident and while initially the pain affected his left leg, it has since moved to the right, although he still suffers referred pain through the buttocks to the right and left sides. She says that the plaintiff is not working in his usual banking occupation because of his inability to sit for more than 30 minutes. She notes the plaintiff uses Lyrica for neuropathic pain and other analgesics.
[14]PCB 80
23 The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, in 2009 and 2012. To Mr Simm, the plaintiff complained of constant low-back pain, although in his first report he noted there were periods when the plaintiff was without pain. By 2012, the plaintiff said that his pain had deteriorated. He complained of a range of restrictions in his employment and that he was unable to sit comfortably for more than 30 minutes. Upon neurological examination, Mr Simm said there were no signs of radiculopathy. Mr Simm was of the opinion that the plaintiff’s lower back symptoms were consistent with lumbar disc disruption associated with longstanding multilevel disc degeneration. He noted the change of symptoms from the right to the left leg and although they followed a radicular path, he noted there was no radiological evidence of nerve root compression.
24 Mr Simm was of the view the plaintiff was permanently confined to light work where he was able to move from sitting to standing. He said the plaintiff was unable to sit for prolonged periods. He required ongoing symptomatic treatment.
25 The plaintiff was examined by Dr John Waterston, neurologist, in September 2010. He said neurological examination was normal. He thought the plaintiff had suffered a soft-tissue injury to his lower spine, and in relation to the left leg pain, he noted the EMG studies showed some changes consistent with radiculopathy, although there was no obvious nerve root compression on the MRI scan. Dr Waterston said it was difficult to explain the radicular pain. He provided a further report of July 2011[15] where he said it was possible there may have been some disc material causing a degree of nerve root compression which might explain the discrepancy between the MRI scan and the EMG results. He said the clinical presentation of the plaintiff was “also very suggestive of radiculopathy”.
[15]PCB 187
26 On behalf of the defendant, the plaintiff was examined by Mr Robert Marshall, surgeon, in November 2006. The report, and subsequent letters, are now dated and of little assistance.
27 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in June 2008.[16] He diagnosed a soft-tissue injury to the lumbar spine which he thought involved musculoligamentous damage and aggravation of pre-existing asymptomatic degenerative disease at the lumbosacral level. He said the plaintiff’s complaints of pain in the left leg were consistent with sciatica in an S1 nerve distribution but noted that the radiological investigations available did not show any definite evidence of S1 nerve compression. He assessed the plaintiff as sensible and a genuine historian.
[16]DCB 12
28 Dr Anthony Kam, radiologist, provided an opinion in July 2011 of the various radiological reports then available. He said that the imaging showed multilevel disc degenerative changes, in particular a shallow disc bulge at L5‑S1 which contacted but did not displace the traversing left S1 nerve root.
29 The plaintiff was examined on a number of occasions by Mr Robert Dickens, orthopaedic surgeon, most recently in November 2012. The plaintiff complained of constant low-back pain with pain referred to initially the left leg, but in 2012, more predominantly down the right side. The plaintiff said the pain went into his buttock, down the back of the thigh to the calf and foot. On examination, he noted an absent left ankle jerk and some sensory changes. In the transport accident, Mr Dickens said the plaintiff suffered an aggravation of underlying degenerative disease in the lumbar spine. He said the MRI scan did not suggest significant neural compression, but the EMG studies suggested nerve root involvement. He said the issue of whether the plaintiff was suffering radicular pain was confusing, but concluded that on his examination in 2012, the plaintiff had left-sided radiculopathy which was not evident on MRI scans. He accepted the plaintiff as genuine. He was unable to explain the change of symptoms from the left to the right leg. He suggested the plaintiff should reduce his weight and undertake a fitness program.
Conclusions
30 There is no issue the plaintiff suffered an aggravation of underlying disc disease in the transport accident, in particular at the L5-S1 level. The collision clearly involved significant forces and resulted in the plaintiff being away from work for a period of six months. I accept that the plaintiff has suffered significant and largely constant low-back pain from that time through to the present, which has required treatment in the nature of physiotherapy and a range of pain-relieving medication. At the present time, the plaintiff is consuming significant quantities of such medication.
31 A significant issue in the course of the application was whether the plaintiff was suffering established radicular pain into the right and/or left legs. Mr Lewis submitted that there was no satisfactory confirmation of nerve root compression, either from the various radiological reports, or the opinions of most of the specialist practitioners who had examined the plaintiff. As a result, Mr Lewis said the Court was reliant upon the credibility of the plaintiff in accepting his complaints of pain, in particular to the legs. He submitted that in many respects the evidence of the plaintiff was unsatisfactory:
·Despite the plaintiff’s claims that he was unable to sustain employment at the Bendigo Bank, because of his lower back problems, it was clear that his sinus condition played a significant role, and while he made regular complaints about his sinus, he made no such complaints to the bank in relation to his lower back. However, I note from the report of Dr Wadsley, and the clinical notes of the plaintiff’s general practitioner, it is clear that he was suffering significantly from lower back problems at this time.
·Despite the plaintiff’s claims that his low-back pain was constant, in the history to Mr Simm,[17] he said he had periods without pain.
·Despite the plaintiff’s claim that he wished to resume employment in the banking industry, he had made no applications since his job at the Bendigo Bank in 2008, save for an application to the National Australia Bank in 2009. In any event, said Mr Lewis, all the plaintiff’s applications for banking work had been rejected, both before and after the transport accident, and realistically the plaintiff had given up any genuine prospect of work in the banking industry.
·The plaintiff’s explanation as to why he ceased work at the ATO, that the problems were due to lack of sleep because of his low-back pain, was clearly incorrect.
·Despite his claims of constant low-back pain, the plaintiff had travelled both overseas and interstate, including to a theme park in Queensland.
[17]PCB 136
32 There is merit in some of the allegations made by Mr Lewis in relation to the plaintiff’s credibility. I found his explanation as to why he left employment, in particular with the ATO and the Bendigo Bank, as unsatisfactory. However, generally, I found the plaintiff gave a reasonable and straightforward account of his injuries, and the consequences which have resulted. I do not consider that the points raised by Mr Lewis have a major impact upon the plaintiff’s credibility. I am confirmed in this view by the opinions of many of the medical practitioners that the plaintiff presented as a genuine patient not given to exaggerating his symptoms.
33 The plaintiff claims that it was his ambition to return to working in the banking industry at some time after his return from overseas vacation in 2003 and 2004. It is clear that after that return, he applied to various banks for employment but was rejected. I have reservations about whether it was always the plaintiff’s ambition to return to banking. He has made no applications since 2009 and had been rejected on many occasions before that. However, what is clear is that an area of employment which the plaintiff was capable of undertaking prior to the transport accident has been closed to him. I accept the opinion of various practitioners that in particular, he has a difficulty sitting at a computer for more than 30 minutes. He also has difficulties in any employment which requires lifting or bending. While his work history has been in clerical or administrative areas, the restriction that his spinal injury has placed upon him means that he must find an accommodating employer, prepared to deal with his restrictions, in a job where he is able to stand and sit and move from one position to another regularly. I accept the submission of Mr Richards that employment with those restrictions is not easy to find and the plaintiff may well have difficulties obtaining alternative employment if he were to lose the position at Myer.
34 Mr Lewis points to the fact that the plaintiff has returned to almost full-time employment, is able to undertake most of his domestic duties and activities of daily living and still enjoys a range of recreational activities, in particular walking and going to the cinema, although less regularly than before the transport accident. He submitted the activities and pursuits that are retained, as well as those lost or curtailed must be taken into account. I accept this submission, but, as has been said many times by the authorities, a person who experiences constant and significant pain which, among other things, affects sleep, suffers a significantly debilitating consequence.
35 The issue of whether the plaintiff suffers true radicular pain, caused by nerve root compression is uncertain. Most of the practitioners are unsure as to the precise source of the pain the plaintiff suffers down, initially, his left, and now both legs. There is not sufficient evidence from the MRI scans, in particular those of January 2012,[18] and the upright scan of February 2013,[19] to show true nerve root compression. However, I accept the opinions of both Dr Waterston and Mr Dickens that on clinical examination, there appeared to be radicular pain, confirmed by Mr Dickens in his finding of absent left ankle jerk and sensory changes. Generally, I accept the complaints of the plaintiff of pain both into the left and right legs. It is not to the point whether that pain represents true radicular pain. The pain may be referred mechanical pain, or, as Dr Waterston postulates, may relate to a piece of disc material compressing a nerve.
[18]PCB 196
[19]PCB 201
36 I further accept the plaintiff’s complaints of constant lower back pain which has required a range of significant pain-relieving medication. I accept his complaints that his sleep is affected, and some of his domestic and recreational tasks and interests also have been affected.
37 I accept that the plaintiff has work restrictions, which have resulted in limitations in the areas of employment which would otherwise be open to him. It is clear from the summary of his wage records that he is earning far less now than he was before the transport accident. I am satisfied that that loss has resulted, in one way or another, as a result of his lower spine injury in the transport accident.
38 For all of these reasons, I am satisfied the consequences to the plaintiff of the injuries suffered in the transport accident do reach the “very considerable” level as the authorities require. I shall grant the plaintiff leave to bring common law proceedings, and make consequent orders.
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