Taylor v Transport Accident Commission
[2022] VSCA 269
•9 December 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2021 0135 |
| SKYE TAYLOR | Applicant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
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| JUDGES: | T FORREST, KENNEDY and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 October 2022 |
| DATE OF JUDGMENT: | 9 December 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 269 |
| JUDGMENT APPEALED FROM: | [2022] VCC 1764 (Judge K L Bourke) |
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ACCIDENT COMPENSATION – Transport accident – Serious injury – Applicant refused leave to commence common law proceedings – Whether trial judge applied correct test for causation – Whether trial judge ought to have determined accident was a cause of injuries and sequelae – Leave to appeal refused.
Transport Accident Act 1986.
Gennimatas v Transport Accident Commission [2022] VSC 552; Thapa vTransport Accident Commission [2021] VCC 1764; Principe v Transport Accident Commission [2016] VSCA 205 and Petkovski v Galletti [1994] 1 VR 436 referred to.
| Counsel | |||
| Applicant: | Mr A D B Ingram KC with Mr P A Czarnota | ||
| Respondent: | Mr J Ruskin KC with Mr R Kumar | ||
Solicitors | |||
| Applicant: | Shine Lawyers | ||
| Respondent: | Wisewould Mahoney | ||
T FORREST JA
KENNEDY JA
KAYE JA:
Skye Taylor applies for leave to appeal from a decision of the County Court refusing her application for leave to commence common law proceedings for damages allegedly sustained in a transport accident on 9 June 2011.
The applicant is precluded from instituting common law proceedings for damages in respect of an injury said to be sustained in a transport accident without receiving leave from a court pursuant to s 93(4)(a) of the Transport Accident Act 1986 (‘the Act’). The court must not grant such leave unless it is satisfied the injury is a ‘serious injury’.[1] For the purposes of this application the relevant definition of ‘serious injury’ is ‘serious long-term impairment or loss of a body function.’[2] The body function relied upon was expressed as ‘the spine’.
[1]Section 93(6) of the Act.
[2]Section 93(17)(a).
The proposed grounds of appeal are as follows:
(1)The learned trial judge erred by failing to adopt and properly apply the correct test for causation, that is, whether the transport accident was a cause of the Applicant’s claimed injuries and sequelae.
(2)The learned trial judge erred in the application of the ‘results from’ test, and ought to have determined on the whole of the evidence that the transport accident was a cause of the Applicant’s claimed injuries and sequelae.
Ground 1 alleges specific error. Ground 2 alleges that, on the whole of the evidence the transport accident was a cause of the applicant’s claimed injuries and sequalae, contrary to the judge’s findings. In the written submissions there was a divergence between the parties as to the approach this court ought to take to a ground that alleges this sort of error. The applicant submitted that, in the absence of specific error, an onus rested with her to demonstrate that the decision was ‘plainly wrong’ or ‘wholly erroneous’. The respondent contended that we should conduct our own evaluation of the evidence, paying due regard to the judge’s advantage in seeing and hearing the applicant’s evidence.[3] This divergence was explained in Thapa v Transport Accident Commission.[4]
[3]The applicant was the only witnesses to give oral evidence. Other affidavits and medical reports were tendered by consent in what has become the usual practice in these sorts of applications.
[4][2021] VSCA 239, [54]–[69] (Beach, Kaye and Kennedy JJA).
It is unnecessary in this application to resolve this tension as both senior counsel for the parties agreed upon enquiry from the bench that it was appropriate to eschew the ‘plainly wrong’ approach. We are thereby content to adopt the approach of deciding the question of causation, for ourselves. For the reasons expressed below, the outcome of this application would be the same, irrespective of which test was applied.
Her Honour dismissed the application for leave to commence proceedings. Her Honour concluded:
I am not satisfied, taking into account all of the evidence, that the plaintiff’s current spinal condition results from the accident ten years earlier. Given her level of activity, particularly at work three years after the accident, and her lack of treatment during that time, her pregnancy in 2014 and related health issues, all the flare ups, particularly in late 2017 and 2018, cannot be explained by the deterioration of what was at most a soft tissue injury.[5]
[5]Taylor v Transport Accident Commission [2021] VCC 1764, [273] (‘Reasons’).
We have determined that we should refuse leave to appeal on both grounds. Our reasons follow.
Factual background
This background is derived largely from the applicant’s two affidavits tendered as part of her evidence in chief, and from agreed chronologies prepared by both parties of her medical treatment history. Other sources of material include an affidavit in support from Dean Robins, the applicant’s former partner.
The applicant was aged 38 as at the date of the serious injury hearing. She left school in Year 10 and became her grandmother’s full-time carer. At 18 she started work for a superannuation body, progressing to be secretary to the general manager of the ‘business and finance’ division. She worked in this capacity for approximately eight or nine years. She also performed unrelated casual work after hours and on weekends. Essentially she was in steady employment until birth of her child in 2015.
The applicant had a previous health history[6] of anxiety and depression, upper back and shoulder stiffness ‘linked to anxiety’[7] and it was suggested she may have fibromyalgia. At times she experienced migraines. In about 2006 she had an MRI of her spine which she was told was normal with no disc bulges. She had osteopathic treatment for her neck and back to relieve muscle tension, commencing in January 2006 and continuing until 2007.
[6]That is prior to the 2011 transport accident.
[7]Applicant’s affidavit.
In about 2009 she had a small number of osteopathic treatment sessions for neck pain and associated jaw pain and headaches. Despite these difficulties she was able to work without significant restrictions. In her evidence she drew a distinction between her pre-accident muscle tightness and subsequent pain.
The accident
While driving to work at around 8:15 am on 9 June 2011, the applicant stopped at a red traffic light in Mahoneys Road, Fawkner. There were two cars in front of her. A van travelling behind her failed to stop and collided with the rear of her vehicle. She was pushed forward into the vehicle immediately in front of her. It in turn was pushed into the vehicle in front of it. Air bags were fitted to the applicant’s vehicle but did not deploy.
The applicant’s vehicle had to be towed from the accident scene. No police or ambulance attended the scene. The applicant made a report to police and a Transport Accident Commission (‘TAC’) claim.
At the time of the accident the applicant had resigned from her then employment due to the amount of travel involved and was serving out her notice period. At this stage she was also working part time at a pet store and this became her primary employment subsequent to the accident. Later she commenced a full time job with a pet insurance company in customer service including some Saturdays. It is sufficient to note that post-accident the applicant remained virtually fully employed until becoming pregnant in mid-2014.
Post-accident medical treatment described by the applicant
In her first affidavit of 21 July 2020 the applicant outlined the following:
•She attended her GP Dr Vincent about four hours after the accident. She was prescribed Norgesic and Celebrex for back pain.
•In around July 2011 she had an X-ray and CT of her spine. She was told that there was a loss of lordosis, osteoarthritis and a disc bulge at L5-51. The onset of degenerative change was observed at the facet joints.
•On around 20 October 2011 she attended a physiotherapist at Austin Physiotherapy Service. She complained of low back pain travelling into her right and left thighs and extending to her left knee. She was told there was little that could be done for her and she was discharged home.
•She aggravated her lower back pain in November 2011 carrying a big pot. She was prescribed Celebrex and referred for physiotherapy. She was advised to swim.
•She managed low level, occasional back pain for several years thereafter.
•She attended Rex Medical Bundoora in around 2012 for vertigo and tinnitus, and in about 2013 for neck and back pain.
•On 7 February 2014 she was referred for an X-ray of her neck due to neck pain. She was told the X-ray was normal. She was prescribed Endone and Panadol.
•In around 2015 her back pain flared up during her pregnancy. She was referred to an osteopath. Her back pain and pelvic instability gradually recovered following her pregnancy.
•On about 19 July 2016 she had a further flare up of her back pain. An MRI of her lower back demonstrated a disc bulge at L5-51 and desiccation of discs.
•From 26 June 2017 to 5 October 2017 she received physiotherapy treatment.
•In November 2017 she experienced another flare-up in the right side of her back. She was prescribed Brufen, Voltaren Gel, Valium and Panadeine Forte.
•From March 2018 she received osteopathic treatment which continued through 2018, 2019 and 2020.
•In about April 2018 the applicant experienced worsening jaw pain and on 16 April 2018 she was referred to the Eye and Ear hospital, but did not receive any treatment for the condition.
•In October 2019 she was referred to Dr Akil, a neurosurgeon who told her spinal surgery was not required.
•In about November 2019 a lower back MRI scan showed an L5-51 disc bulge with some new contact of the thecal sac and some disc desiccation.
•On about 12 November 2018 she was referred to Dr Velayudhan, a pain management specialist for a 12-week course.
•As at mid-2020 the applicant was still consulting Dr Chinnaswamy at Doreen Family Medical Practice having attended Rex Medical Bundoora and Mill Park Superclinic. She was then being prescribed Cipramil for her anxiety and depression, and had over time been prescribed various pain relief and anti-inflammatory drugs, including Norgesic, Celebrex, Nurafen, Panadeine Forte and Endone.
•As at July 2020 (at the time of swearing her first affidavit) the applicant stated that she continued to experience pain in her lower back, that on a normal day, could be ranked 3 out of 10, and on a bad day at 8 out of 10. Her neck pain extended into both shoulders and the back of the head. She had trouble walking on bad days, and occasionally limped.
Medical treatment extracted from medical records tendered at trial
Each party provided summaries of clinical attendances. The applicant highlighted that there were a number of references to back pain during the course of 2011 to 2021 and that a patient will not necessarily repeat complaints on each attendance. The respondent highlighted that back pain was only mentioned in relatively few attendances, despite the high frequency of medical attendances.
Insofar as the attendances are concerned, throughout the second half of 2013, into early 2014 the applicant was a very regular attendee at Rex Medical Bundoora. She sought treatment for, inter alia, sinusitis, right rib pain, a smoking addiction, lethargy, anxiety, depression, a vitamin D deficiency, hemochromatosis, nausea, headaches (thought to be medication related), facial and eye pain, migraine, maxillary sinusitis, urinary tract infection, lower abdominal pain, tooth abscess, benign positional vertigo, hair loss and swallowing difficulties. The applicant attended Rex Medical Bundoora on approximately 27 occasions between her incidental mention of back pain on 7 June 2013 and her next mention of it on 7 February 2014. The entry for that date reads ‘patient has neck pain for the past few weeks’. On 24 February 2013 the history given was ‘neck and low back pain for the past few days’.
The applicant was also attending the West Heidelberg Clinic during this period. On 14 September 2013 she complained of increasing fatigue, falling asleep at work, increased depression, low mood, an anxiety attack with left arm numbness and mild constipation. She further attended on 28 September 2013, 5 October 2013, 9 November 2013, 21 December 2013, 30 January 2014 and 1 February 2014 with similar complaints together with chronic face pain associated with emerging wisdom teeth. It was not until 30 January 2014 that the applicant complained about back pain.[8]
[8]Entries on 30 January 2013, 12 October 2013 and 15 November 2013 appear to relate only to ‘letter created’ records, rather than actual attendances for treatment.
The applicant’s summary suggests that the applicant was not prescribed any medication for back pain for more than two years following the accident (between November 2011 and February 2014). After that time, although treatment appears to have been administered for flare ups in about March 2014, July 2016, and from 2018, Panadeine Forte was not regularly prescribed until 2020.
Relevant evidence
The applicant
The applicant gave oral evidence on the application. She adopted the contents of her affidavits in evidence in chief, which we have referred to in paragraph 8 of these reasons, and was cross-examined.
In cross-examination the applicant stated that her neck was tender before the motor vehicle accident — ‘just sore in general’. Since the motor vehicle accident she had pain at the right base of her neck radiating up into her hairline. She stated that at the time of the accident she had no neck or back pain whatsoever, but in the years prior she had muscle tightness or tension in her neck and low back but no pain. She suffered from occasional migraines before the accident.
The applicant stated in cross-examination that her migraines had restricted her work capacity and she had not returned to work since the birth of her daughter in 2015. At the time of the accident she had been working at Complete Office Supplies for about three or four years, and part time at Best Friends Pet Store for about two years. She gave notice at Complete Office Supplies as she found travelling to work too difficult, particularly after she suffered from chronic fatigue. She then worked at Best Friends Pet Store as a primary job for a time, then at Petplan Insurance and finally at Independence Australia, a disability support service where she worked in customer service. She stated that she ceased work for three reasons — back pain, pelvic instability and bad hormonal anxiety.
The applicant explained how her neck and back injuries reduced her enjoyment of life and capacity to perform daily activities. She stated that currently[9] she experienced constant daily pain in her neck fluctuating from 5 out of 10 to 8 out of 10. Prolonged walking, standing, sitting, bending, twisting and lifting tended to aggravate her pain. Osteopathic treatment kept her pain at ‘five’ as opposed to ‘eight’. She was taking about two tablets of Panadeine Forte daily. She completed the pain management course in August 2020 but it did not assist. Her jaw pain continues and she has numbness, tingling weakness and instability in her hands. She wakes up regularly from pain.
[9]As at September 2021.
The applicant was cross-examined about her attendances at the various medical clinics from 2006 onwards. After describing some of these visits she said she had a significant flare-up in 2018 and it persisted. She said she woke up one day in 2018 ‘… all of a sudden I woke up one day and I was in a huge amount of pain in the same area that it’s always been in. The neck got really bad as well, and I just been in this ever since.’
Dean Robins
Dean Robins is the applicant’s former partner and deposed an affidavit. He did not know the applicant before 2013. They met on a dating website and moved in together in about 2014. They no longer maintain a de facto relationship but remained living together in the same premises. Their daughter Summer was almost six years old at the time of the hearing the subject of this appeal (September 2021). He stated that the applicant’s pain and functioning has deteriorated since the accident, and that she tried to, but often could not, complete household chores. Cooking, laundering, and picking up items from ground level often seemed to cause her pain and discomfort. She did not attend to heavier tasks, and he assisted with lifting involved in shopping. The applicant would lie down and rest her back when she has pushed herself too hard, and took painkillers on bad days. Her parenting as a ‘hands-on mum’ had been impacted adversely.
Medical and health professional evidence
Applicant
Medical reports prepared by her relevant medical practitioners were tendered and there was no cross-examination of the doctors.
Dr Tsai
Osteopath
Dr Tsai treated the applicant intermittently since 23 July 2015 for pain in the lower back and pelvic girdle. The pelvic girdle pain improved but the lower back pain persisted which Dr Tsai thought was the product of a past disc bulge at L5/51. Later in 2015 the applicant presented with neck and shoulder pain along with headaches:
From March 2018 Skye again presented with neck and shoulder pain, and in August 2018 Skye presented with lower back pain (although Skye claims she had been experiencing constant lower back pain since the motor accident in 2011)…
Dr Chinnaswamy, general practitioner
Dr Chinnaswamy prepared a brief report on 5 April 2021. He treated the applicant at the Doreen Clinic, although his report does not descend into any detail save to say, somewhat elliptically:
[H]er current diagnoses of injuries include chronic neck pain and low back pain with flare ups.
He made no mention of the motor vehicle accident, nor did he express any opinion as to the cause of the neck and back pain. He set out the applicant’s current physical limitations.
Mr Mark Tamaray
Physiotherapist
Mr Mark Tamaray is a physiotherapist at Advance Healthcare Bundoora who prepared a report dated 27 April 2021. The applicant attended the multi-disciplinary pain management team on 30 March 2020. In answer to specific questions, Mr Tamaray stated that the multidisciplinary pain assessment team had diagnosed chronic primary pain of moderate marked severity together with adjustment disorder with mixed anxiety and depressed mood. Although the section of the report is headed ‘A diagnosis of the injuries related to the transport accident’ the physiotherapist did not provide his opinion or the reasons for it, as to the cause or causes of the applicant’s current low back symptoms. Mr Tamaray recited the findings of the assessment team who considered contributing factors were:
•Chronic whiplash indicating poorer prognoses, likely maladaptive central sensitization and the need for specific management.
•Deconditioning as determined by over 50 per cent reduction in activity for over 3 months.
•Relevant diet and/or weight issues.
•Severe levels of stress based on DASS-21 score.
•Significant regional stiffness including the cervical, thoracic, lumbar and gluteal regions.
•Severe levels of depression based on DASS-21 score.
•Severe levels of anxiety based on DASS-21 score.
•Significant maladaptive use of prescription medication which may be having an adverse effect.
•Moderate severity cervical headache.
•Low levels of self-efficacy related to pain as indicated by the Pain Self Efficacy Questionnaire and clinical assessment.
•Moderate levels of pain catastrophising as measured by Pain Catastrophising Scale and clinical assessment.
•Moderate level beliefs which could impact on pain management including: recovery expectations, strong focus on symptoms.
Dr Akil
Neurosurgeon
Dr Chinnaswamy referred the applicant to Dr Akil in 2019. The applicant gave Dr Akil a history of a motor vehicle accident in 2011 and ‘since then she has been complaining of neck pain as well as lower back pain’. Dr Akil noted that her neck range of movement was normal and he did not detect any motor or sensory deficit in her upper limbs. There was straight leg raising ‘limited to’ 45 degrees bilaterally but he did not detect any motor or sensory deficit in both lower limbs. He noted that a lumbar spine MRI scan showed L4/5 and L5/51 annular fissures, but he did not detect any neural compression. He thought it ‘very plausible’, that her cervical spine symptoms were caused by whiplash injury caused by the accident, and he offered no opinion on the cause of lower back pain. He noted that in 2018 the applicant had had a ‘flare up of back pain that started radiating towards her leg all the way to calf and buttocks’. Upon review in January 2022, the doctor noted that a recent MRI scan of her cervical spine showed a ‘reversed lordosis of her cervical spine, but there is no obvious neural compression’.
Mr Garry Grossbard
Medico-legal orthopaedic surgeon
Mr Grossbard examined the applicant in April 2021. He took a history from the applicant. She said she was working part-time at the time of the motor vehicle accident. She experienced the onset of neck and low back pain at home after the accident. She saw her family doctor (Dr Vincent) and was told to rest. Her back pain gradually increased. She described the next few years as follows:
There was a gradual increase in back pain and Ms. Taylor returned to her local doctor. At this point the low back pain had become more of an issue than the neck pain. X-rays were undertaken and said to be within normal limits.
A referral was made to a physiotherapist after four to six months, but during this time very little treatment was undertaken. Ms. Taylor told me she did eventually have an MRI Scan which suggested there was a disc bulge in the lower back. She was prescribed Celebrex which she thought was helpful.
Overall, the situation improved to the point Ms. Taylor felt things were manageable. She said her neck pain did improve but she did develop episodes of vertigo and tinnitus in 2012. She had recurrences of this in 2013 and 2014, each episode lasting four to six weeks at a time. No cause for these symptoms was determined.
Ms. Taylor told me she had her neck X-rayed in 2014 and this was relatively normal.
There have been flare-ups of back pain, each reasonably controlled with Celebrex. In 2015 osteopath treatment was commenced and Ms. Taylor felt this was helpful.
Ms. Taylor told me her back continues to be intermittently troublesome. She told me she has never fully recovered from the back pain which ranges from
4 to 5 out of 10 on a visual analogue scale.
In August/September 2018 there was a flare-up of neck pain for which no cause could be established. Ms. Taylor feels the neck pain did not spontaneously improve despite physiotherapy. Ms. Taylor did attend pain management under the supervision of Dr. Van Den Lewin as an outpatient. Treatment options included physiotherapy, psychology and medication with only minimal benefit.
In December 2020 Ms. Taylor began to complain of shoulder pain. No cause for this could be determined and a diagnosis of bursitis was made on ultrasound.
Ms. Taylor indicated her exercise ability has been limited by her shoulder pain and the development of knee pain.
Radiological reports were supplied to Mr Grossbard — they described:
An MRI Scan of the lumbosacral spine undertaken on 19th July 2016 confirms the presence of mild lumbosacral disc desiccation.
A similar scan undertaken on 7 November 2019 is suggestive of disc bulging at the L4/5 and lumbosacral levels.
An MRI Scan of the cervical spine of 9 January 2020 is suggestive of disc bulges at the C5/6 and C6/7 levels, with mild desiccation but no major nerve or cord compression.
Mr Grossbard then set out the applicant’s asserted general symptoms:
•Constant but variable pain the rear base of the neck and suboccipital area associated with headaches.
•Pain in the temporomandibular joint.
•Occasional radiation of neck pain into the right arm to elbow level.
•Mild, intermittent pain at the front of the shoulder.
•Intermittent short lived hand numbness.
•Weekly migraines.
•Constant but variable low back pain at the lumbosacral level, slightly to the right but occasionally to the left.
•Pain in the right leg twice weekly.
•Paraesthesia in both her feet and hands, which can last for ten minutes to an hour.
•Ongoing issues with anxiety.
Mr Grossbard did not find any evidence of neurological involvement and he saw no need for surgical intervention:
The account Ms Taylor gave me of her accident corresponds to that in her Affidavit. The intermittent episodes of back pain each treated on its own merit following the motor accident up until the current time have also been outlined in the Affidavit.
Ms Taylor has not returned to work since the birth of her daughter six years ago. She feels her inability to sit or stand for more than a few minutes at a time will restrict her ability to work in any capacity, including sitting at a desk or working at a computer.
This lady has suffered soft tissue injuries to her cervical and lumbar spines as a result of the motor vehicle incident of 9th June 2011. These injuries have been of an intermittent nature but have become progressively more troublesome, particularly with respect to the lower back. Many of the physical signs would suggest much of her pain is facet-joint mediated.
Dr David Weissman
Medio-legal psychiatrist
Dr Weissman conducted a face-time psychiatric interview and assessment on 24 July 2020 at the request of the applicant’s practitioners. The applicant described the accident and her lower back and neck pain immediately thereafter. The applicant said that she ‘probably took one week off work’ at Complete Office Supplies ‘and/or a few days here and there’. She set out her other jobs at the pet store and at Pet Plan Insurance from May 2012. ‘She remained in that job until June 2014 when she was pregnant …’ She said that during her pregnancy she had increased low back and pelvic pain and was diagnosed with pelvic instability. She had increased depression and anxiety — she said ‘her hormones went mental’. She further stated that she has not worked since. She described her symptoms as worsening ‘over the years’. Dr Weissman took a history of her medical treatment and medication regime. The applicant described her current psychological symptoms including mild anxiety in a car, low self-esteem and lack of motivation. She had a past history of panic attacks peaking in about 2005, but had dealt with it since. She described a past history of depression, in which she had been admitted to a psychiatric ward as a teenager, and twice tried suicide. She also cut herself on occasions. She had been taking Cipramil (an anti-depressant) since 2005. Dr Weissman’s opinion was that the applicant:
•Requires assessment by an orthopaedic surgeon, occupational physician and pain management specialist.
•Her reported increased anxiety and depression at the stage of the motor vehicle accident was partly due to her accident related pain and partly due to an exacerbation of her pre-existing condition.
•Seems to have a significant past psychiatric history of pre-existing/premorbid chronic dysthymia with anxious distress or Persistent Depressive Disorder with anxious distress which at times in the past and over the years has been punctuated by discrete episodes of chronic Major Depressive Disorder.
•Has ‘pre-existing/premorbid Generalised Anxiety Disorder and Panic Disorder’.
•Experiences only slight to residual traumatisation features directly due to the circumstances of the accident.
•Suffers from ‘mild chronic Adjustment Disorder with anxious and depressive features’ which represents a mild aggravation from her longstanding depressive and anxiety syndrome.
•‘May well have bona fide identifiable, discrete organic pathology in her lower back and neck. However, in addition to this, there appears be marked pain and symptom focus and preoccupation with elevated health concerns.’
•Has developed a ‘Chronic Pain Disorder associated with psychological factors and general medical condition (DSM-4) , also known as a Somatic Symptom Disorder with predominant pain persist (DSM-5).’[10]
Dr Brendan Hayman
Medio-legal psychiatrist
[10]All emphasis has been inserted by Dr Weissman.
Dr Hayman interviewed the applicant on 6 May 2021 at the request of the applicant’s practitioners. We will not repeat the applicant’s history. Dr Hayman diagnosed a Chronic Adjustment Disorder with Depressed and Anxious Mood consequent to the motor vehicle accident and its sequalae. There was a degree of Post Traumatic Anxiety, with some worsening of her pre-existing Panic Disorder.
Respondent
Mr Peter Wilde
Orthopaedic surgeon
Mr Wilde examined the applicant on 30 March 2021. He was supplied with radiology reports, the clinical records of the applicant’s treating GPs and various medical reports. He took a history of the accident and subsequent treatment. He noted that ‘[w]ith a period of rest and the use of Celebrex and some painkillers, her symptoms seemed to settle. She returned to work in normal duties and said she worked six or seven days a week at times. Despite feeling better she advised that her pain did not go away completely and in the early stages it was her neck, and then her back became more troublesome and more recently she described deterioration in her neck symptoms and it seems her neck is more troublesome than her low back’.
The applicant described her symptoms to Mr Wilde as ‘over the years there have been a number of episodes…and…on each time symptoms would get worse for a while and then settle’. A work history was taken. The applicant’s current treatment was to do exercises in her own time and attend osteopathy ‘from time to time’. On physical examination the applicant’s spinal posture in the standing position was normal with no deformity. Movements in the cervical spine and lumbar spine were restricted by
25 per cent. There was no dysmetria or muscle spasm. Neurological testing was normal. The applicant stated that the (non-dermatomal) sensation on the right side of her body was different to the left. A cervical MRI taken in January 2020 showed minor disc bulges at C5/6 and C5/7 with no evidence of a neurological compressive tension. An MRI of the lumbar spine taken in November 2020 showed a small disc bulge at L5/51 without evidence of neural compression. Both scans were considered normal for the applicant’s age.
Dr Wilde stated his opinion as follows: ‘[r]egarding the spine she sustained soft tissue injuries to the neck and low back which have completely resolved. The imaging shows minimal pain in the neck and low back so I am not able to account for this patient’s overstated symptoms. From an orthopaedic perspective, the injuries sustained to the neck and low back are minimal.’ Dr Wilde went on to state ‘[as] she states that she has experienced pain since the motor vehicle accident, I must conclude that these diagnoses are unresolved and relate to the motor vehicle accident. I feel anxiety and depression are heavily impacting on the stated severity of the pain’. Dr Wilde thought the applicant was capable of full time work and ‘from a physical perspective her prognosis is very good’.
Investigations
It is convenient to adopt the judge’s summary of the various radiological investigations carried out on the applicant over the years. The summary is accurate and is not the subject of dispute on this application.
[146] The plaintiff had brain scans in July 2003 and January 2006.
[147] It was reported in 2003 that no significant focal intracranial abnormality was identified, no haemorrhage, infarct or extra axial collection was seen, and no mass legion was identified. The sulcal pattern and ventricular system appeared normal.
[148] The 2006 scan showed that ventricles and cisterns appeared normal, no masses were seen, no shift in midline structures was evident, and the grey/white matter appeared unremarkable.
[149] The plaintiff had a whole spine and pelvis x-ray in March 2006, a cervical x-ray in February 2014 and a thoracic spine x-ray in March 2016 and September 2018.
[150] Following a CT scan of the lumbosacral spine in July 2011, it was reported at L3-4 level and L4-5 level, the disc appeared normal. At L5-S1 level, there was a minor disc bulge.
[151] Following an MRI scan of the lumbar spine on 19 July 2016, it was reported there was mild disc desiccation at L5-S1 and no significant stenoses.
[152] Following an MRI scan of the lumbosacral spine on 7 November 2019, mild desiccation at L5-S1 was found, unchanged when compared to the previous study. There was new mild disc desiccation at L4-5. New small central disc protrusion was seen at L5-S1 that contacted the thecal sac without compression. A new L4-5 broad based disc bulge contacted the thecal sac without compression. No significant thecal compression or neural exit foraminal narrowing was identified.
[153] Following an MRI scan of the cervical spine on 9 January 2020, it was reported there was non-neural compressive central protrusions at C5-6 and
C6-7.
Summary of judge’s reasons on causation
The judge found:
•That credit ‘was not a significant issue in this case, however, the plaintiff’s affidavits did not give a true picture of her situation pre and post-accident, particularly in relation to work.’[11]
[11]Reasons, [203].
•That while the plaintiff had osteopathic treatment for spinal ‘muscle tension’ in 2006-2007 (and two sessions in 2009), the judge did not consider that the plaintiff had a spinal condition of any significance before the accident.[12]
•That the plaintiff’s task (of establishing causation) was ‘particularly difficult in this case given the largely unexplained onset of symptoms some seven years after the accident in circumstances where she was able to work full time for nearly three years thereafter and required very little treatment.’[13]
•That both Mr Grossbard and Mr Wilde had based their opinions regarding accident-related soft tissue injuries on a history of spinal pain since the plaintiff’s accident — however her Honour did not accept that the spinal pain was in fact ongoing.[14]
•That the evidence from the plaintiff’s treating doctors did not assist on the question of causation.[15]
•That ‘[a]lthough the plaintiff presently complains of a significant amount of spinal pain, [she was] not satisfied, with these significant gaps in treatment and complaint, that the plaintiff’s worsening spinal condition — ten years after the accident — results from the accident.’[16]
•That she was not satisfied that at the hearing date that there were any accident-related work consequences of any significance, and the plaintiff’s ability to work full-time for three years after the accident without treatment/restriction militates against the existence of ongoing spinal pain of any consequence resulting from the accident.[17]
•That she did not accept that the plaintiff ceased work because of back pain.[18]
•That she did not accept that current restrictions to the plaintiff’s activities such as home duties/gardening, looking after her daughter and kickboxing related to the plaintiff’s accident ‘now over ten years ago’.[19]
•In conclusion, the judge explained this view as follows:
I am not satisfied, taking into account all of the evidence, that the plaintiff’s current spinal condition results from the accident ten years earlier. Given her level of activity, particularly at work in the three years after the accident, and her lack of treatment during that time, her pregnancy in 2014 and related health issues, the flare ups, particularly in late 2017 and 2018, cannot be explained by the deterioration of what was at most a soft tissue injury.[20]
[12]Reasons, [204].
[13]Reasons, [214].
[14]Reasons, [216].
[15]Reasons, [222].
[16]Reasons, [250].
[17]Reasons, [252].
[18]Reasons, [256].
[19]Reasons, [270].
[20]Reasons, [273].
This Appeal
Ground 1
There is no merit in Ground 1. The ground alleges that the judge misstated the relevant legal principles of causation. The substance of the applicant’s argument is that the judge’s conclusion, that the applicant’s current spinal condition did not ‘result from’ the transport accident, somehow leads to the conclusion that the judge failed to consider whether the accident was ‘a cause’ of her current condition, as opposed to ‘the cause’ of that condition.
We agree with the respondent that the applicant’s submissions are misconceived. If an accident is ‘a cause’ of a condition then the condition is a ‘result of’ that accident. It is indisputable that in order for causation to be established it is sufficient for a plaintiff to prove that a transport accident was a cause of the relevant injuries.[21] The language employed by her Honour in concluding that the applicant’s injuries did not ‘result from’ the accident is in no way inconsistent with that test and is, in itself, completely unremarkable. Indeed, in the seminal case of Pekovski v Galletti Southwell and Teague JJ used similar language:
One should commence with the acknowledgement that it has long been the law that an injured person be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident.[22]
[21]Gennimatas v Transport Accident Commission [2022] VSC 552 (Ashley J); Principe v Transport Accident Commission [2016] VSCA 205 (Hansen and Beach JJA and Cavanough AJA).
[22]Petkovski v Galletti (1994) 1 VR 436, 443.
Section 93(1) of the Act specifically provides that:
(1)A person shall not recover any damages in any proceedings in respect of the injury or death of a person as a result of a transport accident occurring on or after the commencement of section 34 except in accordance with this section.
Further there is no suggestion in her Honour’s careful reasons that she applied some incorrect ‘sole cause’ test. Leave to appeal under this ground must be rejected.
Ground 2
By this ground the applicant contends that applying the correct ‘a cause’ test for causation, on the whole of the evidence, the judge ought to have determined that the transport accident was a cause of the applicant’s ‘claimed injuries’. The applicant reviewed the evidence at trial, noting that there was no significant attack on the applicant’s credit. The applicant contended that the complaints of back or neck pain contained in the clinical records, together with the other evidence in the case, was sufficient to establish a continuum of back pain from the transport accident onwards, so as to establish a causal nexus between the 2011 transport accident and her 2021 impairment. It was submitted that this chronology of pain bears out the opinions expressed by orthopaedic surgeons Mr Grossbard and Mr Wildes. The judge’s determination, it was submitted, was ‘plainly wrong’ or alternatively merely ‘wrong’.
At the oral hearing the applicant identified another document which, it was submitted, filled in a gap in the applicant’s case — namely the absence of meaningful treatment or complaint between 2011 and 2013. The document is a TAC claim form dated 9 May 2012 in which the applicant described the circumstances of the transport accident. Under the hearing ‘Your Injury details’ the printed words are ‘(backache) (whiplash injury to the neck)’ to which is added in handwriting ‘pain since accident in lower back servere’ (sic). This it was submitted filled in a gap in the applicant’s case that was perceived by her Honour.
The respondent on this appeal did not dispute that the applicant suffered soft tissue injuries to the neck and lumbar spine in the transport accident. The issues before the judge were:
(a)Whether there was a causative link between the accident and the applicant’s current condition; and
(b)Whether the consequences of any persisting organic injury satisfied the statutory threshold for ‘serious injury’.
In its written case the respondent put it this way:
‘Importantly, there was a considerable difference between the applicant’s functioning in the years immediately following her accident, and that in the years leading up to the County Court hearing’.
The respondent contended that the judge’s determination was open on the evidence, and that while Mr Grossbard and Mr Wilde were both prepared to accept that there was some persisting injury resulting from the transport accident (Mr Wilde albeit reluctantly) the judge was not bound to accept those opinions. The respondent contended that it was open to the judge to conclude that the applicant had not suffered from ongoing spinal pain since the accident, and as the orthopaedic opinions were predicated on accepting that history, it was open to the judge to reject those opinions.
In our view the conclusion reached by her Honour was not ‘plainly wrong’ — and was well open on all of the evidence. After conducting our own evaluation of that evidence we also agree with the judge that the entirety of the evidence does not establish on a balance of probabilities that the transport accident of June 2011 was a cause of the applicant’s current injuries and impairment.
In coming to this view the following matters are important:
•For three years following the accident until the birth of her daughter, the applicant maintained full employment and led a relatively active lifestyle;
•There was a significant gap in her need for treatment, including during the immediate period after the accident. In fact, over the course of three years following the accident until the birth of her daughter the applicant had little spinal treatment from her treating health professionals;
•There has been no evidence of neurological involvement, either clinically or radiologically. The minor changes of the lumbosacral disc were considered by Dr Wilde to be normal for a person with the applicant’s profile;
•Although there were episodes of increased back pain in 2014, 2016 and significantly in 2018 (being seven years after the accident), neither surgeon explained the link between these episodes and the original soft tissue injuries sustained in the transport accident.
Insofar as the surgeons were concerned, they did record histories from the applicant of ongoing spinal pain since the accident, and linked the applicant’s current symptoms to the transport accident on the basis of that history. Dr Wilde put it this way:
This plaintiff has suffered soft tissue injury to the neck and low back which are minimal on the recent MRI imaging that I reviewed. As she states that she has experienced pain since the motor vehicle accident I must conclude that these diagnoses are unresolved and relate to the motor vehicle accident. I feel anxiety and depression are heavily impacting on the stated severity of the pain.
Dr Grossbard described the applicant’s pain as ‘of an intermittent nature’.
The judge did not accept that the pain had been ongoing since the accident. This conclusion was open to the judge and we agree with it.
In the light of all of the factors, then, including the applicant’s employment history, her other health issues, her pattern of back treatment, and the unexplained ‘flare ups’ (particularly in late 2017 and in 2018), the applicant’s current complaints could not, on the balance of probabilities, be concluded to be a result of the deterioration of what was at most a soft tissue injury. The judge’s conclusion was open, and as we have said, after evaluating all the evidence on this application we agree with it.
Leave to appeal on Ground 2 will be refused.
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