TERZANIDIS v Worth
[2014] WADC 97
•6 AUGUST 2014
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
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| CORAM | : KEEN DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN | : MARIA TERZANIDIS |
Plaintiff
AND
GRAHAM GEORGE WORTH
Defendant
Catchwords:
Negligence - Damages - Turns on own facts
Legislation:
Nil
Result:
Judgment for plaintiff in the sum of $216,544.21
[2014] WADC 97
Representation:
Counsel:
| Plaintiff | : | Mr K S Pratt |
| Defendant | : | Mr C P O'Sullivan |
Solicitors:
| Plaintiff | : | Stephen Browne Lawyers |
| Defendant | : | O'Sullivan Partners |
Case(s) referred to in judgment(s):
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KEEN DCJ: The plaintiff was born in Russia on 17 May 1959. She came to live in Australia in 1976.
2 On 15 July 2009 she was involved in a motor vehicle accident in
Powis Street, Mount Hawthorn. She was in her motor vehicle stationary at traffic lights and about to move off when she was struck in the rear by another car which itself had been struck by a third vehicle.
The plaintiff claims to have been injured as a result of that accident.
4 Negligence has been admitted on behalf of the defendant and the
matter comes before the court for an assessment of the damages suffered
by the plaintiff.
Pleadings and issues
5 In her statement of claim the plaintiff claims that as a result of the
accident she suffered personal injury comprising injuries to the cervical
spine, the left arm and the right arm.6 She claims to have suffered pain and suffering in the cervical area
and in the trapezius region radiating to both shoulders. She also complains of left arm, right arm and left shoulder pain, headaches and disrupted sleep and insomnia.
As a result of the accident she claims to have suffered both past and future loss of earning capacity.
8 In his amended defence, the defendant does not admit these claims.
The defendant goes on to plead that if the plaintiff has suffered and will suffer from symptoms and residual disabilities and has sustained loss and expenses then they have been caused, either wholly or in part by conditions occurring prior to or independently of the accident. The defendant relies upon two previous accidents in 1998 and 1999 which resulted in injuries including a neck injury, pre-existing episodes of lower back pain, pre-existing degenerative disease of the plaintiff's cervical spine, undiagnosed symptoms of swelling and pain in the plaintiff's left upper arm and symptoms of pain in the left wrist and tingling and numbness in the left forearm and hand suggestive of a diagnosis of carpal tunnel syndrome.
The issues that arise for determination, according to the outline of opening submissions of the plaintiff are:
1. the nature and degree of the plaintiff's injuries and any disabilities;
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2. the extent (if any) to which the plaintiff's earnings and earning capacity has and will be affected;
3. the extent of her damages including special damages.
Background
10 At the material time the plaintiff was working in a shop called
'The Fruit Basket' at Mount Pleasant. She had been involved in this type of work for a number of years. Immediately after leaving Russia she went to Greece where she worked in a shoe factory and a clothing factory. After she came to Australia she and her husband operated a delicatessen in Northam and then in 1982 had a fruit and vegetable business in Toodyay for about two years. After that she and her husband returned to Greece for about five months and when she returned she worked at King Edward Memorial Hospital in Perth part-time, three hours a day for five days a week cleaning.
11 In 1991 she and her husband acquired a fruit and vegetable shop in
Nedlands called 'Broadway Fresh'. With her husband she operated this business until the business was sold to IGA in 2007. After selling the business she returned to Greece for a visit and then started work at 'The Fruit Basket' in 2007.
12 The plaintiff's work in 'Broadway Fresh' was full-time. She would
start at about 6.00 am and go through till about 3.00 pm. Her work at 'The Fruit Basket' initially was for a few hours a day but she started to do more hours. She would serve customers, pack goods and also mop and sweep the floors. She would help to push bins of fruit and vegetables around. She produced a number of photographs (exhibit 1) showing the premises and various aspects of the work in the premises.
13 In order to get her history in perspective she acknowledged that she
had a motor vehicle accident in 1988 and another in 1998 (although records of the defendant insurer suggest it was on 12 August 1997). She made claims in respect of each of those accidents. In respect of the first she received damages in the 'tens of thousands of dollars' and in respect of the second she received damages in the total sum of $110,000. She agreed that in that later accident in 1998 or 1997 she suffered neck and arm problems and was seen by Mr Vaughan, a neurosurgeon. She also visited a chiropractor as a result of those motor vehicle accidents and she agreed with counsel that she then had similar neck and arm pain to that which she now experiences following the motor vehicle accident the subject of these proceedings.
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14 The plaintiff said that after the 1998 accident she would visit the
chiropractor because she got pain in the arm if she did lifting. However in
the 18 months prior to July 2009 she had no symptoms.15 After the current accident, even though the pain got worse,
she continued working at 'The Fruit Basket' but reduced her hours because she could not cope. She said sweeping and mopping became unbearable. However she did not want to stop work because she loved her work.
She said that she had intended to work for as long as she could, doing 30 hours per week.
The plaintiff
17 The plaintiff said that when her vehicle was struck her head went
backwards and forwards. The next morning when she got up she had a headache and her neck and head were hurting. She saw her general practitioner and was prescribed painkillers. Gradually the pain got worse and she also experienced pain in her upper left arm and in her lower back.
18 She was taken to the progression of her complaints and up to
Christmas 2009 she had headaches, both front and back, in the morning and after lunch. Her arm was sore after lifting and she had low back pain from bending. She took painkillers and visited the chiropractor.
19 During the period from Christmas 2009 to June 2010 she continued
working four hours per day in the afternoon shift so that there was no
mopping and the like, but she was still packing and was still in pain.20 In this period she saw her doctor who prescribed tablets for her and
told her to take time off work. She was advised to do so by a
Dr Ormonde. She could not recall when she took time off.21 On 22 June 2010 she made a trip to Greece to visit her mother and
returned in August 2010. After her return she tried to work again but she was still in pain and it was getting worse. She visited the doctor and chiropractor and was advised to take time off work and she has not returned to work since. She said the reason for this was that her headaches were too much, she could not use her arm - it was too sore, and she could not do the physical work. She said she did not know any other type of work.
22 From August 2011 to the present time her symptoms have been a
little better but worse in the six weeks prior to commencement of the trial.
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She said there has been an aggravation of her neck pain. She described some of the testing carried out by a Dr Flahive as having aggravated it.
She has been seeing the chiropractor ever since and she has also seen Mr Peter Watson, a neurosurgeon.
24 She described headaches to the back of the head. She also had
soreness in the arm mainly the upper arm on the inner side and as far as the forearm. She said her lower back was now better after stopping the physical work.
25 Her current treatment comprises chiropractic treatment and going to
the swimming pool two to three times a week. The plaintiff going to the chiropractor is of her own volition and she confirmed in cross-examination that none of the doctors had told to see the chiropractor. She said that it had helped her low back and now helps her headaches and eases the pain, albeit temporarily. She has also had acupuncture on two or three occasions in the back of the neck administered by her chiropractor but, whilst it helps, the pain returns.
26 She visits her doctor every five weeks to obtain prescriptions.
She takes Panamax daily for headaches and Panadeine Forte and Restavit for her night-time pain and sleep. She said that prior to this motor vehicle accident she was no longer on any medications.
27 She said that she can now do nothing for herself and her husband or
friends have to help her with shopping. She cannot lift her grandchildren and she cannot do things around the house. After cooking she has to rest. She has a cleaning lady once a fortnight. She no longer goes out much with her husband but stays at home.
28 In cross-examination she agreed with counsel that she had visited her
doctor regularly to assist in losing weight. However she has not seen the doctor for the last year in respect of that. Up until a year ago she had been successful and had lost some 38 kg a couple of years ago and after the motor vehicle accident.
29 She also agreed that she saw the doctor for other health issues
including blood pressure and to obtain prescriptions for ongoing
medication.
She also agreed with counsel that prior to this motor vehicle accident she had pain in the thumb on her left hand.
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31 After the earlier motor vehicle accidents she confirmed that she had
continued to see the chiropractor but not often. At that time she and her husband owned their own business, 'Broadway Fresh', and so she was able to do supervision work of other employees. After those motor vehicle accidents she had stopped all physical work apart from this and doing some serving.
32 The sale of the business to IGA produced $300,000 which was
invested and used for a holiday to Greece. She agreed that their financial position was then good. When questioned about her tax returns and interest earned on investments it appeared that there was not much money left out of the original investments. The global financial crash had had an effect and she was paying her expenses arising from the car accident.
33 She said that the job at 'The Fruit Basket' came up because her son
worked there and the owners asked if she wanted to work. The work at 'The Fruit Basket' was flexible and so she was able to take eight weeks off soon after the motor vehicle accident to go to Greece.
34 She was taken to her symptoms after the motor vehicle accident.
Before going to Greece she said that she had neck pain, headaches, arm and lower back pain. She said that before leaving on 20 August 2009 she had seen her doctor, Dr Rensburg, on 17 August and he had given her a certificate to work half days. She agreed that he gave her a lot of certificates but she did not ask for them; she merely told him that she was in pain. She gave these certificates to her lawyers. She did not give them to her employer.
35 The flight back from Greece had been a problem for her and she has
had problems with her back since then. She returned to work and did normal hours to the end of 2009 and then reduced her hours in 2010. She said that was because of her headaches and her neck, arm and back pain. She said at work she had to ask for help.
36 She was asked why she continued to go back to the chiropractor after
May 2010. She said because her neck was painful and he managed to ease her headaches. He continued to treat her and she said it helped for a week or so and then she had to return.
37 She said that she went to Greece again on 22 June 2010 and saw
Dr Rensburg on 10 June before she left. He gave her a certificate putting her off work for three months. She said she gave it to her lawyers; she does not recall giving it to her employer.
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38 When she came back from Greece on 17 August 2010 she went to
see Dr Rensburg again. She agreed that she complained of left shoulder and arm pain, occasional headaches and pain in the left inner arm area. That pain in the left inner arm area she described as sharp pain different to before. She pointed to the inner upper arm at about the biceps area as the area causing pain. She described it like it was something sharp and twisting and it hurt to the touch. It was very localised.
39 She agreed that she had a series of tests in respect of this particular
injury commencing with an ultrasound on 13 September 2010. About this time she stopped work. She also agreed that by 28 October 2010 her arm was swollen and she had pain in the arm but not in the armpit.
40 She also had other tests comprising mammogram, ultrasound of the
axilla, an MRI and a biopsy. She agreed that this testing was to investigate the pain in her left arm and the concerns that there might be something wrong in this area.
41 Mr Peter Watson, neurosurgeon, also arranged for her to have an
EMG, being a nerve test, because of the symptoms she had in her hand. She described a pulling sensation over the top of the hand on the left side and tingling in the fingers and numbness. An injection to the shoulder had been suggested.
42 By early 2012 she was telling her general practitioner that she could
not pull on the hand brake on her car because of the pain in her left arm. On 11 April 2012 she told her doctor that she was bandaging her hand for support.
She was undergoing hydrotherapy by walking in the water and exercising her arm in the water.
44 On 12 July 2012 she saw Dr Flahive, a physician appointed by the
defence. She agreed that she complained of pains in her thumb, neck and left arm. She had a puffed up left arm. She said that when she saw him she had restrictions in her neck movement but some days she had good movement.
45 It was put to her that in his report of 11 September 2012 Dr Flahive
had commented that she was restricted from competing in the workforce as a result of what would seem to be significant left arm symptoms, the cause of which was not made clear. She agreed with that but also added that there were the neck problems.
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46 She saw Dr Flahive again on 28 June 2013 when she complained of
numbness and dropping things. She agreed that this had only started that year. She said there was tingling in the thumb and fingers if she held things for too long and also numbness. She agreed that rubbing a spot on the inside of her upper left arm could cause shooting pain up the arm and into the neck. She agreed that she told the doctor that this was the worst pain.
She was asked to display both her arms and it appears, and counsel both agreed, that the left arm biceps area is larger than on the right.
Testing by Dr Flahive revealed a weakness in grip on the left side.
49 She agreed that Dr Flahive had accurately described her symptoms in
three areas; namely paresthesia in the left hand, left arm pain, neck and
left shoulder pain.50 She was asked about treatment that had been suggested. She said
maybe she would have to undergo an operation. Injections had been suggested but she was scared of needles. The only other treatment suggested was swimming.
51 It was suggested to her that when she and her husband sold their
business at 'Broadway Fresh' they were thinking of retiring together.
She said that that was not the case.52 She was asked whether or not she could do lighter work at 'The Fruit
Basket'. She said there is no light work in that business and standing at the till in one spot causes low back and neck pain. In re-examination she said that if she was standing at the till, she was still packing and serving but not doing the mopping and sweeping but nevertheless she did not cope well.
53 She was asked about the sort of work that Mr Watson had suggested
that she could do. She said she did not know how to do other jobs; she only knows fruit and vegetables. However she agreed that she could do lighter work if trained and it was not too physical and she did not have to lift. She agreed that she had not looked into doing this. She agreed that if she could find the right position she would still do 30 hours per week if it did not aggravate her neck.
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Submissions and relevant medical evidence
The plaintiff
54 It is the plaintiff's case that no evidence has been led to suggest that
the plaintiff had not recovered from the two previous accidents at the time
of the current accident.55 It is argued that the plaintiff suffered a neck injury in the subject
accident causing radiation of symptoms to the left shoulder and left arm. It is said that there is evidence supporting the connection between the 'left arm symptoms' and the accident. It is argued that there is no evidence to support the proposition that those symptoms are unrelated to the accident.
56 In support of that contention that those symptoms are related to the
accident, or put another way, not unrelated, the plaintiff relies on a number of radiological reports and evidence from Mr Watson and her general practitioner.
57 If the plaintiff's problem with her left arm is as a result of carpal
tunnel syndrome then surgery would be likely to be successful and it would cease to be a limiting factor on her working capacity. It is said that if those left arm symptoms and/or carpal tunnel are unrelated to the accident those conditions are not, either alone or together, causing any incapacity to the plaintiff.
The defendant
58 It is the defendant's submission that the plaintiff suffered a soft tissue
injury to her cervical spine which caused her to have symptoms in the neck region but she developed symptoms suggestive of the development of carpal tunnel syndrome which is unrelated to the accident. She also had unrelated and undiagnosed left arm symptoms which are the cause of most of her problems since the latter part of 2010.
In support of this proposition the defendant relies on the first report of pain in the left arm being made to Dr Rensburg on 22 February 2010. However, the defendant argues that such evidence is unreliable as Dr Rensburg was not primarily dealing with the plaintiff in respect of her accident caused injuries. She was also seeing Dr Bryner, a chiropractor, to whom she made no mention of left arm pain.
60 Reliance is also placed upon the evidence of Mr Watson to the effect
that it is more common for left arm pain to develop within a couple of
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months of an accident. In addition, it is suggested that the post-accident symptoms were mainly to the right side of the neck and low back. The left neck symptoms did not appear until January 2010 and the left arm symptoms until late February 2010.
The defence also relies upon other evidence of Mr Watson that the left arm pain is not of the classical C7 distribution.
62 The defence principally relies upon the evidence of Dr Flahive that
the plaintiff's restriction from working is as a result of significant left arm symptoms the cause of which is unclear. The doctor considers there to be evidence of carpal tunnel syndrome and it is difficult to suggest that that would incapacitate the plaintiff from employment.
The medical evidence
There is no real dispute that the plaintiff suffered a neck injury in this
accident.
64 Mr Watson first saw the plaintiff on 24 August 2010 when she
complained of occipital neuralgia headache which is common with cervical spine injuries. She also had left-sided neck pain radiating across the trapezius muscles to the left shoulder and left arm. The pain in the arm was down to the wrist and he described it as referred pain.
65 In a report of 31 August 2010 (part of exhibit 6) he opined that the
plaintiff was not permanently restricted from her pre-accident occupation but her hours of work had been restricted to eight hours per week. He anticipated a gradual improvement in her fitness to work. However in the longer term he anticipated that she would only achieve a maximum of 30 hours per week.
66 At the time of his second report on 4 March 2011he said that an MRI
scan suggested a degree of disc protrusion and stenosis at C6/7 affecting
the left C7 root.67 In a report of 12 April 2011 he had reviewed the actual MRI scans
and he noted that the pain the plaintiff was suffering burning pain down the left arm was 'not strictly speaking classical of C7 root distribution. The pain radiates more through the biceps muscles than the triceps muscles'. However, later in cross-examination he said that not all people's patterns of arm pain specifically follow a set distribution. He recommended a C7 root sleeve injection to establish if there was disc
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impingement causing pain but the procedure never took place as the
plaintiff did not want it.68 On 21 October 2011 he carried out a further review followed by an
EMG study which showed a very mild median neuropathy - otherwise known as carpal tunnel - at the wrist.
69 By 9 December 2011 Mr Watson noted right shoulder pain.
His report shows that in October 2011 the plaintiff had ongoing pains in her neck and down, predominantly, the left arm. She had pain radiating upwards into the occipital neuralgic region and associated headaches. She also had pain radiating across the trapezius muscles to both shoulders - more on the right than the left - and pain radiating down the left arm to the forearm.
70 His evidence was that at that stage her work capacity had not
improved but in the fullness of time she could return to some work as a shop assistant but in less physically demanding work than fruit and vegetable. He recommended more sedentary occupations with restricted lifting and perhaps limited to 20 hours per week.
71 When he examined the plaintiff on 6 November 2012 he noted slight
restriction in cervical spine movements. Neurological examination of the upper limbs was found to be normal and he could find no hard evidence of either carpal tunnel syndrome or C7 root impingement. He noted that the plaintiff's case was difficult to diagnose. There was potential for nerve root impingement on the MRI scan but not the signs or symptoms of a classical C7 radiculopathy. He described her injuries as 'still ongoing soft tissue and ligamentous injuries to the cervical spine'.
72 At this stage, Mr Watson had a copy of a report from Dr Martyn
Flahive dated 11 September 2011. He did not believe that she had any significant carpal tunnel injuries secondary to the motor vehicle accident. His diagnosis with regard to the left arm pain was of generalised referred arm pain. He did not believe carpal tunnel syndrome was of any relevance to her symptoms. In his evidence he said that mild carpal tunnel syndrome was common in people of her age. He said that it can give pain further up the arm; that it is the reverse of the referred pain that he described previously. However, he did not feel that the plaintiff's overall symptomology really fitted with carpal tunnel syndrome. He said that it would be extremely rare for carpal tunnel symptoms to radiate up into biceps, triceps and beyond. I have commented previously on his evidence about the generalised referred pain.
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73 Mr Watson's final review was on 27 June 2013 in which he noted
that the plaintiff had frontal distribution headache. He was of the opinion that she would need to find very much lighter work, if anything, and it would be limited to 20 hours per week.
74 Under cross-examination he agreed that the plaintiff had pre-existing
degeneration at C5/6 and C6/7 levels. He confirmed that there was pre-existing degeneration at those levels. However, he thought that the left para-central disc extrusion at the C6/7 level was more acute or recent. He agreed that absent the accident, it was quite possible even probable that she would have developed symptoms in her neck as a result of the degeneration but he could not say when; it might be 5 – 10 years from the time of the MRI scan. In re-examination in relation to that and the effect on her work capacity he said that she would gradually deteriorate over possibility five years before it would have an impact on her work.
75 At this point I should note that Mr Watson was recalled to give
further evidence about the scans that had been taken. It was brought to his attention that there was an earlier scan on 15 December 1998. That scan revealed, in relation to C6/7, a prominent annulus bulging with accompanying osteophytic spurring, most prominent posteriorly to the left of the mid line. It was said that the disc/osteophyte complex extends 6 - 7 mm posterior to the posterior vertebral line and results in moderate central canal stenosis.
76 Mr Watson was of the view that had there been an extrusion of the
size referred to in the 2011 scan it would have been mentioned in that earlier report. He was of the opinion that the extrusion was unlikely to have been there at that time. He said that extrusions generally come from a more traumatic event.
77 Mr Watson was asked in relation to the arm pain what period of time
would be more common for the development of that symptom and he said within a couple of months. However he said it was very difficult to be precise about time and in re-examination noted that if a disc is damaged symptoms can begin to develop in the arm some months later as the disc protrudes more. The MRI scans of 19 January 2011 showed a disc extrusion which indicates a more recent injury.
78 On the subject of the carpal tunnel syndrome he agreed that the
various signs discussed by Dr Flahive in his report were signs of carpal tunnel syndrome but he was of the view that that diagnosis was not certain. The EMG test showed mild results. In his evidence he said that if
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the result were severe to very severe, then he would agree that the diagnosis is certain but when the result is mild the diagnosis is by no means certain.
79 It was put to him that the arm symptoms were undiagnosed and he
agreed. When it was then put to him that they may be totally unrelated to the accident his answer was 'in my opinion the symptoms radiating from the neck and down the arm are related'.
80 Mr Wright assessed the plaintiff's disability in relation to the cervical
spine at 10%. That assessment involves the neck pain and nerve root or nerve referred pain. If the left arm was unrelated to the accident then he agreed that his assessment would be 5% as assessed by Dr Flahive.
81 Peter Bryner is a chiropractor who has treated the plaintiff both in
relation to her complaints following the present accident and for previous
injuries.82 He saw her on 22 July 2009 in connection with the present matter.
On that occasion she complained of pain in the neck and lower back following the collision. He also noted that the neck was aggravated by movement and she had pain in both collar bones.
83 On that occasion he noted that she had no signs or symptoms since
her last visit to him on 3 December 2007. In his evidence he said he was sceptical about that and he asked her about it. She admitted that she had had headaches at times at the base of her neck and extending to the head.
84 On that occasion he carried out what he described as a brachial
plexus tension test which is an indicator that the nervous system through the upper extremities is under tension or irritation as a consequence of some pathology. He described it as a reasonably good screening test to identify irritation. He would routinely do such a test in a whiplash injury case. He said that such testing was positive on both sides. He described the brachial plexus as extending from the side of the neck and going underneath the neck muscles, under the collar bone and into the shoulder.
85 He also completed a pain diagram which recorded pain on both sides
of the neck extending into the top of the shoulders and across the collar
bones and through the lower back and into the abdomen.86 He carried out an examination of the neck and the low back. In the
lower back there was restriction on slight bending but it was not
particularly unusual. She also had a little limited extension.
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87 As to the neck he said that when she flexed her neck there was
pulling in the neck muscles down both sides of the neck. Right lateral flexion was restricted and there was pulling. In rotation there was restricted left rotation but not a great deal.
88 During the course of his evidence he went through the treatment that
he provided to the plaintiff from 22 July 2009 which essentially was manipulation of the neck and thorax and elsewhere. He described it as palliative care – just relief. He said that she was in a fair degree of discomfort.
89 I do not propose to go through all of the treatment that he was taken
to but appears it continued with apparently some relief from time to time
with symptoms returning.
On 30 July 2009 he described her as extremely tender in the suboccipital area on both sides.
On 10 November 2010 he noted that her neck had been aching after working hard and she also had pain in the thorax.
92 On 19 November 2010 she was better having done shorter days at
work. She had full rotation and full lateral flexion of the neck but slight
tenderness to the right neck during left lateral flexion.
On 3 December 2010 she had been doing more hours at work and she had a sore neck and she was sore in the lumbosacral area.
94 On 13 January 2011 she attended upon him and he noted that she
described shocking left neck pain with increased headaches. She was doing less work. Whilst the mid-back was okay, the left trapezius on the left spinous was particularly tender.
95 On 25 January 2011 the complaint was of pain in the left neck and
left shoulder. He agreed with counsel that at that time there was no
complaint of pain in the arm.
He noted that in late January early February 2011 she was working less and she was feeling easier.
97 Under cross-examination he agreed with counsel that for the first six
months and up to 13 January 2010 it was predominantly right-sided
treatment and complaint.
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98 He also agreed with counsel that it was not until 12 April 2010 that
she complained of problems with her left arm. His note read 'Left arm
symptoms increased last few days. Localised left C2/3 tenderness …'.99 It was put to him that on 13 January 2011 that problems with the left
neck commenced. He said that his interpretation must have been that some of it was aggravated by her sleeping but it was a different pattern. He was then asked about the pain going down to the arm as occurring later on and he said:
Yes it looked like it was just basically not settling as I expected which was the purpose of the review and the suggestion for the x-rays further and changing her sleep posture.
100 He was also asked about comments that he had made in a report
written by him dated 16 September 2010. In that report he said 'The plaintiff continues to suffer ongoing pain and in my opinion she is not fit for work in the present condition'. In evidence he said that she continued to suffer ongoing pain and in his opinion, she should not work in her present condition, however the complex nature of the condition suggested that this factor (whether she was at work or not) alone may not change her status. He said by not being at work it was not necessarily going to get rid of her pain. He said that by being at work she was worse but she is probably better being at some work than not at work. In terms of the complexity of chronic pain, he said being at home would not necessarily relieve her of the pain and he agreed that she might as well be at work as at home.
101 Finally, in cross-examination he was asked about his ongoing
treatment of the plaintiff. He agreed with counsel that he was not finding a resolution for her pain through his treatment. He said she got a degree of relief which from her perspective gave her a window of relief.
102 He was asked whether she came of her own volition or whether he
suggested she should come back. He said it was usually her and they tried to negotiate with her for as long a timeframe as possible between visits but she would negotiate a shorter timeframe. He was trying for between three and four weeks but she wanted to come between two and three and so they would meet in the middle.
103 He was asked whether or not he had told her that there was not much
point in continuing the treatment. He said he did point out to her that when the Insurance Commission stopped paying she had to make a decision as to whether or not seeing him provided any cost effective
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treatment on the basis of him saying to her that he could not do anymore
for her but if she felt a need he was prepared to provide it.104 He said that in discussing matters with her, he encouraged her to go
back to her GP and specialist for further assessments. He was asked 'And so from your perspective you don't see your treatment now fixing her, if that is a way of putting it … No'.
Dr Hendrik Van Rensburg practises medicine in the area of treatment of obesity and related conditions. He has treated the plaintiff.
106 His report of 26 July 2013 noted that he did not act as the plaintiff's
primary provider for her accident-caused injuries but relied on other
doctors for this.107 In that report he set out the dates of some 32 consultations.
He added that her symptoms had not subjectively improved since the accident. He noted she had difficulty using her left arm for her daily activities and he believed that was directly related to her accident. Prior to the accident she had never complained of pain or discomfort in that area.
108 He produced his notes of attendances upon the plaintiff. They record
that he saw her on 16 July 2009 when she complained of having been hit
by a car. She had pain in the neck and lumbar region.109 On 3 November 2009 she complained that her back was very painful
and she suffered insomnia. On 18 January 2010 she complained of her
neck being very painful especially at work.
The entry on 22 February 2010 was that her arm was very painful and that she had pain radiating into the left clavicle.
111 By the time of her visit on 12 April 2010 insomnia was still a
problem and she still had neck and back pain. On 24 May 2010 she reported that chiropractic treatment was not helping and she had frontal headaches, occipital headaches and thoracic pain but her lumbar pain had appeared to have settled down a bit.
On 10 June 2010 the doctor noted that she was still sore and acupuncture had not worked.
113 On 6 September 2010 she complained of pain in the left shoulder and
left arm and headaches. She complained of sharp pains in the left arm
when she does the dishes.
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114 On 10 October 2010 (by which time she had finished work) she had
been going to hydrotherapy but the left arm was very painful and she still had problems with her neck. There was also pain in the left shoulder and forearms and the left inner arm. She felt her work capacity had deteriorated.
115 The doctor was asked whether there were any improvements or
deteriorations in her condition or symptoms after she had finished work. Whilst he was not the main person treating her, he took the view that she was not getting better. He has prescribed Panadol, muscle relaxants, Mersyndol Forte and Lyrica for nerve pain.
116 The doctor said that he continued to see her until July 2012 for a
combination of her weight and thyroid problems but the question of her
accident also arose.
Since 23 July 2012 he said that he had seen her 12 more times.
118 Relative to her weight problems the doctor said that with the accident
she would have been subjected to bigger G forces and in his experience it could take years before matters settled down in such cases. Mr Watson did not agree with that proposition.
119 In cross-examination the doctor was questioned at length about his
treatment for the plaintiff's excessive weight. He described it as an incurable condition and she became resistant to treatment. The doctor was then taken to numerous certificates that he had issued to the plaintiff. It was put to him that on occasions he gave her certificates when he had not seen her. He said that if what the patient is telling him sounds reasonable and knowing her history he would often do that. If she asked for it he would provide it.
120 He also confirmed in cross-examination that she had a problem with
the left arm from the beginning but it was not then the main feature. It was not recorded however until 22 February 2010 because she had mainly complained of the neck and her back.
121 With further reference to the certificates that he issued he said that he
would 'book her off for a while or for light duties'. He said he did not go into all the details because that was not primarily what she came to see him for.
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In relation to an entry in his notes of 10 October 2011 which record a difficulty to work and arm pain at work, he said:
So left underarm and she had this underarm, the axilla, yeah, radiating to the neck and the shoulder and the forearm as well and the main concentration of it was in the inner arm – from the elbow up here, axilla.
He went on to say that the arm pain was one of the major things causing her difficulty but it was a combination of matters.
124 Later on he said that he recommended she should take time off work
because her condition was getting worse and he wanted her to concentrate on her weight loss because that would be therapeutic. She needed extended rest.
125 He referred the plaintiff to Mr Watson to see whether there was any
nerve entrapment bringing on the pain either from the neck or further
down.126 On 15 February 2012 he recorded that her hand was still sore and on
12 March 2012 that the pain was worse and she could not pull on the handbrake. On 11 April 2012 her hand was bandaged. The pain in pulling on the handbrake was described as a sort of burning feeling – a nerve type pain.
127 In his report of 26 July 2013 he reported that the plaintiff's symptoms
had not subjectively improved since the accident. She was having difficulty using her left arm for daily activities and he believed that was directly related to her accident. He agreed that the arm was a significant problem in terms of activity-related duties. He agreed that it was a significant restriction in her working activities. His view was that the arm symptoms were caused by the crash. However save for the effect of G forces on a very heavy person, he would defer to the opinions of Mr Watson and Dr Flahive. He repeated that he did not see himself as the primary caregiver for the accident-caused injuries.
128 Dr Martyn Flahive is a consultant occupational physician who was
engaged by the defence to review the plaintiff. He saw her on two occasions, on 5 July 2012 and 28 June 2013, and produced two reports, being exhibits 17 and 18.
129 In his first report he set out the history as related to him by the
plaintiff. He reported that the plaintiff had told him that after the crash she did not have much in the way of immediate symptoms but the next
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day she reported having neck pain and pain going to the left arm and
sought treatment from Dr Rensburg.130 Further in that report he noted that when the plaintiff had returned
from Greece she was able to continue working until January 2010 in normal duties but not doing any mopping or sweeping and avoided activities where she had to bend down. She had reported that she had continuing back pain and was referred to a specialist, Dr Ormonde, a consultant occupational physician, and advised to take time off work.
131 Two reports of Dr Ormonde, a consultant occupational physician,
were tendered and became exhibits 19A and 19B dated respectively 5 November 2010 and 4 July 2011. When the plaintiff presented to Dr Ormonde on 1 November 2010 she had been seeing her own doctor, Dr Rensburg, and a chiropractor for treatment of her back and neck. Dr Ormonde noted pain often associated with tingling on using the arm with the tingling extending down to below the elbow. He noted that she continued to experience significant pain in the muscles of her upper arm. X-ray revealed no abnormality in that area. From the time of the accident she experienced left-sided paracervical muscle pain radiating across the supraspinous muscles to the left shoulder and left arm.
132 On that occasion examination of the cervical spine demonstrated a
near normal range of movements but there was marked tenderness at level C3 on palpitation of the cervical spine. She was also tender on C6/7 and C7/T1 and, to a lesser extent, on C5/6 consistent with significant degeneration.
133 Dr Ormonde's diagnosis was that his findings were consistent with a
flexion and extension injury with evidence of long-standing degenerative disease in her cervical spine. He went on to note that the degenerative disease in the cervical spine had been rendered symptomatic by the soft tissue injuries.
134 At the time of his first report he took the view she was unable to
return to work because of shoulder and upper arm pain but he would expect a return to her pre-injury status in the future and to normal lifestyle.
However given the degenerative disease of her cervical spine he opined that she may be left with some degree of permanent disability.
136 At the time of his second review on 13 June 2011 he noted that the
plaintiff still had ongoing pain in her left shoulder and arm extending
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down to her elbow. The pain was associated with numbness both above and below the elbow in the ulna distribution. There was a report of paraesthesia in the fingers in the ulna distribution when holding an object for a period of time (e.g., telephone).
137 He also noted that since the last review the plaintiff had noted
swelling in the upper arm associated with pain on the right side,
daily headaches relieved by analgesics.138 The doctor noted that current activities were restricted because of the
pain from her neck to her left arm particularly and also to her right side. He could find no obvious cause apparent for the sharp pain she described in her left bicep tendon, but examination was difficult due to her obesity.
139 His clinical findings were of soft tissue injury at C6/7. In answer to
a question whether or not the complaint and symptoms were directly caused by the motor vehicle accident he noted that the plaintiff had stated that she was free of neck pain for two years prior to the crash and therefore her neck complaints and symptoms appeared directly related to the motor vehicle crash. Again, he was of the view that the symptomatic degeneration in the cervical spine was rendered symptomatic again as a result of the accident but again he was optimistic that she would be able to lead a normal lifestyle in the future following treatment of a C6/7 stenosis with injection therapy and/or surgical decompression. At that stage she was restricted by her injuries but that was not likely to be the case in the future with appropriate treatment and management. Nevertheless some degree of permanent disability was likely.
Returning to the evidence of Dr Flahive, he also noted in his report that a left axillary node biopsy had been undertaken on 1 February 2011. At the time of his reports he did not have the results of the investigation. However he had subsequently seen them. It appears they did not show anything of any consequence and he described the test as not entirely diagnostic.
141 For the purposes of his report he also reviewed the EMG requested
by Mr Watson. He noted that carpal tunnel syndrome was mildly worse on the left than the right. He was taken to the results of the nerve conduction test (exhibit 8) and noted that the median nerve sensory latency was mildly elevated on the right but more so on the left.
142 In his report, Dr Flahive set out the then current symptoms which
included neck pain on the left side of the neck and difficulty looking up and down too much. Later in his report under the heading 'Examination'
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he noted that on examination of the cervical spine the plaintiff exhibited fairly significant restriction in her cervical spine movements being only able to flex to 20 degrees, extension was 5 degrees, lateral flexion 25 - 30 degrees in both directions but able to rotate to 80 degrees in both directions. However he noted when formally measuring her neck rotation she was only able to rotate to 50 degrees in both directions. When led on his evidence he was of the view that she probably wanted to show that her neck was sore but was of the view there was not enough pathology to actually account for why she had so much restriction. However under cross-examination Dr Flahive said that there was no suggestion that the plaintiff was anything but genuine in terms of reporting her symptoms. He described a 'bit of exaggeration in terms of her neck movement' but otherwise thought the examination was normal. He said he has never suggested she was anything but genuine. He thought that she was possibly just a little anxious in the examination.
143 Dr Flahive was then led in his evidence to issues with the plaintiff's
thumb, forefinger and middle finger. He then proceeded to a long dissertation regarding pain in those extremities, the tests that can be carried out and the like. He noted that people who have carpal tunnel may not have a positive test and there are many people who have changes in the carpal tunnel median nerve because of their work.
144 He described a positive test carried out on the plaintiff where when
he tapped her wrist she developed tingling symptoms. However it was only intermittent and depended upon what activity she was doing at the time. Ultimately the tests were positive in the sense that they were predictive of carpal tunnel syndrome.
145 Dr Flahive was then taken to the MRI scan carried out on the
plaintiff in January 2011 showing evidence of degenerative disc disease. He described it as moderately severe to severe degeneration at C5/6 and C6/7. At the latter there was a marked collapse of the disc space. Dr Flahive was of the view that the scans showed a disease process of very long-standing and that the disc had collapsed down over a long period. He was reluctant to suggest that it was a new soft disc protrusion.
146 He also considered the scan that had been taken on 15 December
1998. He thought the findings on that scan were very similar to the findings on the later scan and he noted that 15 years on there was a big disc that has collapsed down extending 6 - 7 mm.
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147 Dr Flahive, at the time of that first report, was asked what he
considered to be the most prominent feature of the symptoms that had been described by the plaintiff at page 14 of his report. He responded that what struck him was the more recent and severe symptoms involving the left hand, particularly the thumb, the numbness in the hand and the associated symptoms.
148 In that report he said that he had some difficulty in relating the
findings on the MRI scan to her current symptoms and that the findings were largely degenerative in origin. His diagnosis was of a soft tissue strain injury to the cervical spine. That was as a result of the accident and has led to persisting left-sided neck pain; 'the persistence of this seems to have resulted in her giving up her work some two years ago'. He went on to note that more recently her left arm symptoms appeared to be a more significant feature of her presentation, the exact cause of which was unclear.
149 Returning to his view of the MRI scan, he said there was some
suggestion there may be irritation of the left C7 nerve root. However her pain and symptoms were not consistent with that. She was having symptoms which would involve completely different dermatomes. She had pain in the axilla and upper arm area which would be a C8/T1 distribution.
150 In that first report, Dr Flahive had difficulty relating the plaintiff's
left arm symptoms to the crash. He also was of the view that prior to the crash she had neck pain which may be playing a role in her current symptomatology despite her report of being symptom free for some time prior to the crash. He was also of the view that she ought to be able to return to her pre-crash level of functioning. However she was restricted from competing in the workforce as a result of what he described as significant left arm symptoms the cause of which was not clear.
151 In his second report he again described her symptoms which in
evidence he said was suggestive of and consistent with carpal tunnel syndrome. They comprised feelings of numbness and pain in the medial three fingers and dysfunction in that she was dropping things and had a sensation of tingling when holding the phone and her arm going numb. He described her as having a constant loss of sensation and constant pain in the area. She was protecting her left arm.
152 He produced photographs of the plaintiff's arms showing a difference
in arm size. In evidence he noted that she had had neck pain which was
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fairly consistent on the left side of the neck and pain around the shoulders. She had tenderness in the axillary area and swelling in the left arm. Again, he noted that it was diagnostically unclear why this swelling was there and it remained to be investigated as far as he was concerned.
At this time he said that she had more equivocal tests for carpal tunnel syndrome.
154 In that report he noted that the paraesthesia in the median nerve
distribution, the activity-related symptoms, and pain on provocation and numbness in the median nerve distribution makes diagnoses clinically certain.
155 Once again, Dr Flahive suggested there should be further testing of
the plaintiff comprising an MRI scan of the upper arm and shoulder and axilla area and a lymph node biopsy. An ultrasound of the wrist would be carried out to see if there was any swelling of the median nerve to establish one way or the other whether she had carpal tunnel syndrome. Cortisone or local anaesthetic injections into the carpal tunnel could be done and he also noted that there was a good chance that she would respond to surgical intervention.
156 With regard to her cervical spine he opined that there was potential
for positive prognosis. He said the reason for this is because the body
tends to heal itself. Symptoms may flare up and then settle down.157 As to potential surgery on the wrist he gave statistics about the
success rate and whilst they are good, he said the return to work rates were not so good where people have had symptoms for a prolonged period of time.
He summarised the position as follows:
I saw the plaintiff two years after the crash. And at that point she appeared to be becoming increasingly disabled. She was getting increasing left arm pain; she was having difficulty using her hand. So much so that she'd actually taken to wearing a bandage on her hand, which is very unusual for anything coming from the neck. So there seemed to be some new problem coming on which is – which is very common. You take a middle-aged person who is overweight and got some medical problems, they will develop new pathology. And as I've indicated here, she had clear clinical signs that something new had happened and it was causing her problems. So if you were to take that away from it then you would say, 'Okay, she's – The plaintiff has been involved in a rear end crash'. It's probably going to be fairly significant just in terms of her work and that type and stuff but she's got back, she was coping okay. I would have thought that in time,
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given enough time, things will settle down as it has in the past. And given that the – there was nothing to suggest that this was more than a soft tissue injury. And we – we see that numerous times, over and over again, it takes sometimes months and months, months for people to settle but they'll generally settle. However that wasn't the picture here. Something new seemed to have occurred and she was becoming increasingly (query disabled).
In his report and evidence he assessed her level of disability as a result of the accident at 5% in terms of her cervical spine.
Dr Flahive was of the view that she should only be taking analgesic medication such as paracetamol.
161 Under cross-examination Dr Flahive was questioned about the
success rates for decompression of the carpal tunnel symptoms. He said that there was a good chance that they would get better – a 70% chance they would get back to their jobs. However there is a subgroup, as he described it, who would struggle to get back to work.
Dr Flahive agreed with Mr Watson that the symptoms between the elbow and the armpit were not classically of C7 origin.
163 Dr Flahive said he had no reason to disbelieve the plaintiff when she
said that there as an 18-month gap between the last time she had seen anyone concerning neck pain and the accident. Dr Flahive said that suggests that she had recovered from those symptoms.
164 He also opined that a combination of age and a degenerative back
can result in recovery taking longer. He also went on to say that with some people it will take a long time. However in response to a suggestion that some people never recover he said the experience was that most people recovered given enough time. A small number may have persisting symptoms but generally will settle down and be able to function reasonably well unless there has been some structural problem.
165 Dr Flahive agreed with counsel that it was the plaintiff's neck
symptoms that had put her out of work. In addition to this there was the shoulder symptoms and the pain in the left upper arm which was gradually getting worse.
Dr Flahive was reminded of his comment in his first report that:
Certainly given her presentation it would seem that as a result of the subject crash, The plaintiff did sustain a soft tissue injury in the cervical spine and this has led to persisting left-sided neck pain, the persistence of
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which seems to have resulted in her giving up her work some two years
ago.
He agreed that at that time there was no mention of the more recent arm symptoms.
He went on to say:
However, more recently it appears the left arm symptoms appeared to be a more significant feature of presentation and the exact cause of this is a little unclear.
169 It was suggested to him that he had separated those two paragraphs
for the reason that it was the neck symptoms that kept her out of work but
more recently the arm symptoms had become a problem and he agreed.170 Dr Flahive was taken to his second report in which he set out the
complaints of neck pain three times a day and pain around the back of the head. By comparison to the reporting on the first review he said that the pain tended to be settling down but still aggravated by activity.
171 In relation to her work capacity Dr Flahive noted that the plaintiff
had quite marked symptoms in the left arm and would be very limited. If she had a successful decompression of the carpal tunnel syndrome she would still not be able to work because of this undiagnosed left arm pain. He also agreed she still had neck problems. On further questioning in relation to the decompression of the carpal tunnel syndrome it appears that the suggestion from the doctor is that that taken on its own if successful would enable her to return to some sales assistant type work.
172 In relation to the disc extrusion it was put to him that Mr Watson's
opinion was that there would be some force required. Dr Flahive was of a different opinion and that it could occur by the progression of the degenerative disease. He said 'I would be hard pressed to agree with anyone who's going to suggest that this has just popped up from some trauma'. Whilst he agreed that he had not practised orthopaedic surgery, neurosurgery or neurology, he said he had seen a lot of CT scans as part of his general practice and in terms of treating people with neck pain and other upper limb problems.
He was of the view that an injury could enhance and perpetuate a pre-existing degenerative process.
174 In re-examination on the subject of the symptoms that the plaintiff
had when she gave up work, Dr Flahive was referred to the report of
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Dr Rensburg that on 6 September 2010 she complained of sharp pain in her left inner arm area. There was marked pain over an area of about 20 cm on palpitation of the mid-inner arm. Dr Flahive said that that was part of the arm problem that he had been referring to and he noted that Dr Rensburg had reported that on 11 October 2010 the plaintiff's left arm pain was now very painful and radiated to the neck and the left facial area. There was also pain in the left shoulder area but mainly concentrated on the inner left arm area as previously described. He said that those symptoms are the ones that he had identified as a major problem. He corrected his earlier evidence to say that she did not subsequently have left arm symptoms but they were in existence at the time she went off work. Dr Flahive confirmed that he had that report at the time of making his own reports.
Findings of fact
175 There is no real dispute that the plaintiff suffered a neck injury in this
accident. Both Mr Watson and Dr Flahive accept it to be, and I so find,
a soft tissue and/or ligamentous injury to the cervical spine.176 There is also no issue that the plaintiff had suffered two similar
injuries in motor vehicle accidents in 1998 (or 1997) and 1999 for which she received compensation. I accept the plaintiff's evidence that while she had symptoms from those injuries from time to time for which she received treatment, for a period of 18 months prior to the current accident she had had no problems or treatment. So much appears evident from the evidence of her chiropractor, Dr Bryner, and accepted by Dr Flahive who had no reason to doubt her genuineness.
177 I also find that the plaintiff had pre-existing degenerative disease in
her neck and that is demonstrated by the scans of her cervical spine and the evidence of Dr Flahive and Mr Watson. I find that at the time of the accident that degeneration was asymptomatic.
178 Given that the plaintiff had not received treatment for her neck for
18 months prior to the accident it suggests that both the prior injuries had settled and there had been no sequelae by way of impact upon those degenerative changes. I accept that the accident caused that degenerative disease to become symptomatic.
179 I also accept the evidence of Mr Watson that it is probable that the
plaintiff would have developed symptoms in the neck irrespective of the accident. At the time of the accident she was 50 years old. She had her MRI scan in January 2011 when she was almost 52. Mr Watson thought
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she might develop symptoms in 5 – 10 years from this, i.e., when she was 57 - 62 years old with a deterioration in her work capacity over possibly five years. That prognostication is of course speculative but it is speculation based on his experience and I accept it to be a reasonable assessment of the position.
180 It is also clear, and I so find, that the plaintiff suffered an injury to
the lumbar region in this accident but it appears that this settled reasonably quickly and has not had any significant impact in terms of her overall presentation and functioning in more recent times.
181 The plaintiff suffered headaches consequent upon her injuries in
respect of which she obtained temporary relief from her chiropractic
treatment and analgesics.182 The evidence of Mr Watson, which I accept, shows that the plaintiff
has pain radiating from the cervical spine on the left side down the left arm to the inner biceps and forearm. There is also radiated pain across the shoulders and scapula on the left side.
183 Whilst the plaintiff does not have what Mr Watson described as
classic C7 radiculopathy or root impingement, the MRI scan shows a left disc extrusion. I accept Mr Watson's evidence that that is likely to have been caused by a traumatic event rather than just be developmental. Whilst Dr Flahive may, during the course of his practice, have had cause to view many such scans in the past, it seems to me that such matters are more in the field of a neurosurgeon such as Mr Watson. Further, Mr Watson had cause to view the scans themselves apart from the scan reports and also compare the same with the earlier report to satisfy himself that that extrusion was not historical or merely degenerative but of more recent origin and, as I have noted, likely to be from trauma. There being no other evidence of trauma in the plaintiff's more recent history I find it more probable than not that it was caused by or had its genesis in the accident.
184 I accept the plaintiff's evidence that she has suffered symptoms of
pain in the left arm and I find that they are causally related to the accident. Whilst Dr Rensburg described himself as not being the plaintiff's principal treating doctor for her accident-caused injuries, he had recorded the fact of the accident on 16 July 2009. Subsequently he noted on 3 November 2009 that her back was bad and on 18 November 2009 her neck was 'killing' her. There is than a gap to 22 February 2010 when the doctor recorded that she had a sore neck radiating to the left arm. Given that he
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was not the principal treating doctor for her accident-caused injuries, I am satisfied that no adverse inference can be drawn on causation by the fact that the reference to the left arm pain is some seven months after the accident. In my view it is sufficiently proximate and coincides with further complaint of neck pain at that time. It is not inconsistent with nor is there any suggestion of it being inconsistent with the reports, findings and opinion of Mr Watson that the symptoms radiating from the neck and down the arm are related to the neck problem.
185 We then have the carpal tunnel syndrome. Mr Watson was of the
view it was not significant and not uncommon in people of the plaintiff's age. Dr Flahive said the diagnosis was clinically certain. I find that the plaintiff is suffering from carpal tunnel syndrome. There is, according to Dr Flahive, evidence to support this by the numbness in the fingers, the dropping of items and tingling feeling and pain.
186 I am not satisfied that this problem is accident caused. There was no
evidence which would enable me to so find. The aetiology of this
condition remains uncertain.187 Mr Watson was of the opinion that the carpal tunnel syndrome was
of no relevance to the plaintiff's symptoms even though pain can progress
up the arm but it would be extremely rare.188 On such evidence I could not be satisfied that the carpal tunnel
syndrome does have any effect in producing the symptoms elsewhere in
the arm.189 I will come to how these injuries and residual disabilities have
affected the plaintiff's earning capacity later. However in connection with her general wellbeing she has had the pain and headaches that I have described. This has affected her sleep and her ability to carry out the various activities to which she referred, for example shopping. She also has problems lifting her grandchildren and doing other things around the house. It has affected her life socially in not going out with her husband.
190 The plaintiff has been consistent with her reporting of pain, albeit
from time to time the focus may have changed. I accept that the injuries have caused restriction to her and that, the carpal tunnel syndrome apart, it is likely to be permanent. As long ago as 24 August 2010 Mr Watson was of the opinion that she would not make a full recovery and she would have a permanent disability affecting her cervical spine. Three and a half years have since passed and the plaintiff still has residual disabilities.
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191 Dr Flahive in his report of 15 July 2013 was of the opinion then that
there remained a potential for positive prognosis as to the cervical spine. However given my findings of the link between the arm pain and the neck and the ongoing problems I would find that that potential is more theoretical than a practical prognosis.
192 I find that the plaintiff does have a permanent disability and am
prepared to accept the doctor's assessment as being 5% in terms of her
cervical spine.
I now move on to the way in which the injuries have affected the plaintiff's earning capacity.
194 One aspect that clouds this issue is the fact that Dr Rensburg appears
to have provided medical certificates for time off work on a number of occasions without seeing the plaintiff and at her request. He was not the principal doctor treating her for her accident-caused injuries. Because of the circumstances in which those certificates were given I can place no reliance on them and must look for evidence elsewhere as to the loss of the plaintiff's earning capacity.
195 The plaintiff's evidence was that initially she continued working after
the accident until she went to Greece in August 2009. From Christmas 2009 to June 2010 she reduced her hours to four hours per day. In June 2010 she went again to Greece returning in August 2010 and did some duties at work and finally ceased work in mid-October 2010.
196 When Mr Watson saw her on 24 August 2010 she was down to eight
hours per week. He was optimistic but anticipated that that restriction would persist and ultimately she would be restricted to about 30 hours per week.
197 By the time of his report of 9 December 2011, Mr Watson believed it
would be difficult for the plaintiff to work as a shop assistant and it was unlikely that she would return to that type of work in a fruit and vegetable store in the foreseeable future but she would have the capacity to do less physically demanding work. In his report of 6 November 2012 he identified work in perhaps a café or a delicatessen. In his last report of 27 June 2013 his opinion did not appear to have changed.
198 Mr Watson's opinion as to the plaintiff's capacity for work appeared
from his last report to be based upon her complaint of neck pain, headaches, pain radiating across the trapezius muscles to the left shoulder and into the left arm occasionally as far as the forearm.
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199 Dr Flahive in his report of 11 September 2012 was of the opinion
that the plaintiff was restricted from competing in the workforce as a result of what would seem to be significant left arm symptoms the cause of which he said was not made clear. In his second report of 15 July 2013 he said that he would be somewhat negative in relation to any substantial return to work until she had more definitive treatment for her left arm pain and probable carpal tunnel syndrome. He went on to say that, given the prolonged symptoms, if she were to consider decompression of the median nerve there is a significant risk that she would have persisting symptoms and ongoing incapacity.
200 I am satisfied that the injuries sustained by the plaintiff and their
progression have caused her to be unable to continue her work in the fruit
and vegetable store industry, being the only work that she knew.
I accept that up until she ceased work altogether on 10 October 2010 the plaintiff worked, predominantly, on restricted hours due to her symptoms. So much is evident from her evidence, exhibit 4 and the evidence of the medical practitioners.
202 Whilst the carpal tunnel syndrome may well be a contributing factor
to this inability to work, I am not satisfied that, absence that problem, or if she had surgery to correct it, it would make any real difference to her capacity for work given her other symptoms.
203 Further, her capacity to work in her field having been so affected,
there is no evidence of the availability of alternative employment and whether the plaintiff could do it in terms of physical capacity, training or otherwise.
There are other factors which might impact upon the plaintiff's capacity to work into the future.
The plaintiff said that before the accident she wanted to do 30 hours a week four days a week and to work for as long as she could.
206 However, the plaintiff had a long history of obesity which was of
such a degree that she sought ongoing treatment from Dr Rensburg. In his report of 26 July 2013 he said that at one stage she weighed 121 kg and was 'at greater risk of injury' which may be taken to be a reference to G forces which would affect her but which is a proposition which was not accepted by Mr Watson.
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207 However, while she managed to work before the motor vehicle
accident despite her weight, it seems to me that it is a factor to take into account along with other factors when considering how long she could reasonably have been expected to continue with such work.
208 The work in fruit and vegetables was all she knew and on the
evidence it would appear to be reasonably heavy work involving the lifting of crates and mopping and sweeping. As I have noted, there is no evidence to show she was capable of doing other work of a more sedentary nature.
209 The plaintiff had long-standing degenerative disease of the neck
which, according to Mr Watson, would be likely in time to have an impact
upon her capacity to work.
The plaintiff's husband had retired. Further, she was a grandmother and loved being a grandmother.
211 Much as the plaintiff may have loved her work, I am not satisfied
that she would have continued to work for as long as contended for on her behalf, namely 12 years. Any presumption that she would have worked until 'normal' retirement age has been displaced.
212 Having regard to her family dynamics, that is to say her husband
having retired and she being a grandmother and her ongoing gross obesity, her degenerative neck and that the fruit and vegetable work was heavy and all she knew, I cannot be satisfied she would have continued much beyond when she would have been likely to have started to have symptoms with her neck. According to Mr Watson that would have been from five years from the MRI scan, i.e., somewhere about 2015 or 2016.
213 Accordingly, I find that but for the accident the plaintiff would have
been likely to have continued in work until the end of 2015. In coming to this assessment I have taken into account all of the usual contingencies and vicissitudes of life as well as those peculiar to the plaintiff to which I have referred.
214 I am not satisfied that there is any demonstrated retained capacity for
the reasons I have already expressed save for those periods when she did
manage to work after the accident and prior to ceasing permanently.
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Damages
Non-pecuniary loss
Section 3C(2) Motor Vehicle (Third Party Insurance) Act 1943 provides that the amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded. Non-pecuniary loss is defined in the section as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
216 Having regard to my findings as to the nature of the plaintiff's
injuries, their progression and degree of permanency and the impact on the plaintiff's lifestyle and enjoyment of life I would assess the plaintiff's non-pecuniary loss at 10% of the maximum allowance which is 'Amount A' - $390,000.
The damages for non-pecuniary loss is therefore $19,500.
Loss of earning capacity
218 The defendant argues that I should adopt a figure of $509.65 net per
week as the basis for calculation of the plaintiff's loss of earning capacity. That figure is arrived by taking the plaintiff's earnings in the 2009 financial year at $30,726 which after tax and Medicare levy would result in a nett figure of $26,502 per annum. In arriving at that figure, the defendant appears to have deducted PAYG as per the tax tables for payments after 1 July 2009. The defendant has also deducted the Medicare levy. However, the relevant tax tables incorporate the Medicare levy in the amount to be withheld. Accordingly, by my calculation on the defendant's base figure the net weekly amount should be $522.
219 The plaintiff argues that her pre-accident earnings should be
calculated on the basis of the 13 weeks earnings prior to the accident when she worked just under 30 hours per week at $20 per hour giving $591 per week gross from which tax at appropriate rates in relevant financial years should be deducted.
220 The figure contended for by the defendant comes from the 2009 tax
return of the plaintiff. Exhibit 4, which went in without argument, clearly shows that the plaintiff was earning $20 per hour gross. Her hours varied. By my calculations for the 13-week period advanced by the plaintiff the average was just over 30 hours per week.
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221 To obtain a more balanced view of the plaintiff's earning capacity
over a year it is appropriate to go beyond the 13 weeks as the plaintiff clearly had time off to go for extended holidays. For example, exhibit 4 shows a six weeks unpaid holiday in September/October 2008. By my calculations in the 12-month period prior to the accident and to 19 July 2009 the plaintiff appears to have completed in the order of 1,494 hours. Her rate was $20 per hour resulting in a figure of $574.61 per week gross on average.
222 It seems to me that that is a more appropriate rate to adopt as the
starting point for considering her loss of earning capacity and I do adopt that figure save that for my calculations I have rounded all figures down to whole dollars.
Past loss
In calculating the plaintiff's loss of superannuation benefits I have taken these to be at 9% of gross income up to 30 June 2013 and 9.25% thereafter less 15% as per Jongen v CRS.
The plaintiff's loss to the end of the trial (21 May 2014) after deducting appropriate tax can be calculated as follows:
15 July 2009 to 30 June 2010:
50 weeks at $574 Less tax $65
$509 $25,450 Superannuation
50 weeks x $574 x 9% - 15% $2,195
$27,645
Less actually received in income and super (in whole
dollars) $17,221
$10,425
1 July 2010 to 30 June 2011:
52 weeks at $574
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Less Tax $65
$509 $26,468 Superannuation 52 weeks x $574 x 9% -15% $2,283
$28,751
Less actually received in income and super $839
$27,912
1 July 2011 to 30 June 2012:
52 weeks at $574 Less tax $58
$516 $26,832 Superannuation
52 weeks x $574 x 9% - 15%$2,283
$29,115
1 July 2012 to 21 May 2014:
98 weeks at $574
Less tax $50 $51,352
Superannuation
52 weeks at $574 x 9% - 15%$2,283 46 weeks at $574 x 9.25% - 15% $2,076 $55,711
$123,162
225 The plaintiff also claimed a global amount to reflect the possibility
that she may have increased her hours of work to above 30 per week. For the reasons expressed earlier I am not satisfied that she would have done so and I decline to make any such provision.
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Interest on past losses
226 The plaintiff claimed for losses on essentially an annual aggregate of
loss at 6% pa. However such method does not reflect the fact that the losses accrued on a sliding scale. Further the plaintiff's method of calculation results in omitting the first part of the period of loss, i.e., 15 July 2009 to 30 June 2010.
227 It seems to me that the more appropriate method of calculation
would be to take the plaintiff's total loss and apply interest at half the normal rate (3%) for the whole period. The total period from 15 July 2009 to 21 May 2014 encompasses a period of 252 weeks. The appropriate calculation is:
Total loss $123,163 x 3% x 252 weeks = $17,906 52 weeks
Future loss
228 For the reasons expressed earlier, I would allow the plaintiff her
future losses up to 31 December 2015. That loss of earning capacity I would allow at $574 per week gross less tax at $50 per week making a net figure of $524 per week. I do not accept the plaintiff's submission that her capacity to earn should be increased by at least 5% over what she earned in 2010. There is no evidence to support such a proposition.
229 The period from 22 May 2014 would result in a weekly multiplier on
the 6% discount tables of approximately 75. As I have noted, I have taken
contingencies into account.
230 For superannuation I would adopt the calculation method referred to
earlier. The calculation for future loss of earning capacity and
superannuation is therefore:
Loss of earning capacity $524 x 75 $39,300 Superannuation
$574 x 75 x 9.25% - 15%$3,384 Total $42,684
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Chiropractic expenses
231 Having accepted that the plaintiff's previous neck problems had
resolved for 18 months prior to the accident, I accept that her subsequent attendance at the chiropractor were accident-related. However the extent of such treatment and the need for it remains in doubt.
As early as his first report, Mr Watson opined the only treatment needs of the plaintiff were medication, hydrotherapy and exercise.
233 Dr Bryner, the chiropractor, acknowledged that his ongoing
treatment was not resolving the plaintiff's problems – merely providing a window of relief. He did not support the frequency of visits demanded by the plaintiff.
234 The plaintiff claimed $2,679 for chiropractic treatment which was
inclusive of her HBF contributions of $714. Accordingly, it would appear that $1,965 was paid by her. There is no evidence before me of a requirement to repay HBF.
235 I am not satisfied that all of that treatment was required or, indeed,
recommended. However it does not appear to be seriously challenged that
the plaintiff obtained some relief from the treatment.236 In the circumstances I would make an allowance of $1,000 for past chiropractic treatment. I would make no allowance for future treatment as I am not satisfied as to the need for such ongoing treatment.
General practitioner
Here the claim is for $1,690.
The plaintiff attended on her general practitioner for painkilling medication and referrals to others.
However many of her attendances appear to have been for the joint purpose of dealing with her injuries and other problems such as obesity.
240 To the extent that she attended upon the general practitioner to obtain
certificates for work purposes I would make no allowance. I have expressed my concern about the nature of those certificates and it appears they were not even provided to the employer.
The evidence of the cost of a visit is $75 each. The evidence as to the number of visits required as a result of her injuries is vague.
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In the circumstances, doing the best that I can, I would allow $1,000 for past and future attendances at the general practitioner; the future attendances being for the purposes of obtaining necessary scripts for medication.
Future treatment
I have dealt with the future treatment by the general practitioner.
244 So far as future surgery is concerned, whilst this was mooted by
Mr Watson in his first report, he thought it unlikely that she would require it. In his last report of 27 June 2013 he said:
… If your client's symptoms deteriorated as such that she began to develop weakness in the C7 innervated muscles in the left arm, I would recommend surgery was considered. The cost of that treatment would be in the order of $20,000 including hospitalisation but excluding the cost of any implants that may be used by some surgeons.
245 Given the plaintiff's resistance to even injections, I consider it
unlikely that she will come to surgery. However if matters progress to the
state where she becomes more disabled then she might relent.
Given Mr Watson's estimate of the cost of such treatment, I would make a general allowance of $5,000 for the risk of surgery in the future.
Then there is the cost of gym and exercises.
248 Whilst this was supported by Mr Watson, he said in effect that the
plaintiff could do it for herself. I take that to mean that he did not
consider that it needed to be a structured hydrotherapy or other treatment.249 There is little in the way of evidence that it has assisted the plaintiff
in the past or as to the cost thereof. In the circumstances I am not
prepared to make any allowance in respect thereof.
The plaintiff also claims for the cost of future medication.
The evidence is that the plaintiff takes Panamax for her headaches and Panadeine Forte for her general pain and Restavit for her sleep.
252 It is difficult to assess the totality of the plaintiff's needs and costs.
The need for some level of medication appears to be supported by
Mr Watson.
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253 Doing the best that I can and having regard to agreed past cost of use
of medications over the last four years at $568.36, I would make a global
allowance of $500 for this item.
Summary
I would award damages as follows:
Non-pecuniary loss $19,500.00 Past loss of earning capacity and superannuation: $123,162.00 Interest thereon: $17,906.00 Future loss of earning capacity and superannuation: $42,684.00 Special damages (past and future): Chiropractor and GP $2,000.00 Future treatment costs: $5,500.00 Agreed special damages: Past and future travelling expenses: $2,000.00 Radiological expenses: $3,223.85 Pharmaceutical expenses: $568.36 $5,792.21 Total $216,544.21
Conclusion
The plaintiff do receive damages in the total sum of $216,544.21.
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