Thomson v Transport Accident Commission
[2018] VCC 154
•9 March 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00191
| JOHN WILLIAM THOMSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 5 and 6 February 2018 | |
DATE OF JUDGMENT: | 9 March 2018 | |
CASE MAY BE CITED AS: | Thomson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 154 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – prior injury to the neck resulting in impairment of the function of the plaintiff’s neck – subsequent transport accident – whether the neck injury was aggravated in the transport accident – whether the aggravation produced an impairment of the function of the plaintiff’s neck which was “serious” – concurrent lower back injury and coronary condition – need for disentangling – creditworthiness and reliability
Legislation Cited: Transport Accident Act 1986
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms S Lean | Ryan Carlisle Thomas Solicitors |
| For the Defendant | Mr A Moulds QC with Ms G J Cooper | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 On 28 November 2009, the plaintiff was involved in a transport accident which he says resulted a neck injury.
2 Mr A Macnab appeared with Ms S Lean of counsel for the plaintiff, and Mr A Moulds QC appeared with Ms G J Cooper of Counsel for the defendant.
The issues
3 The first issue concerns the identity of a prior neck injury suffered by the plaintiff in 2000 and its consequences.
4 The second issue concerns whether the transport accident resulted in an aggravation of the prior neck injury which has impaired the function of the plaintiff’s neck with consequences which are “serious”.
5 The third issue involves disentangling the consequences of the impairment of the plaintiff’s lower back condition from the consequences of the impairment of function of the plaintiff’s neck injury.
6 The fourth issue involves the creditworthiness and reliability of the plaintiff.
The prior neck injury
7 The plaintiff had a blood test some time in 2000. He returned to his place of work. He was sitting on a chair when he felt faint. He fell out of the chair. He hit his face on something, resulting in a fracture of his nose. He also experienced pain in his right shoulder and neck.[1] The immediate pain he felt was to his nose, accompanied by a massive headache. He said that the neck pain developed over a period of time.[2]
[1]Plaintiff’s Court Book (“PCB”) 19, and also gleaned from some of the histories taken by medical practitioners who examined the plaintiff
[2]Transcript 16
8 The plaintiff saw Dr Sia, general practitioner. He treated him until early 2005. He was also treated by an osteopath, who initially treated him fortnightly for his neck injury. He was referred to a number of specialists for treatment. He was prescribed anti-inflammatory and painkilling medication over a significant period of time.[3] He also developed pain in his arms from time to time and numbness in the fingers of his hands.[4] He denied that he suffered a loss of sensation in the fingers of his hands. He said he suffered that loss of sensation after the transport accident.[5]
[3]Transcript 17
[4]Transcript 17
[5]Transcript 17
9 The plaintiff first saw Dr Sia on 14 July 2000. It would appear that he last saw him on 6 December 2004.[6] The following is a summary of occasions when the plaintiff saw Dr Sia which I consider to be of importance in determining the first issue:
[6]Defendant’s Court Book (“DCB”) (supplementary) 125-131
· 4 July 2000 – the plaintiff saw Dr Sood, general practitioner, at the same clinic. He wrote a referral to a specialist regarding treatment of the plaintiff’s fractured nose. There is no mention of any other injury resulting from the fall.
· December 2001 – Dr Sia wrote a referral to Professor Kilpatrick, neurologist.
· 27 February 2003 – Dr Sia recorded the plaintiff’s complaints of recurrent pain in the back of his head, and dizziness and nausea.
· 7 October 2003 – Dr Sia recorded that the plaintiff was feeling unwell, was experiencing numbness in his hands and coldness in his back. He also recorded that the plaintiff’s businesses “had gone downhill” since he began feeling unwell.
· 13 October 2003 – Dr Sia recorded that the plaintiff was suffering lower chest pains. He questioned whether that pain was derived from the plaintiff’s neck.
· 27 October 2003 – Dr Sia recorded that the plaintiff was experiencing a tingling sensation in his fingers. There is a cryptic reference to an MRI scan which was taken two years beforehand.
· 19 December 2003 – Dr Phan, general practitioner, recorded that the plaintiff was complaining of persistent neck pain. He referred to a further MRI scan with similar appearances to the earlier MRI scan. He noted that the plaintiff was to see Professor Kilpatrick on the following day.
· 16 February 2004 – Dr Sia ceased prescribing the plaintiff Tramal.
· 28 July 2004 – Dr Sia recorded that the plaintiff was under stress, suffering chest pains, was unable to sleep, was feeling depressed and had been drinking alcohol.
· 7 September 2004 – Dr Sia recorded that the plaintiff had been investigated to determine whether the cause of aches and pains in both hands and his left foot were neurologically based. He recorded that they were not.
· 6 December 2004 – Dr Sia recorded that the plaintiff’s neck pains had “settled down”. He noted that the plaintiff was now experiencing pain in his elbows.
10 The clinical notes reveal that the plaintiff was prescribed medication. The clinical notes are somewhat cryptic and do not enable me to determine what the medication was prescribed for, but he was prescribed Vioxx, Mobic, Tramal, Panadeine Forte, Amitriptyline for pain relief, Effexor to help him sleep and other medications which appear to have been prescribed to treat him for stress and depression.
11 Dr Sia referred the plaintiff to Professor Kilpatrick in December 2001. I assume that the plaintiff saw him. There is no record of that attendance. Professor Kilpatrick reviewed the plaintiff on 20 December 2003. He wrote to Dr Sia by letter dated 20 December 2003.[7] The principal complaint made by the plaintiff was of headaches, which Professor Kilpatrick thought were tension-migraine headaches. He also noted that the plaintiff was complaining of neck and right arm pain, which he thought were musculoskeletal in origin, although he could not find any clear-cut evidence of nerve root compression.
[7]DCB (supplementary) 158-159
12 Professor Kilpatrick referred the plaintiff to have an MRI scan, which was taken on 11 January 2002. The radiologist concluded:
“Minor C5/6 central disc protrusion with no effect on cord or bony foraminae. Small left foraminal disc protrusion is seen at C6/7.”[8]
[8]PCB (supplementary) 81
13 Professor Kilpatrick did not comment on the appearances on the MRI scan.
14 Professor Kilpatrick considered that the symptoms described to him by the plaintiff were “supratentorial in their origin”[9] without any positive evidence of any associated structural deficit.
[9]DCB (supplementary) 159
15 Professor Kilpatrick then referred to an MRI scan of the plaintiff’s brain, which I assume means that he considered that the plaintiff’s symptoms might originate from his brain. He suggested to Dr Sia that he should have further tests to determine the origin of the right upper limb pain. He also suggested that the plaintiff be prescribed amitriptyline which is what Dr Sia ultimately prescribed.
16 In a further letter written by Professor Kilpatrick to Dr Sia, he referred to his review of the plaintiff on 20 January 2004. He said that the nerve conduction studies he undertook were within normal limits. Otherwise, there was no change in the plaintiff’s symptoms since the last occasion he saw him. The plaintiff complained to him of an aching discomfort in his left arm, but Professor Kilpatrick was unable to find anything on examination to explain the plaintiff’s complaints. Professor Kilpatrick advised Dr Sia that he did not plan to review the plaintiff again.[10]
[10]PCB (supplementary) 160
17 The plaintiff obtained treatment from osteopaths at Windgrove Street Osteopathy. Mr Serpo, osteopath, provided a report to an insurer dated 10 August 2004 in which he outlined the treatment provided to the plaintiff:
· 28 November 2002 – presenting with headache, painful neck and thorax and dizziness. He was treated for chronic spasm of the neck and shoulder muscles.
· 8 March 2003 – inflammation had spread to other parts of his body. He was experiencing difficulty walking. He was referred to a myotherapist.
· 31 October 2003 – significant inflammation in the neck and intermittent sensory loss in both hands, worse in the left arm and fingers of the left hand except the thumb.
· 2 April 2004 – the plaintiff was having weekly osteopathic treatment. He was experiencing pain during the day at work, aggravated by using a computer.
18 Mr Serpo concluded that the plaintiff was suffering from conditions affecting his neck and mid back, and had evidence of neurological disturbance, all of which were aggravated by his work using computers.
19 Dr Sia referred the plaintiff to Mr Han, neurosurgeon. The plaintiff saw Mr Han on 11 December 2004.[11] On examination, Mr Han found a good range of neck movement with some stiffness in flexion and extension. Reflexes were normal, and power in both upper limbs was normal. Mr Han had two MRI scans taken in 2001 and 2002 available for his inspection. He considered that the plaintiff had probably suffered a combination of muscular spasm and pain from soft tissue suffered in the transport accident. It would appear that Mr Han considered that the plaintiff was depressed, because he advised him to continue with osteopathic treatment and to work, which would have the effect of seeing his depression subside.
[11]DCB (supplementary) 135-136
20 The plaintiff made a claim on an insurer following the injuries he suffered in the fall. The insurer referred him to Mr Buzzard, general surgeon. The plaintiff saw him on 10 February 2004. In the course of obtaining a history, Mr Buzzard was told by the plaintiff that he had seen Mr Guyney, ear, nose and throat surgeon; Professor Fitzpatrick; a chiropractor; an osteopath; a physiotherapist and a rheumatologist. Mr Buzzard also recorded that the plaintiff was suffering a locking sensation in his neck, depression, and numbness in his arms which came on “pretty well straightaway” after the transport accident.
21 Mr Buzzard had available a CT scan taken on 27 November 2001, an MRI scan of the plaintiff’s brain taken on 10 January 2002, an MRI scan of the plaintiff’s neck taken on 10 January 2002, a plain x-ray of the plaintiff’s neck and lower back taken on 29 January 2003, an MRI scan of the plaintiff’s neck taken on 27 November 2003, and an x-ray of the plaintiff’s sternum taken on 9 February 2004. Not many of these radiology studies were reproduced in the court books.
22 Mr Buzzard considered that the plaintiff had suffered an aggravation of pre-existing cervical spondylosis with nerve root involvement. It would appear that he thought there was nerve root involvement because of the nerve conduction studies performed by Professor Fitzpatrick. According to Professor Fitzpatrick, they were within normal limits. Mr Buzzard considered that the plaintiff was fit for full-time work, but considered that his mental state might be causing some incapacity for work.
23 At the time when the plaintiff suffered the fall, he was the principal in a business known as Renaissance Computers. Its business was the sales and service of computers. It employed between five to eight employees.
24 Under cross-examination, the plaintiff agreed that the medical evidence of the consequences of the neck injury demonstrated that the fall produced recurrent neck pain, dizziness, headache, and paraesthesia in both hands, particularly at night.[12]
[12]Transcript 23-24
25 Under further cross-examination, the plaintiff was asked of the extent to which the neck pain contributed to the decision to sell the business. He gave a number of answers essentially to the same effect – he said that he had not been able to maintain a pain-free work day;[13] that the neck pain was “the predominant feature” in the decision to sell the business;[14] that it was the combination of the neck pain and the fact that he had had enough of working in the business,[15] and that he was suffering neck and shoulder pain considerably.[16]
[13]Transcript 26
[14]Transcript 30
[15]Transcript 31
[16]Transcript 31
26 After the plaintiff sold the business, the neck pain he had been experiencing improved.[17] He said that retirement from the business enabled him to regulate activities which resulted in him suffering pain in his neck.[18] He made the conscious decision not to pursue any form of work because he believed that his investments were generating sufficient income so that he did not have to work.[19]
[17]Transcript 25
[18]Transcript 33
[19]Transcript 30
27 Over the next two or so years, the plaintiff did not work, except on his farm. He purchased a caravan. He, his wife and his grandson, undertook two major trips of two months and three months travelling around Australia.[20] The plaintiff was content to remain retired until he lost the tenant of a property in about 2008. The lost rental was about $30,000 annually. It was as a result of that event that he made the decision to qualify as a real estate agent and return to work.[21]
[20]Transcript 32
[21]Transcript 33
28 I should add at this point that the plaintiff and his wife are essentially the parents of their grandchild. The mother, who is the daughter of the plaintiff and his wife, suffers from a disabling mental condition.
29 Although the plaintiff essentially retired in 2004, he continued to work on his 38-acre farm. It is a property on which he and his wife run about 40 sheep and an unstated number of alpaca. He and his wife bred sheep and alpaca. He engaged people to undertake the shearing of the sheep, and probably the alpaca.[22] He performs general maintenance, such as fencing, spraying weeds and general maintenance.[23] He drove a 38-horsepower tractor to cut and rake hay for a few weeks each year. He produced about 200 bales of hay. He engaged someone to do the hay carting.[24] He carried two small bales of hay weighing 10 to 15 kilograms when feeding his sheep.
[22]Transcript 33 and 44
[23]Transcript 45
[24]Transcript 45-47
30 In about 2008, the plaintiff undertook a real estate course at a TAFE college. He obtained a license to work in the real estate industry. He obtained work with a real estate firm in the Gisborne area in February 2008.[25]
[25]Transcript 33-34
31 The plaintiff said he works from 9.00am to 6.00pm Monday to Friday and from 9.00am until 1.30pm on Saturdays. He described the work he performed in selling properties, but he disagreed that the work he did involved hard work, long hours and was stressful. He agreed that he was good at his work.[26]
[26]Transcript 35-36
32 The plaintiff agreed that in his first full financial year for the year ending 30 June 2008, he earned $15,000 gross, for the year ending 30 June 2009, $80,411 and for the year ending 30 June 2010, $101,000. In the latter year, he was paid a retainer of $60,000 and $40,000 by way of commissions.[27]
[27]Transcript 34-36
33 What was exposed during cross-examination was designed by the defendant to ultimately submit that when a comparison is made between the plaintiff’s activities before the transport accident and now, that not a great deal has changed.
34 However, under re-examination, the plaintiff gave more detailed evidence of what he is no longer able to do on his farm, in his garden, and in his work as a real estate agent. I will summarise that later in these reasons when I deal with the consequences claimed by the plaintiff which are said by him to collectively amount to pain and suffering consequences which are “serious”.
The transport accident
35 Under cross-examination, the plaintiff said that the other car came into his path and collided with the front left-hand side of his car, scraping down the side door. He was asked whether there was much damage to his car. He did not answer that question directly, but said that there was no structural damage to his car. He described applying the brakes to his car violently.[28] In his affidavit, he described a significant jolting of his neck and shoulders resulting from the transport accident.[29]
[28]Transcript 37
[29]PCB 11
36 Under further cross-examination, the plaintiff admitted that he alighted from his car, spoke to the other driver and returned to work on the following Monday.[30]
[30]Transcript 37-39
37 If the cross-examination was intended to invite me to consider whether the nature and extent of the impact was sufficient to result in an aggravation of the plaintiff’s pre-existing neck condition, then I will not accept that invitation. There is insufficient evidence for me to conclude that the transport accident was of little consequence. I accept the plaintiff’s evidence that it was of significance and caused him the jolting that he described in his affidavit.
The medical evidence
38 Essentially, it was the plaintiff’s case that after he sold the business, the pain that was previously provoked by using computers was completely removed. What is clear from the whole of the medical evidence relied upon by the plaintiff and the defendant is that between 2005 and the occurrence of the transport accident, he had no medical treatment of any kind for his neck injury or any associated problem, for example right shoulder pain and migraine headaches. The plaintiff called on the defendant to admit that the medical evidence indeed reflected that position. The admission was made.
39 The plaintiff submitted that he was able to perform what work was required on his farm. He was able to travel around Australia, and otherwise use the caravan for holidays. He was able to study and qualify as a real estate agent, and then pursue a career in real estate without any difficulty. It was on that basis that it was submitted that when a comparison is made between what the plaintiff was like beforehand and what he is like as a consequence of the aggravation of his pre-existing neck condition, that he satisfies the relevant authorities and the test of seriousness very adequately.
40 The plaintiff and the defendant armed two medical specialists with a quantity of medical material relevant to the neck injury resulting from the fall, and the relevant radiology, and asked them to comment on whether the plaintiff had suffered an aggravation of the pre-existing condition of his neck.
41 Before turning to the opinions of those two medical specialists, I will endeavour to summarise the medical evidence relevant to the treatment obtained by the plaintiff following the transport accident.
42 In his first affidavit, the plaintiff said that he was very stiff and sore, especially in his neck and shoulders, as a result of the transport accident. Over the next few months, he continued to be troubled by tightness and stiffness in the back of his neck. The condition of his neck deteriorated, which saw him see Dr Uddin, general practitioner, on 14 September 2010. His wife encouraged him to seek that medical treatment.[31]
[31]PCB 11-12
43 Dr Uddin’s clinical note of 14 September 2010 differs from the plaintiff’s account only to the extent that he recorded that “… After a few mont[h]s start to get pain in the back of the neck and for the last few months progressively getting worse …”.[32] Under cross-examination, it was put to the plaintiff that what Dr Uddin recorded was correct; that is, that the pain in the back of the plaintiff’s neck started after a few months. The plaintiff said that he had pain in his neck for the greater period between the occurrence the transport accident and seeing Dr Uddin. He thought it would go away, but it did not.[33]
[32]DCB (supplementary) 26
[33]Transcript 40
44 What is apparent from perusing the clinical notes of the Gisborne Medical Centre from 14 September 2010 is a picture of consistent complaint of neck pain, and complaints of upper limb pain.[34]
[34]DCB (supplementary) 26-37
45 Dr Uddin referred the plaintiff to Dr Steven Jensen, musculoskeletal physician. The plaintiff first saw him on 4 October 2010. He provided a report dated 7 May 2014.[35] He subsequently saw him on a number of occasions up to 4 February 2013. Dr Jensen had an MRI scan taken on 27 September 2010.[36] He considered that it demonstrated multi-level degenerative changes, most prominent and potentially clinically relevant at C5-6 where there was a degree of right neural foraminal stenosis.[37]
[35]PCB 47-51
[36]PCB 29-30
[37]PCB 48
46 Dr Jensen referred the plaintiff for a repeat MRI scan.[38] He considered that the right C6 altered sensation derived from a subtle sensory right C6 radiculopathy in the background of the plaintiff’s chronic cervical spine dysfunction. The altered sensation resolved when Dr Jensen examined him on 17 December 2013.
[38]It is probably the MRI scan at PCB 31-32. Dr Uddin is referred to by the radiologist as the referrer
47 Dr Jensen considered that the plaintiff was suffering from prominent neck symptoms and associated headaches which had resolved to what he described as a “tolerable level”. He considered the plaintiff’s prognosis to be guarded and that it was highly likely that he would continue to suffer exacerbations of neck symptoms from time to time. He also considered that the plaintiff was fit for full-time employment, but prolonged computer work would be impeded by the plaintiff’s persistent neck problems.
48 Although Dr Uddin treated the plaintiff initially and subsequently, the reports from his clinic were provided by Dr Lee, general practitioner, who also treated the plaintiff. I do not think they add anything beyond the opinion of Dr Jensen except that they demonstrate, as do the clinical notes, that the plaintiff continued complaining of persistent neck pain and disablement resulting from his neck injury.[39]
[39]Dr Lee’s reports are at PCB 41, 42, 43-44, 45-46, 46A and 46B
49 Dr Lee referred the plaintiff to Professor Kaye, neurosurgeon. However, the plaintiff was seen by Dr Yuen, neurosurgeon, on 30 November 2015 and 22 January 2016. Dr Yuen provided a report dated 7 July 2017.[40] She referred the plaintiff to have a plain x-ray and ultrasound of his right shoulder which were taken on 1 December 2015,[41] a bone scan of the whole body taken on 7 December 2015[42] and an MRI scan of his brain and spine taken on 16 December 2015.[43] She did not offer an opinion in a conventional way, but appears to have agreed with the appearances on the radiology that there was multi-level mild spondylitic changes, particularly at C5-6, where there was a mild retrolisthesis, and also at C4-5, and a mild to moderate canal stenosis and foraminal stenosis at multiple levels, but no cord compression. She discharged the plaintiff back into the care of Dr Lee.
[40]PCB 56-57
[41]PCB 36-37
[42]PCB 38
[43]PCB 39-40
50 The plaintiff was treated by a physiotherapist on 8 October 2010, and lastly, on 26 September 2011.[44] He was treated by an osteopath from December 2011 for some time,[45] and then by another osteopath from 6 December 2016 to at least late 2017.[46]
[44]PCB 58-60
[45]PCB 62-66
[46]PCB 66A-66B
51 Dr Lee provided a report dated 29 January 2018, which is a summary of his treatment of the plaintiff, and no doubt a summary of the treatment provided by other medical practitioners in his clinic.[47] He considered that the plaintiff’s capacity for employment is limited due to his neck injury, and that it is likely to be aggravated by prolonged sitting if he does not move his neck. He presently prescribes the plaintiff Lyrica for pain relief.
[47]PCB 46A
52 I do not think there is any doubt that the plaintiff was coping very adequately after he sold the business until the occurrence of the transport accident. I think the medical evidence which I have summarised readily demonstrates that. However, the onus is borne by the plaintiff to identify the injury he suffered as a result of the fall and the injury he suffered as a result of the transport accident; to identify and separate the impairment consequences of each injury, and to identify whether the additional impairment caused by the aggravation injury qualifies as a “serious injury”.[48]
[48]Petkovski v Galletti [1994] 1 VR 436; Guppy v Victorian WorkCover Authority [2010] VSCA 164 and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
53 The plaintiff and the defendant focused on the opinions of Mr D’Urso, neurosurgeon, and Dr Boys, orthopaedic surgeon, who have provided vastly different opinions.
54 I will turn firstly to Mr D’Urso. Mr D’Urso prepared a report dated 23 October 2017 after examining the plaintiff on 9 October 2017.[49] The defendant submitted that Mr D’Urso may not have been provided with all of the relevant medical material and radiology in order to be in a position to compare the plaintiff’s neck injury resulting from the fall when compared with the neck injury resulting from the transport accident. I do not accept that submission.
[49]PCB 75-79
55 I do not propose to laboriously set out each of the enclosures accompanying the letter of instruction to Mr D’Urso. He was provided with all of the medical material which I have endeavoured to summarise relevant to the diagnosis of the plaintiff’s neck injury resulting from the fall and the treatment that he was provided.[50] Nor do I propose to laboriously set out the radiological investigations which he was provided. He was provided with all of the relevant radiological investigations.[51]
[50]PCB 75
[51]PCB 77
56 In addition, Mr D’Urso was provided with the plaintiff’s affidavit sworn 13 November 2015. He also obtained a reasonably extensive history from the plaintiff which I think is a reasonable summary of the plaintiff’s complaints relevant to the neck injury resulting from the transport accident. It is evident from his answers to a series of questions that were put to him that he clearly understood the neck injury resulting from the fall.[52]
[52]PCB 78-79
57 Mr D’Urso was asked to disentangle the plaintiff’s neck injury resulting from the fall from the neck injury resulting from the transport accident. He did so when he said:
“Judging from the investigation that was carried out prior to the motor vehicle accident, it would appear that John did have a central prolapse at C5-6.”[53]
[53]PCB 78
58 Mr D’Urso then dealt with whether the subsequent radiology demonstrated anything different from the earlier radiology:
“… Subsequent imaging of the cervical spine would appear to have demonstrated some progressive spondylosis and degenerative change at the C5-6 level with foraminal stenosis for the exiting right C6 nerve root. Furthermore, subsequent imaging appears to have revealed a disc prolapse at C6-7 causing some foraminal stenosis, worse on the left side as well is C7-T1. … .”[54]
[54]PCB 78
59 Importantly, Mr D’Urso then concluded:
“… The motor vehicle accident would appear to have aggravated an underlying condition and possibly accelerated degenerative progression and contributed to disc prolapses at the C7-T1 and C6-7 motion segments.”[55]
[55]PCB 78
60 He then added:
“As the motor vehicle accident appears to have precipitated a significant worsening of symptoms, it [is] likely to have contributed to the multi-level nature of John Thomson’s cervical degenerative disease where there is evidence of prolapse and nerve root impingement. The motor vehicle accident would appear to be a materially contributing factor to a worsening of his condition at that time.”[56]
[56]PCB 78
61 Mr D’Urso then summarised his opinion:
“John Thomson presents with a history of chronic neck pain, brachialgia symptoms and right sided migrainous headaches. It would appear that a motor vehicle accident in which he was involved on 28th November, 2009 precipitated a worsening of his symptoms. The motor vehicle accident is likely to have aggravated an underlying degenerative condition of the cervical spine and possibly contributed to a worsening of his condition. In particular, progressive degenerative change has been noted at the C5-7, C6-7 and C7-T1 motion segments, where there is evidence of nerve root impingement. John would appear to have a permanent incapacity of a partial nature which would prevent him from performing more arduous or vigorous domestic activities, or social activities.”[57]
[57]PCB 79
62 I will next turn to Dr Boys. He provided a report dated 7 June 2017 after examining the plaintiff on 1 June 2017.[58] I do not propose to laboriously set out each of the enclosures accompanying the letter of instruction nor the radiology he was provided. It would appear he was provided with very much the same materials that Mr D’Urso was provided.[59] He also obtained a reasonably extensive history from the plaintiff.
[58]DCB 1-9
[59]DCB 10
63 Dr Boys was asked to answer a series of questions. The first was relevant to his prognosis for the neck injury resulting from the transport accident:
“I believe on balance that the motor vehicle accident on 03.12.2009 gave rise to a soft tissue injury and temporary aggravation of the underlying degenerative condition. I believe this gentleman’s current complaints reflect the natural progression of longstanding cervical spondylosis.”[60]
[60]DCB 7
64 Dr Boys then added:
“Mr Thomson’s condition reflects the effects of long-standing cervical spondylosis, most marked at the C5/6 and C6/7 disc spaces. His history of chronic neck pain over a period of time subsequent to the initial injury in 2000 and subsequent radiographic investigation confirming a focal C5/6 discal protrusion is noted. Longstanding neurological symptoms are also noted in the hands over a period of time initiating radiographic investigation in 2002 and 2003.”[61]
[61]DCB 7
65 The difference in the two opinions lies in an interpretation of the radiology and of course the history given by the plaintiff. Mr D’Urso was able to detect what he considered to be a progression of degenerative changes, whereas Dr Boys must have considered that there was no such progression or any other explanation for the plaintiff’s symptoms except the presence of an underlying degenerative condition evident on the radiology both before and after the occurrence the transport accident.
66 The plaintiff criticised Mr Boys’ opinion because he did not explain the basis upon which he reached the conclusion that, ultimately, the plaintiff’s complaints of neck pain reflect the natural progression of longstanding cervical spondylosis. I do not think that is correct. I think Dr Boys has compared the radiology and has paid due regard to the complaints made by the plaintiff of neck and other pain following the fall, comparing that to what he is complaining about now, and it is that comparison which is the basis for his opinion.
67 I prefer the opinion of Mr D’Urso. My reasons for preferring his opinion are based upon the plaintiff’s uncontradicted evidence that from 2005 to the occurrence of the transport accident, he was essentially symptom-free. He did not have any medical or paramedical treatment for any spinal condition. I think it is, therefore, probable that the mechanism of the transport accident resulted in the plaintiff suffering an aggravation of the pre-existing spondylitic changes in his neck, and the extent of the aggravation has produced the progression referred to by Mr D’Urso.
68 The plaintiff also relied upon the opinion of Mr Brownbill, neurosurgeon. I do not think it is of particular value, because he did not have the same volume of relevant medical material as did Mr D’Urso, and therefore, I do not think it is as compelling and useful as that of Mr D’Urso.
69 I am fortified in accepting the opinion of Mr D’Urso because of the plaintiff’s evidence that he was essentially symptom-free for many years prior to the transport accident, and it took a serious level of jolting of his neck to produce the neck pain and disablement of which he presently complains. He has obtained a lot of medical treatment through his general practitioners, Dr Jensen and from paramedical practitioners which I think demonstrate the relative seriousness of his neck injury. The limitations which he now has which he previously did not have also demonstrate the relative seriousness of his neck injury.
70 When I take into account all of this evidence, I am persuaded that the plaintiff suffered a major aggravation of the underlying degenerative changes in his neck.
The Plaintiff’s consequences
Pain
71 The plaintiff suffers ongoing aching pain in his neck which radiates down between his shoulder blades and into the back of his right shoulder. His neck is constantly stiff and feels tight. He experiences a pulling-type sensation at the base of his neck. He experiences episodes of sharper pain several times each day, usually when performing sudden movements or twisting of his neck. The pain in his neck intensifies later in the day or if he keeps his neck flexed in one position for too long, for example when reading or using a computer.
72 Under cross-examination, it was put to him that the symptoms he currently experiences are exactly the same as they were after the fall. He said that what he suffers now is “probably twice as bad”.[62]
[62]Transcript 58
73 The plaintiff suffers headaches nearly every day which are mainly at the back of his head and which extend behind his right eye. When the headaches are at their worst, his vision becomes blurred in his right eye.[63]
[63]PCB 15 and 21-22
Restriction of movement
74 The plaintiff suffers restriction of movement in his neck and right shoulder. The pain is aggravated by sitting at his desk in front of a computer for prolonged periods of time, and reading for extended periods of time. I assume this occurs because his he holds his neck in one position.[64]
[64]PCB 15-16 and 21-23
75 There are many other restrictions which the plaintiff suffers which I will deal with when I turn to the interference he says he suffers with domestic, social and recreational activities.
Sleep
76 The pain the plaintiff experiences in his neck often wakes him. The result of suffering interference with his sleep is that he is tired the following day.[65]
[65]PCB 18 and 23
Medical treatment
77 I have summarised as much of the plaintiff’s medical treatment as is necessary to demonstrate that he has had a lot of medical treatment which has not been successful in ameliorating the pain and restriction of movement which he experiences.
78 The plaintiff has also been prescribed significant painkilling medication which has assisted him in dealing with the pain. He is presently taking Lyrica and Panadol Osteo.[66] One of the side-effects of Lyrica is that it interferes with his concentration.[67]
[66]PCB 16 and 23
[67]Transcript
79 The plaintiff is also self-medicated by drinking whiskey. He was drinking considerable quantities over four or five days a week. He does not drink as much now.[68]
[68]Transcript 58
Social, domestic and recreational activities
80 The plaintiff is either restricted or unable to engage in the following social, domestic and recreational activities:
· He used to jog 5 kilometres three or four times a week. He is no longer able to do that.[69]
[69]PCB 17
· He avoids doing heavier household tasks such as vacuuming.[70]
[70]PCB 17
· He was a keen gardener. He describes his garden now as a disaster. He had a vegetable patch which is now a fraction of its former size. He has found simple gardening activities like raking and digging to be difficult. He is unable to trim a hedge which is 16-feet high and 100 metres long.[71]
· He is unable to engage in painting of his weatherboard house, and general maintenance.[72]
· He struggles to engage in playing social games of sport with his grandson, such as cricket and football, and activities which involve running or playing games with him for too long.[73]
[71]PCB 17 and Transcript 79
[72]PCB 18
[73]PCB 18
Farming
81 The plaintiff lives on a 38-acre farm with his wife. They run about forty sheep and alpaca. They breed sheep and alpaca.[74] He has never engaged in shearing sheep. He engages others to do that for him.[75] He cannot pull, lift or drag sheep because of the “enormous pain” that engaging in such a task would cause him.[76]
[74]Transcript 32
[75]Transcript 44-45
[76]Transcript 45
82 There are farming tasks which the plaintiff does engage in. He is able to perform general maintenance such as fencing and spraying weeds.[77] He can drive a tractor to carry feed to his livestock, and to mow and rake hay. He engages others to bail the hay for him.[78]
[77]Transcript 45
[78]Transcript 46-48
Work
83 The plaintiff was working full time as a real estate agent until mid-October 2017 when he reduced his hours of work to Friday and Saturday morning. He did say that was because he suffered a flare-up of neck pain, and considered that the work he was doing had become “too much”.[79]
[79]Transcript 50
Disentangling
The lower back
84 The plaintiff suffered an injury to his lower back in August 2014. He was lifting furniture upstairs at his place of work.[80]
[80]PCB 18 and Transcript 41
85 The plaintiff saw Dr Lee on 14 October 2014 complaining of lower back pain and stiffness since lifting furniture in August. The plaintiff told him that the pain was gradually getting worse and was extending to his lower leg and foot. On examination, Dr Lee found limitation in the movement of the plaintiff’s lower back in all directions due to stiffness, and he considered that there was a reduced sensation over the L3 distribution.[81]
[81]DCB (supplementary) 30
86 The plaintiff subsequently saw Dr Lee on the following occasions:
· 27 October 2014 – his lower back pain was improving, and there was no pain in his lower leg. The plaintiff was seeing an osteopath.[82]
[82]DCB (supplementary) 31
· 24 February 2015 – his lower back pain had improved but had not ceased completely. He was experiencing leg pain. The plaintiff was referred to have an MRI scan. Using Panadol and Nurofen. Prescribed Endep probably for sleeping difficulties. [83]
[83]DCB (supplementary) 31-32
· 16 July 2015 – his lower back was flaring up intermittently.[84]
[84]DCB (supplementary) 33
· 11 August 2015 – development of thoracic pain probably due to muscle tightening and thoracic joint dysfunction.[85]
[85]DCB (supplementary) 34
· 18 August 2016 – lower back pain with left lower leg pain, cramping and stabbing in the ankle. Prescribed Mobic. The plaintiff had been using Tramadol, but that appears to have been prescribed for his neck pain. It was ceased on 18 August 2016.
· 9 December 2016 – lower back pain much the same with pain referred into the left leg. There is a reference to the plaintiff not sleeping. Mobic was ceased and he was prescribed Targin.[86]
· 5 April 2017 – ongoing lower back pain.[87]
[86]DCB (supplementary) 35
[87]DCB (supplementary) 36-37
87 The MRI scan was taken on 27 February 2015. The radiologist reported that it demonstrated a degenerative L5-S1 disc, a congenitally narrow canal, but no identified neural compression.[88]
[88]PCB 34
88 The clinical notes of Dr Bonello, osteopath, disclose that she treated the plaintiff between 23 April 2014 and 30 July 2014 for his neck injury. She diagnosed that the plaintiff had a chronic neck problem. There is a cryptic note of the plaintiff having a mechanical lower back problem.[89]
[89]DCB (supplementary) 44-56
89 The first entry in Dr Bonello’s clinical notes of the plaintiff’s lower back injury is 25 August 2014. She made a note that two weeks earlier the plaintiff had hurt his back moving furniture upstairs. She diagnosed a mechanical facet irritation of the plaintiff’s lower back.[90] The plaintiff continued to see her to 10 March 2017 for treatment for both his neck injury and lower back injury.[91] The notes demonstrate that his lower back was actively symptomatic during those relevant dates. It is not clear to me whether the plaintiff continued to be treated for his lower back injury by Dr Lee and Dr Bonello following the last clinical note relevant to treatment for his lower back injury.
[90]DCB (supplementary) 58
[91]DCB supplementary) 58-124
90 Dr Lee’s clinical notes demonstrate that the plaintiff’s lower back injury was significant enough to warrant an investigation by an MRI scan, and to prescribe him strong painkilling medication.
91 Under cross-examination, the plaintiff said that his lower back has restricted him in engaging in gardening, running, driving, sitting, walking long distances, painting his house, and engaging in home maintenance which involves heavy lifting.[92] Under re-examination, the plaintiff said that he has not experienced a flare-up of lower back pain for four or five months. He added that driving the tractor on his farm does not affect his back.[93]
[92]Transcript 43
[93]Transcript 52
92 In Peak Engineering & Anor v McKenzie,[94] the Court of Appeal made the following relevant observation:
“… In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.”[95]
[94][2014] VSCA 67
[95]At paragraph [24]
93 The approach which I propose to take is to determine, firstly, what were the plaintiff’s pain and suffering consequences resulting from his neck injury prior to the onset of the lower back injury. I think it is very evident from the medical evidence that his neck was actively symptomatic, requiring quite a lot of treatment and the need for painkilling medication. The plaintiff’s evidence, which I accept, makes it very evident that there were a range of social, domestic, recreational and work pursuits, suffering interference at a fairly major level.
94 Secondly, whether those pain and suffering consequences are sufficient to satisfy the statutory test of seriousness at a time before the plaintiff suffered the lower back injury. I am satisfied that by the time the plaintiff suffered the lower back injury, the impairment of the function of his neck had pain and suffering consequences which were “serious”. I think the medical evidence clearly demonstrates that had the plaintiff not suffered the lower back injury, the pain and suffering consequences of his neck injury would have persisted, and would probably have worsened.
95 Thirdly, what the lower back injury has produced is additional pain, the need for additional treatment, the need for additional medication and further interference with each of the matters on which he was cross-examined.
96 In any event, I accept the plaintiff’s evidence that he has not been troubled by the lower back injury now for some time. So what I am faced with is the need to disentangle, but in the absence of a continuing impairment of function of the plaintiff’s lower back, there is nothing to disentangle. Despite reaching that conclusion, if I were to assume that the plaintiff is vulnerable to flare-ups and may require medical treatment from Dr Lee and Dr Bonello, osteopaths, the primary conclusion I have reached will not alter.
The coronary condition
97 The plaintiff recently developed a heart condition. He described the major symptom as being shortness of breath. He was obviously treated by a specialist because he was diagnosed with “cardiac disease”. He subsequently had a coronary stent inserted on 30 June 2017. In his affidavit, he described the results of the stenting as improving his shortness of breath and his ability to walk.[96] Under cross-examination, the plaintiff said that he has no heart-related problems.[97]
[96]PCB 24
[97]Transcript 44
98 There was little more than fleeting reference to the plaintiff’s coronary condition during cross-examination, and generally during the hearing. There is no evidence that his general functioning is impaired by the coronary condition, and therefore, no call for disentangling.
Creditworthiness and reliability of the Plaintiff
99 There were a number of matters on which the plaintiff gave evidence which were not referred to in his affidavit, or if they were referred to in his affidavit, the references were inadequate when compared with the evidence that was ultimately adduced under cross-examination and re-examination. For example he said very little about what he has done on his farm since the transport accident.
100 I am not satisfied that the plaintiff omitted to refer to relevant matters dishonestly. Overall, I considered him to be a reasonably straightforward witness who ultimately gave evidence about relevant matters reasonably directly and informatively.
101 In the end, I think all of the relevant evidence was adduced, enabling me to make an assessment of the issues raised by the parties. I do not consider that this is a case calling on me to be cautious about the way in which I analyse and assess the plaintiff’s evidence.
Conclusion
102 I am, therefore, satisfied that the plaintiff suffered an aggravation of the underlying spondylitic changes in his neck resulting from the transport accident.
103 I am satisfied, based upon the test referred to in the authorities, that the aggravation alone has produced an impairment of function of his neck with pain and suffering consequences which are “serious”. I have reached that conclusion by making the relevant comparison with like impairments as I am required to do.
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