Troon v Transport Accident Commission
[2023] VCC 8
•3 February 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-00914
| ALICE TROON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2022 | |
DATE OF JUDGMENT: | 3 February 2023 | |
CASE MAY BE CITED AS: | Troon v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 8 | |
REASONS FOR JUDGMENT
---
Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – pain and suffering – spinal impairment – pre-existing injuries – causation – comorbidities – disentanglement – range
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Richards & Anor v Wylie (2001) 1 VR 79; Dressing v Porter [2006] VSCA 215
Judgment: Leave granted to the plaintiff to commence proceedings.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms R Dal Pra | Slater and Gordon Ltd |
| For the Defendant | Mr J L Batten with Ms A Bannon | HWL Ebsworth Lawyers |
HIS HONOUR:
1On 1 April 2015, the plaintiff, Ms Alice Troon, a sixty-four-year-old bookkeeper and cashier, was driving her car in Palmerston Street, Melton. As she proceeded through the roundabout at Henry Street, a car driven by Stephen McCorquodale failed to give way and “T-boned” her vehicle (“the collision”).
2Photographs of Ms Troon’s car show extensive damage to the left side.[1] The impact was significant.
[1] Plaintiff’s Court Book (“PCB”) 27-31
3Ms Troon said that she suffered spinal injuries as a result of the collision.
4Ms Troon had, prior to the collision, suffered lower back problems over many years. She had received a good deal of medical treatment. She said that she had not had any neck problems prior to the collision.
5Ms Troon said that the aggravation of her lower back pain and the injury to her mid-back and neck had, in the context of her spine, resulted in serious consequences to her.
6The Transport Accident Commission (“TAC”) disputed the nature and extent of the spinal injury which Ms Troon said she suffered. The TAC said that if Ms Troon did have any ongoing consequences from a spinal injury suffered in the collision, those consequences were not “serious”.
The application
7Ms Troon seeks serious injury certification pursuant to s93(17) of the Transport Accident Act 1986 (as amended) (“the Act”). To succeed, Ms Troon has the onus of proof to establish that she has suffered a serious long-term impairment or loss of body function.
8For Ms Troon’s spinal injury to be serious it must satisfy the narrative test laid down by the Full Court of the Supreme Court of Victoria in Humphries and Anor v Poljak:[2]
“… To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[3]
[2][1992] 2 VR 129 (“Poljak”)
[3]Poljak (ibid) at 140 per Crockett and Southwell JJ
9As Crockett and Southwell JJ said in that case, many disturbances may be considerable, in the sense that they are “important or substantial”, without being “very considerable”.
The issues
10The issues to be determined include:
(a) as to Ms Troon’s credit and whether I can accept her evidence;
(b) the nature and extent of Ms Troon’s pre-existing spinal injury;
(c) what, if any, spinal injury did Ms Troon suffer as a result of the collision;
(d) the disentanglement of the consequences of any spinal injury Ms Troon suffered in the accident from:
(i)her pre-existing health problems and, in particular, her pre-existing spinal condition, and
(ii)her health problems subsequent to the collision;
(e) an assessment of the consequences which Ms Troon suffers as a result of any spinal injury which results from the collision;
(f) whether the consequences of the spinal injury resulting from the collision are “serious”.
Ms Troon’s credit
11The TAC said that Ms Troon’s credit was in issue. Indeed, Mr Batten said it “looms large”.[4]
[4] Transcript (“T”) 6, Line/s (“L”) 30 – T7, L2
12In the course of cross-examination, Mr Batten, quite properly, explored many issues touching upon the credit and reliability of Ms Troon’s evidence. The matters put to Ms Troon included:
(a) her involvement in the business, A&S Bookkeeping, and the income which she received from that entity;[5]
(b) her ongoing attendances at the Epping Market;[6]
(c) her ownership of numerous properties and the income which they generated;[7]
(d) her previous compensation claims;[8]
(e) her numerous other accidents and health problems;[9]
(f) the medical treatment which she had received over the years and the histories which she had provided to various health service providers;[10]
(g) her failure to advise her doctor and/or osteopath of her alleged neck injury until eight months after the collision;[11]
(h) her failure to tell psychiatrists who were assessing her for her WorkCover claim about her neck injury consequential to the collision;[12]
(i) that after her WorkCover benefits had stopped at 130 weeks, her psychiatric illness had improved.[13]
[5]T13
[6]T16
[7]T13-14
[8]T14-15
[9]T18-21 and T30-31
[10]See for example T33, L7 ꟷ T34, L22
[11]T35, L10-12
[12] T36, L15-16
[13]T40-T41
13In the context of a very complex history, I consider Ms Troon gave her evidence in a frank and forthright manner. While there were times when Ms Troon was uncertain or, indeed, mistaken, I do not consider there was a deliberate attempt to mislead the Court. For example there was a line of questioning about medical records in 2015, where Ms Troon did not accept the propositions put to her. At that time, she did become defensive. I accept that, based on the records, she was wrong; however, I consider the majority of her responses to the matters which were put to her were appropriate. In the majority of matters she made appropriate concessions. For example Ms Troon:
· agreed that she had suffered pre-existing back problems and had done so over many years.
· provided reasonable explanations in respect to her property ownership and her involvement the business, A&S Bookkeeping.
· did not resile from her worker’s compensation claims.
· accepted the various accidents and other health problems which she had over the years.
14Of particular note was the challenge to Ms Troon’s credit based on a failure to disclose her neck problems until eight months after the accident.[14] A review of the medical records shows that assertion by the TAC to be incorrect. In fact, Ms Troon was complaining of headaches by 6 April 2015, and on 30 May 2015, Dr James Maher, osteopath, recorded:
“Neck is feeling terrible, pain above left eye and going back like mohalk.”[15]
(sic)
[14]T35, L10-12 and T35, L17-23
[15]Defendant’s Court Book (“DCB”) 116
15Ms Troon’s credit and reliability was thoroughly tested in cross-examination. Having observed Ms Troon in the witnessbox and having considered all of the evidence, I do not accept that she is a person whose evidence was generally unreliable, or whose credit was impugned, such that her evidence could not be accepted.
Ms Troon’s pre-existing spinal injury
16Ms Troon agreed that her pre-existing lower back problems went back many years. There had been many incidents. These included:
(a) in or around 1997 and 1998, after lifting milk crates;
(b) in 2005 and 2007, when she attended her general practitioner with flare ups of back pain;
(c) in mid 2011, when she was referred for a CT scan of her lumbar spine;
(d) in August 2012, when she was referred for a further CT scan of her lumbar spine;
(e) in 2014, when she consulted Dr Neil Read, general practitioner;
(f) consultations with Dr Eressea Cross, Dr Maher, and other osteopath practitioners at Western Region Health over many years.
17The conclusion in the radiology report for the CT scan undertaken 30 August 2012 said:
“Conclusion
Degenerative changes as described but no evidence of a focal disc protrusio[n] nor of any major canal stenosis.”[16]
[16]PCB 38
18It is clear, in the years immediately prior to the collision, Ms Troon had received a good deal of treatment for her lumbar spine problems. Referring firstly to her consultations with Dr Cross/Dr Maher. On 31 March 2014, Dr Cross wrote to Dr Read and said:
“… [Ms Troon] presented to me at Western Region Osteopathy with your kind CDM referral complaining of pain across the lumbosacral region of her back which extended across into her gluteal muscles and up into her lumbar spine. The pain was present all the time, but was made worse by standing for more than 10 minutes. The only way she could get relief was to sit or lie down and wait for the pain to diminish. … [Ms Troon] said the pain had been present for many years but had slowly been getting worse. She reported some injuries to her back in the past when she worked in factories and was required to do heavy lifting.”[17]
[17]DCB 108
19Dr Cross went on to say:
“… I am happy to report that … [Ms Troon] responded well to treatment and had a reduction to her pain levels. She now reports that the pain in her lower back is not present all the time and she is able to stand for a larger amount of time before needing to sit down to rest her back. Alice is happy to continue with osteopathic treatment as she finds it helps her a great deal, and she comes in and sees me once per month.”[18]
[18]DCB 108
20Referring to Dr Cross’s/Dr Maher’s clinical notes from 19 October 2013, there were, doing the best I can, twenty-one visits between that date and the collision. The majority, but not all, involved treatment for Ms Troon’s lower back issues.
21The notes indicate that Ms Troon was:
(a) experiencing fluctuating symptoms;
(b) gaining relief from the treatment provided.
22I was not taken to, nor could I find, any reference in those notes to referred leg pain/radiculopathy; however, it is clear that Ms Troon’s lower back problems were an issue to her.
23Referring, now, to the general practitioner notes for the years between September 2011 and the collision. I located three entries which referred to Ms Troon’s lower back problems.[19] Those records did no more than refer to Ms Troon attending for osteopathic treatment.
[19]22 October 2013 at PCB 263; 25 October 2013 at PCB 262 and 263; and 26 May 2014 at PCB 261
24Going back to June, July and August 2011, there were a series of consultations when Ms Troon complained to her general practitioner of lower back pain.[20] Again, I was not taken to, nor did I find, any reference in the general practitioner’s records to referred leg pain. Specifically, on 1 July 2011, it was recorded: “no radiation”.[21]
[20]PCB 270
[21]PCB 274
25Moving, now, to Ms Troon’s evidence. She said that the lower back pain which she suffered prior to the collision was intermittent in nature.[22] She said that prior to the accident:
(a) at times her back pain did radiate into her left leg;[23]
(b) her back pain did not radiate into her right leg.[24]
[22]First affidavit of the plaintiff affirmed 18 November 2021, paragraph 20, PCB 14
[23] Second affidavit of the plaintiff affirmed 26 August 2022, paragraphs 9, PCB 22-23
[24]See for example second affidavit of the plaintiff, paragraph 10, PCB 23; and T44, L22-26
26Ms Troon’s evidence in respect to the referred leg pain is consistent with the history recorded by Mr Michael Johnson, orthopaedic surgeon, when he saw her on 12 March 2016.[25]
[25]PCB 60
27Ms Troon said she did not have any neck pain prior to the collision.[26]
[26]T35, L8-9; and paragraph 10, PCB 23
28Ms Troon’s evidence in respect to the referred leg pain which she suffered prior to the collision and her lack of neck pain prior to the collision was not seriously contested, nor was I taken to any evidence to the contrary.
29I accept that Ms Troon, prior to the collision:
(a) did not suffer from any pre-existing neck injury;
(b) did not suffer from pain radiating from her neck up into her head or out into her arms, nor did she have related cervicogenic headaches;
(c) had suffered lower back problems for many years. These problems were fluctuating in nature, and at times severe, but at other times minimal;
(d) had suffered some referred left leg pain;
(e) had not suffered any referred right leg pain.
Disentanglement – the issues
30The TAC said Ms Troon’s case must fail because she had not disentangled any collision-related spinal injury and consequences from her other pre‑existing and post-collision injuries and comorbidities. The TAC said I could not be satisfied that the consequences which Ms Troon relied upon were, in fact, resulting from her collision-related spinal injury.
31As I have previously noted, Ms Troon did not resile from her pre‑existing health problems. These are, of course, matters which I must consider, particularly her pre-existing and longstanding lower back problems.[27]
[27]Petkovski v Galletti [1994] 1 VR 436
32I must also take into account the unrelated injuries which Ms Troon suffered subsequent to the collision.[28] For example:
(a) her work-related psychiatric injury;
(b) the left hip replacement undertaken 17 September 2019;
(c) the bilateral shoulder injury shown in the 2017 investigations.
[28]Peak Engineering & Anor v McKenzie [2014] VSCA 67
33The TAC also said I should not accept that Ms Troon is suffering an “organic injury” due to the collision. They said Ms Troon’s complaints of pain and restriction were psychologically based. They said it was the bullying and harassment that occurred at work after the accident which was at play.[29]
[29]T63, L11-20
34The TAC also said that Ms Troon had not discharged her onus in establishing that the spinal pain and restriction which she now complains of is an additional impairment created by the collision rather than just the progression of her pre-existing condition.[30]
[30]T65, L11-19
Did Ms Troon suffer a spinal injury as a result of the collision?
35On the day of the collision, Ms Troon attended her normal general practitioner clinic, the Melton Medical & Dental Centre. She did not see her normal general practitioner, Dr Jacob Opio. Instead, she saw Dr Danny Nguyen, general practitioner. He recorded Ms Troon was involved in a motor vehicle accident and had a tender lower back. Her range of movement was “stiff”. She was concerned.[31]
[31]PCB 253
36On 6 April 2015, Ms Troon consulted Dr Opio. She was complaining of headaches. She was again concerned about her lower back. She requested a CT scan.
37The report of the CT scan undertaken 7 April 2015 concluded:
“Severe spondylitic changes seen throughout. No evidence of any crush injury. Severe disc degenerative change at L4 to S1 and also at T12-L1 of longstanding.
At the lumbosacral junction, disc bulging is seen to the left intervertebral foramen effacing the undersurface of the left L5 nerve root. There is a further small right paracentral disc protrusion seen lie in close association with the right L5 nerve root and also impinging upon the theca and may be impinging upon the right S1 nerve root prior to its exit in the segment below.
Significant posterior osteophytic spurring is seen at L4-L5 but the canal size remains of adequate size.
No other significant findings.”[32]
[32]PCB 40-41
38On 27 April 2015, Ms Troon consulted Dr Cross. Dr Cross noted that she had been in a very bad accident on 1 April 2015. Ms Troon was complaining of pain in her left leg/hip and headaches on the left side of her head.[33]
[33]DCB 116
39On 23 May 2015, Dr Cross noted that the motor vehicle accident a month ago had aggravated Ms Troon’s pain.[34] Dr Cross noted pain in the right hip and into the “itb”.[35] She noted it had previously been more to the left. She again noted headaches.
[34]DCB 116
[35]DCB 116
40On 30 May 2015, Ms Troon consulted Dr Maher. Dr Maher noted Ms Troon’s back pain was “killing her”.[36] He also recorded “neck is feeling terrible”.[37] Dr Maher noted that Ms Troon was suffering pain in both legs.
[36]DCB 116
[37]DCB 116
41Referring back to the records of Ms Troon’s general practitioner clinic. On 29 May 2015, Ms Troon consulted Dr Shah-Showkot Hossain, general practitioner. On this day, Ms Troon’s complaints included:
· chronic lower back pain
· pain going into both legs
· chronic headache.[38]
[38]PCB 251
42Thus, in the months subsequent to the collision, Ms Troon’s clinical records reveal her complaining of:
(a) an aggravation of lower back pain;
(b) referred pain into her right leg;
(c) an aggravation of left leg pain;
(d) neck pain;
(e) headaches.
43This is consistent with Ms Troon’s evidence.[39]
[39]See in particular paragraph 10, PCB 23
44As 2015 progressed, Ms Troon continued to attend Dr Cross or Dr Maher for osteopathic treatment. There are ongoing references to neck pain, her lower back pain being worse since the motor vehicle accident, pain up into her head, and referred leg pain particularly into the right leg.
45In November 2015, Ms Troon was referred to Associate Professor Bruce Love, orthopaedic surgeon. She consulted him on 4 December 2015. On that day, Ms Troon was complaining of pain radiating through the right buttock and into the right leg as far as the foot. Associate Professor Love said that:
“The pattern of pain is consistent with a nerve root [radiculopathy] ... .”[40]
[40]PCB 57
46Ms Troon was referred for MRI scanning. The MRI scan of her cervical spine undertaken 15 December 2015 was reported:
“Clinical Notes:
Chronic intermittent parasthaesia affecting both arms, right greater than left.
Findings:
In the position of scanning, there is a mild scoliosis convex to the left. There is normal sagittal alignment, but loss of normal lordosis.There is no abnormality seen at the foramen magnum or craniocervical junction and the atlantoaxial joints appear reasonably well preserved with some degenerative change seen in the joint between the lateral masses on the left.
At C2/3, there is left posterolateral endplate osteophyte formation indenting the thecal sac and causing moderately severe left C3 foraminal narrowing.
At C3/4, there is no significant pathology.
At C4/5, there is a broadbased posterior disc osteophyte ridge flattening the thecal sac without foraminal narrowing.
At C5/6, there is also a prominent broadbased posterior disc osteophyte ridge and anterior endplate osteophyte formation. There is some flattening of the thecal sac. There is some right sided facet joint degeneration and there is some mild bilateral neurocentric joint degeneration and osteophyte formation. Minor encroachment on the C6 foraminae.
At C6/7, there is a prominent broadbased posterior disc protrusion and endplate osteophyte formation indenting the thecal sac and almost abutting the cervical cord. There is bilateral neurocentric joint degeneration most severe on right where there is a prominent osteophyte extending into the right C7 foramina impinging on the nerve. There is minor encroachment on the left C7 foramen.
At C7/T1, there is a prominent left posterolateral disc protrusion indenting the thecal sac and encroaching on the left C8 foraminal entrance.
There is no significant spinal canal stenosis. The cervical spinal cord appears normal.
Paravertebral soft tissues are unremarkable.
Conclusion:
There are multilevel degenerative changes as described, and there [illegible] narrowing of the left C3 and right C6 foraminae. There is also significant narrowing of the right C7 foramen.”[41]
[41]PCB 64-65
47As Associate Professor Love considered there was a compromised nerve root canal, he referred Ms Troon to Mr Michael Johnson, orthopaedic surgeon, for assessment of her spinal problems.[42]
[42]PCB 58
48On 12 March 2016, Ms Troon consulted Mr Johnson. Mr Johnson noted that Ms Troon was suffering progressive back and leg discomfort, worse since her motor vehicle accident.[43] He recorded that Ms Troon was complaining of continuous lower back pain since the motor vehicle accident which radiated into the legs. In the right leg the pain radiated to the lateral calf, while on the left it extended to the back of the calf.[44]
[43]PCB 58
[44]PCB 60
49Mr Johnson also said that Ms Troon was “complaining bitterly about her neck symptoms”.[45] As Mr Johnson did not treat cervical pathology, he suggested Ms Troon obtain a neurosurgical opinion.
[45]PCB 61
50On 9 May 2016, Ms Troon consulted Mr Nicholas Hall, neurosurgeon. Mr Hall obtained a history from Ms Troon that:
“… [Ms Troon] had an accident in the mid part of last year when she was T boned whilst driving around a roundabout. Although she was able to mobilize at the end of the accident several hours afterwards she started experiencing significant pains both in the neck and in the lower back. She also found that although she had some longstanding previous issues relating to pain down the posterior aspect of the left leg the new pain had occurred sending a shooting pain down the right leg and into the dorsum of the shin and to the level of the anterior ankle. Alice has found that she has been having significant headaches with pain radiating from the upper part of the cervical spine and up into the posterior aspect of her head. These were at times quite severe and shooting in nature. ….”[46]
[46]PCB 72
51Mr Hall considered Ms Troon was suffering problems in her neck, with headaches, and in her lower back. He considered her treatment options included:
(a) an anterior cervical discectomy and fusion;
(b) a bilateral interbody lumbar fusion.
52Having opted for a non-surgical approach, Mr Hall referred Ms Troon for conservative treatment. This included Pilates, a further MRI scan and a targeted L5 nerve root injection.
53When Mr Hall reviewed Ms Troon on 16 January 2017, he noted nerve root compression, which he thought was the cause of the L5 radiculopathy.[47] While he was still considering surgery, Mr Hall referred Ms Troon for pain management with Dr Nick Christelis, pain specialist and anaesthetist.
[47]PCB 75
54Ms Troon consulted Dr Christelis on 8 March 2017. In respect to Ms Troon’s complaints of right leg pain he said:
“… Looking at the MRI, there is an L4-L5 disc prolapse with some Modic 2 changes at the corresponding endplates, as well as a lesser L5-S1 disc prolapse. The report states that there is no significant foraminal narrowing at the L4-L5 level but I disagree with this. It looks like there is some encroachment of the nerve root, particularly at this level and definitely mild encroachment at the L5-S1 level.
• The right leg pain is anterior leg and neuropathic either in the L3 and L4 nerve roots, particularly at the L3-L4 where there is abutment of the left L4 nerve root origin reported but I think it is the right L4 nerve root. Either way, I will follow her pain as opposed to the MRI.
• It looks like the MRI findings are consistent and concordant with her neuropathic leg pains although, as you mentioned, her pain is far more widespread.
….”[48]
[48]PCB 76
55I accept that what is recorded in the various clinical records, reporting letters and medical reports from the treating specialists, is generally consistent with Ms Troon’s evidence; that is, there was a marked escalation in the nature and extent of her complaints of pain and restriction subsequent to the collision.
56I accept Ms Troon, subsequent to the accident, had increased lower back pain, developed neck pain and headaches, complained of paraesthesia to both arms, had increased left leg pain, and developed right leg pain. This is consistent with the records of, not only her treating general practitioner and osteopath, but also a number of orthopaedic surgeons, a neurosurgeon, and a pain management specialist.
57Moving, now, to the various medico-legal opinions.
The Plaintiff’s medico-legal opinions
Mr Russell Miller, orthopaedic surgeon
58Mr Miller, while being concerned about Ms Troon suffering from a pain syndrome, said:
“There has been an injury to the spine, which includes musculoligamentous strain and aggravation of degenerative disease. … .”[49]
[49]PCB 92
Associate Professor Richard Bittar, neurosurgeon
59Associate Professor Richard Bittar assessed Ms Troon for her solicitors on 11 May 2022. On examination, he found muscle spasm at the cervicothoracic junction and the lumbosacral levels. Associate Professor Bittar said there was no abnormal illness behaviour.[50] Under “Diagnosis”, he said:
“In my opinion, … [Ms] Troon presents with the following:
1. Aggravation of cervical spondylosis with neck pain, bilateral arm pain and cervicogenic headaches.
2. Aggravation of thoracic spondylosis with midthoracic back pain.
3. Aggravation of lumbar spondylosis with lower back pain and bilateral leg pain.”[51]
[50]PCB 130
[51]PCB 130
60Associate Professor Bittar considered it more probable than not that Ms Troon’s spinal conditions were caused as a direct result of the collision.[52]
[52]PCB 131
Dr Meena Mittal, pain physician and specialist anaesthetist
61Dr Mittal assessed Ms Troon on 6 June 2022. Dr Mittal said that Ms Troon, as a consequence of the collision, had developed:
· Persistent neck pain.
· Exacerbation of pre-existing lower back pain and left lower limb pain.
· New onset of right lower limb pain.[53]
[53]PCB 258
62Dr Mittal considered Ms Troon had suffered a whiplash-type injury to her neck which resulted in myofascial spasm and underlying facetogenic pain. She said Ms Troon’s headaches were cervicogenic in nature. Dr Mittal considered the lower back pain was secondary to myofascial spasm, and the left lower limb pain was consistent with left L5 nerve root distribution. She considered the right lower limb pain required further investigation, but was likely to be secondary to neural irritation.[54]
[54]PCB 158
63Dr Mittal considered the aggravation of Ms Troon’s spinal conditions was a direct result of the collision.[55]
[55]PCB 160
The Defendant’s medico-legal opinions
Professor Peter Teddy, neurosurgeon
64Professor Peter Teddy assessed Ms Troon on 28 July 2022. Professor Teddy obtained a history from Ms Troon that:
“She confirmed that prior to injury she had been having severe low back pain with radiation to the left lower limb but since the accident she has also had pain in the right lower limb and her back pain had worsened. She also developed neck pains, mid-back pain, headaches, and arm pains that had not previously been evident.”[56]
[56]DCB 71
65Professor Teddy, having undertaken a review of the medical records and various reports, and having examined Ms Troon, under “Diagnosis” said:
“… She undoubtedly has constitutional degenerative changes in her cervical, thoracic and lumbar spine as described in multiple other reports and on radiological imaging. On the balance of probabilities, she did suffer an exacerbation of her cervical and lumbar spondylosis but in my view, suffers a clear chronic pain syndrome such that her reported pain levels and incapacities outweigh her objective clinical findings.”[57]
(My emphasis.)
[57]DCB 74
66Professor Teddy went on to say:
“… The exact nature of her physical injury has never been satisfactorily determined but most probably represents a combination of soft tissue injury, musculo-ligamentous strain, together with (L4/5) discogenic and facetogenic pain but without clear evidence of radiculopathy, and certainly, no myelopathy.”[58]
(My emphasis)
[58]DCB 75
67These conclusions by Professor Teddy identify an organic injury which he believes Ms Troon suffered to her spine as a consequence of the collision.
My conclusions in respect to collision-related injury
68Having considered all the medical evidence , and being in the unique position of observing Ms Troon give evidence, I accept that she has suffered a spinal injury as a result of the collision. Whatever the exact mechanism of injury might be, I accept the injury to her spine has caused:
(a) an increase in her lower back pain;
(b) the development of her right leg pain;
(c) a worsening of her left leg pain;
(d) neck pain and restriction;
(e) as a consequence of her neck injury/neck pain, referred pain up the back of the neck and into her head/cervicogenic headaches.
69I do not accept that Ms Troon’s complaints of pain are psychologically based. I do not accept that her current condition simply represents the progression of her underlying degenerative change. I accept that there is an organic basis for her complaints of pain and restriction which is consequential to the collision. The overwhelming medical evidence tends to this conclusion.
What are the consequences of Ms Troon’s collision-related spinal injury?
70Ms Troon acknowledged she had longstanding pre-existing lower back issues. She said that, prior to the collision, she had “good days and bad days” with her back pain. She acknowledged she was receiving osteopathic treatment.
71To understand the impact on Ms Troon of her accident-related spinal injury, it is necessary to undertake an analysis of her life before and after the collision.[59]
[59]See the observations made by the Court in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 at paragraphs [30]-[35]
72Ms Troon said that, prior to the collision, she was undertaking a range of demanding activities, notwithstanding her lower back issues and other health problems.[60] Such activities included:
(a) working as a bookkeeper and cashier with two different employers, and generally coping with the physical demands associated with these jobs;
(b) undertaking a range of exercise activities, such as power walking, intermittently running and going to the gym up to five days per week. She said this was important to her;
(c) attending to her household chores and general cleaning around the house. She said she was very houseproud;
(d) undertaking some lighter gardening activities. She conceded she avoided those gardening activities which were too physically demanding;
(e) undertaking a lot of cooking.
(f) attending language courses in French and Italian and socialising with other members of the group. This would involve going on walks through the city.
[60]See the plaintiff’s first affidavit at paragraphs 8-13, PCB 13, for details of Ms Troon’s pre‑existing comorbidities
73Ms Troon painted a picture that, prior to the collision, notwithstanding her pre‑existing lower back problems and other health issues, she was leading an active and independent life. I accept that to be so.
74Ms Troon said the collision changed her life. Ms Troon said there were many consequences flowing from the spinal injury which she suffered in the collision.
75Firstly, Ms Troon said she now experienced constant neck pain which radiated into her arms and from the base of her neck into her head and behind her left eye. She said she had not suffered neck pain, nor the associated headaches, prior to the collision. The headaches are debilitating.
76Secondly, she said that, since the collision, she had experienced increased and constant pain in her lower back which radiated out into her buttocks and down both her legs. The right leg pain was new. The pain down her left leg was worse than before the collision. She described the pain down her legs as a burning sensation with numbness and tingling.
77Thirdly, she said, by reason of the neck pain and the increased pain in her back, her sleep had been affected. She said she now struggled to get to sleep and was usually limited to a few hours’ sleep because of the pain. She described feeling lethargic and tired during the day as a result. She did not suffer this prior to the collision.
78Fourthly, she said she now found it hard to stand or walk for prolonged periods of time due to her collision-related spinal injury. She now used a wheelie walker. She said she struggled with tasks which required her to bend, lift heavy items or twist. Ms Troon complains of significant spinal dysfunction. She was not like this before the collision.
79Fifthly, she said that her spinal injury would either preclude or significantly restrict her work options. This aspect of Ms Troon’s complaints is complicated by reason of the psychological injury which she suffered at work. In March 2016, Ms Troon made a WorkCover claim for psychological injury against one of her employers, JT’s Fruit & Vegetable Supplies. Liability was accepted. She received weekly payments for 130 weeks. Ms Troon properly conceded that her WorkCover psychological condition also impacted upon her ability to work.
80Sixthly, she said her spinal injuries had, since the collision, impacted her capacity to undertake housework. Mopping and vacuuming are difficult. Doing her washing was now particularly hard, and she relied upon a trolley to take the washing out. Ms Troon said she now struggled to undertake her shopping. She now has her granddaughters help with her housework. She said she was no longer able to cook as she had.
81Seventhly, she said that, due to her spinal injury, she can no longer exercise as she had prior to the collision. As a result, she said she had lost a significant amount of physical fitness. She said this was an important part of her life which had been adversely impacted. I accept this to be so.
82Eighthly, she said that her injuries have impacted her social life and prevent her from undertaking various hobbies. Although she still attends French and Italian classes once per week, she explained that she is unable to partake in walks with other members of the classes.
83Ninthly, Ms Troon said her inability to live the active life she had enjoyed prior to the collision caused her great distress. I accept this to be so and to be a matter which I must consider.[61]
[61]Richards & Anor v Wylie (2001) 1 VR 79
Are the consequences of Ms Troon’s collision-related spinal injury “serious”?
84It is Ms Troon who has the onus of proof.
85Ms Troon clearly suffers a multitude of conditions, some potentially compensable and some clearly not compensable. I need to separately identify Ms Troon’s compensable injury and the consequences.[62]
[62]See in particular Dressing v Porter [2006] VSCA 215 at paragraph [47] per Ashley JA
86As set out in paragraphs 56, 68 and 69 of this judgment, I accept that Ms Troon did suffer a spinal injury as a result of the collision. I also accept that Ms Troon continues to suffer from that spinal injury and the ongoing consequences flowing from it. While some of the doctors, such as Professor Teddy, said that Ms Troon suffers from a “pain syndrome”, and the TAC sought to implicate Ms Troon’s work-related psychiatric injury, I do not accept that there is no organic basis for her complaints of pain and restriction. The weight of medical evidence favours that there is.
87Putting aside the work, Ms Troon said that her other health problems, while impacting upon her to a degree, would not preclude her from living an active life. For example, she said she had made a good recovery from the hip replacement procedure. She said that it was her spinal injury that impacted her quality of life, levels of activity and caused her great pain.
88It is now nearly eight years since the collision. I accept that Ms Troon’s spinal injury has stabilised and will continue into the foreseeable future. The weight of the medical opinion is to this conclusion.
89I do not accept that Ms Troon has failed to identify the consequences flowing from her spinal injuries. As I have already said, I accept that, prior to the collision, notwithstanding her pre-existing lower back issues and comorbidities, Ms Troon was leading an independent and active life. For example, she was:
(a) Working two jobs. I accept this, in itself, shows a level of capacity;
(b) Exercising regularly and in particular power walking, intermittently running, and attending a gym up to five days per week;
(c) Undertaking a range of household tasks independently and without significant restriction, for example, cooking;
(d) Able to manage her fluctuating lower back pain and left leg pain with osteopathic treatment;
(e) Engaged in a range of social activities.
90I accept that, as a result of the spinal injury flowing from the accident, Ms Troon’s life has changed. Indeed, I accept it has changed very significantly. Putting aside work for which she ceased by reason of an unrelated psychological injury, I accept that, by reason of her collision-related spinal injury, she is no longer able to:
(a) Undertake the exercise regime which she had enjoyed prior to the collision. Staying as fit as she could was something important to her prior to the collision. This has now been lost to her;
(b) Undertake activities around her home as she had. I accept that Ms Troon is a houseproud person and, while she continues to undertake as much as she can around her home, she is restricted in what she can do. Undertaking many household tasks leads to increased pain. I also accept that she now receives assistance from her granddaughters;
(c) To cook as she had prior.
91I accept that sitting, standing, bending and walking distances are all now a problem for her. I accept that these functional restrictions are consequential to her collision-related spinal injury. I accept these are significant consequences to Ms Troon.
92I accept that, since the collision, Ms Troon has suffered and continues to endure, significant levels of pain. This includes:
(a) pain in her neck which radiates into her head and causes her headaches;
(b) a worsening of her pre-existing lower back pain;
(c) a worsening of her pre-existing leg pain;
(d) the development of right leg pain.
93I accept that, since the collision, Ms Troon’s spinal injury has impacted upon her sleep to a very significant degree.
94Ms Troon has suffered the consequences of her spinal injury for in excess of seven years. I accept that her level of pain and restriction will continue into the long term.
Conclusions
95For the reasons outlined, I accept that the consequences to Ms Troon from her collision-related spinal injury do satisfy the very considerable test.
96Leave will be granted to Ms Troon to commence common law proceedings for injuries suffered in the transport accident on 1 April 2015.
97I shall hear from the parties as to the consequential orders to be made.
- - -
0
4
0