Van Der Byl v TAC

[2011] VCC 1198

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-03772

MICHELLE VAN DER BYL	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 July 2011
DATE OF JUDGMENT:	9 August 2011
CASE MAY BE CITED AS:	Van Der Byl v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 1198

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – serious injury application – injury to cervical spine – whether consequences very considerable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D Clements with	Slater & Gordon
Ms C A Mills
For the Defendant	Mr D G Brookes SC with	Solicitor to Transport
Ms R N Annesley	Accident Commission
HIS HONOUR:

Preliminary

1          The plaintiff was involved in a motor vehicle collision on 11 March 2005 when a vehicle she was driving was struck from behind by another vehicle. After a period, her neck and upper back became increasingly painful. She was able to continue employment, although on restricted duties and reduced hours. Her employment concluded in 2009, although subsequently she underwent retraining in aged care. She is currently looking for employment in that field. She complains of constant neck pain and a restriction in a range of activities, although has been able to maintain an internet business buying and selling various items.

2 This is an application for leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a transport accident on 11 March 2005.

3          Mr Clements, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine.

4 The application is thus brought under subsection (a) of the definition of “serious injury” contained in s.93(17) of the Act.

5          In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the cervical spine.

6          The plaintiff was the only witness called to give evidence and be cross- examined. In addition, her two affidavits sworn in support of the application,

Relevant Background

7          The plaintiff was born in November 1961 and is currently forty-nine years of age. She was educated to Year 9. She has had various jobs, including working as a receptionist, dressmaker, waitress, cook and nail technician. She has undertaken various certificate courses, including in fashion and computer technology.

8          In February 2001, she obtained employment as a receptionist at Fina Foods. She continued with that company until the time of the motor vehicle accident on 11 March 2005. At the time she was earning approximately $750 gross per week. Apart from a brief episode of neck pain in the 1980s, she was otherwise well at the time of the transport accident.

9          She had a range of interests in the artistic field. She was a keen artist, would undertake paintings and sell them on the internet. She also was interested in ceramics, pottery and photography. She lived with her husband and enjoyed cooking and sewing.

The Injury and its Consequences

10        On 11 March 2005, the vehicle the plaintiff was driving was struck with considerable force from behind. At the time, she complained of an odd feeling in the neck area. She was able to drive the vehicle home. There was no significant pain immediately and she continued work on a full-time basis as a receptionist for about three weeks. In early April 2005, some three weeks after the transport accident, she awoke with very severe pain in the neck, and to the right shoulder. She went to the Emergency Department at the Sandringham Hospital, and was transferred to The Alfred Hospital. At the time she was complaining of severe pain in the neck and upper thoracic spine. Around this time she also attended a general practitioner at the Medical One Clinic in Moorabbin. X-rays of the neck and thoracic spine were taken but no fracture shown. She was reviewed in the Neurosurgical Outpatients’ Clinic of The Alfred Hospital on 10 May 2005. She continued to complain of neck pain and weakness of the fingers of the right hand. A CT scan of the cervical spine was said to be normal

11        The plaintiff remained as an outpatient at The Alfred Hospital, and a further MRI scan of 21 June 2005[1] was said to demonstrate a traumatic disc prolapse at the C6-C7 level.

[1]             PCB 50

12        The plaintiff continued to attend at the Medical One Clinic and was prescribed Endone, Solone and Valium. She continued to attend The Alfred Hospital for outpatient treatment over the remainder of 2005. She also undertook osteopathic treatment with Dr Marcel Ghoukassian.[2] The report of The Alfred Hospital[3] said there was evidence of radicular pain consistent with a radicular process in the dermatome of C7. When seen in the neurosurgery outpatient clinic in September 2005,[4] the plaintiff’s symptoms had much improved and at the time only had mild intermittent pain in the right arm. Her neck pain was also said to have improved and she had close to full range of neck movement. The improvement continued in 2006 and The Alfred Hospital report[5] noted that she had made “remarkable gains in her recovery. She had minimal pain in the right upper arm and her neck pain had subsided.” A repeat MRI scan was said to be largely normal. . An MRI of the cervical spine taken on 16 April 2007[6] showed loss of disc height at C5-6 with mild canal stenosis. At C6-7 there was found:

“Loss of disc height and disc desiccation. Anterior annular fissure. Circumferential disc osteophyte complex with central disc extrusion. Facet joint degeneration. Mild to moderate central canal stenosis with near complete effacement of CSF space. Cord is normal signal. No foraminal stenosis.”

[2]             PCB 92

[3]             PCB 51

[4]             PCB 43

[5]             PCB 50

[6]             Plaintiff’s Court Book (“PCB”) 52

However, in 2007, her pain returned and was said to be ongoing without remission. Upon review in May 2007, another MRI scan demonstrated C6-7 central disc extrusion with mild to moderate canal stenosis. The canal stenosis caused indenting of the thecal sac with compression of the cord at C4-5. There was also evidence of median nerve root compression of the carpal tunnel. Upon assessment in July 2007 by the Hospital, it was said the plaintiff was clearly affected by longstanding radicular pain consistent with a radicular process at the dermatome of C7.

13        On 15 August 2007, the plaintiff again attended the outpatient clinic at The Alfred and a nerve root injection was performed at C7. The procedure was said to be uncomplicated.

14        As stated, the plaintiff continued working after the accident. When she suffered the acute period of exacerbation, she stopped work for a period of three weeks. She returned to work in March 2006 on reduced hours and restricted duties. She stopped work again in November 2006 to undergo a hysterectomy. She returned again to Fina Foods in early 2007 but left work after a dispute with the owner. She acknowledges that this was not do with her neck injury.

15        In 2008, Fina Foods was purchased by another company and the plaintiff returned to work, although struggled because of neck and right arm pain. At this time she was taking Nurofen pain-relieving medication each day to help cope with her work duties. She found sitting at the workstation difficult for any prolonged period. She finished work at Fina Foods on 20 February 2009 and shortly thereafter took up work as a part-time cook at Taco Bills restaurant in Frankston, working three nights per week from 6.00 pm to 9.30 pm. She found continuously standing and reaching aggravated her neck and right arm pain, but persisted in the work as she and her husband needed the money. After three months, this work ceased, and despite making various applications, she was unable to secure any administrative or clerical work. She found driving any distance difficult, both because of the pain in her neck and right arm, and because she was anxious as a result of the accident.

16        In order to expand her career opportunities, the plaintiff undertook a Certificate in Aged Care in late 2010. She passed the academic aspect of the course, but was required to undertake 120 hours of physical placement. She did this at an aged care facility at Carrum Downs. She said that the work considerably exacerbated her pain in the neck and right and arm and she required treatment with pain-relieving medication and had to rest at home after each day’s work. The job also required some lifting, and when she finished in November 2010, she said that she was exhausted.

17        In May 2010, she commenced psychological treatment with Ms Tonya Gabriel-Brennagh.[7] She has seen the psychologist on a fortnightly basis and the treatment, involving counselling, continues to date. The plaintiff complains of depression, anxiety and a reaction to the trauma of the transport accident. The psychologist diagnosed clinical depression, Post-Traumatic Stress Disorder, Anxiety, high stress and low coping skills. Her main concern was the ongoing neck pain and the restrictions that placed upon her daily functioning. She has also been prescribed the anti-depressant medication, Pristiq, which she takes on a daily basis.

[7]             PCB 106

18        In terms of her employment, the plaintiff in evidence said that her intention in undertaking the Aged Care Certificate was to qualify for employment as a diversional therapist. Such persons work in aged care facilities and arrange entertainment, social activities and diversions for the patients. She said she had been looking for such work at aged care facilities and believed that she would be capable of carrying out the work. She further stated that she would also be prepared to work as a personal care attendant at an aged care facility providing she was able to work the nightshift which was less demanding physically than the dayshift.

19        She now complains of a range of restrictions in her domestic and recreational activities. She says the pain is constant, although she has good and bad days. There is pain down the right arm which limits her use of that limb, particularly in picking things up. She claims impaired sensation in the fingers. She has muscle spasm in the right arm from time to time and occasional left arm discomfort. She currently takes Nurofen Plus on an ‘as needs’ basis, together with the anti-depressant. She has difficulty with any heavy lifting or forced neck movement. She claims she has little motivation or interest, poor energy and her libido is affected. She says her concentration is poor and she has lowered confidence and self-esteem. She regularly feels stressed and anxious. She claims that her previous enjoyment of art, sewing, cooking, ceramics and a range of domestic activities is significantly restricted.

Medical Evidence

20        The medical reports of The Alfred Hospital[8] trace the plaintiff’s treatment and radiological assessment over the period until 2007. A medical report of the Medical One Moorabbin Clinic sets out the details of the attendance of the plaintiff at that Clinic.[9]

[8]             PCB 43-49

[9]             PCB 77

21        The plaintiff was examined by a number of consultant practitioners. She was examined by Mr David Brownbill, neurosurgeon, in February 2008, and October 2010.[10] She complained to Mr Brownbill of constant neck pain fluctuating in severity depending upon the activities in which she was engaged. She further complained of right arm pain extending through the armpit into the wrist with intermittent pain into the middle and index fingers. Mr Brownbill noted that the radiological investigations showed longstanding advanced cervical spine degenerative changes with disc derangement at C6-7 with prolapse. He concluded that the plaintiff had longstanding essentially asymptomatic cervical spine degeneration which was aggravated by the transport accident by a derangement of the C6-7 disc which was prolapsed some two or three weeks after the event, resulting in neck pain and right arm pain with radiculopathy. He considered that in the future the plaintiff ought to avoid heavy lifting, forced spinal mobility or holding her neck in any fixed position. Further, repetitive or heavy right arm movements should be avoided.

[10]           PCB 113, 120

22        Mr Peter Moran, orthopaedic surgeon, examined the plaintiff in October 2008 and May 2011.[11] Upon examination, he found the plaintiff to be open and frank, there being no evidence of exaggeration. He considered the plaintiff had pre-existing degenerative change, particularly at C5-6 and C6-7 but that such changes were asymptomatic. As a result of the transport accident, he said the plaintiff suffered persistent neck pain and right-sided brachialgia at C7. He described the injury as significant and had left the plaintiff with chronic pain and radicular symptoms into the right arm. He also noted the plaintiff was depressed and had a degree of anxiety. He thought that the pain would continue and that it was unlikely that there would be any significant improvement. He said that it was unlikely the plaintiff would be able to sustain anything other than part-time employment in the aged care area, providing that she could avoid heavy lifting. He noted such jobs were not readily available.

[11]           PCB 126, 162

23        The plaintiff was examined by Dr Nathan Serry, psychiatrist, in September 2009. According to his report, she complained of various psychological symptoms, including a reduction in motivation and interests. She claimed to be forgetful, distracted and with poor appetite. She said her confidence and self-esteem had been eroded and she felt stressed and anxious. He diagnosed her as suffering a Chronic Adjustment Disorder with Anxious and Depressed Mood with some features of traumatisation. He said she had become quite stressed, anxious and depressed as a result of the persistent physical symptoms.

24        In his second report of 24 November 2010,[12] he felt that the plaintiff’s current condition was, by then, be a partially treated Major Depression with anxious features and traumatisation. He further suggested she was suffering a Pain Disorder associated with psychological factors. He noted she was seeing a psychologist and was in receipt of anti-depressant medication which had been of some marginal benefit.

[12]           PCB 138

25        On behalf of the defendant, the plaintiff was examined by Dr David Eaton, consultant occupational physician, in September 2005.[13] At that time she was in full-time employment working eight hours per day, five days per week. Although he did not see the radiological investigations, he noted that the plaintiff had suffered severe neck pain associated with symptoms of a right C7 radiculopathy. He thought that the plaintiff was capable of resuming her full- time employment.

[13]           Defendant’s Court Book (“DCB”) 1

26        The plaintiff was seen by Mr Kenneth Brearley, surgeon, in September 2005. He could find no neurological defect in the right arm upon examination and diagnosed the plaintiff as suffering a soft-tissue injury to her neck with acute prolapse of the lower cervical intervertebral disc at C6-C7. While he said it was unusual that the plaintiff had suffered virtually no symptoms for several weeks after the accident, he said it was possible that she had suffered an intradisc injury but that the symptoms came on only when the disc material came into contact with the right C7 nerve root, causing pain down the arm. He said her symptoms were genuine and organic. He opined that she would make a full recovery from the incident although said at the time she was not fit to return to her pre-accident employment but able to work reduced hours.

27        The plaintiff was examined by Mr Geoffrey Klug, neurosurgeon, in March 2010 and May 2011. He diagnosed the plaintiff as suffering a soft-tissue injury to her cervical spine as a result of the transport accident although the symptoms had not come on immediately. On examination, he noted restricted movement of the neck attributable to pain, although he was not convinced that there was any impairment of motor function in the right arm. He said she had suffered an aggravation of the underlying degenerative disorder of her cervical spine resulting in pain in the neck and the right arm.

28        In his most recent report, the symptoms described to him included constant pain in the neck with intermittent flare-ups. The pain radiated into the back of her head and the forehead region. There was pain in the right arm as far as the elbow and occasionally extending into the right hand and fingers. He noted the MRI scan revealed multi-level degenerative changes maximal at C6-7 with evidence of a small right foraminal disc extrusion and foraminal narrowing. He could see no reason to doubt the plaintiff suffered ongoing pain in her neck and to some extent her right arm. He thought the symptoms would persist and it was unlikely she would gain any benefit from surgery. He said there were restrictions in the type of employment she could undertake. He said there was no reason to doubt her ongoing symptoms were of some significance and would affect her in undertaking domestic and recreational activities. He thought the psychological features were probably playing some role.

29        The plaintiff was examined by Dr Richard Ball, consultant psychiatrist, in May 2011.[14] He obtained a history similar to the other doctors. He noted she was being treated by a psychologist and taking anti-depressant medication. He concluded she was suffering an anxiety disorder related to the accident and a secondary Adjustment Disorder with Depression consequential upon physical injuries. He thought the psychiatric injuries limited the plaintiff’s level of social, marital and domestic activities and that this was likely to continue indefinitely.

[14]           DCB 33

30        On 17 May 2011, the plaintiff was examined by Dr Chris Baker, occupational physician.[15] The plaintiff complained to him of pain in her neck every day. He noted that she gave a good account of herself without any emotional response or exaggeration. He thought the source of the pain was pre-existing degenerative changes in the lower cervical spine which had been asymptomatic before the transport accident. He accepted she suffered referred pain into the right arm along the distribution of the C7 nerve root. He thought her pre-existing duties as a receptionist were within her physical capabilities, commencing on a part-time basis. He said she could not undertake strenuous work or work which required repeated heavy lifting or straining of the right arm or using the right arm above shoulder level. He noted she had difficulty with vacuuming and mopping. He considered the plaintiff presented in an honest and straightforward manner without exaggeration or elaboration.

[15]           DCB 45

31        Finally, the plaintiff was examined by Mr Peter Gard, orthopaedic surgeon, in June 2011.[16] She complained to him of constant low neck symptoms varying according to the activities in which she was involved. She said there was sensitivity of the skin along the right elbow and that her right arm was weakened with diminished sensation. He noted the MRI of June 2005 showed longstanding degenerative changes and some disc extrusion with mild to moderate canal stenosis at C7. He concluded that the plaintiff was suffering spondylosis of the cervical spine which was previously asymptomatic. He noted there had been improvement but that it was not complete and that she had persisting cervical and right arm pain. He did not consider her injuries as a major hindrance to her work and that she could perform receptionist duties quite well. He noted she was enthusiastic to undertake work to care for elderly people as long as she was not required to sit for lengthy periods or undertake heavy lifting.

[16]           DCB 51

Conclusions from the Medical Evidence

32        Although it is somewhat unusual that the onset of the plaintiff’s pain came three weeks or so after the accident, none of the medical practitioners doubt that the pain which she suffered at that time, through to the present, is attributable to the transport accident.

33        Further, most if not all of the practitioners accept the plaintiff had significant underlying degenerative disease at C5-6 and particularly at C6-7 but that it was asymptomatic up until the time of the transport accident. In some reports, particularly those of The Alfred Hospital,[17] it was said that the MRI scan of June 2005 demonstrated a “traumatic disc prolapse at C6-7 resulting in right- sided radiculopathy as a result of canal stenosis”. Other practitioners, such as Mr Klug, could not find specific evidence of neurological signs into the right arm. However, all of the doctors accept the plaintiff as genuine, without exaggeration and straightforward, and none cast doubt upon her complaints of ongoing neck pain and referred pain into the right arm. Most accept that she has the capacity for employment on a restricted basis, providing that she is not required to undertake heavy lifting, nor work which would require any strain upon her neck, or which would require her to remain seated with her neck in the same position for lengthy periods.

[17]           PCB 50

The Plaintiff’s Credibility

34        A significant portion of the cross-examination of the plaintiff was taken with an investigation as to her activities in an online internet business known as “Faux Runway”.

35        In her supporting affidavits, the plaintiff said that her domestic and recreational activities which she enjoyed before the transport accident were significantly reduced. She said she was, in particular, unable to paint and sew as she had done before, and her interest in ceramics stopped. To Mr Brownbill[18] she said that she had not returned to her hobbies, “I have no interest”. To Dr Serry she described a range of psychological symptoms and said that she had lost motivation and interest and found it difficult to enjoy herself. To none of the psychiatrists, nor to her treating psychologist is there any reference to a history of involvement in this business.

[18]           PCB 120

36        In cross-examination, the plaintiff admitted that she had painted a number of paintings which she sold subsequently on the internet. In addition, through the internet business, she regularly bought and sold a range of items, including “Tonner” dolls, a range of charms and trinkets and some clothing for the dolls. A range of extracts from the internet site were tendered into evidence[19] depicting photographs of the charms, dolls and paintings. Further, there were various “feedback profile” extracts in which the plaintiff was complimented by various buyers of her items for the fast and efficient service she was able to provide. She admitted that over the last twelve months she may have bought and sold a thousand items.[20] At the present time she said she may have for sale three dolls and possibly a dozen charms.[21] She admitted that for a short period each day she would go onto the internet to place orders or sell them or to inspect her items on eBay.

[19]           Exhibits 1-11

[20]           Transcript (“T”) 54

[21]           T 55

37        In submissions, Mr Brookes said I ought to have very significant reservations about the plaintiff given the nature and extent of her internet activities. He submitted it was significant that there had been no disclosure of what he described as an extensive business to any of the medical practitioners, particularly her treating psychologist and psychiatrists. Further, there was no mention in her affidavits of the business. To the contrary, she said that her domestic, recreational and social activities were significantly restricted.

38        I do accept the submission of Mr Brookes that it would be reasonable to expect the plaintiff to have disclosed to the doctors, particularly the psychological doctors, her involvement in these internet activities. I would further have expected her to have made a more full and frank disclosure in her supporting affidavits. Thus, I should exercise care in determining whether to accept the nature and extent of the plaintiff’s complaints of pain and restriction in her neck and right arm. However, having considered all of the written materials, and seen the plaintiff in evidence, I do not accept that her credibility is very significantly affected by reason of this failure to disclose. I say that for the following reasons.

39        Firstly, the plaintiff has been accepted by nearly all of the medical practitioners as an honest and forthright person, not exaggerating nor making the most of her injuries.

40        Secondly, I had the opportunity to assess the plaintiff in the course of a lengthy and probing cross-examination. She struck me as an honest person giving a fair account of her situation. She made the concessions I would expect of an honest witness and I found no evidence of exaggeration.

41        Thirdly, while it is true that upon a cursory examination her involvement in the internet business is extensive, careful examination suggests that that is not so. The amount of time she spends on the internet each day ranges from five minutes to half-an-hour. While the business does buy and sell a range of dolls and trinkets, the amount of money involved is small and the profit likewise.

42        Fourthly, I am impressed with the plaintiff’s attempts to obtain employment. Notwithstanding what I accept is significant pain in her neck and right shoulder. She has persisted in various jobs, and, most impressively, has undertaken further training as a patient care assistant for elderly people in nursing homes. She admitted frankly that she thought she had the capacity to work as a diversional therapist, providing the work was not too heavy nor demanding. She even accepted that she could work as a carer providing she worked on the nightshift. In my view, this enhances her credibility.

Conclusions

43        Even accepting I should take care in assessing the plaintiff’s credibility for the reasons set forth above, nonetheless, I do accept that as a result of the transport accident, she suffered a significant injury to her cervical spine. That was in the nature of an aggravation of the underlying degenerative disease, particularly at C6-7. The radiological investigations, particularly the CT scan of May 2005 and the MRI scan of June 2005 show extensive degeneration, including disc desiccation and canal stenosis. There is a solid radiological foundation to support the plaintiff’s complaints of pain.

44        I accept at the present time that she suffers constant neck pain which varies in intensity and requires pain-relieving medication, Nurofen Plus, from time to time. I further accept that she suffers referred pain to her right arm which is related to the neck injury. As a result of the ongoing pain, she has developed a depressive condition which requires anti-depressant medication and psychological treatment. As permitted by the principles established in Richards v Wylie,[22] I may take into account the psychological consequences as a measure of the extent of the physical injury.

[22] (2001) 1 VR 79

45        I accept that the plaintiff does have a capacity for full-time employment in restricted duties. By her own evidence she admits that she could undertake full-time work as a diversional therapist or possibly as a patient care attendant, providing she was able to avoid the heavier and more strenuous aspects of that employment. Nonetheless, I accept the opinion of most of the medical practitioners who say that there are restrictions in the type of work that she could undertake.

46        I accept the opinion of the doctors that the pain in her neck particularly is likely to be ongoing and that there is no prospect of its resolution in the immediate future. I accept the plaintiff has suffered pecuniary loss, in that the range of occupations open to her is restricted by her physical capacity to undertake heavier employment.

47        For all of these reasons, I am satisfied the plaintiff achieves the “very considerable” level in respect of the consequences of the injury suffered in the transport accident. I shall make orders granting leave to the plaintiff to issue common law proceedings and consequent orders as to costs.

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