Walls v TAC

[2011] VCC 1345

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-05896

EDWARD WALLS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	8 & 9 September 2011
DATE OF JUDGMENT:	29 September 2011
CASE MAY BE CITED AS:	Walls v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 1345

REASONS FOR JUDGMENT

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Catchwords: Transport Accident Act 1986 – s.93(4)(d) – application for leave to bring proceedings for damages – retired man of 72 years who sustained a “whiplash” type injury in motor vehicle accident – pre-existing degenerative disease of the cervical spine – whether burden of proof discharged and required test satisfied – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with	Stringer Clark
Mr I Fehring
For the Defendant	Mr P Scanlon QC with	Lander & Rogers
Mr P Jens
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.93(4)(d) of the Transport Accident Act 1986, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of injuries suffered in a transport accident which occurred on 5 February 2004 (“the accident”). In the accident, the plaintiff was the driver of a vehicle which was stationary at the intersection of Springvale Road and Ferntree Gully Road when it was struck from behind by another vehicle. These facts are not in dispute.

2          The plaintiff suffered various injuries, but the injury upon which reliance is placed in the present application is to the cervical spine. Reliance is placed upon sub-paragraph (a) of the definition contained in s.93(17) of the Act.

3          Mr N Bird of counsel, with Mr I Fehring of counsel, appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent.

4          The “very considerable” test of injury as set out in Humphries v Poljak [1992] 2 VR 129 is applicable. I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out therein in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.

Factual background

5          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

6          The plaintiff is a married man aged seventy-two years, he having been born on 3 September 1939. I found him to be a most impressive, frank and straightforward witness. I am not alone in that view. I note that Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff at the request of his solicitors on 15 October 2010, described him as being “alert and cooperative, without embellishment, appearing straight forward in his presentation”. Similarly, Mr Kenneth Brearley, surgeon, also examining at the request of the plaintiff’s solicitors, described him as being pleasant and straightforward, giving his history in a direct manner. Mr Stanley Schofield, orthopaedic surgeon, who was similarly examining, described him as a pleasant and honest witness.

7          Indeed, in his closing address, Mr Scanlon described the plaintiff as presenting “as what could only be described as a pretty good bloke”. Of course, as he pointed out, a plaintiff should not be successful solely on the basis that he is “a good bloke”. However, in arriving at a conclusion as to whether the relevant test has been satisfied, it is of undoubted assistance that a plaintiff be completely frank, straightforward and reliable, so that issues of credit do not require consideration.

8          It was not put that the occurrence of the accident has had any adverse impact upon the plaintiff’s earning capacity. Indeed, he had retired from work prior to it happening. Accordingly, no lengthy discussion of the plaintiff’s employment history and capacity is required. Suffice to say that I accept that he had been a hard working man who was employed in heavy occupations before becoming a butcher in 1969 and so worked until his retirement in 2002.

(ii) The state of the plaintiff’s health prior to injury

9          In cross-examination, some attention was focussed on this issue. The plaintiff had been on a disability pension prior to the accident, this being for depression. His retirement was due to fatigue and he became somewhat depressed thereafter. For a period he was placed on antidepressant medication. Effectively, he retired because he had simply “had enough” and could not “stand working seven days a week at my age”. The plaintiff stated that he only took the antidepressant medication for a short time because of side effects, and he was then advised by his medical practitioner not to take the medication any longer. He also had some sleep problems prior to the accident, but “not as much”.

10        The plaintiff could not recall any x-ray taken of his neck prior to the accident, but could remember having an x-ray of his “gullet” and also having a colonoscopy. He could not recall any prior problem with his neck or x-ray thereof. Prior to the accident he also had some low back pain, with sciatica, from time to time and some gout. He took medication for the gout and also a simple analgesic preparation such as Panadol.

11        I am satisfied that, prior to the accident, the plaintiff had not suffered from neck problems of any note and that, whilst he may have been depressed and on antidepressant medication for a period which he estimates to have been of six months, he had no health issues or problems which were having any significant impact upon his enjoyment of life and his activities.

(iii) The injury sustained in the accident

12        The injury sustained by the plaintiff has been described by his treating general practitioner, Dr Castle, as a severe whiplash injury. An x-ray arranged by Dr Castle and performed on 19 March 2004 revealed slight disc space narrowing at C5/6 and moderate osteoarthritis involving the posterior facet joints at C2/3, together with osteophytic narrowing from the facet joints on the left at C2/3. A subsequent x-ray performed on 29 September 2005 revealed mild multi-focal spondylosis. A CT scan of 6 May 2010 showed no disc protrusion or abnormality. However, an MRI scan organised by Mr Schofield and performed on 24 August 2011 showed multi-level disc degeneration with marginal spur and facet joint change resulting in multi-level minor bony foraminal stenosis but with no focal disc protrusion or cord compression. An x-ray also organised by Mr Schofield and performed on 25 August 2011 revealed a minor loss of disc height at C5/6 and small osteophytes at the lower cervical spine, not productive of significant encroachment. There was also minor mid to lower cervical neurocentral and facet joint degeneration demonstrated.

13        Returning to the history of the plaintiff’s treatment, in September 2005, Dr Castle performed a manipulation of the neck under general anaesthetic, finding a lot of adhesions which were broken down by manipulation which gave some relief. The plaintiff’s neck was then considerably improved for a period, although, in his report of 21 January 2010, Dr Castle noted that the plaintiff’s neck was again sore and that he had headaches and pain in the shoulders. In a subsequent report, Dr Castle referred to the plaintiff as being “a bit depressed because of his continuing headache”. Dr Castle continued to diagnose a ligamentous whiplash injury.

14        The plaintiff has been examined for medico-legal purposes. On 11 August 2010, the plaintiff was assessed by Mr David Brownbill, consultant neurosurgeon. His diagnosis was as follows:

“…I consider that on probability this man suffered soft tissue injuries to structures about the neck in the described rear end collision with likely aggravation of pre existing, asymptomatic cervical spine degenerative changes.

With continuing and increasing pain since the time of the accident, I consider the aggravation by the rear end collision has continued. … I consider that pain will continue in a fluctuating manner indefinitely.”

15        On 10 December 2010, the plaintiff was assessed by Mr Kenneth Brearley, surgeon. His diagnosis was of chronic neck pain resulting from aggravation of pre-existing degenerative changes in the cervical spine and particularly at the C5/6 level. Mr Brearley also commented that, prior to the accident, the degenerative changes in the neck were quite asymptomatic, but that since the accident the neck pain had been virtually constant and with varying severity. Mr Brearley considered it likely that the symptoms would persist for the long term with no likelihood of any further improvement.

16        Mr Stanley Schofield, orthopaedic surgeon, examined the plaintiff on 29 July 2011. Mr Schofield diagnosed significant aggravation of pre-existing but non- symptomatic degenerative changes affecting the lower three cervical discs, but in particular the disc at C5/6. As stated, Mr Schofield organised the radiology which has been referred to above. Following such investigations, he again reported on 31 August 2011. His conclusions were then as follows:

“On the available evidence, this patient has had significant clinical restriction due to aggravation of pre-existing, multi-level degenerative change in the cervical spine. In the absence of any pathology in the right shoulder noted on clinical or radiological estimation, it is my view that his symptoms in the neck and the shoulder are caused by the aggravation irritating the existing nerves in the vicinity of C5/6, particularly on the right. (Check accuracy of this quote)

As a result of that injury, your client will have a permanent restriction in activity.”

17        The only medical report obtained on behalf of the defendant is dated 5 September 2011 and is from Mr Michael Dooley, orthopaedic surgeon. Mr Dooley did not examine the plaintiff. He commented upon the radiology reports and an observation by Mr Schofield that, had the MRI of 24 August 2011 been performed with the plaintiff in the erect position rather than a non- weight bearing position, the changes revealed would be seen to be greater because the spine was under such a load. Mr Dooley disagreed with this proposition. Apart from what is contained in his report, I accept that, in a telephone conversation, he advised the defendant’s solicitor that Mr Schofield, in expressing the opinions that he did in this regard, was using “a theoretical topic to manipulate common sense”.

18        In a technical dispute such as this between expert orthopaedic surgeons, neither of whom gave oral evidence, it is difficult, if not virtually impossible, to arrive at a conclusion as to which opinion is probably correct, or more likely to be correct. Of course, the plaintiff bears the overall burden of proof. However, whilst the defendant placed considerable emphasis upon this aspect of the matter, I fail to share that enthusiasm. Whether the school of thought represented by Mr Schofield was correct, or the view presented by Mr Dooley is more accurate, does not seem to me to be determinative of this application. Whilst Mr Dooley did not see the plaintiff, having viewed the radiology, his opinion was that, at the time of the motor vehicle accident, there was established degenerative disease involving the C5/6 level and probably the C2/3 and C3/4 levels. His overall conclusion, leaving to one side the dispute referred to above, was as follows:

“Based on all of the information available to me, I believe that in the motor vehicle accident Mr Walls sustained a soft tissue injury to the cervical spine that involved musculoligamentous damage and probably some aggravation of pre-existing degenerative disc disease at the C5/6 level.”

19        However, he did not believe that the pain described by the plaintiff was related to nerve root compression.

20        Leaving to one side the technical dispute, the opinion of Mr Dooley does not stand in marked contrast to that of Mr Brownbill. Indeed, with the exception of the possibility of further damage to the intervertebral disc at C5/6, Mr Dooley’s opinion is not dramatically different from that of Mr Brearley or Mr Schofield. The bottom line, which I accept, is that the plaintiff, whilst probably having pre- existing degenerative changes in his cervical spine, was asymptomatic prior to the occurrence of the accident and has been symptomatic thereafter. In other words, the occurrence of the accident has resulted in impairment or loss of a body function, with the resultant restrictions and consequences, from which the plaintiff suffers.

21        I accept that, as diagnosed by Mr Brownbill, the plaintiff suffered soft tissue injuries to structures about the neck with likely aggravation of pre-existing, asymptomatic cervical spine degenerative changes. This diagnosis seems to me to make sense and to embrace the diagnoses of the other experts who have reported. Further, whether or not the injury is in the nature of an aggravation, in accordance with the authorities it is the impairment and consequences resulting from the aggravating incident which can be taken into account. In RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51, Chernov JA, at paragraph 40, stated as follows:

“In determining whether an injury which is an aggravation of a pre- existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the incident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”

22        When that comparison is made in the present case, the result is a plaintiff who was free of symptoms before the incident in question and who suffers impairment, restrictions and consequences following it. It seems to me that the degree of additional impairment brought about by the relevant incident can thus be determined. Whether that impairment is long-term within the meaning of the Act and whether it is sufficient to meet the requirements of the relevant test are further issues to be determined.

23        In my opinion the impairment or loss of a body function is long-term. The consequences of the impairment have already been endured by the plaintiff for a period in excess of seven and a half years. Mr Brownbill has expressed the view that the plaintiff’s pain will continue in a fluctuating manner indefinitely and was prepared to make an assessment pursuant to the AMA Guides, a prerequisite of which is permanence. Mr Brearley has expressed the view that the plaintiff’s symptoms will persist for the long-term with no likelihood of any further improvement. Mr Schofield has expressed the opinion that the plaintiff will have a permanent restriction in activity. I accept these views concerning which there is, in essence, no opinion to the contrary. I am satisfied that the plaintiff’s impairment and its consequences are long- term within the meaning of the Act.

24        The remaining question is whether that impairment and its consequences are sufficient to satisfy the relevant test.

Ruling
25	The test set out in Humphries v Poljak (supra) is as follows:

“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 consequences, 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’?”

26        If the answer to that is in the affirmative, the plaintiff has discharged the burden of proof and the injury is “serious” within the meaning of s.93(17)(a).

27        In my opinion, the plaintiff has discharged the burden of proof. I have come to that conclusion for the following reasons which are not listed in order of importance or significance.

(a)

The plaintiff has sworn that he suffers from ongoing constant neck pain, worse with activity – see paragraph 5 of his affidavit of 10 July 2010. He has confirmed that this is a continuing state of affairs in his affidavit of 4 August 2011, referring to a constant burning pain travelling from his neck along to his right shoulder and down the arm. The importance of constant pain as a factor has been referred to in a number of decisions of the Court of Appeal including Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592.

(b)

Since the accident, the plaintiff has had trouble sleeping as a result of ongoing neck pain. Indeed, in paragraph 9 of his affidavit of 4 August 2011, he has sworn that:

“I still have not had a good night’s sleep since the accident. Every night at some stage or another I wake up with neck pain.”

He has also sworn that he has tried several pillows since the accident but has not been able to find one upon which he can sleep comfortably. As previously stated, I have no hesitation in accepting the plaintiff’s evidence in relation to matters such as this. True it is, that the plaintiff had some sleep problems when he was giving up work and suffering from fatigue, but he also stated that, in this regard, “I was all right at the end (which I interpret as meaning by the time he ceased employment) …I was only under the tablets and that for about six months or so.” When further cross-examined concerning this issue, he agreed that he had some sleep problems before the accident but “not as much” – see Transcript 17. In re-examination, he also described the difficulty that he now has sleeping, referring to tossing, turning and finding that the blankets are on the floor every morning – see Transcript 35. I accept that the plaintiff has major sleeping problems because of neck pain and that these are related to the relevant accident. As was stated by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 45, it is a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. That is to be regarded as constituting a very considerable diminution in the plaintiff’s enjoyment of life before considering the effect of sleep deprivation upon the ability to enjoy daily activities.

(c)

The fact that the plaintiff is in constant pain, taking Panadol or other “over the counter” medication during the day, is something that has been sworn to by his wife in her affidavit of 4 August 2011. I might add, that in addition to taking Panadol, by way of treatment the plaintiff has also recently began engaging in Bowen Therapy. His wife has also sworn to the fact that his “sleep pattern is shocking”; that he murmurs in pain during the night; and that most nights he wakes and walks around the house. Mrs Walls was not required for cross-examination on her affidavit and the matters to which she has sworn remain unchallenged.

(d)

I accept that the plaintiff was looking forward to his retirement after many years of hard work and that the impairment suffered in the accident has had a very substantial adverse impact in this regard. As he stated in his affidavit of 4 August 2011, he had looked forward to enjoying an extremely active retirement. His time is now largely reduced to such things as watching television and leading a very inactive life. He and his wife have a caravan but now do very little travelling. Mrs Walls has sworn that travelling is very difficult, going on to state that:

“We have to stop often. If ever we pull the caravan, which is extremely rare, Ed has real difficulty turning around to reverse properly.”

She has also sworn that the couple had planned on doing such things as going to Queensland for six months of the year once the plaintiff had retired. Friends of theirs who have recently gone to Queensland wanted the plaintiff and his wife to go with them, but they were forced to tell these people that there was no way that the plaintiff could make such a trip. The affidavit of Mrs Walls concludes as follows:

“I think the main consequence of this accident on Ed’s life is the fact that after years of hard work he was really looking forward to a fulfilling and active retirement. There is no way I would describe that retirement that way today.”

(e) A friend of the plaintiff, namely Mr George Nalder, has sworn an affidavit dated 29 August 2011, which also recounts the difficulties which the plaintiff has driving and the fact that now they generally do not go on holidays together, something which used to be done before the accident. Mr Nalder has also referred to the pain experienced by the plaintiff when he has to remain in the one position for any length of time. Mr Nalder was not cross-examined concerning his affidavit. It concludes:

“I believe that Edward’s injury has affected him significantly. I feel that he is restricted from enjoying his once active and hardworking lifestyle and that this upsets him greatly.”

In summary, I am satisfied that the plaintiff’s constant neck pain and restrictions have greatly affected his enjoyment of life and particularly prevented him from enjoying the retirement activities and excursions which he and his wife had planned.

(f)	One of the plaintiff’s sons is a truck driver and the plaintiff obtained real enjoyment out of going on interstate trips with him. I gather this was after the plaintiff ceased work but before the accident. He considered this to be very important, particularly as his son had been going through a divorce and the plaintiff kept him company. I might add that the plaintiff became noticeably emotional when discussing this aspect of his activities. His pain level is such that he cannot now do this. When he attempted it, the bouncing and jolting in the truck caused pain that was “shocking”. Whilst this may seem to be a comparatively small thing, to the plaintiff it was “very important”. I accept that it is something which he is now unable to do. I accept that it meant a lot to him. In addition, his son, with the family, had twenty acres of land on the outskirts of Stawell. The plaintiff enjoyed going out and working in the bush, engaging in such things as woodcutting, motorbike riding and the like. He also enjoyed four wheel driving in the bush. Effectively, he is now unable to do any of these things. He goes to the farm very infrequently. He finds four wheel driving very difficult. He also has difficulty in performing work at home in his shed, because he cannot stand and lean over a bench. His enjoyment of life with his grandchildren has also been affected adversely.
(g)	In relation to driving generally, the plaintiff gave evidence that the drive from Stawell to Warrnambool for the purposes of the hearing was sufficient to cause a flare up of symptoms. He stated that it would take him approximately three days to get over the return trip. He was already feeling a burning sensation through the shoulders, down the arms and into the shoulder blade.
(h)	Whilst the comparative youth of a plaintiff is a factor that may operate in favour of a successful application (see, for example, Maxwell P in McKinnon at paragraph 17), it seems to me that there are circumstances where a plaintiff of considerably more years is not disadvantaged by reason of that and indeed such a factor may even be called upon in support of an application. In the present case, the plaintiff is aged seventy-two years. However, he has already endured the pain and restrictions described for a period in excess of seven and a half years. There is no reason to believe that he will not continue to suffer the symptoms and restrictions for several more years. Furthermore, that his retirement plans have been shattered and that he is now enduring a painful retirement and one of limited activity seem to me to be matters which support his contention that the relevant test has been satisfied. In other words, I am not of the view that his seventy- two years count against him. When the date of the accident is recalled, and the prognosis considered, it seems to me that his impairment is clearly long-term and that the pain and suffering, with the resultant restrictions, have destroyed his plans and expectations for his retirement.

28        In summary, I am of the view the plaintiff has discharged the burden of proof. The consequences of his impairment or loss of a body function satisfy the test set out in Humphries v Poljak.

29        Leave is given to him to bring proceedings for the recovery of damages. I shall hear the parties as to any ancillary orders that are required.