Ward v Transport Accident Commission
[2021] VCC 853
•30 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02283
| JANE WARD | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2021 (via Zoom Technology) | |
DATE OF JUDGMENT: | 30 June 2021 | |
CASE MAY BE CITED AS: | Ward v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 853 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment of the spine – objective evidence of treatment
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries v Poljak (1992) VR 129; Petkovski v Galletti [1994] 1 VR 436; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Wheelahan QC with Ms J Cowen | Henry Carus & Associates |
| For the Defendant | Mr W R Middleton QC with Ms J Clark | Solicitor for the Transport Accident Commission |
HIS HONOUR:
Introduction
1In this proceeding, the plaintiff, Mrs Jane Ward, claims to have suffered a “serious injury” within the definition contained in s93(17)(a) of the Transport Accident Act 1986 (“the Act”), being a serious long-term impairment or loss of a body function, namely injury to the spine.
2The legal principles are well-known and are not in dispute. The issues to be determined in this application are firstly the nature and extent of any injury suffered by the plaintiff, and secondly whether she has ongoing impairment from such injury productive of consequences that are “very considerable”[1] in respect to pain and suffering and/or pecuniary disadvantage, or by combination of both.
[1] Humphries v Poljak (1992) VR 129
3In broad, the defendant disputes that the plaintiff has suffered a “serious injury”, because either the plaintiff has failed to discharge her evidentiary burden to prove that whatever impairment consequences she now has are in fact related to the relevant transport accident (the “causation” issue) or, alternatively, even if she suffers ongoing impairment consequences from the relevant transport accident, such impairment consequences are not “very considerable” (the “range” issue).
Background and chronology
4To understand how the issues in this application arise, it is necessary to set out in brief chronological form some relevant background material.
5Before doing so, I note that this proceeding proceeded in the “usual way”, namely that the plaintiff tendered affidavits sworn by her, together with an affidavit from her husband, and otherwise tendered relevant medical reports and documents from her court book. In addition, her counsel provided written submissions which were accepted as an exhibit in circumstances where oral submissions were made on the basis that the written submissions were taken into account. The defendant tendered medical reports and clinical records. The plaintiff was the only witness required for cross-examination. I have taken all of the tendered evidence into account, together with the transcript of the plaintiff’s oral evidence, but I shall only refer to the evidence to the extent necessary for these reasons.
6The plaintiff is a now fifty-one-year-old married woman. She has spent her working life predominantly within the adolescent criminal justice system and in particular working in drug and alcohol assessments and counselling. She holds a Bachelor’s Degree in Criminal Justice Administration, together with Graduate Diplomas in Addiction Studies and Family Therapy.
7The plaintiff’s general health is good, although she was diagnosed with a scoliosis as a young child. There is not a great deal of evidence about that condition, although more recent radiology reveals a scoliosis of both the thoracic and lumbar spines. In her affidavit sworn 22 September 2020,[2] the plaintiff says that the scoliosis required chiropractic treatment on occasion, but did not prevent her from being able to work or engage in her activities of daily living.
[2]Plaintiff’s Court Book (“PCB”) 10
8By October 2000, the plaintiff was working for the Adolescent Forensic Health Service run through the Royal Children’s Hospital. She was then thirty years of age. She was driving her car in the course of her employment on 26 October 2000, when she was involved in an accident in Braybrook at approximately 3.00pm. The accident occurred when her vehicle was stationary at traffic lights and she was struck from behind by a van, pushing her vehicle into the vehicle in front of her (“the accident”).
9Following the accident, the plaintiff was able to drive her car to the workplace. In her first affidavit she describes that she was “violently thrown forward in the transport accident” and experienced significant pain in her neck, shoulders and spine.[3] Her husband attended at her workplace and she was taken to the Royal Melbourne Hospital Emergency Department, but was unable to be seen there, so instead later that day attended a general practitioner, Dr Linden Hope, at the Waverley Medical Clinic.
[3]PCB 11 at paragraph [8]
10Pausing here, there is no argument that the accident occurred. There is no argument that the plaintiff attended Dr Hope on the day of the accident with symptoms in her spine. What is disputed, by reference to relevant clinical records, is whether the plaintiff suffered injury to her neck, and in addition whether any accident related injury continues to be a cause of impairment consequences to her.
11I deal with the medical evidence in more detail later in these reasons, but for the purposes of the brief chronology, following the accident, there is a documented period of attendances at general practitioners and for physiotherapy through until early 2001, but the objective evidence of such treatment is limited. In her written Outline of Submission, the plaintiff said:
“Over the next 15 years, the plaintiff continued to experience ongoing pain in her neck, thoracic spine and lumbar spine, but the symptoms were at a level that still enabled her to perform her work, recreational and household duties. She occasionally sought physiotherapy when her symptoms flared, but was able to manage without further formal treatment. In 2016, the plaintiff began seeing physiotherapists at the In Stride clinic, after an exacerbation of her condition. She reported that she had woken one morning with increased back pain, and then three days later had developed increased neck pain.”[4]
[4]Exhibit P2
12Since the increase in symptoms from approximately mid-2016, the plaintiff has had ongoing symptoms such as to require a referral to a neurosurgeon, the prescription of medication such as Lyrica and a C5 nerve root injection. The plaintiff says that her current treatment regime, together with interference for day-to-day and social recreational activities, as well as some limitation on the type of employment that she can now undertake, are such so as to produce a “very considerable” consequence.
Causation
13The first and foremost issue in this proceeding is the “causation issue”. It arises, in part, because there is no objective evidence of treatment for an approximately fifteen-year period – other than the plaintiff’s own evidence of symptoms and treatment in that period – and disagreement in the medico-legal opinions about whether her current symptoms, which increased from approximately July 2016, are causally related to the transport accident. To resolve that issue, it is necessary to analyse the plaintiff’s evidence and the medical evidence.
The Plaintiff’s evidence of symptoms and treatment
14In her first affidavit, the plaintiff said:
“I was initially taken by work colleagues to the Royal Melbourne Hospital which did not have the capacity to immediately attend to my injuries. I then attended Glen Wavery Medical Centre.
Thereafter I underwent various conservative treatments including physiotherapy and management through analgesics. I struggled to cope for many years whilst my condition deteriorated.
I began to experience numbness in my right arm during 2017 and I underwent various investigations during 2018 including a thoracic/lumbar spine x-ray on 5 March 2018 and a CT scan of my cervical spine on 16 April 2018.
The pain that I experienced in my neck and right arm continued to increase. I was eventually referred to a specialist and was examined by Dr Aliashkevich, Neurosurgeon during August 2019 who told me that I had sustained injuries to my cervical spine.
On 23 July 2020 I attended Professor Richard Bittar for the purposes of a Medico-Legal assessment. Professor Bittar suggested among other things, that I undergo a nerve conduction test, which is booked for 25 September 2020.”[5]
[5]PCB 11
15In a further affidavit, sworn by her on 14 December 2020,[6] the plaintiff said:
“I believe that, following the accident, I was mainly focussed on trying to recover from my injuries and to cope with my ongoing work. I believe that WorkCover paid for my physiotherapy treatment for a couple of years, but that I then paid for further physiotherapy treatment for a number of years after that, not being aware that I could at least have asked for funding and possibly further investigations.
I refer to and repeat paragraphs 11-12 of my previous affidavit. I was very worried about my worsening symptoms and what treatment might be required. I believe that Dr Read at Moonee Ponds Medical Centre first raised the issue of me pursuing any further treatment under my original accident claim when he organised my CT scan in April 2018.”[7]
[6]PCB 14
[7]PCB 15
16The plaintiff provided some further detail regarding this issue during her oral evidence. She was taken to the available clinical records from general practitioners and physiotherapy clinics that she has attended – which I will discuss in more detail in due course – and accepted that those records would be accurate. In particular, she was taken to physiotherapy records from Mr Vincent Chan and accepted that her last visit to him may have been 9 March 2021.[8] Next, it was put to her that she did not attend for physiotherapy again until she attended the In Stride Clinic from 27 July 2016. In response, the plaintiff said “No, there was treatment and we’ve been unable to locate the physiotherapist.”[9] She said, further, that she had attended that physiotherapist (later identified as Mr Paul Lew) for:
“… approximately two or three years and when I say that, on and off. I would go for, like, three months and then I wouldn't go for a couple of months and then I would go again. So it was on and off for that period.”[10]
[8]Transcript (“T”) 15, Lines (“L”) 31
[9]T23, L26-27
[10]T24, L1-4
17The plaintiff was asked questions about undergoing radiological investigation. In the course of answering those questions, she said that “when I was going to the chiropractor, so that was about 2005, 2006, I had x-rays and they would have been at Ascot Vale at the medical imaging there.”[11] And that “The chiropractor's name was Natasha, she was in Union Road, and I went to her for one or two years on and off and then she moved. So that was probably maybe 2007, 2008”.[12]
[11]T40, L7-10
[12]T40, L14-17
18In re-examination, the plaintiff was taken to a medical certificate dated 26 October 2001[13] and confirmed that was a certificate from Mr Lew, physiotherapist. She said that Mr Lew was the physiotherapist “after I finished seeing Vincent in Glen Waverley, because I moved over to the other side, moved to Ascot Vale, and then I started seeing Paul and he was in Moonee Ponds”.[14] And that:
“I went to – I saw him for, like, four years on and off, and when saying that I would go for three months and then I wouldn’t see him and then I’d go for six months. So I saw him on and off”.[15]
[13]PCB 108
[14]T51, L5-8
[15]T51, L9-13
19Further, she said that she finished seeing Mr Lew:
“… about 2006 because I remember I hadn’t seen him for a few months and then I tried to get back in to see him and they said he’d gone to be the physio at the Essendon Football Club and so he had minimal private patients”.[16]
[16]T51, L14-18
20That is the extent of the plaintiff’s evidence of treatment between approximately 2001 and July 2016. Accepting her evidence provides support for the proposition that she had ongoing physiotherapy with Mr Lew until approximately 2006, although she does not explicitly say what condition he was treating. There is the vague reference in her oral evidence of some chiropractic treatment/attendance in 2005 and 2006, but no clear evidence from the plaintiff as to why she attended the chiropractor or what treatment was provided.
Clinical records
21Turning next to the evidence from in clinical records, it is notable that there is no medical report from any general practitioner who has treated the plaintiff. The Court was provided with clinical records from the Waverley Medical Centre,[17] the Moonee Ponds Medical Centre[18] and the Guardian Medical Centre.[19] In addition, the clinical records of the In Stride Health Clinic (Physiotherapy) were tendered,[20] as was a report from Ms Brooke Burgoyne, physiotherapist.[21]
[17]PCB 129
[18]PCB 166
[19]PCB 178
[20]PCB 141
[21]PCB 36
22To some extent, the medical records of the relevant general practitioners speak for themselves in the sense that they demonstrate a substantial period (or gap) in which there is no recorded complaint of any accident-related injury/symptoms in the spine.
23As mentioned earlier, on the day of the accident, the plaintiff attended Dr Hope. His clinical record of that attendance is as follows:
“History:
MCA today, car hit from behind and rammed into car in front, wearing SB. seat not broken, sore back, no head or neck injuries. Pain in lower thoracic region. No pain with breating (sic) or coughing. Movements painful.
Examination:
back straight, no bruising, tender from T4 to L2 over muscles & vertebrae, forward flexion reaches to mid shin
Diagnosis:
soft-tissue injury
Actions:
Prescriptions printed:
VOLTAREN 50 EC TABLET 50mg 1 b.d.c.c.review 4-7, physio next week”[22]
[22]PCB 133-134
24The plaintiff attended Dr Hope intermittently over the next several months. Concurrently, at the same clinic, she saw Mr Chan, physiotherapist. The last attendance on Dr Hope was 8 November 2000, at which time he recorded “pain feels much better, but pain after driving 45’”[23] and on examination “mild tenderness [right] side lower thoracic region, reaches ankles”.[24]
[23]PCB 132
[24]PCB 132
25Pausing here, Mr Middleton QC, on behalf of the defendant, drew attention to the nature of the complaints recorded by Dr Hope as being more of the thoracic or lower back, as opposed to an injury to the neck.
26The physiotherapy attendances with Mr Chan concluded on 9 March 2001, at which time it was recorded:
“increase pain to [thoracic] and [lumbar]
increase paraspinal muscle spasm right worse than left.”[25]
[25]PCB 130
27Next, in cross-examination, the plaintiff was taken to clinical records from Dr Pamela Kaye. The plaintiff has attended Dr Kaye, at both the Guardian Medical Showgrounds Clinic in Flemington and the Aged Care Medical Services in Ascot Vale. The relevant notes commence with an attendance on 25 June 2003. It was put to the plaintiff that until 4 October 2011 there were approximately twenty-eight visits on Dr Kaye, none of which relate to the motor vehicle accident. It was put that if her neck and back were such a problem she would have at least made a complaint at the time she was seeing Dr Kaye. In response, the plaintiff said:
“Well, at that time I was going to physio and I wasn't going to her specifically to discuss anything in relation to my back. It was other issues.”[26]
[26]T35, L22-23
28The plaintiff said further in cross-examination regarding the lack of complaint to Dr Kaye that:
“At that time I was managing my neck and back pain through taking Voltaren and other medications and going to physiotherapy and, as I said before, if I had a really acute attack or I had something really significant happen, I would just go and get medication elsewhere, because I couldn’t get into that – if I couldn’t get into those doctors on the day that I needed to go to those doctors, I required to go to bulk billing. But I went to her for all significant other issues that I had.”[27]
[27]T35, L27-T28, L4
29I have already mentioned that the plaintiff’s evidence of physiotherapy treatment, other than what is documented, was limited to attendances on Dr Lew through until 2006. Otherwise, there is then her vague evidence of chiropractic treatment. There is no recorded attendance on her long-term general practitioner, Dr Kaye, that relates to the accident. The plaintiff’s evidence of flare up and attendance at bulk-billing clinics is also vague. There is no direct evidence as to what the plaintiff means by a “flare up”, which is relevant because, as will be discussed, all relevant medical opinions are that the plaintiff has, at least in part, a degenerative condition affecting her spine.
30Broadly, the plaintiff’s oral and affidavit evidence was that she has had ongoing neck and back pain since the accident which, from time to time, has required her to attend a general practitioner at a bulk-billing clinic, or for intermittent physiotherapy, before things became worse in July 2016, when she attended at In Stride Physiotherapy, and there is then the documented, objective evidence of complaints in respect to neck and back symptoms. She said, in cross-examination, that the symptoms in her neck and back:
“They've worsened in the last four years, four, five years. But they've been ongoing the whole time. They've just worsened over the last four or five years.”[28]
[28]T39, L14-17
31But, in my view, the relevant evidence of the plaintiff, viewed in light of the objective clinical records, is lacking detail when it comes to a resolution of the “causation” issue.
32I have already mentioned the lack of any report from a treating general practitioner. It must be borne in mind that the plaintiff bears the evidentiary onus to establish what injury was caused by the accident and what are the ongoing impairment and impairment consequences are of such injury. The absence of any documented complaint for an approximate fifteen-year period (2001 – 2016), together with the vague nature of the plaintiff’s own evidence, is a substantial evidentiary hurdle for her to overcome. The medico-legal evidence must be carefully scrutinised based on the conclusions I have drawn about her evidence and the lack of objective evidence of ongoing impairment.
Mr Shaune Ward’s affidavit
33Before moving to deal with the medico-legal evidence, it is convenient to deal with the affidavit from the plaintiff’s husband, Mr Shaune Ward. He swore an affidavit on 14 December 2020. In that affidavit, he says:
“I recall the happening of the accident. I was aware that Jane had quite a bit of physiotherapy treatment for her neck and back in the couple of years after the accident and that she had some ongoing problems after that, requiring intermittent physiotherapy and massage treatment.
I suffered from long-term ulcerative colitis, which eventually led to my early retirement from the Victoria Police on 26 November 2017. I probably had it for 9-10 years prior to my retirement and it was just getting worse and worse.
I believe that my health concerns dominated our family life for a number of years, probably at the expense of Jane’s own physical problems from the accident.
I believe that Jane’s condition noticeably worsened from about shortly prior to my retirement in 2017 and that it was probably only after my retirement that she started to properly investigate her condition and treatment options during 2018.”[29]
[29]PCB 17
34Mr Ward’s affidavit is not particularly helpful to the plaintiff in respect to the “causation” issue. His evidence is vague as to the plaintiff having “quite a bit” of physiotherapy treatment in the couple of years after the accident. His affidavit is more about consequences and the delay in seeking legal advice than it is in respect to the “causation” issue, but I take it into account.
Relevant medical evidence
Dr Ales Aliashkevich
35The plaintiff’s general practitioner, Dr Azar Mirzaee[30], referred the plaintiff to Dr Ales Aliashkevich, neurosurgeon, who saw the plaintiff on 5 August 2019. The background history obtained by Dr Aliashkevich was as follows:
“… Jane has provided a history of her involvement in a motor vehicle accident in 2002 and chronic neck pain since then. She has been practising regular physiotherapy over more than 10 years and complained about increasing numbness in her right arm from around 2017. She described increasing pain and numbness in her right arm after driving for more than 30 minutes, writing, typing or working on a computer. She also started experiencing numbness in her left arm and all fingers of the left hand when holding her mobile phone. She scored the intensity of her pain as reaching 6/10. She took regular Panadol osteo and anti-inflammatories. She was prescribed Lyrica and tramadol but tried to avoid them because of the side effects and impact on her job. She has achieved only very short relief after physiotherapy. Despite her pain, she continued working full-time as a forensic assessor.”[31]
[30] There is no report from Dr Mirzaee and it is unclear why this referral was made. The relevant clinical entry at PCB 168 is for “pain and problem in her right arm”.
[31]PCB 33
36On examination, Dr Aliashkevich found the plaintiff to have a range of movement in the neck that was “reasonably well preserved”. He had available radiology. He diagnosed:
“- Chronic neck and right dominant arm pain
- History of motor vehicle accident in 2002
- Multilevel cervical spondylosis, dominant at C4/5 and C5/6
- History of Gilbert’s syndrome
- Body weight 85 kg”[32]
[32]PCB 34
37Dr Aliashkevich recommended further investigations to determine treatment recommendations. He said that she appeared to have a capacity for full-time employment as a forensic assessor and was likely to maintain her long-term capacity for employment.
38Dr Aliashkevich records an incorrect (or different) date of injury. His opinion in respect to the injury suffered in the accident is based on his understanding that the plaintiff had been “practising regular physiotherapy for over more than ten years”, which is a statement of fact that I do not accept as accurate, based on the whole of the evidence. His diagnosis is unclear in respect to what injuries the plaintiff suffered in the accident. He refers to multilevel cervical spondylosis, dominant at C4-5 and C5-6. It is unclear whether that is a diagnosis related to the accident, or simply a diagnosis of the underlying condition from which the plaintiff suffers. His report is not particularly helpful to the plaintiff in this proceeding on the “causation” issue.
Ms Brooke Burgoyne
39Ms Brooke Burgoyne is a physiotherapist who has treated the plaintiff at the In Stride Health Clinic. Ms Burgoyne provided a report dated 1 September 2020.[33] She notes the plaintiff has attended her clinic since 29 July 2016, but has been under her care since 31 October 2018. She records the history as follows:
“The history given in relation to this matter; When Jane presented to the clinic on 29/7/16 she reported an acute flare up of her lower back pain after sitting up in bed 5 days earlier and then a cervical spine pain flare up 2 days after this. In the history she reported a long history of cervical and lumbar spine pain after two motor vehicle accidents 10 and 12 years earlier in which she sustained whiplash. At this appointment, she reported driving to be an aggravating factor for her cervical spine and symptoms included sharp pain, decreased range of movement and frontal headaches. During this session she was not treated for her cervical spine and they addressed her lumbar spine injury.
She had two further appointments in 2016 with treatment on her lumbar and cervical spine.
[33]PCB 36
The next time that Jane attended In Stride Health Clinic was 8/12, /17 (sic). She saw another of our Physiotherapists at the time. At this time, she reported a flare up of her lower back symptoms. She attended another two appointments in 2017.”
40Ms Burgoyne notes that “[t]here is a pattern of increased workload or more hours working at the computer causing an increase in Jane’s symptoms”.[34]
[34]PCB 37
41Ms Burgoyne diagnosed “cervical foraminal stenosis with neural symptoms affecting strength … She also has chronic mid to lower back pain, which appears to be of facet joint origin”.[35]
[35]PCB 37
42It is notable that Ms Burgoyne records the plaintiff attending physiotherapy in July 2016, after an acute flare up from sitting up in bed. Ms Burgoyne records a long history of cervical and lumbar spine pain after two motor vehicle accidents. The plaintiff then reattended for physiotherapy over twelve months later, in December 2017, for a flare up of lower back symptoms. Ms Burgoyne does not provide a diagnosis of any transport-accident-related injury. Rather, she provides a diagnosis of the condition that the plaintiff suffers from. The history recorded by her of a flare up from time to time through fairly innocuous activity, such as sitting up in bed, may well be related to the underlying degenerative condition. It is impossible to form a conclusion one way or the other based on her report. It does not assist the plaintiff in this proceeding.
Dr Mohammed Awad
43The plaintiff attended Dr Mohammed Awad, neurosurgeon and spinal surgeon, for treatment on 8 October 2020. He has provided a report dated 19 November 2020,[36] in which he stated that:
“… As a result of this incident she suffered with neck pain and lower back pain as well as thoracic back pain. She has been treated for this multiple times conservatively. This is all on a background of being diagnosed with scoliosis as an adolescent ... She did not have any ongoing pain or treatment requirements leading up to the transport accident.
Since the road traffic accident however, her pain seems to be gradually getting worse and she had increasing pains down the right arm at presentation to me on 8 October 2020 … .”[37]
[36]PCB 41
[37]PCB 41
44Dr Awad diagnosed:
“…
i) Aggravation of cervical spondylosis with radicular symptoms.
ii) Aggravation of thoracic spondylosis.
iii) Aggravation of lumbar spondylosis.
From my point of view, I was mainly treating the cervical spondylosis and arm brachialgia.”[38]
[38]PCB 42
45Dr Awad provided a further report dated 8 June 2021.[39] In that report, he essentially repeats the earlier history. He noted a recent appointment on 25 February 2021, with ongoing good result from a C5 nerve root injection and otherwise discussed ongoing treatment recommendations. He stated that the plaintiff is likely “to suffer the consequences of this injury now in the form of degree of ongoing pain and disability for into the foreseeable future”.[40]
[39]PCB 44
[40]PCB 45
46Dr Awad’s opinion is seemingly based on an understanding that from the accident the plaintiff had neck pain, lower back pain and thoracic back pain for which, in his words “she has [been] treated for this multiple times conservatively”.[41] He appears to have formed his opinion on the basis that there had been ongoing conservative treatment since the accident, but again, at the risk of repetition, the whole of the evidence does not support that evidentiary basis. His diagnosis of aggravation of underlying spondylosis in the plaintiff’s spine, must have been influenced by his conclusion that the plaintiff has been symptomatic and required treatment since the accident, but in my view the objective evidence does not support such a conclusion. Further, the injury diagnosed is an “aggravation” injury, but he does not separate out the underlying condition from the “aggravation”, bearing in mind that the onus is on the plaintiff to establish that the aggravation injury is of itself a serious injury.[42]
[41]PCB 41
[42]Petkovski v Galletti [1994] 1 VR 436; Rowe v Transport Accident Commission [2017] VSCA 377 [82]
Professor Richard Bittar
47The plaintiff was examined for medico-legal purposes by Professor Richard Bittar, who has provided a number of reports. The first of his reports is dated 23 July 2020[43] and was based on an examination of the plaintiff on that day. In that report, he obtained a history that the plaintiff’s onset of symptoms occurred following a transport accident on 26 October 2000. He had a history that “[h]er neck pain persisted, and over the next couple of days she began to experience significant pain throughout her back. Her right arm pain and sensory disturbance commenced in around 2017”.[44] And that:
“Her treatment following the transport accident included physiotherapy and anti-inflammatory medications. Her condition improved in the early stages with physiotherapy and then plateaued. She had significant ongoing pain in her neck and back over the years that have followed, and in recent years her condition has progressively deteriorated.
She reports that she has not been pain free since the subject transport accident, and whilst she has had physio for the vast majority of the time since, she has had periods of up to six months where she has had minimal or no physiotherapy in an attempt to manage without treatment.
[43]PCB 61
[44]PCB 63
48Professor Bittar provided a diagnosis essentially the same as that of Dr Awad, namely aggravation of cervical, thoracic and lumbar spondylosis. He was then asked a question in respect to causation and said as follows:
“In my opinion, the transport accident on October 26, 2000 remains a significant contributing factor to her neck and back conditions, as summarised above.
She began to experience significant symptoms affecting her entire spine shortly after the transport accident and has experienced ongoing symptoms in these regions since then.
She has never had a significant period of time where she has been free of pain in these areas, and there is no clinical evidence that she has made a substantial recovery from the original accident-related injuries.
In my opinion, the transport accident remains a significant contributing factor to her ongoing pain, disability and requirement for treatment.”[45]
[45]PCB 65
49Professor Bittar then went on to make comments regarding the plaintiff’s need for treatment and level of incapacity.
50Professor Bittar then provided a further report dated 21 October 2020,[46] in which he was asked to comment on an MRI scan performed on 5 October 2020.
[46]PCB 68
51Professor Bittar then provided a third report dated 26 January 2021,[47] in which he was asked to comment upon various investigations and the reports of Dr Awad (some of which are not in evidence). His report otherwise commented on treatment options.
[47]PCB 71
52Next, Professor Bittar provided a report dated 9 June 2021, having reviewed the plaintiff via Telehealth, which report repeats his previous opinions, but relevant to the causation issue, also discusses a report provided to him that had been prepared by Mr Gary Speck.
53Mr Speck is an orthopaedic surgeon who examined the plaintiff and provided a medico-legal report dated 11 January 2021, at the request of the defendant. I will deal with his report in a moment, but for present purposes it is sufficient to state that Mr Speck expressed an opinion that the plaintiff had suffered a soft-tissue injury to the neck in the accident, but in light of the lack of any objective evidence of treatment from approximately 2001 through to 2016, Mr Speck opined that the soft-tissue injury had resolved and the plaintiff’s current impairment and consequences were as a consequence of an underlying degenerative condition affecting her spine and not as a consequence of the transport accident.
54Professor Bittar commented upon Mr Speck’s conclusion regarding causation in his most recent report. Professor Bittar said:
“… Any other general matters:
I have the medical reports of Associate Professor Richard Stark and Mr Gary Speck, which were provided to me with your letter of instructions dated June 8, 2021. Dr Speck makes a diagnosis of ‘soft tissue injuries to the lumbar and thoracic spine’. He does not mention the cervical spine in relation to the transport accident injuries. In his diagnosis section he states ‘her current presentation is consistent with degenerative change within the cervical, thoracic and lumbar spine producing intermittent symptoms and referred symptoms to the right upper extremity’. I disagree with Dr Speck’s diagnosis of ‘soft tissue injuries’ as a result of the transport accident. My diagnosis is aggravation of pre-existing but largely asymptomatic spondylosis. Dr Speck appears to base his diagnosis of soft tissue injury on the information provided to him which he interpreted as suggesting that she had physiotherapy for six months until 2016 but then no further physiotherapy until late 2017 or early 2018. On that basis he stated ‘I would conclude that the current symptoms are a result of constitutional change and degeneration rather than as a result of soft tissue injuries resulting from the transport accident in 2000, which had resolved’. I would agree with Dr Speck that if she was completely asymptomatic from 2016 until late 2017, this would raise the possibility that her original injuries were soft tissue injuries and that her current presentation may be due to other causes. On careful questioning of Jane Ward however, she has confirmed that she did not have a significant improvement or disappearance of neck or back related symptoms in the period from 2016 until late 2017. She stated that her physiotherapist went on maternity leave at that time and her experience with other physiotherapists in the past made her reluctant to begin seeing a new practitioner. She believes she may have seen another physiotherapist at the same practice in late 2016 or sometime during 2017 before she resumed physiotherapy with her regular physiotherapist. She confirmed that her symptoms persisted during that period of time. On that basis it is my opinion that there is no evidence that she made a recovery from whatever injury caused her neck pain and neck pain in the subject transport accident, and I therefore disagree with Dr Speck’s conclusion.”[48]
[48]PCB 78-79
55There are a number of things to be noted about Professor Bittar’s most recent report. Firstly, the parties accept that his reference to the plaintiff having physiotherapy for six months until 2016 is a typographical error and should read 2001. Secondly, Professor Bittar’s opinions are predicated on an acceptance that the plaintiff did not have a significant improvement or disappearance of neck or back-related symptoms in the period from 2001 until late 2017. He has accepted that the plaintiff had some form of physiotherapy throughout that approximate fifteen-year period.
56My conclusion is that there is no evidence that the plaintiff had significant symptoms from 2001 through until 2016. In fact, the objective evidence suggests otherwise, namely that she did not have any significant symptoms until a flare up when she sat up in bed in July 2016 and even then that settled until she presented again to In Stride Physiotherapy with another flare up in late 2017. There is no evidence that the plaintiff had regular physiotherapy and certainly no evidence that she had any physiotherapy between 2006 and 2016. This is relevant, because Professor Bittar says that he would agree with Mr Speck that if the plaintiff was completely asymptomatic from 2001 to late 2017, because, as he says, this would raise “the possibility that her original injuries were soft tissue injuries and that her current presentation may be due to other causes”.[49]
[49]PCB 79
Mr David Slattery
57Mr David Slattery, orthopaedic surgeon, examined the plaintiff at the request of her solicitors on 21 December 2020. He then produced a report dated 12 January 2021.[50] He had a history of the accident and thereafter the plaintiff had persistent neck pain and back pain, and was treated with physiotherapy and anti-inflammatory medications. He then had a history of a subsequent accident in 2002, but no distinct injuries from that accident. Regarding management after 2002, Mr Slattery obtained the following history―
“Ms Ward was managed nonoperatively for approximately 16 years under the care of a physiotherapist. She also took tramadol and Lyrica for her pain. Ms Ward reported that she developed right arm pain and altered sensation in approximately 2017.”
[50]PCB 81
58Mr Slattery was provided with a number of relevant documents including relevant clinical records.[51] Having reviewed the material provided to him, he provided a diagnosis of “aggravation of pre-existing lumbar and cervical spondylosis”.[52] He was asked specifically about the aetiology of the plaintiff’s condition and said―
“Ms Ward likely had pre-existing minor degenerative changes at the time of the motor vehicle accident, however as she was asymptomatic, it is likely that the motor vehicle accident caused significant injury and resulted in an acute deterioration of her clinical condition. This has progressed to the current time.”[53]
[51]PCB 86
[52]PCB 88
[53]PCB 90
59Mr Slattery then discussed the plaintiff’s ongoing symptoms and described the prognosis as guarded.
60Mr Slattery was then asked to provide a further report after he was provided additional documentation. In a further report dated 16 June 2021,[54] he was asked whether any of that material caused him to alter his opinions in his earlier report. He answered that question as follows―
“No, the above mentioned documents do not cause me to alter my opinion expressed the report dated 12 January 2021. I noted at that time that she had neck and lumbar spine pain after a motor vehicle accident in 2000, and that she had pre-existing lumbar and cervical spondylosis which was aggravated by the motor vehicle accident. I also documented that she had a poor prognosis due to the chronicity of her symptoms and that she was likely to continue to experience pain and functional imitation for the foreseeable future. I reaffirm this opinion.”[55]
[54]PCB 93
[55]PCB 94
61Mr Slattery’s opinion is that the plaintiff aggravated pre-existing lumbar and cervical spondylosis, but that opinion seems to be based on his understanding that the accident, in his words, caused “significant injury”. His opinion is based on his acceptance that the plaintiff had ongoing pain from the accident and that her “persistent neck and back pain” was treated with physiotherapy and anti-inflammatory medications.[56] But, based on the evidence, I do not accept that the plaintiff had “persistent” neck and back pain. I do not accept that she was treated with physiotherapy and anti-inflammatory medications for the whole of the period 2001-2016.
[56]PCB 82
62Mr Slattery recorded that the plaintiff had been managed non-operatively “for approximately 16 years under the care of a physiotherapist. She also took Tramadol and Lyrica for her pain”.[57] I have already discussed at length the evidence of physiotherapy treatment. There is simply no evidence of the plaintiff requiring Tramadol and Lyrica at any stage before July 2016. Because of the assumptions made by Mr Slattery, while I accept his opinion that the plaintiff has evidence of cervical and lumbar spondylosis, I do not accept his opinion that the condition is currently symptomatic due to the car accident.
[57] PCB 82
Associate Professor Richard Stark
63Associate Professor Richard Stark examined the plaintiff on 17 December 2020 and provided a report to the defendant.[58] In respect to the history post the accident, he recorded that the plaintiff “had physiotherapy fairly consistently for the next couple of years and eventually got back to her usual job”, and that “over the years since then, she has had intermittent physiotherapy and inflammatory tablets to deal with symptoms in her neck and back”.[59]
[58]Defendant’s Court Book (“DCB”) 8
[59]DCB 8
64Associate Professor Stark obtained a history that over the last three or four years, the plaintiff’s condition had been getting worse. He had available a disc of radiology and conducted an examination of the plaintiff. His ultimate opinion was that―
“This lady reports a number of ongoing symptoms. She describes the symptoms as being persistent since 2000 when she was involved in the motor vehicle accident, but flaring up some three or four years ago.
She clearly has degenerative changes in the spine and it is plausible that the motor vehicle accident aggravated these. It is very difficult to separate the natural effects of ageing from any accident related component. She does however give a clear history that the symptoms that she has now have been present to some degree since the accident and had not been present prior to it. It seems reasonable therefore to conclude that the accident is at least a contributing factor.”[60]
[60]DCB 10
65Associate Professor Stark was then asked a number of questions and answered them as follows―
“1. The lady presumably suffered a soft tissue injury to the neck and back in the accident in question and this has probably contributed to cervical and lumbar spondylosis.
2. The current symptoms and functional status are explained by a combination of the effects of the injury and natural degenerative processes. I find it difficult to quantify the component from the accident but accept that the symptoms have been present since that time, based on her history.
…
4. Her work fortunately is such that neck and back pain do not prevent it. I accept that there is some discomfort associated with her work and perhaps some loss of efficiency because of the pain.
5. She reports some restrictions in her day to day and domestic activities and her leisure activities.
6. Her condition in relation to the accident should now be stable but of course, any underlying degenerative change may progress.”[61]
[61]DCB 10‑11
66Associate Professor Stark was then asked to review nerve conduction studies and produced a supplementary report dated 4 February 2021.[62]
[62]DCB 12
67Associate Professor Stark’s opinion provides some support for the proposition that the soft tissue injury has contributed to or aggravated the underlying cervical and lumbar spondylosis. However, his report does not assist in understanding the extent of such aggravation. Again, his report is predicated on an evidentiary basis - namely ongoing symptoms, physiotherapy and anti-inflammatory tablets - that I do not accept as being borne out by the evidence.
Mr Gary Speck
68I have already mentioned that Mr Speck, orthopaedic surgeon, provided a report dated 11 January 2021, which he prepared after an examination of the plaintiff on 23 December 2020.[63] Importantly, Mr Speck obtained a relatively accurate history of the onset of symptoms and treatment thereafter, because he was provided a number of medical reports and the relevant clinical records. In my opinion, that provided him with a considerable advantage, because unlike the other practitioners, his opinion is not mostly reliant on the history as told to him by the plaintiff.
[63]DCB 14
69Under the heading of “SYNOPSIS”, Mr Speck recorded what I consider to be an accurate summary based on the whole of the evidence, as follows:
“Mrs. Ward is a 51 year old married woman with one daughter. She is working full-time as a clinical forensic assessor. She was involved in 2 transport accidents one in 2000 and another in 2002 which she said did not produce any new symptoms.
In the accident on 26/10/2000 she was driving a work car, was rear ended by another vehicle and collided with the vehicle in front, her seat belt held, her air bags did not deploy and she was able to drive the vehicle to work. She subsequently attended the local doctor at the time and symptoms and examination findings related to the thoracic and lumbar spine. Although, she indicated that she had had ongoing physiotherapy there is no contemporaneous records over the decade subsequent to the transport accident of regular or irregular attendance at physiotherapy. When she did attend physiotherapy it seemed more related to her low back and on an intermittent basis with records indicating 2016 and more recently symptoms from late 2017 through 2018 with the appearance of symptoms into the upper extremities on the left and right with persistence on the right.
The history she gave me indicated that she had had no pain in her back previously only a scoliosis. The recorded history of Dr. Awad and Prof Bittar both indicate that she had had back pain as an adolescent, and limited activities as a result of that to manage it as an adolescent.
Her current presentation is one of axial back pain without evidence of lower limb radiculopathy, neck pain with referred pain to the right arm with associated degenerative change on investigation and improvement of the symptoms with a right C5 nerve root injection.
Her current presentation is consistent with degenerative change within the cervical, thoracic and lumbar spine producing intermittent symptoms and referred symptoms to the right upper extremity. On the basis of the information provided with a period of back pain following the transport accident, and physiotherapy recorded for 6 months with no attendances with medical practitioners or physiotherapy subsequently recorded in relation to the back or neck until 2016 and again more consistently from late 2017/18, I would conclude that the current symptoms are a result of constitutional change in degeneration rather than as a result of soft tissue injuries resulting from the transport accident in 2000, which had resolved.”[64]
[64]DCB 29-30
70Mr Speck then diagnosed a soft-tissue injury to the lumbar and thoracic spine, but said that he believed the “soft tissue injuries resolved”[65] and that current symptoms relate to “constitutional changes resulting from degenerative change in the back and neck”.[66]
[65]DCB 30
[66]DCB 30
71I accept Mr Speck’s opinion. It is considered, thorough and balanced. It has been prepared with the considerable advantage of Mr Speck having available all of the relevant objective evidence.
Analysis
72For the plaintiff to succeed in this application, it requires something of a leap of faith and an acceptance that she had significant symptoms in her neck and back beyond what is recorded in objective medical and physiotherapy records, with the need for intermittent general practitioner attendance and intermittent physiotherapy for “flare ups” related to injury suffered in the accident. I cannot make that leap because the whole of the evidence does not allow me to do so. The plaintiff’s evidence, at best, is vague as to what she means by a “flare up”. Her evidence of treatment, again, at best is vague, but insofar as there is evidence, it does not support a finding of any ongoing intermittent physiotherapy after 2006 and again as already mentioned, no significant symptoms until a flare up when she sat up in bed in July 2016.
73In my view, for the reasons as set out, the plaintiff fails on the “causation issue”. The whole of the evidence does not support a conclusion of an ongoing accident-related injury. When Professor Bittar’s opinion is analysed based on the evidentiary conclusions I have made, then he ultimately comes to the same conclusion as Mr Speck, namely that the plaintiff’s ongoing symptoms relate to other causes and not the accident.
74At this point, the “causation issue” is resolved against the plaintiff. The evidence does not enable me to accept the submissions made on her behalf on that issue. Therefore, the application must be dismissed.
Serious injury
75Because of the conclusions I have made regarding the “causation issue” it is, strictly speaking, unnecessary for me to deal with the question of serious injury (the “range” issue) and whether the plaintiff has made out a “very considerable” consequence.
76However, given that both the plaintiff and defendant made submissions about “serious injury”, for completeness, I shall briefly record my conclusion about “serious injury”.
77The plaintiff describes ongoing symptoms, in particular in her neck.[67] I accept her description of those symptoms. I accept they cause some interference for heavier day-to-day activity and that she requires painkilling medication, including Lyrica, when her pain “is particularly bad”.[68] She has required a referral to a neurosurgeon and has undergone a nerve root injection.
[67]PCB 21
[68]PCB 21
78Accepting that the plaintiff’s current symptoms are due to the accident and are not due to the underlying degenerative condition, then, in my view, those symptoms could be described as “marked” or even “significant”, but I would not go so far to conclude that those symptoms are “very considerable”. In the overall scheme of things, the plaintiff has had limited treatment. There is no objective evidence that her symptoms have impacted on her career aspirations and indeed the objective evidence is to the opposite. She has obtained further qualifications since the accident and she has been able to obtain alternate employment as required. She has been able to travel, raise her daughter and still engage in a range of day to day activity such as shopping and driving, in circumstances where her husband has his own significant medical condition. Accordingly, even if I had found in favour for the plaintiff on the “causation” issue, I would not have found in her favour on the “range” issue.
79Accordingly, for the reasons given, the application will be dismissed.
80I will hear from the parties as to the question of costs.
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