Watson, Toni v TAC
[2009] VCC 1466
•13 November 2009
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05482
| TONI WATSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 November 2009 |
| DATE OF JUDGMENT: | 13 November 2009 |
| CASE MAY BE CITED AS: | Watson, Toni v TAC |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1466 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment to the spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Kenyons Lawyers |
| Ms M Pilipasidis | ||
| For the Defendant | Mr G Lewis SC with | Solicitor for the Transport |
| Ms A Ryan | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 4 May 2004 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a) –
“A serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this case is the spine.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is aged thirty five, having been born on 3 May 1974.
10 The plaintiff was educated to Year 11 and then commenced work in 1991 at Video Ezy. On the said date, she was employed at the head office in administration, having made her way up the ranks.
11 The plaintiff was very happy in that job and she enjoyed her work. Her employer had indicated to her that she was likely to be offered higher positions allowing her to work her way up in the company. She rarely took sick leave and she was in good health.
12 In cross examination, the plaintiff said that it was possible that her general practitioner had suggested in 2001 that she have counselling for depression, but the plaintiff had not undergone any counselling nor had she received medication for anxiety and depression before the said date.
13 On the said date, the plaintiff was stationary at the intersection of Geelong Road and Somerville Road, Footscray, driving to work, when her vehicle was hit from behind by a bus (“the accident”).
14 The plaintiff suffered a jolt to her back and neck and her seat collapsed because of the force of the accident. She hit her head on the driver’s door and believes she lost consciousness.
15 When she came to, the plaintiff felt dizzy and her neck and right shoulder were painful, as was her wrist from gripping the steering wheel.
16 The plaintiff was taken by ambulance to the Western General Hospital where she was given painkilling medication and a cervical collar. She was discharged the same day into the care of her general practitioner.
17 The plaintiff initially consulted doctors at the Burnside Medical Clinic, including Dr Parboo, who advised her to take painkillers and gave her sleeping medication. She was also referred to a physiotherapist, Dr Wehbe, for treatment to her neck and right shoulder.
18 The plaintiff confirmed in cross examination that she did not receive treatment for her back at this time as she had deposed.
19 In cross examination, the plaintiff agreed that she saw her doctor in relation to her accident injuries on the following occasions since 2004 – twice in February and once in March 2005; once in February, March, June and July 2006; once in January and April 2007; and once in April and August 2008. There were three attendances in February, two in March and one in April 2009. Since then the plaintiff has attended on two further occasions.
20 Following the accident, the plaintiff was off work for about three months due to her injuries, and on her return, she found it difficult to carry out her duties. She had to take a lot of time off work and she could sense her employer was frustrated with her, and her work situation became tense and uncomfortable – a situation she reported to Dr Serry when examined for medico legal purposes on 1 September 2005.
21 There was a restructuring at Video Ezy in 2005, about fifteen months after the said date, and the office in which the plaintiff worked was closed. The plaintiff was offered another job which required her to drive between different sites – an activity she could not cope with because of her neck injury.
22 The plaintiff deposed that she had no doubt her injuries and the effect they had on her work performance were a major factor in Video Ezy’s decision to retrench her at that time.
23 In cross examination, the plaintiff said that two to three weeks before the date she was to be retrenched, she organised another job as a receptionist at the Airport Hotel. She took this job because she had to pay her mortgage. The plaintiff agreed that there were other employees of Video Ezy who were uninjured who also lost their jobs at this time.
24 The plaintiff continues to work in this position at the Airport Hotel as a casual, forty to forty five hours per week. She in not entitled to either holidays or sick leave. She presently earns about $43,000 per annum, having earned $40,500 whilst employed by Video Ezy.
25 In cross examination, she confirmed her affidavit was incorrect and that she in fact earns slightly more in her present job than she did with Video Ezy.
26 The plaintiff mainly does receptionist work, checking in guests. She does not do any lifting. She also is required to drive hotel guests in the hotel shuttle bus five kilometres to the airport. At the moment the plaintiff is coping with her work. Her employer is aware of her injury and allows her to work flexible hours. There are some days when she cannot sit for long as she is in pain. Fortunately, her duties do not involve much repetitive computer work, such as data entry, and she doubts she would be able to do such work due to her restrictions.
27 A couple of days a month the plaintiff has to go home early or not come to work at all because of her injuries. She then has to make up that time by taking some other shifts.
28 In cross examination, the plaintiff agreed that following the accident she had time off work for similar reasons to those for which she took time off before the said date, namely sporting and family functions.
29 Since the accident, the plaintiff has continued to suffer from a lot of neck pain particularly on the right, which radiates into the tip of her right shoulder and sometimes down her right arm and results in numbness and tingling in her right hand, particularly in her little and ring fingers. She continues to have symptoms in her right shoulder, having difficulty writing or typing for long periods of time without her shoulder becoming inflamed.
30 The plaintiff suffers from severe headaches which are worse when her neck is playing up. These are frequent, and hardly a day goes by without her experiencing a headache.
31 The plaintiff also has bouts of dizziness triggered by head movements as a result of her neck injury. She was referred to an ear, nose and throat specialist to investigate this problem. The specialist suggested she was suffering from vertigo and applied what was known as an Epley manoeuvre; however that did not help her much.
32 When the pain in her neck and right shoulder is very bad, the plaintiff can do very little. She ends up with headaches. If she takes any medication she feels heavy and drowsy and she cannot work or drive. She is also worried about the effects of taking medication but sometimes she has no option. Her present medication regime involves taking Panadeine Forte several nights a week to help her sleep. Since the accident, she has taken other medication for her injuries, including Norflex, Codeine and Mersyndol.
33 In examination in chief, the plaintiff said that her symptoms had gradually worsened a bit in the last two to three years. The depression and “the pain management were harder to handle”. She explained that she was trying more to help herself but “she just kept getting knocked back by the reaction of her body” - mainly the pain in the middle of the back of her neck into her right shoulder.
34 The neck and shoulder pain is pretty much there daily. It restricts the way she sleeps, showers and dries her hair. Activities such as housework, which involve her moving her shoulder, bring the pain on. When this happens she tries to relax so it will stop throbbing.
35 In re examination, the plaintiff explained that when she had right shoulder symptoms she also had neck pain - “It was all generally on the same side.” The most that she had been told by doctors about her shoulder pain was that she had bursitis because she was not moving her shoulder that much.
36 Although the plaintiff deposed she had also been aware of lower back pain since the accident, in cross-examination, she agreed it was not until two years after the accident that lower back pain came on. She agreed that she told Mr. Myers in October 2006 that there had been an extension of pain into her back the previous month and that back pain probably did not come on earlier than that time.
37 The plaintiff deposed that in approximately April 2008 she attended the Emergency Department at Western Hospital due to the severity of her back pain, and in early 2009, Dr Scheepers arranged for a CT scan and an MRI scan of her lumbar spine.
38 Dr Scheepers then referred the plaintiff to an orthopaedic surgeon, Mr de la Harpe, in May 2009, and she was also referred for laser acupuncture.
39 Mr de la Harpe suggested the plaintiff consult physiotherapist, Mr Berge, who referred her to another physiotherapist, Mr McGlynn, who suggested she commence a supervised gym program.
40 The plaintiff understood the reason for the referral to Mr Berge was to try and move her neck and shoulder more. He told her she was very restricted in her back and neck and he wanted her to try and get into some sort of physical program to move more. The TAC refused to pay for this program.
41 The only other injury the plaintiff has suffered since the accident was in early 2007 when she was pushed by a person attempting to steal money from the cash register at work and her back pain was somewhat worse for a few days. However, her back settled down and she did not lodge a WorkCover claim.
42 In cross examination, the plaintiff agreed that in the past year her low back pain had been quite significant and had caused her problems with driving and housework. At the moment her back gave her constant problems.
43 In re examination the plaintiff explained that her lower back symptoms are definitely less than her neck and shoulder symptoms.
44 In recent times, because of her deteriorating condition, the plaintiff has felt very frustrated and exhausted, and in the week prior to the hearing, her doctor referred her for psychological treatment.
45 The plaintiff thinks of the accident all the time and hates being near buses or trucks, particularly in a vehicle. She no longer enjoys her passion of driving and she only drives to work or to the shops.
46 At the time of the accident, the plaintiff was in a relationship but thereafter, because of her injuries and the fact she was moody and in pain, the relationship eventually ended and since then she has not had another relationship.
47 Since the accident, the plaintiff has put on thirty kilograms. She has had trouble controlling her weight due to her physical restrictions and inability to be physically active, her chronic pain and depression.
48 In cross examination, the plaintiff agreed that at the age of twenty she was referred to an endocrinologist for treatment of her obesity. At that stage she weighed 112 kilograms. She presently weighs 117 kilograms.
49 The plaintiff walks regularly for about fifteen to twenty minutes from home about two or three times a week depending how her back is. Probably ten to fifteen minutes into the walk, if she is swinging her arm, it will start to hurt and her lower back pain is aggravated.
50 In cross examination, the plaintiff agreed that she works quite a lot so she has quite a restrictive lifestyle at the moment.
51 Prior to the accident, the plaintiff’s main hobby was cars and she had joined a car club called Evolve Girls’ Club. At the time of the accident, she was second in charge of the club and the secretary of the Victorian branch. This hobby involved track days at Calder Park, track support days at other locations and just general motor sport events, driving to various locations in restored vehicles.
52 The plaintiff has not been able to participate in this hobby at that level since the accident, ceasing all participation in 2006 because her shoulder and back were just getting too sore. The plaintiff last attended a car show in Sydney in 2006, having attended one other show since the accident. The plaintiff is unable to drive for long distances and she cannot sit for more than an hour in the car before having to stop and rest.
53 The plaintiff also used to enjoy restoring cars. She acquired a Ferrari eight years ago and started work on it with the help of her father in 2003. She was actively involved in the restoration with “hands on tools”. The plaintiff and her father had significantly changed the structure of the car, with him principally doing the physical mechanical work. The plaintiff had to cease work on the car after the accident because of her pain. Had she not had the accident, she would have expected to finish work on the car within a year.
54 The plaintiff has become increasingly frustrated by the impact of her injuries on her quality of life and she does not seem to be getting any better. She is tired of being in pain and at times this causes her to sink into depression. She wants her old life back and wants to be able to do things like she used to.
The Plaintiff’s Medical Evidence
55 The plaintiff was conveyed by ambulance to Western General Hospital on the said date.
56 The plaintiff reported to the Emergency Department that she hit her head on the seatbelt holder on the right side of the seat after being pushed forward. She complained of pain in her neck and shoulders and the back of her head.
57 On examination, there was altered subjective sensation to the fingertips of the right hand. The plaintiff described mild mid cervical tenderness and right paravertebral tenderness, and she had boggy tenderness of the head and the right occipital region. She also complained of mild thoracic paravertebral tenderness.
58 It was noted the cervical spine x-ray was normal. There was very little midline tenderness and the plaintiff had a full range of neck movement restricted by stiff tender strap muscles. A diagnosis of a flexion extension injury was made and the plaintiff was provided with analgesia and a non-steroidal anti- inflammatory drug.
59 Dr Hossain first saw the plaintiff on 7 May 2004. At that time the plaintiff’s neck was still severely tender on the right side and a diagnosis was made of whiplash injury to the neck and muscle spasms. Diazepam was prescribed, as was Panadeine Forte and Voltaren, and the plaintiff was given a certificate excluding her from all duties until 14 July.
60 The plaintiff also attended Dr Hossain on 11, 18 and 25 May, over which time medication continued to be prescribed. On 31 May 2004 the plaintiff attended after developing an allergic reaction to Panadeine Forte.
61 It was noted the plaintiff returned to work on 1 June 2004 but had to restrict her duties to only four hours a day because of continuing neck pain, and she was certified fit on this basis until the end of that month. Similar certification remained until the middle of August 2004.
62 The plaintiff attended Dr Hossain a number of times over the next few months for personal problems unrelated to the accident. Dr Hossain noted that on 10 February 2005, a letter was received from the plaintiff’s physiotherapist advising the plaintiff was making some progress, albeit rather slow, and she was still having acute relapses. The physiotherapist advised a CT scan of the cervical spine be carried out.
63 The plaintiff attended on 16 February 2005 still complaining of neck pain and a CT scan was arranged. She consulted with Dr Nguyen on 10 March following the CT scan. It was noted the results thereof basically meant that there were degenerative changes evident that were unrelated to the accident. These results were discussed with the plaintiff and she was keen to continue with physiotherapy only. Dr Nguyen advised her to use Nurofen Gel.
64 The plaintiff attended the clinic only one more time after this examination for an unrelated matter.
65 The plaintiff first attended Physio Health Essendon on 12 August 2004 complaining of cervical pain following the accident. She came under the care of Ms Sharbil Wehbe who established a graded exercise program to allow the plaintiff to increase her activity levels without fear of re aggravation.
66 As of 30 June 2005, Ms Wehbe noted that the plaintiff had returned to her pre- injury duties but she was forced to take time off work when her pain was re aggravated. The plaintiff needed to take regular breaks otherwise it caused an increase in her pain level. She also complained of pain with prolonged driving and doing household tasks.
67 The plaintiff reported difficulty with reading and concentrating for prolonged periods. She also indicated there were many social activities, such as motor sport activities, bowling, movies and gardening which she avoided in fear of increasing her pain level.
68 The plaintiff has also been a patient of the Caroline Springs Medical Centre since 24 July 2004.
69 The plaintiff was seen by Dr Whitmarsh at the Medical Centre on 21 February and 3 March 2006 and by Dr Scheepers in June and July 2006 for symptoms related to the accident.
70 On 21 February 2006, the plaintiff had decreased right lateral rotation and left lateral flexion of the cervical spine. There had been no history of radicular complaint since the plaintiff attended the Medical Centre. The plaintiff complained of increased pain in her right shoulder with activities such as vacuuming.
71 The plaintiff attended the Medical Centre in March 2006 after an ultrasound of her right shoulder had been carried out. At that time the plaintiff was continuing with physiotherapy and unable to tolerate oral non steroidal inflammatories and declined referral for a cortisone injection.
72 The plaintiff next presented in June 2006 complaining of a three month deterioration in her mood, describing herself as tearful and withdrawn and she felt the symptoms reflected stresses originating from the accident. She reported experiencing ongoing shoulder pain.
73 On 4 July 2006, the plaintiff reported she had initiated a number of lifestyle interventions such as yoga and meditation and was hopeful that would improve her mood symptoms. The plaintiff, whilst admitting she suffered from ongoing depressive symptoms, wished to defer antidepressant treatment for the interim.
74 In Dr Scheepers’ view, it was likely the plaintiff sustained a whiplash type injury in the accident and described a loss of memory that may reflect a loss of consciousness. Dr Scheepers thought the velocities involved in the accident were sufficient to result in observed physical findings. Dr Scheepers concluded that the plaintiff’s symptoms were consistent with traumatic aggravation of a previously asymptomatic degenerative cervical spinal condition.
75 Dr Scheepers further reported in September 2009 detailing the plaintiff’s more recent attendances. The plaintiff attended on 17 January 2007 reporting neck stiffness; on 19 April 2007, she complained of an exacerbation of lower back pain following an assault, and thereafter an x-ray of the lumbar spine was taken on 26 April 2007.
76 The plaintiff attended on 14 April 2008 reporting ongoing pain in the right lateral upper back. The plaintiff further attended on 28 August 2008 reporting a month of deterioration in back pain and that she was forced to spend a large amount of time in bed due to the pain. It was noted a month earlier the plaintiff had weighed 112 kilograms, and on that examination her weight was recorded at 117 kilograms.
77 On 3 February 2009, the plaintiff attended complaining of ongoing lower back pain with recent exacerbation and there was a CT scan undertaken on 18 February 2009.
78 On 19 February 2009, the plaintiff reported diffuse soft tissue pain involving her neck and upper back, shoulders and lower back, and she was referred for an MRI scan, as well as to Dr Stockman, rheumatologist, for “assessment for ? fibromyalgia? regional pain syndrome due to extensive soft tissue pain and frequent headaches”.
79 An MRI scan of the lumbar spine was carried out on 24 February 2009. The plaintiff was then seen on 26 February 2009 to review these findings and was further seen on 25 and 30 March 2009. Acupuncture was carried out on 7 April 2009 and again on 14 April 2009 when the plaintiff reported four days of spasm in her neck which was severe on that day.
80 Dr Scheepers concluded that the plaintiff suffered from ongoing pain and restriction involving her neck, upper and lower back and shoulders. This affected both her ability to partake in recreational activity (e.g., she has been confined to bed due to back pain) – her ability to exercise and her ability to undertake her occupational duties. The plaintiff scored her pain subjectively as eight out of ten and had had limited benefit from a number of therapeutic modalities.
81 Mr John McArthur examined the plaintiff on 20 September 2005. The plaintiff complained to him of pain in her neck and right shoulder but she did not mention any problem with her back.
82 Upon examination, there was some restriction of movement of the cervical spine and some wasting of the right deltoid. There was painful restriction of most movements of the right shoulder consistent with the degree of rotator cuff damage.
83 In Mr McArthur’s view, the symptoms from the plaintiff’s neck travelling down the length of her right arm were characteristic of a radicular complaint following anatomic pathways and further verified by the neurological finding of diminished sensation corresponding to the right C8 dermatome.
84 Mr McArthur concluded, although the painful limitation of neck movement and frequent headaches were symptoms which were stationary, as with any degenerative condition, there was always some slight long term risk but progressive degeneration could be accompanied by an increasing impairment.
85 Mr Kenneth Myers, consultant general surgeon, examined the plaintiff on 4 October 2006. The plaintiff told him that in the previous months she suffered extension of her pain into the lower back and upper left thigh.
86 On examination, there was approximately twenty five per cent restriction of the range of movement of the cervical spine and decreased movements to the right shoulder with pain with extreme movement of both sides. Neurological examination of the right upper extremity revealed no obvious abnormality.
87 Mr Myers concluded there was uniform loss of motion of the cervical spine, paravertebral muscle guarding, no radicular complaints to be determined and no dysmetria.
88 Mr Myers thought the plaintiff was suffering an ongoing disability of the cervical spine and right shoulder and that the accident was responsible for the aggravation of previously asymptomatic pre existing degenerative intervertebral disc disease and spondylitis of the cervical spine, as well as causing bursitis of the right shoulder.
89 He considered the plaintiff’s condition had stabilised and that there was the probability of ongoing persistent disability at both sites and he thought that the plaintiff should continue with physiotherapy.
90 Associate Professor Richard Stark, neurologist, examined the plaintiff on 14 November 2005 and re examined her on 3 August 2009.
91 On re examination, the plaintiff told him that, if anything, her symptoms had gotten worse, especially her neck, shoulder and arm. She also told him she had increasing trouble with her lower back which was a problem from the time of the accident, although it was not so bad initially and seemed to have been getting worse in the last eighteen months.
92 On examination, neck movements were mildly and diffusely restricted while lower back movements were also diffusely restricted, the restriction being somewhat greater there. There was tenderness in the right trapezius and sub occipital muscles but not much tenderness in the paraspinal muscles. There was quite marked focal tenderness over the L5 vertebra and power, tone, reflexes, sensation, coordination and gait were all normal.
93 Dr Stark concluded that the plaintiff’s condition had not changed greatly since the 2005 examination except her lower back problems were now more prominent. The problems in her neck with radiation to the right arm persisted and he suspected the accident caused an aggravation of previously asymptomatic cervical and lumbar spondylosis and that accounted for her ongoing symptoms.
94 Dr Stark did not expect any accident related deterioration in her condition but noted she was at risk of degenerative change but not dependent on the accident. Symptomatic medical treatment was required, including analgesia. Dr Stark believed that some aspects of the plaintiff’s injuries were serious in their effects on her; in particular, she was frustrated by constant pain and restriction in her activities, particularly those of a recreational nature. He thought the injuries had restricted the plaintiff’s long term ability to be physically active and to enjoy life in the same way she did prior to the accident.
95 Associate Professor Hadj, surgeon, examined the plaintiff on 10 June 2009.
96 The plaintiff told him her neck pain comes and goes and that she is developing more dizziness now and has difficulty turning her head from side to side and keeping her neck in one position for long. The plaintiff told him she had constant lower back pain preventing her from being in one position for more than twenty to thirty minutes.
97 Upon examination, there was tenderness over the back of the neck. Professor Hadj could find no evidence of spasm, however, he noted movements of the cervical spine were limited by pain and stiffness in the neck and rotation was restricted bilaterally.
98 There was tenderness present over the lumbar spine and a mild paravertebral muscle spasm. There was restriction of flexion and extension. Examination of the lower limbs did not reveal any evidence of neurological deficit.
99 Professor Hadj considered the plaintiff had suffered an injury to her neck and lower back and continued to have symptoms related thereto. He concluded the plaintiff’s physical condition was caused by the accident. He thought she was more likely to have arthritic changes in the lower back because of the injury and that continuing conservative treatment was indicated, although it was likely that it was not going to be curative. He considered the plaintiff’s injuries had restricted her long term ability to be physically active and to enjoy life in the same way she had prior to the accident.
100 Dr Serry, psychiatrist, initially examined the plaintiff in September 2005 and re examined her in July 2009.
101 On re examination, Dr Serry concluded that from the psychological point of view, the plaintiff had continued to experience ongoing symptoms of stress, anxiety, frustration, depression and traumatisation. He noted that despite his previous recommendations in relation to psychological treatment and a pain management program, the plaintiff had not undergone any formal psychiatric or psychological treatment.
102 In Dr Serry’s view, the plaintiff now presented with a chronic adjustment disorder with anxious and depressed mood and with features of traumatisation, as well as a pain disorder associated with psychological factors and a general medical condition.
103 He considered there was a risk of further deterioration in the plaintiff’s condition given the chronic nature of her physical and psychological symptoms and the nexus between the two. He thought the plaintiff would require ongoing expert medical management for her symptoms and he felt she would potentially benefit from treatment with antidepressant medication and from referral for a multi disciplinary pain management program.
104 Dr Serry considered the plaintiff had suffered a serious injury with a long term effect which had restricted her ability to be physically active and to enjoy life in the same way she did prior to the accident.
Investigations
105 An x-ray of the cervical spine taken on the said date at the Western Hospital was normal.
106 A right shoulder ultrasound taken on 1 March 2006 showed right subdeltoid subacromial bursitis with no other abnormality.
107 A CT scan of the cervical spine taken in February 2005 demonstrated moderate left sided C4-5 and mild left sided C3, C6 and C7 foraminal stenoses with mild bilateral C6-7 and mild right sided C5-6 facet degeneration.
108 An x-ray of the lumbar spine taken on 26 April 2007 showed no abnormality.
109 A CT scan of the lumbar spine taken on 18 February 2009 showed marked L4-5 lumbar canal stenosis secondary to an L4/5 disc prolapse, query bilateral nerve root impingement and an MRI scan of the lumbar spine was recommended. There was mild L5-S1 lumbar canal stenosis secondary to a central and right L5-S1 disc prolapse. There was marked bilateral L4-5 facet joint osteoarthritis and it was suggested a CT-guided facet joint steroid injection may be of therapeutic benefit.
110 An MRI scan of the lumbar spine was carried out on 24 February 2009. It was concluded there was mild to moderate L4-5 lumbar canal stenosis secondary to a central L4-5 disc prolapse with bilateral L5 nerve root impingement within the lateral recesses. There was broad based central and right L5-S1 disc prolapse without significant canal stenosis or nerve root impingement at that level. There was marked bilateral L4-5 facet joint osteoarthritis and a CT- guided facet joint injection was recommended.
The Defendant’s Medical Evidence
111 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in 2006 and 2007, and most recently on 15 September 2009.
112 On examination in 2009, Mr Dooley found tenderness along the dorsum of the cervical spine and restriction of movement and tenderness of the right shoulder girdle and restriction of the shoulder. There was also restriction of the movement of the lumbar spine and no neurological deficit.
113 Mr Dooley was of the view that the plaintiff had suffered a soft tissue injury to her cervical spine and her right shoulder region in the accident.
114 His views remained unchanged to his previous examinations. Whilst he accepted the plaintiff had sustained these injuries, on the balance he believed the constancy and intensity of the plaintiff’s ongoing pain were out of proportion to the injuries sustained and that her low back pain most likely related to degenerative disc disease of the lumbar spine. As far as he could tell, the plaintiff did not sustain any injury to her back in the accident.
115 It remained his view that the plaintiff needed to lose weight and improve her fitness and stamina and that she was capable of continuing her current work capacity.
116 Mr Dooley thought in the future the plaintiff could continue to note some intermittent cervical spine and right shoulder girdle pain which he would not expect to deteriorate over time and would improve if she improved her fitness and stamina.
117 He considered the plaintiff would have difficulty with work that involved a lot of activity at above shoulder and neck level and that she would have difficulty with heavy household chores and those requiring that sort of movement.
118 The plaintiff was examined by Professor Richard Ball, psychiatrist, in May 2006 and was re examined by him in August 2009. On both occasions Professor Ball concluded that the plaintiff had an anxiety disorder and some depression entirely secondary to her injuries.
119 He considered her prognosis to a considerable extent depended on her perceived physical state.
120 The plaintiff’s general practitioner’s notes at the Burnside Medical Clinic detailing the plaintiff’s attendances between 7 May 2004 and 4 April 2007 were tendered.
Overview
121 I accept that the plaintiff suffered a soft tissue injury to her cervical spine as a result of the accident.
122 Further, I accept that as a result of this injury the plaintiff has suffered referred pain into her right shoulder. Whilst some medical practitioners are of the view that there is a separate shoulder condition, Mr McArthur thought symptoms travelling down her right arm from her neck were characteristic of a radicular complaint. Professor Stark thought problems in her neck with radiation to the right arm persisted and he diagnosed an aggravation of previously asymptomatic cervical spondylosis.
123 Further as the plaintiff explained she does not have shoulder pain without neck pain –“it is all the same.”
124 I accept that both these conditions are long term, the plaintiff having experienced pain in these areas for over five years since the accident without improvement.
125 I do not accept that any lumbar spine problem the plaintiff presently experiences results from the accident. The plaintiff’s own evidence was that such pain came on some two years after the accident and that she did not receive any treatment for this problem until a couple of years ago.
126 The question then to be asked when considering whether the consequences of the cervical impairment are serious is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”: see Humphries v Poljak [1992] 2 VR, at 140-1.
127 The term “serious” requires the impairment and its consequences to be reviewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441; see in particular Chernov JA at para 29.
128 The statutory test requires a judgment based on an evaluation of the evidence. The relevant evaluation is of impairment consequences, not injury.
129 I accept the plaintiff is a credible, honest witness who freely made concessions in relation to various matters put to her in cross examination. Further, there was no surveillance film or any other evidence challenging her claimed level of pain and disability.
130 The plaintiff has, since the accident, suffered pain in her neck radiating into her right shoulder which also restricts her range of movement. She suffers frequent headaches and dizziness and has problems with her balance.
131 The plaintiff has difficulty sleeping and several nights a week, she requires medication to enable her to do so. She only takes medication at night because it makes her feel drowsy and interferes with her ability to work and drive during the day.
132 Significantly, after the accident as a result of her neck injury, the plaintiff was initially limited and ultimately totally precluded from participating in her car activities - both in relation to her own hands on involvement in restoration of vehicles and her enjoyment of car club activities, administrative and social.
133 Whilst this claim is brought essentially on pain and suffering grounds, with the plaintiff not having lost income as a result of the accident, I accept that her neck injury has played a part in the plaintiff’s change of employment.
134 The plaintiff’s evidence as to her position with Video Ezy, which she had enjoyed since she left school, and her chances of promotion in that position was not challenged.
135 I accept that with the restructure of that company and the proposed change in her work duties, due to her neck injury the plaintiff was no longer able to continue in that employment and she changed to her present job.
136 Whilst the plaintiff acknowledged a small increase in income in this new job, it is a casual position which does not have various benefits such as sick leave or holiday leave.
137 The plaintiff’s current employer is sympathetic to her condition and does not require her to do more than receptionist work and driving the shuttle bus a short distance to the airport. One day or two a month, the plaintiff has to leave work early or does not attend work at all due to her neck and shoulder pain.
138 As Mr Dooley noted the plaintiff would have a lot of difficulty with work that involved a lot of activity at above shoulder and neck level and she would have difficulty with household chores requiring those movements.
139 I do not accept that the plaintiff’s ability to work fulltime in this job means her cervical spine impairment is not serious. The comments of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 are not a direction to this effect and each case must be looked at on its own particular facts.
140 Whilst the plaintiff has had lower back pain since late 2006, I accept the consequences that flow from her neck injury are in themselves serious and long term.
141 Although there has been an obvious mental response to the plaintiff’s physical injury which has been diagnosed as an adjustment disorder, I am satisfied that the injury has produced an organic impairment of the plaintiff’s cervical spine, the consequences of which meet the test of seriousness in Humphries v Poljak (supra).
142 Accordingly, leave is granted to the plaintiff to bring proceedings for damages in relation to the accident.
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