Watt v TAC
[2019] VCC 1652
•17 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-00886
| CRISTETA WATT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2019 | |
DATE OF JUDGMENT: | 17 October 2019 | |
CASE MAY BE CITED AS: | Watt v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1652 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Aggravation to pre-existing right shoulder and cervical conditions – fracture clavicle – pain and suffering consequences
Legislation Cited: Transport Accident Act 1986
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter & Anor [2006] VSCA 215; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
Judgment: Application successful
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Ms S Lean | Slater & Gordon |
| For the Defendant | Mr P Elliott QC with Ms K Manning | Solicitor to the Transport Accident Commission |
HER HONOUR:
Introduction and summary
1 On 20 March 2016, Ms Watt was the backseat passenger in a car which was t‑boned from the side, when another car failed to stop at an intersection. Ms Watt claims to have suffered injuries to her neck, right shoulder and clavicle in this accident.
2 In order for Ms Watt to be entitled to claim common law damages for her injuries, she must satisfy me that the impairment of her cervical spine, arising from this accident, satisfies paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986.
3 The Transport Accident Commission denies that Ms Watt suffered a serious impairment to her cervical spine in this accident.
4 Only Ms Watt was called to give evidence, and she was cross-examined. Also in evidence were affidavits from her daughter, son-in-law, and manager, together with medical reports, clinical records, video surveillance and other material. I have read and viewed these tendered documents and footage, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that Ms Watt suffered an injury to her spine in this accident, the consequences of which can be described as at least very considerable.
Ms Watt’s life before the accident
6 To assess the impact of the accident-related injuries upon Ms Watt, it is first important to understand how she functioned and enjoyed her life prior to the accident.
7 Ms Watt was 59 years of age at the time of the accident, and is now 62. She was born in the Philippines, where she completed her secondary schooling, before then completing a Bachelor of Science and Business Administration Degree at University.
8 Ms Watt migrated to Australia in 1986, and thereafter worked in several different factories. In approximately 2013, Ms Watt commenced employment with Lakeside Packaging, as a full-time office manager.
9 Ms Watt said that her health was good prior to the accident, but that she experienced neck pain and headaches from time to time. Ms Watt said that she first experienced neck pain in approximately 2007. Since then, Ms Watt said that she had suffered some occasional flare-ups of neck pain, with some right arm paraesthesia.
10 In July 2005, an x-ray of Ms Watt’s cervical spine was reported as demonstrating mild spondylitic lipping at C4-7, but no vertebral compression injury.
11 In July 2010, a CT scan of Ms Watt’s cervical spine was reported as demonstrating multifocal disc degeneration. There was a mild broad based dorsal discal ridge at C5-6, which indented the sac, but did not impinge the cord. It was noted that the right C5 paraesthesia may be related to a prominent ossified posterior longitudinal ligament causing mild canal stenosis.
12 Ms Watt said that she had also suffered some lower back and right shoulder pain. On 14 May 2013, an ultrasound was taken of Ms Watt’s right shoulder. It was reported as demonstrating evidence of impingement, with no capsular swelling and no bursitis. It was further noted that the rotator cuff was intact.
13 Ms Watt said that her right shoulder condition restricted her ability to perform some day-to-day activities throughout 2013 and 2014. However, Ms Watt said that her right shoulder injury was treated with cortisone injections on two occasions, following which her condition improved greatly.
14 Ms Watt said that from late 2014 until the time of the accident, she did not suffer any ongoing pain or restriction of movement in her shoulder, neck or back.
15 In addition to working full-time at Lakeside Packaging, Ms Watt said she was active in her garden and mowed her own lawns. Ms Watt said that she walked regularly for exercise, enjoyed cooking, socialising, and spending time with her two grandchildren.
The accident, its claimed consequences to Ms Watt and what the doctors say
16 On 20 March 2016, Ms Watt said that she was travelling with her family to visit Hanging Rock, when another car drove through an intersection, t-boning the car in which she was a passenger.
17 Following the accident, Ms Watt was transported by ambulance to the Royal Melbourne Hospital, where she stayed overnight. She was discharged the following day with analgesia and a medical certificate for two days. Whilst an inpatient, Ms Watt’s cervical spine was “clinically cleared” and CT imaging of her thorax and upper abdomen were reported as unremarkable.
18 However, as at 13 April 2016, as her pain had not improved, Ms Watt attended upon her general practitioner, Dr Sidik, who organised an ultrasound and x-ray. The x-ray reported a fracture to Ms Watt’s right clavicle, following which Dr Sidik referred Ms Watt to orthopaedic surgeon, Mr Bernard Lynch, for advice and management.
19 On 29 April 2016, Ms Watt consulted Mr Lynch, who recommended that she undergo active assisted mobilisation of her right shoulder, as well as physiotherapy. Mr Lynch did not recommend surgery.
20 Ms Watt said that she initially returned to work with her arm in a sling and performed reduced duties.
21 In the following months, Ms Watt continued to undergo physiotherapy and attended Mr Lynch on several further occasions. At an attendance on 1 July 2016, Mr Lynch noted that Ms Watt had very low grade symptoms of discomfort when lying on her right shoulder, and that she had a near full range of movement. Mr Lynch considered the fracture to be clinically united, and said that Ms Watt did not require any further review.
22 Throughout this period, Ms Watt said that she attended physiotherapy on a regular basis at Glenroy Physiotherapy Centre. As Ms Watt had returned to work soon after the accident, her employer had initially permitted her to attend for physiotherapy treatment during her working hours. However, after approximately one year, Ms Watt said that her employer advised her she could no longer attend during working hours. As the physiotherapist did not work on weekends, Ms Watt said that she did not seek any further subsequent physiotherapy treatment.
23 In May 2017, Ms Watt was examined by medico-legal psychiatrist, Associate Professor Nick Paoletti. Whilst Ms Watt’s application pertains to her cervical spine impairment, Associate Professor Paoletti’s report dated 10 May 2017, is relevant insofar as the defendant relied upon aspects of the report to demonstrate Ms Watt’s unreliability in respect of her claimed consequences.
24 Associate Professor Paoletti reported that Ms Watt informed him she socialised “like before”. When asked in cross-examination if this was an accurate record, Ms Watt said “not really”, although she acknowledged she still attends mass and sings in the choir. Associate Professor Paoletti also noted that Ms Watt was unable to carry her bag when shopping. When asked in cross-examination about this record, Ms Watt said that whilst she carries her bag in her left hand, she is naturally right-handed, so sometimes carries the bag in her right hand, which causes her to feel pain. Associate Professor Paoletti also noted that Ms Watt has a phobia standing on the street, as she fears being hit by a car. He also noted that she was “too scared” to have her grandchildren in her car. When asked in cross-examination about this record, Ms Watt said that she sometimes drives her grandchildren, but she is scared when she does.
25 Associate Professor Paoletti diagnosed Ms Watt as suffering unspecified anxiety disorder with generalised anxiety, traffic anxiety, and chronic unspecified adjustment disorder with some depressive features. Associate Professor Paoletti stated that the anxiety disorder was a direct result of the accident, whereas the adjustment disorder was consequential to the presence of her physical injuries and residual symptoms.
26 In May 2017, Ms Watt was also examined by medico-legal sports and industrial physician, Dr David Kennedy. In his report dated 10 June 2017, Dr Kennedy noted that Ms Watt complained of pain in the shoulder joint around the anterior aspect of the shoulder, a noticeable step in her right clavicle, an inability to carry objects in her right hand or arm, a restriction when reaching and stretching out with her right arm above shoulder height, and an inability to lie on her right side due to increased pain. Dr Kennedy also noted that Ms Watt complained of having noticed some tenderness and aching over the right lower cervical spine into the right parascapular region.
27 Dr Kennedy was of the opinion that Ms Watt sustained an injury to her right shoulder region, including a fracture to the right clavicle together with damage to the capsular and ligamentous structures of her right shoulder region in the accident.
28 In her first affidavit sworn 14 October 2017, Ms Watt stated that at that time, as a result of the injury to her collarbone, she experienced symptoms including constant aching across her collarbone, pain into her neck and head with frequent headaches, pain which travelled down her right arm and pins and needles in her right arm, hands and fingers. Ms Watt also complained of weakness and restricted movement in her right arm, such that she found it hard to lift her arm above shoulder height.
29 Ms Watt claimed that at that time, as a consequence of those difficulties, she found it painful to sleep on her right side, was no longer able to mow the lawn, found it difficult to undertake gardening and was only able to manage small bits and pieces herself. Ms Watt also stated that she found it difficult to vacuum, dust, scrub and hang clothes on the line, and to change her bed and fold the washing. In addition, Ms Watt said that she found it difficult to cook when it involved stirring, mixing or lifting heavy pots and pans. Ms Watt stated that she found it painful to carry heavy items in her right hand, and therefore limited her shopping as much as possible. Ms Watt said that she did more frequent and smaller shopping trips or, alternatively, asked her daughter and son-in-law for assistance.
30 Ms Watt said she loved being a grandmother and spending time with her grandchildren, and that subsequent to the accident, her daughter, son-in-law and grandchildren moved in with her. However, she said she found it difficult lifting and hugging her grandchildren and found it “heartbreaking” when she had to decline their requests to pick them up.
31 Ms Watt also said she found driving for long periods painful as it involved outstretching her arms. She said she usually held the bottom of the wheel with her right arm but found it painful to turn behind her in order to do a head check. Ms Watt said she also found walking painful as the swinging motion caused her arm to ache. In order to give her arm a break, Ms Watt said she will often rest her arm on her chest. In addition, Ms Watt said she found it hard to go out and socialise, as she was often exhausted from her work and in pain.
32 On 1 February 2018, Ms Watt attended upon Dr Sidik, who in turn referred her for further review with Mr Lynch.
33 On 23 April 2018, Ms Watt attended upon Mr Lynch, who noted her complaint of ongoing pain around the right side of her ear and neck, which radiated down towards the right shoulder tip. Mr Lynch noted that her pain was aggravated when Ms Watt lay down on her right shoulder at night. He further noted that Ms Watt had headaches for which she was taking Panamax and Nurofen.
34 On examination, Mr Lynch noted a near full range of motion in Ms Watt’s right shoulder. Examination of her cervical spine showed generalised restricted motion, especially with right lateral flexion and cervical rotation to the right and left. Mr Lynch considered Ms Watt’s problem to be referred pain from her cervical spine.
35 In a report dated 15 June 2018, Mr Lynch stated that Ms Watt did not require any further intervention in her right clavicle. However, he stated that she may require further assessment and management in respect of her cervical spine issue.
36 In July 2018, Ms Watt was examined by medico-legal orthopaedic surgeon, Mr Russell Miller. In his report dated 12 July 2018, Mr Miller noted that Ms Watt reported her major problem as being her neck, which included neck ache, discomfort and pain, which was worse on the right side of her neck and which radiated into her right arm, with some feelings of numbness and tingling in the arm. It was also noted that Ms Watt suffered frequent headaches. In addition, Ms Watt complained of aches, discomfort and pain in her right shoulder, which was worse with repetitive and overhead activities. Mr Miller also noted that Ms Watt complained of lower back pain, as well as anxiety and depression.
37 Mr Miller diagnosed Ms Watt as suffering a musculoligamentous strain and aggravation of degenerative disease in the cervical and lumbar spine. He considered there to be radiation into the upper extremity, but did not consider there to be any features to suggest radiculopathy, neurological deficit or structural injury.
38 Mr Miller thought it likely Ms Watt had pre-existing disease and problems in her spine, and that her condition had been aggravated by the accident, which had caused a further superimposed injury to occur within the spine.
39 In addition, Mr Miller considered Ms Watt to have suffered an injury to her right shoulder with a fracture of the clavicle. Notwithstanding the fracture had gone on to union, Mr Miller considered Ms Watt to have suffered ongoing symptoms in the region of her shoulder, which were likely to reflect referred pain from the cervical spine and a manifestation of a Chronic Pain Syndrome, with persisting problems with capsulitis and rotator cuff dysfunction.
40 In July 2018, Ms Watt was examined by medico-legal orthopaedic surgeon, Dr John Owen. In his report dated 3 July 2018, Dr Owen noted that Ms Watt complained of ongoing pain in the right shoulder, arm and hand, radiating from the base of her neck. Ms Watt reported numbness and pins and needles in her hand.
41 Dr Owen noted that Ms Watt suffered a fractured clavicle in the accident, secondary to which she had developed a decreased range of motion in her shoulder, with a possible “lingering frozen shoulder.” In addition, Dr Owen considered it probable that Ms Watt had pre-existing degenerative disease, and that she suffered an aggravation of the underlying condition in the accident. Ultimately, Dr Owen considered there to be inconsistencies in Ms Watt’s complaints and disabilities, to the extent that he was not satisfied there was any organic basis to attribute her poor range of movement to the accident.
42 On 8 October 2018, Ms Watt consulted Dr Sidik, who discussed Mr Lynch’s recent opinion with her, before subsequently referring her to a neurologist. However, as Ms Watt had seen a medico-legal neurosurgeon for the purpose of this claim, she did not subsequently attend that appointment.
43 On 10 October 2018, an MRI scan was taken of Ms Watt’s cervical spine. It was reported as demonstrating a combination of thickening/calcification of the postero-longitudinal ligament mainly at C3-4 and probable chronic C4-5 disc protrusion causing a degree of canal stenosis and cord indentation at the C3-4 and C4-5 levels. A comparison was then made to the CT report from 2010, which was also reported as demonstrating a thickened ossification of the postero-longitudinal ligament. On this MRI scan, the midline central canal dimension was narrowed to 6.2 millimetres by the longitudinal ligament calcification, whereas in 2010 it had previously measured at 8 millimetres. There was no right side exiting nerve root impingement seen.
44 On 21 November 2018, Mr Miller provided a supplementary report in this matter, having been asked to review a report of Dr Aliashkevich,[1] the recent MRI scan of Ms Watt’s cervical spine, and video surveillance taken of Ms Watt in 2018. Mr Miller stated that this additional material did not cause him to alter his previous opinion.
[1]I note that this report was not tendered in the proceedings, as the County Court Common Law Practice Note PNCLD 2-2018 only permits the parties to tender two medico-legal opinions in respect of Ms Watt’s cervical spine claim.
45 On 6 December 2018, Dr Kennedy also provided a supplementary report in this matter, having been asked to view the same material as Mr Miller. Dr Kennedy stated that he had reviewed the video surveillance, which he did not consider to be inconsistent with the clinical history and physical examination he had performed on Ms Watt.
46 In December 2018, Ms Watt was examined by medico-legal occupational health and rehabilitation consultant, Dr David Middleton. In his report dated 23 January 2019, Dr Middleton noted that Ms Watt stated that her main pain was across the upper shoulder girdle extending into the right hand side of her neck and down the right arm to her hand. It was noted that Ms Watt described the pain as an aching pain in the upper trapezius muscle extending to the right hand side of the neck, with heavy aching pains down the right arm.
47 Dr Middleton noted that Ms Watt’s pain was activity-related, for example, pushing a shopping trolley increased her pain level. At the time, Ms Watt reported that she was able to type at work, but that she had to take rest breaks every 30 minutes. It was noted that Ms Watt predominantly performed lifting with her left non-dominant hand, and that she used her right arm for “little things such as drinking a cup of tea”.
48 This aspect of Dr Middleton’s report was put to Ms Watt in cross-examination. She answered as follows:
“That's it, is it? You can manage a cup of tea, but nothing more than that really?---Yeah.
That's the type of thing that you can manage with this right arm?---M'mm.”[2]
[2]Transcript (“T”) 25, Lines (“L”) 17-20
49 Dr Middleton was ultimately of the opinion that Ms Watt had suffered an aggravation of a pre-existing asymptomatic condition in her spine, which had resulted in cervicogenic headaches of a vascular nature and discogenic pain down her right arm.
50 On 24 January 2019, Ms Watt was reviewed by Dr Sidik, who then referred her to pain specialist, Dr Clayton Thomas.
51 On 13 February 2019, Mr Miller provided a final opinion in this matter. In this report, Mr Miller stated that a fracture of the clavicle is frequently associated with the development of shoulder problems in the form of rotator cuff dysfunction capsulitis, which he believed to have been the case with Ms Watt. Mr Miller was also of the opinion that the symptoms in Ms Watt’s shoulder reflected referred pain from the cervical spine and the manifestation of a Chronic Pain Syndrome.
52 In March 2019, Ms Watt was re-examined by Dr Kennedy. At that time, Dr Kennedy was provided with medical records from Dr Sidik, as well as medical reports from Mr Lynch, Dr John Owen and Dr David Middleton. In his report dated 8 April 2019, Dr Kennedy stated that on re-examination of Ms Watt’s cervicothoracic spine, there was tightness and tenderness over the erector spinae and paravertebral musculature, with some muscle guarding, which was worse on the right side and which extended into her parascapular musculature. Dr Kennedy noted tenderness over her lower cervical and upper thoracic region, and the asymmetrical loss of active range of motion, particularly on extension, lateral flexion and lateral rotation, and more common to the right. On re-examination of her right shoulder, Dr Kennedy noted there was tenderness over the mid-section of the clavicle and tenderness over the AC joint.
53 Dr Kennedy stated that, on the balance of probabilities, he considered Ms Watt to have sustained an aggravation of minor pre-existing problems in her cervical spine in the accident, with aggravation of problems in the cervicothoracic region, which were initially worse on the right side. Dr Kennedy considered this condition to have progressively worsened with the injuries to the right shoulder, and considered consequential problems to have also developed in her left shoulder region.
54 Dr Kennedy was of the opinion that the problems in her cervicothoracic spine contributed to the restrictions in the movement in Ms Watt’s right arm at the shoulder joint. Dr Kennedy maintained that Ms Watt had suffered an injury to her right shoulder joint in the accident. Dr Kennedy considered there to have been an interaction between the injury sustained to the right side of Ms Watt’s cervicothoracic spine and the injuries to her right shoulder region, both of which he considered to have resulted in ongoing problems with regard to the movement of her right arm at the shoulder joint, with aggravation of problems in her cervicothoracic spine.
55 On 15 May 2019, Ms Watt attended upon Dr Thomas, who noted that she complained of pain in the right side of her neck and right shoulder region at that time, with such pain being “more above the shoulder than at the shoulder”. It was noted that her pain levels were ranged between four to six out of ten. Dr Thomas noted that Ms Watt’s ability to sleep was most affected and that she would wake due to the pain and to anxiety. He noted that she denied experiencing any nightmares. Dr Thomas further noted that Ms Watt reported intermittent pins and needles and numbness in her right hand, particularly at night.
56 On examination, Dr Thomas noted that Ms Watt was tender to the right side of her neck and in the supraclavicular and infraclavicular. Dr Thomas noted her shoulder movements were mildly limited in flexion and abduction primarily by pain, with no impingement signs, and that her rotator cuff appeared to be strong, and that her neck movements were mildly limited and painful. Neurologically, Dr Thomas also noted that provocation tests at the elbow and wrist failed to produce any paraesthesia or numbness in Ms Watt’s hands.
57 Dr Thomas was of the opinion that Ms Watt’s cervical spine was her predominant problem, but noted there was no “convincing evidence of radiculopathy” and no evidence of a peripheral nerve lesion.
58 Dr Thomas recommended that Ms Watt attend for review following the resolution of her legal claim, but did not at that stage recommend any formal rehabilitation or pain management.
59 In September 2019, Dr Owen provided a supplementary report in which he considered and discussed the medical opinions of Dr Sidik, Mr Miller, Dr Aliashkevich, Dr Middleton, Dr Kennedy and Dr Thomas in respect of Ms Watt. In his report dated 26 September 2019, Dr Owen noted that Mr Miller and Mr Lynch expressed an opinion that the symptoms in Ms Watt’s shoulder reflect referred pain from her neck, and that the manifestation of a chronic pain syndrome, was “not unreasonable.”
60 Dr Owen was ultimately of the opinion that Ms Watt suffered a fracture of her clavicle, and an aggravation of cervical disc disease or cervical spondylosis in the transport accident. He considered her right shoulder problems to be referred pain from her cervical spine, and thought that the restriction of movement was “basically a psychosocial problem.”
61 In her final affidavit sworn 18 September 2019, Ms Watt confirmed that she continued to be troubled by pain in the right side of her neck and in her right shoulder region. She said her level of pain increases with activity, and that she has found the best way to try and reduce such pain is the avoidance of activities which place strain upon her upper right limb or the right side of her neck.
62 Ms Watt stated she takes Nurofen, two tablets, four times each day, and that if she is in particular pain, she will also take Panamax medication. In addition, Ms Watt said she applies heat packs and uses Chinese ointment nightly. She uses heat beads when she is at work.
63 Ms Watt continues to live with her daughter, son-in-law and grandchildren. She said they have moved to a bigger home, which is now a 20-minute drive from her workplace.
64 Ms Watt said her employer continues to accommodate her restrictions at work. Nonetheless, Ms Watt said that whilst her work is not particularly physical, she experiences an increased level of pain by the time she gets home.
65 Ms Watt said she relies on her daughter and son-in-law to undertake many of the household cleaning tasks and the cooking.
66 Ms Watt said her sleep continues to be disturbed on a nightly basis, especially if she accidentally rolls onto her right side.
67 Ms Watt said that it does not matter what form of activity she undertakes, if she uses or places strain upon her right upper arm or shoulder, she experiences an increased level of pain. As a result, she said that she has had to mould her lifestyle activities around such constraints.
68 In her oral evidence, Ms Watt said her right hand is painful, so she rests it across her chest most of the time. She said that as she is right-handed, she sometimes lifts things with her right hand, but that if it causes her to experience pain, she will either stop whatever she was doing, or complete the task with her left hand.
69 Ms Watt also relied upon affidavits filed by her daughter, Kristine, and son-in-law, Allan, in support of her ongoing impairment and the consequences she suffers.
70 In her first affidavit sworn 23 June 2018, Kristine detailed how active her mother had been prior to the accident. It was noted that Ms Watt cooked, cleaned, mowed the lawns and painted the fences. Following the accident, Kristine said that her mother appeared to find tasks such as cooking, washing, cleaning and mowing the lawns difficult. Kristine stated that when her mother attempted to undertake such tasks, she would see her mother wince and either hold her arm and shoulder area or do the task very slowly. Kristine stated that, at that time, her mother no longer did any outdoor work and that she was undertaking most of the cleaning.
71 Kristine also stated that her mother was limited in her ability to play and interact with her grandchildren. She said that whilst her mother was always previously on the move, since the accident, when Ms Watt arrived home from work, she would often just rest on the couch.
72 In a further affidavit sworn 25 September 2019, Kristine confirmed that her mother was unable to involve herself in activities with her grandchildren and that she and her husband undertook the vast bulk of the cleaning and maintenance tasks, as well as shopping and cooking. Kristine noted that her mother took medication on a daily basis and applied heat packs and Chinese ointment. Kristine also stated that, as a nurse, she often arrives home at 11.00pm to find her mother still awake, complaining that her pain has kept her awake.
73 Ms Watt’s son-in-law, Allan, also confirmed how active Ms Watt was prior to the accident, including that she regularly had Allan and his wife and children over for dinner. Following the accident, Allan said that he has seen his mother-in-law using her right arm more carefully and performing tasks very slowly. Allan stated that he now cooks most nights, as well as changes the beds and washes the dishes. He also said that he completed the heavy shopping due to Ms Watt’s restrictions.
74 Ms Watt said she has continued in her full-time employment, as her employer has been prepared to accommodate her restrictions. She said that as office manager, she is responsible for customer orders, and that prior to the accident, she would at times check on orders in the production area within the factory. However, Ms Watt said she does not now carry out this task, as she finds it difficult to walk and lift products. Ms Watt said she limits the lifting she has to undertake at work, and asks her co-workers for help. Ms Watt said she takes more breaks than she used to, and that she also changes her position more regularly. Ms Watt said that she limits her use of a computer to 30 minutes at a time.
75 Ms Watt also relied upon an affidavit sworn by her manager at Lakeside Packaging, Ms Eliza Najdovski. In this affidavit, Ms Najdovski, stated that Ms Watt has been on modified duties following the accident, in that she does not now lift or carry packages within the warehouse.
Ms Watt’s reliability as a witness
76 The TAC sought to attack her credibility on the basis of video surveillance taken of Ms Watt over the course of several days in May, June and July 2018. In this footage, Ms Watt can be seen at her home, her church, at the supermarket, arriving at a medico-legal appointment and on an outing with her family, including her grandchildren. On each occasion in which she was filmed, I did not consider Ms Watt to demonstrate any apparent restriction in the use of her right arm.
77 I accept Mr Ingram’s submission that the video surveillance was not inconsistent with any of the activities Ms Watt deposed to in her affidavits. However, I note that in her oral evidence, Ms Watt indicated that she usually held her right hand in front of her chest in order to protect it from pain and that, due to such pain, she was very limited in the use of her right arm. The guarding of her right arm in such a way was not evident in the video surveillance. In such circumstances, I have reached the conclusion that Ms Watt is still able to use her right arm to undertake everyday tasks such as picking up items in a supermarket, holding an umbrella or a child’s hand and carrying a shopping bag. However, I do not consider this inconsistency between Ms Watt’s oral evidence and the video surveillance to be so significant as to cause me to disregard her evidence entirely.
78 Further, I did not consider there to have been any substantive inconsistencies in Ms Watt’s oral evidence and the matters Associate Professor Paoleti recorded in respect of her psychiatric complaints. I accepted her explanation as to what she actually reported to him.
79 I generally considered Ms Watt to be a cooperative witness, who gave evidence in a simple and straightforward manner. I consider her to be a stoic woman, and this finding in part bears upon my assessment of her reliability. Ms Watt returned to work soon after the accident, and continued working, despite an initially undiagnosed fracture to her clavicle. In her continuing employment, I accept that Ms Watt has been able to cope at work, with the help of a supportive employer, and the modification of her duties.
80 In her affidavits, Ms Watt identified a range of activities that cause her pain, and described the manner in which she attempts to avoid or minimise activities that aggravate her pain. Ms Watt said that she finds it painful to carry heavy items with her right hand, and thus tends to undertake smaller shopping trips to avoid carrying heavy loads. Ms Watt said she still attempts to undertake some of the housework, notwithstanding that it increases her symptoms. In addition, Ms Watt said that although she enjoys interacting with her grandchildren, she has to avoid carrying them, so as not to place a strain on her neck and shoulder.
81 I note that Ms Watt’s complaints of neck pain have been consistently reported to the numerous doctors who have examined her in this case. There has been no suggestion that she is not genuinely suffering from the neck pain of which she complains. The inconsistencies observed by Dr Owen relate to Ms Watt’s complaints of pins and needles in her right arm and hand. Dr Owen suggested that this inconsistency may be “psychosocial related”, but in so commenting, I did not understand him to suggest that Ms Watt was exaggerating or disingenuously reporting her pain.
82 Having considered all of the evidence, I am satisfied that Ms Watt was a reliable witness who has demonstrated a willingness to be relatively active in her home and working life, despite reports of ongoing pain. Save for the degree to which she uses her right hand, I accept her evidence as to her injuries, and the subsequent consequences.
Ms Watt’s cervical spine injury
83 Following the accident, there was a delay in the diagnosis of Ms Watt’s cervical spine injury, as the initial concern related to her broken clavicle. Given the complaints of pain she then made in respect of her right arm, there was some confusion as to a possible right shoulder injury. As the clavicle, right shoulder and cervical spine are very closely located, this confusion is understandable.
84 In her first affidavit, Ms Watt focused on her clavicle and right shoulder pain. I note, however, that in the same affidavit, Ms Watt reported pain in her neck and head, with frequent headaches. By April 2018, in circumstances where Ms Watt’s clavicle was solidly united, and where she had a good range of movement in her right shoulder, Mr Lynch considered her pain problems to have originated from her cervical spine. This opinion was then supported by the medico-legal doctors: Mr Miller, Dr Middleton, Dr Kennedy and Dr Owen. Each doctor supports the accident having caused an aggravation to the pre-existing degenerative changes in Ms Watt’s cervical spine.
85 The accident occurred three and a half years ago. I accept that Ms Watt has suffered persisting symptoms in her neck since that time, and that it is therefore a long term injury.
86 There is reference in some of the medical reports to Ms Watt suffering a chronic pain syndrome, and/or psychosocial problems. I consider such comments to relate principally to Ms Watt’s complaints in respect of her right arm and hand. However, to the extent that such observations are relevant to Ms Watt’s cervical spine injury, I am satisfied that there is a substantial organic basis to the pain and suffering consequences arising from this injury.[3] The TAC did not invite me to find otherwise.
[3]Meadows v Lichmore Pty Ltd [2013] VSCA 201
87 In assessing Ms Watt’s application in respect of her cervical spinal impairment, there must be a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[4] I must consider only the consequences arising from the aggravation.
[4][1994] 1 VR 436
88 In R J Gilbertsons Pty Ltd v Skorsis,[5] Chernov JA summarised the task before me:
“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 accident 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.”[6]
[5][2000] VSCA 51
[6]Ibid at [40]
89 Prior to the accident, Ms Watt had suffered some neck pain. A CT scan in 2010 demonstrated multifocal disc degeneration. However, I accept Ms Watt’s evidence that for at least 12 months prior to the accident, she had not suffered any pain in her neck or right shoulder. As such, I am satisfied that the pre-existing cervical spine condition was asymptomatic at the time of the accident, such that Ms Watt did not suffer any impairment at the time of the accident. Therefore, in assessing Ms Watt’s claimed consequences, I can consider the entirety of her cervical spinal impairment and the consequences which have subsequently arisen.
Why the consequences to Ms Watt from her cervical spinal impairment can be described as at least very considerable
90 I must now consider the consequences arising from the impairment to Ms Watt’s cervical spine. Those consequences must be “more than significant or marked” and “at least very considerable”.[7]
[7]Humphries v Poljak [1992] 2 VR 129
91 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[8] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the court should have regard to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
[8]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
92 This matter is somewhat complicated by the fact that, in addition to her cervical spine impairment, Ms Watt also claims to suffer pain and symptoms in her right shoulder, right arm and right hand, as well as pain in the region of her clavicle fracture. It is impermissible for Ms Watt to rely upon those other injuries and the relevant consequences in the assessment of her claim in respect of her cervical spine impairment. I note, however, that an overlap in consequences from multiple impairments does not automatically disentitle a plaintiff. A consequence may have a multiplicity of causes, including a multiplicity of injuries.[9] As was noted by Ashley JA in Dressing v Porter, it is “beside the point”[10] if other injuries cause similar impairments and consequences.
[9]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at [58]
[10]Dressing v Porter& Anor [2006] VSCA 215 at [47]
93 Having considered Ms Watt’s evidence, as well as the evidence of her daughter, son-in-law and manager, together with the medical material, I am satisfied that Ms Watt suffers the following consequences as a result of her cervical spine impairment:
(i)daily use of pain killing medication, as well as heat packs and Chinese herbal ointments.
As has been recognised by the Court of Appeal in previous cases, “…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[11]
[11]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
(ii) regular interference with her sleep;
(iii) restriction in her domestic activities, including cooking, cleaning and gardening;
(iv) restriction on her ability to engage with and care for her grandchildren;
(v) some flexibility in her work arrangements, with modified duties provided on a permanent basis. I am also satisfied that at the end of a working day, Ms Watt suffers increased pain;
(vi) difficulty doing a head check whilst driving.
94 In his closing submissions, Mr Ingram invited me to take into consideration the psychiatric consequences, secondary to Ms Watt’s physical injury, including her expressed phobia about being a pedestrian and having her grandchildren in her car. It was suggested by Mr Ingram that I could consider such psychiatric consequences, as identified by Associate Professor Paoletti, pursuant to the Court of Appeal decision in Richards v Wylie.[12] I do not accept this submission, and have not considered Ms Watt’s anxiety related psychiatric consequences in reaching my conclusion in this matter.
[12][2000] VSCA 50
95 In determining this application, I have compared Ms Watt’s consequences with other cases in the range of possible impairments. For the reasons detailed above, I am satisfied that the consequences to Ms Watt, from the aggravation to her pre-existing asymptomatic spinal impairment, are more than considerable and marked and can fairly be described as at least very considerable.
96 I therefore grant Ms Watt leave to commence common law proceedings in respect of the injuries she suffered in this transport accident.
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