Watterson v TAC
[2016] VCC 908
•1 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CI-13-02121
| NARELLE WATTERSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | His Honour Judge Wischusen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 April 2016 | |
DATE OF JUDGMENT: | 1 July 2016 | |
CASE MAY BE CITED AS: | Watterson v TAC | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 908 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords:
Legislation Cited: Transport Accident Act 1986; Limitation of Actions Act 1958
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ansett Australia v Taylor [2006] VSCA 171; TAC v Florrimell [2013] VSCA 247; Richards v Wylie [2000] VSCA 50
Judgment: Application successful
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms R Boyce | Nowicki Carbone Lawyers |
| For the Defendant | Mr G Lewis QC with Mr P Gates | Transport Accident Commission |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave pursuant to s93 of the Transport Accident Act 1986 to bring a proceeding for recovery of damages in respect of injuries sustained in a transport accident which occurred on 12 February 2004. On that day, the plaintiff was on foot waiting to cross the Nepean Highway in Chelsea when she was struck by a passing vehicle.
2 The applicable legal principles are not in dispute. The long-term impairment or loss of body function relied upon is the function of the left hip and/or the lumbosacral spine.
3 Discussions with counsel at the outset revealed that the defendant resisted the plaintiff’s application for leave on the grounds that the problems of which she now complains are not causally related to the transport accident. That is, that they are not on any view “serious” in the required sense, and that the plaintiff’s account does not distinguish between consequences related to the lumbar spine problem and the consequences related to the left hip problem and, that without such disentanglement, the plaintiff could not discharge the onus she bears.
Background
4 The plaintiff is now 58 years of age. She has a Bachelor of Arts in music and history. She is married to a piano tuner. She has 13 children, many of them still living at home. Before the accident she was a busy housewife and was the primary carer of the children. She also taught piano and flute and assisted her husband in his business.
5 In early 2006, two years after the subject accident, she was diagnosed with carcinoma of the breast and this was followed by two surgical procedures, considerable radio and chemotherapy, and long-term hormone treatment.
6 More recently, and partly in consequence of her own experience,[1] the plaintiff has undertaken training as a nurse – a course she adopted with a view to becoming a specialist breast care nurse.[2] At present her training is incomplete, but she has completed the academic aspects of her Bachelor’s degree with considerable distinction.[3] She has been unable to complete the training because of the requirement to work 30 hours a week on the wards.
[1]Transcript (“T”) 42, Line(s) (“L”) 27-30
[2]T42, L24
[3]T43, L7
Chronology of injury and treatment
7 The plaintiff was attended at the scene by an ambulance and taken to the Emergency Department at the Frankston Hospital. Injury to the right wrist and left hip were noted. She was seen by her local general practitioner, Dr Rodney Hain, later that day where injury to the right hand, left buttock and upper thigh laterally was noted. Clinical notes from 1 March 2004 record resolving haematoma of the left buttock “still” and clinical notes from 9 March 2004 record “haematoma resolving still pain over coccyx for x-rays.”
8 It was the plaintiff’s account that the bruising took 6-8 weeks to resolve; that as the bruising resolved she began to notice low back pain; and that in the circumstances of her then busy domestic life, she put up with these problems and just got on with what she had to do.
9 Over the next two years, the plaintiff was seen at Dr Hain’s clinic on 20 or so occasions. The doctor’s extremely brief computer-recorded clinical records record no complaint of, or treatment for, any condition connected with the accident. In cross-examination, the plaintiff said she could not remember what she might have seen the doctor about at those times, but in re-examination said that she would have complained, perhaps every six months, about her left hip problems. The plaintiff also said that she was often at the doctors with one of her many children and might have mentioned her accident-related problems on these other occasions.[4]
[4]T58, L7
10 At the beginning of 2006, the plaintiff was diagnosed with breast cancer. For this, she underwent two surgical procedures, a number of courses of chemotherapy and radiotherapy. These treatments ended in about August 2006 and she continued to be followed up at the Peter MacCallum Cancer Centre at Monash over the years that followed. It was the plaintiff’s account that her (quite natural) concerns about the cancer and her prognosis,[5] were such that she regarded her accident-related symptoms as the least of her problems. At the completion of the more immediate forms of treatment, perhaps sometime later, the plaintiff was started on medication called Arimidex. She remained on Arimidex until at least early 2012. In the affidavit the plaintiff swore in relation to her application for an extension of time,[6] the plaintiff said that it was not until she ceased taking Arimidex (at which time other joint and bone pains,[7] which are common side effects of it, dissipated) that she noticed[8] the ongoing accident-caused problems with her low back and left hip. As discussed with counsel in the course of submissions,[9] I found this aspect of the plaintiff’s evidence quite unconvincing.
[5]T38, L7-21
[6]Plaintiff’s Court Book (“PCB”), paragraph 2
[7]Complaints of these are recorded in the Hospital notes in 2010 - M63, 64
[8]PCB 9, paragraph 12
[9]T10-13
11 It was also the plaintiff’s account that Dr Hain was of the view that she should continue Arimidex beyond the five years for which its prescription had been recommended by her oncologist, because other patients of his who had ceased taking it had suffered a recurrence of their malignancy. The plaintiff said she preferred the advice from Peter MacCallum, to cease taking it after five years, because of the risk of cardiac complications, but led Dr Hain to believe that she was still taking it. She did this by accepting his prescriptions for Arimidex and by having them filled at the pharmacy until at least 2014, though taking none of them. For reasons explained during discussions with counsel, I did not think her evidence about this was believable and, in my view, represented something of a “construct” designed principally to fortify her application for an extension of time. I have formed the view, as I was urged to, that the plaintiff is by nature a straightforward person who in evidence was quite capable of expressing herself clearly and on occasions with some force. She is tertiary educated and intelligent. Her explanation, which involved the deceit of both the treating general practitioner and those conducting her follow-up and surveillance for the return of her malignancy is, in my view, highly improbable.
12 Another troubling aspect of the plaintiff’s evidence was the cross-examination about her consumption of Voltaren. It was pointed out to her that the records show she had not been prescribed Voltaren for a long time (when compared with the rate of consumption deposed to in her affidavit of February 2014). In response, she explained that when she ran out, she took those that were in the house which had been prescribed for her children.[10] During re-examination, the plaintiff said she was able to buy them over-the-counter in smaller doses and that this was what she did. This explanation I also found to be troubling. First, it is at odds with the family’s difficult financial circumstances mentioned in the affidavit material. Second, it is at odds with the explanation she had offered to explain the way in which Dr Barr[11] kept reissuing the prescriptions for Arimidex. Third, though the proposition was squarely raised with her in cross-examination, she did not think to offer the “over-the-counter” explanation until re-examination following the luncheon adjournment – and this from a witness who, in my view, clearly understood the significance of all the lines of cross-examination for her case.
[10]T45
[11]A general practitioner from another clinic the plaintiff attended because “our doctor is very hard to get into. He’s only part-time.” (see T26)
13 On reviewing the evidence concerning Voltaren, examination of all the materials reveals that the cross examination was conducted from two principal sources.[12] When that document is cross-referenced with the printout from the Carrum Pharmacy,[13] it appears that the last Voltaren prescription from Dr Hain, that was made up at that pharmacy, was dispensed on 20 June 2012. The pharmacy’s records show that that prescription came with three repeats, and, when one looks at the prescriptions list before and after that time, a number of the prescriptions came with as many as five repeats. What is also noticeable is that after 20 June 2012, no prescription written by anyone other than Dr Zev Barr, who practices at another clinic, was dispensed after that time.
[12]The first of these is the medication summary from Dr Hain’s clinic, pages 27-29 of Exhibit 1
[13]PCB 68 to 72
14 Reference back to the medication list and to the clinical notes of the Aspendale Clinic shows that after June 2012 further prescriptions for Voltaren, Betaloc and Arimidex were written, and if they were made up, this must have occurred at some other pharmacy, a suggestion the plaintiff offered was the Carruthers Chemist.[14] It is, of course, unsurprising that the plaintiff now, has no detailed knowledge of what scripts were written, how many repeats they had, or where and when they were made up. In the end, it does appear that the records from which propositions were put to her in cross-examination were very likely incomplete,[15] and so the premise of the questions – that no Voltaren had been prescribed or made up is not so solid.
[14]T22
[15]No medication summary or clinical notes from Dr Barr were in evidence, nor were the records from the other pharmacy
15 Nevertheless, the damage done to the plaintiff’s credit on these somewhat peripheral issues is only one part of the evidence. What was clear from the evidence is that from as early as late in 2008, the plaintiff was reporting left hip pain which she consistently connected with being struck by the car. The context of that complaint was her concern that her left hip pain might be a manifestation of her breast cancer for which she was still in active treatment. On 16 December 2008,[16] this clinical note appears in the Southern Health records “tolerating Arimidex but increasing pain in left hip (has old injury from MVA) patient concerned + + re metastasis”. Investigations followed[17] and, in my view, the attribution of it to the accident is an accurate representation of the plaintiff’s then state of mind, and supports her account that although she had not sought treatment for it, her left hip had remained a problem since the accident.[18] I have reached this view because I accept that her principal focus at the time was her natural anxiety about the return of her malignancy, and the history was given at a time when no benefit of any description was likely to accrue to the plaintiff because of that attribution, rather than any other.
[16]Exhibit 1, page 61
[17]The whole body scan reported at PCB 54e was performed “for hip discomfort,” as the letter from the oncologist to the GP at PCB 54f explains
[18]In February 2009 (M62) there is a note “MVA 2004 with occasional left hip pain” followed by reference to sleeping difficulty and the prescription of Temazepam. which the plaintiff said was for difficulty sleeping due to left hip pain, T62
16 In May 2009, there were further investigations of her left buttock and hip problem. These investigations followed an attendance at Dr Hain’s practice where Dr Smith recorded “left buttock pain sitting walking and lying post-MVA old haematoma gluteus tendon.” This consultation resulted in the prescription of Panadeine Forte and a referral for the ultrasound performed on 14 May 2009,[19] which did not seem to reveal any obvious cause of the plaintiff’s complaints. Further investigations in early 2010 of this continuing left hip problem were conducted, again in the context of her concern that it might represent her malignancy, rather than with a view to the pursuit of any accident-related compensation. Attendances after that time in relation to these problems were not regular, but by June 2012, she was complaining of increasing left buttock pain since the 2004 accident, and was referred to the orthopaedic surgeon, Mr Nigel Broughton.
[19]PCB 51
17 An examination of the clinical records in the context of the plaintiff’s other medical problems, in my view, reveals consistent, though not frequent, complaints of left hip pain which the plaintiff attributed to the motor car accident from at least late 2008. In my view, these complaints should be regarded as spontaneous and likely truthful representations of the plaintiff’s own estimation of the causes of her problems. Up until this point of time, the only occasion on which any motive for associating her left sided hip problems with the car accident seems to have arisen, is in the context of meeting the expense of the 2010 bone scan - which the plaintiff had requested because of her concerns about malignancy.[20]
[20]PCB 54F, 54D; M43
18 In 2010, the plaintiff had some physiotherapy in relation to the left hip problem without improvement. The physiotherapist, Ms McGuinness, wrote that she first saw the plaintiff on 2 June 2010 with a history of pain into the left hip for six years following being hit by a car as a pedestrian, worsening over the last few months. The plaintiff was complaining of a loss of power, limitation of walking, limping and reduced range of movement. Examination findings included a loss of muscular bulk around the left gluteal region and tenderness over the greater trochanter.[21]
[21]PCB 66
19 The plaintiff’s general practitioner, Dr Hain, provided reports in March 2013 and September 2015. In them, he sets out the plaintiff’s presentation shortly after the accident and then this statement:
“Her L [left] buttock pain has persisted for many years and continues to cause distress and significant discomfort. The diagnosis is left sided gluteus medius tendinopathy and left sided gluteus minimus tendinopathy, and without further treatment this is likely to continue.”[22]
[22]PCB 61
20 In his more recent report, Dr Hain wrote that she had continued to have left buttock pain which interferes with her daily activities, as well as constant pain in her hip and buttock region. He set out her July 2015 history as including constant and nagging pain, an inability to sit for longer than an hour and an inability to work successive nursing shifts because of the pain. Dr Hain repeated his previous diagnosis, accepted the difficulty that working successive shifts had caused her, and stated that her condition was consistent with the stated cause.
21 In 2012, after reporting increasing left buttock pain since the accident to her general practitioner, the plaintiff was seen by Mr Nigel Broughton, orthopaedic surgeon.[23] Mr Broughton obtained a history that she had “just lived with pain around the left hip”[24] for eight years; that it was now worse and she could not sleep or lie on it; and that despite regular Panadol, had difficulty sleeping and walking. Mr Broughton found pain on a range of left hip movements and felt her pain was a combination of nerve root impingement and localised hip pathology. He sent her for a MRI scan which revealed no osteoarthritic change in the left hip, but gluteus tendonopathy,[25] mild left trochanteric bursitis, significant lumbar spine arthritis and nerve root impingement. He thought the hollow in her buttock was the result of “old fat necrosis.” He recommended further treatment for her gluteal tendinopathy, and physiotherapy for her back pain. Mr Broughton’s opinion was that the car accident had caused, or aggravated, the arthritic changes shown on the MRI of her lumbar spine and that further management of both sites could be investigated.
[23]PCB 57-60
[24]PCB 59; Of the MRI of the left hip the radiologist concluded that there was "left-sided gluteus minimus – media's tendonopathy, with the small tear of gluteus medius insertion, and some reactive enthesopathy; also some mild left trochanteric bursitis." Of the lumbar spine the radiologist concluded "there is a mild right foraminal – lateral disc bulge at L3-4, which may just contact the exiting right L3 nerve. Mild broad based disc bulge with foraminal components at L5-S1, which may just contact but does not indent the exiting L5 nerves." PCB 53,54 – cf the CT of the lumbar spine of 25 July 2007 PCB 54a
[25]PCB 53-4
22 After that time, the plaintiff was prescribed Voltaren for buttock and hip pain in September and October 2012. In January 2013, she was sent for ultrasound-guided steroid injection[26]. In February 2013, it was recorded that dyspepsia led her to stop Voltaren and so it was ceased, though it was re-prescribed not long after, in April 2013. Treatment with Voltaren continued and, on 22 March 2014, the plaintiff underwent ultrasound-guided injections of steroids into the trochanteric bursa and gluteal tendons which produced benefit for only a few days.
[26]PCB 52
23 In May 2015, Dr Hain sent the plaintiff for a MRI scan of the lumbar spine and left buttock.[27] The radiologist reported that no gluteal muscle tear or haematoma was detected, and as to the lumbar spine concluded that there was “a focal right paracentral L3-4 disc protrusion with associated mild right L3 foraminal stenosis.”[28] Whether this represents a change at that level from the findings made in 2012 is unclear.
[27]PCB 64
[28]PCB 48
24 Whilst it is, in my view, reasonably clear that from relatively early days, the plaintiff was associating her hip pain with the accident which is the subject of this proceeding, the same cannot be said in relation to reports of low back pain. The plaintiff was sent for X-rays of the lumbosacral spine following her complaint of “still pain over coccyx” in the weeks immediately following the accident, but any low back pain connected with the accident is not referred to after that time in the general practitioner’s notes and the first reference to it that I can find at all was in an outpatient note[29] dated 26 November 2006 recording “back pain better with NSAIDs,” and in July of the following year “some new L – S spine pain.”[30]
[29]M 58
[30]M 59
The plaintiff’s account
25 The plaintiff had sworn four affidavits.[31] Her first affidavit begins with the explanation that she rushed through the immediate post-accident treatment regime because of her busy responsibilities as the mother of 13 children, explaining that it was not until much later when her symptoms worsened that she sought more treatment and ultimately legal advice. The seeking of treatment, she says, was further delayed by the concerns for, and treatment of her breast cancer, diagnosed in 2006. That delay is further explained by reference to the fact that the drug, Arimidex, caused widespread joint pain such that virtually every joint was sore, though she continued to have left hip pain left buttock pain and some lower back pain while she was on it. She said that when she stopped taking Arimidex, all of the aches and pains disappeared save for left hip, buttock and lower back, so she sought further treatment from Dr Hain for these problems. In the first affidavit she swore she was taking about 40 Voltaren tablets a month, particularly as she was, at the time of swearing her first affidavit, required to do a lot of standing walking and bending as part of her nursing training.
[31]PCB 6-33d
26 As to the consequences of the injuries, she swore that she had constant pain in the affected areas; that many aspects of her social domestic and employment pursuits were interfered with by her symptoms; that she was never pain-free; and that the pain interfered with her sleep on a regular basis and required her to take over-the-counter Panadol.
27 The plaintiff explained that she experienced an increase in her symptoms during the work placements required in her nursing training; difficulty with stairs; and episodes of “give way” in the left leg.
28 As to the effect of the work on the wards the plaintiff said:
“... but if I had to do two days in a row, I was really struggling the second day and it just meant that every time I put my foot down on the floor, I’d get a sharp pain in my hip. It had gone from being just an ache to a pain, to an actual pain every time I did it. So I was walking around actually in pain.”[32]
[32]T66
29 She said she was unable to undertake the graduate program which required 30 hours per week on the ward. Such consecutive days of work were beyond her because of the pain. She observed that although she was unable to return to her regular walking while she was on the Arimidex, after its side-effects had stopped, she had been unable to return to her long walks because of the accident-related problems.
30 The plaintiff said that prolonged sitting caused her difficulty such that when working on the accounts in her husband’s business she needs to take breaks every 15 to 20 minutes, and follows much the same regime when quilting with her friends.
31 In cross-examination the plaintiff explained, in relation to a question about difficulty driving:
“It’s not that I can’t drive long distances, it’s just that by the time I’ve driven a long distance I’ve seized up and – well, I’ll end up with aches and pains, in particular really strong aching pain in my hip. Like driving in today, I get to about halfway and I start to become uncomfortable.”[33]
[33]T48
The medico-legal reports
32 In July 2013, the plaintiff was examined by the plastic surgeon, Murray Stapleton, in relation to the indentation evident in her left buttock which the plaintiff related to the accident. Mr Stapleton’s diagnosis was of “traumatic soft tissue necrosis deep within her left buttock.”[34] Mr Stapleton saw the plaintiff again in October 2015, and on this occasion he had available to him a good deal of background medical material and the orthopaedic surgeon’s reports in this case. He thought her situation stable and his diagnosis of traumatic necrosis of the deep tissues was unchanged.
[34]PCB 80
33 The plaintiff was examined by Mr Gary Grossbard, orthopaedic surgeon, in June 2014.[35] He took a history and on examination found tenderness in the lumbar spine with reduced flexion and extension, as well as tenderness over the abductor insertion and over the greater trochanter. He found 3 centimetres of quadriceps wasting on the left side. Although at that time he did not have radiological films or reports available, on the assumption that they showed degenerative change in the lumbar spine without evidence of nerve root impingement, he stated that it was his impression that the plaintiff had sustained a direct injury to her left abductor region with associated abductor tendinopathy and trochanteric bursitis, in the presence of ongoing back pain with some reference into the left buttock.[36] It was Mr Grossbard’s view that those injuries caused significant limitations (outlined in his history) and that they would affect the plaintiff’s ability to work as a nurse and her earning capacity. He regarded the injuries as stable.
[35]PCB 73
[36]PCB 75
34 On the defendant’s behalf, the plaintiff was examined by Mr Michael Dooley orthopaedic surgeon on 25 March 2015.[37] Mr Dooley found no wasting of the calf which he had measured, and after reviewing the history and the radiology, made a diagnosis of “a direct impact soft tissue injury to the left buttock region.” He felt there would have been some impact in the collision to the sacrococcygeal area and that “this injury would account for a patient noting some ongoing intermittent pain in the region, especially with prolonged activity and prolonged standing.”[38] Of the MRI findings of tendonopathy, Mr Dooley stated that it was “a common degenerative condition that most commonly presents in middle-aged to older ladies” and described typical symptoms of this condition, many of which the plaintiff has described in this case. He did not think it was related to the motor vehicle accident, and stated that it had become symptomatic “at an age when one would expect it to do so.”[39]
[37]DCB 7
[38]DCB 10
[39]DCB 11
35 Mr Dooley also stated his belief that her low lumbar pain related to naturally occurring degenerative disc disease and then stated “some of the pain noted in the low lumbar and sacrococcygeal areas could relate to the residual effects of the impact injury sustained in the motor vehicle accident.” He did not think she would be fit to work as a clinical ward nurse and stated that her inability to do this “would relate in part” to the effects of the motor car accident. He also noted that she would not be able to engage in active impact leisure pursuits and would have difficulty with physical chores.
36 In a further letter dated 15 July 2015,[40] he wrote that he did not think she could consistently work on the wards and then stated:
“(My) view would remain that as a consequence of the soft tissue injuries sustained in the motor vehicle accident and as a consequence of naturally occurring degenerative disc disease of the lumbar spine, Mrs Watterson would struggle to work consistently in this (work as a clinical nurse) capacity.”
[40]DCB 14
37 He felt she had a physical capacity to do light duties of nursing work, such as breast care.
38 Mr Grossbard re-examined the plaintiff on 16 September 2015, when the history included:
“She said her hip was still her major problem, and she described ongoing sharp pains on the lateral side of the hip. These were worse if she stood for long periods of time, and she is not able to negotiate more than a couple of stairs at a time.”[41]
[41]PCB 77
39 Examination findings included tenderness on the right side of the lumbosacral area, reduced lumbar flexion, some wasting of the gluteus maximus and “there was 4 cm of quadriceps wasting on the left side, and 1 cm of calf wasting the left side.” There was also pain in some of the ranges of movement tested. On this occasion, Mr Grossbard had the MRI report of May 2015, the relevance of which he doubted as the major lesions were right sided, and her complaints were predominantly left sided. His opinion was that the plaintiff:
“has ongoing buttock pain with wasting of musculature in the left lower limb, as a result of the direct blow received following the motor accident of 12th February 2004.[42]
[42]PCB 78
40 In further correspondence, Mr Grossbard was asked to comment on the two reports obtained by the defendant from Mr Michael Dooley, orthopaedic surgeon. In his letter of 30 October 2015,[43] Mr Grossbard said he stood by his earlier opinions, and he observed that Mr Dooley had not mentioned the presence of thigh wasting, which Mr Grossbard had consistently noted and which he believed related to the buttock and gluteal injury. He thought his conclusion that the left hip problem was related to the accident, rather than an age-related degenerative condition, was “undeniable” and supported by the force of the blow as evidenced by the fat necrosis of the left buttock. He went on to say that he thought her back symptoms were also a result of the accident.
[43]PCB 78A
41 Mr Grossbard again re-examined the plaintiff on 2 March this year. The plaintiff’s history and examination findings were not much changed and he again found quadriceps wasting. He thought her situation was stable.
42 In evidence were also two reports from Mr David Weissman, consultant psychiatrist.[44] In his first report of November 2013, Dr Weissman noted his impression that the plaintiff came across as “an extremely capable, stoical resilient person”. He felt she was still traumatised by the accident and thought her symptoms and features probably satisfied the diagnostic criteria for PTSD, though this did not affect her capacity for employment or for her duties in the house, and he did not think medication was required. Dr Weissman saw her again on 9 September 2015 when he again noted that she was very straightforward and candid and stated that, if anything, her condition from a psychiatric point of view had improved, noting her continuing frustration and disappointment at her sleep disturbance.
[44]PCB 91 – 116
Counsel’s submissions
43 Counsel for the defendant spoke to detailed written submissions. Amongst the submissions was the principal contention that I should prefer the opinion of Mr Dooley on the question of causation such that the development of tendonopathy was not related to the accident. It was submitted that Mr Grossbard’s view to the contrary was founded on a history of continuous symptoms which was not borne out by the evidence in the case.
44 Counsel observed that a great many consultations with Dr Hain in the years immediately following the accident for all sorts of conditions, many of them minor, recorded no mention whatsoever of accident-related hip or back symptoms, and submitted that the plaintiff’s evidence that it had remained sore throughout should not be accepted. Counsel further submitted that the plaintiff’s reliance on the use of Arimidex, and her realisation (that the hip and back pain was not just a side-effect) following cessation, was not supported by the clinical records, and her evidence as to this should not be accepted. Counsel submitted that either way it was viewed, this evidence reflected poorly on the plaintiff’s truthfulness. Counsel submitted that the absence from the extensive medical records of any reference to low back pain before mid-2007, and any reference to hip pain until late 2008, supported the submission that these complaints bore no relationship to the accident.
45 By reference to Peak Engineering,[45] it submitted that the plaintiff attributed, without distinction, all of the consequences of which she complained to both the back and the hip and so I could not be satisfied as to which consequence arose from which injury and it was submitted that the evidence as to impairment across a range of activities does not delineate the source of each consequence and so it could not be said that, absent the lumbar condition, there would still be a need for medications, or that the impairment complained of would be the same.
[45]Peak Engineering v McKenzie [2014] VSCA 67
46 Counsel was critical of the lay affidavits, pointing out that the husband’s evidence about the plaintiff’s vocational ambitions was clearly wrong, and that Ms Schulz’s claim to be able to observe the extent of muscle wasting through the clothing should be rejected.
47 As to the consequences of the injury, counsel pointed out that the evidence was that she had taken up nursing with a view to becoming a breast care nurse because of her own experience with breast cancer, and that an inability to do general nursing on the ward was not of great significance because she had never intended to undertake nursing of that sort. It was pointed out that the plaintiff’s family life is still extremely busy; that she still participates in quilting; is still training to be a breast care nurse; and still has a busy social life. Counsel submitted the consequences, especially when examined with reference to what is retained, did not reach the “very considerable” level.
48 I should mention that Counsel was critical of the reliance upon difficulty sleeping, by reference to a clinical record of February 2009, pointing out that the reference in the entry of February 2009[46] in its complete form read “still complaining of difficulty sleeping Temazepam prescribed” – the submission being that the difficulty sleeping was not associated with the hip pain, because it predated that consultation. However, returning to the entry 16 December 2008 with reference to increasing hip pain, it continues in this way “………Reports recent difficulty sleeping – has now cut out caffeine – good sleep habits.” So that, it is not correct to say that the report of hip pain and difficulty sleeping were not contemporaneous as counsel had submitted, and, read in that way, the note does appear to fit with the evidence the plaintiff gave in re-examination,[47] that the difficulty sleeping was due to the left hip pain and that that was the first occasion on which she had asked for a sleeping tablet.
[46]Exhibit 1, page 62
[47]T62
49 Counsel for the plaintiff began by reference to the Frankston Hospital Emergency Department’s records which recorded that the plaintiff had been struck by a motor vehicle travelling at 50 kilometres per hour, pointing out that the medical certificate issued by the hospital included reference to injury to the hip.[48] The x-ray ordered by Dr Hain on 11 March 2004 of the sacral spine and coccyx[49] was also pointed out. After some discussion about the credibility of the plaintiff’s explanation concerning Arimidex, counsel submitted that Dr Hain’s opinion as to causation should nevertheless be accepted because he had seen her soon after the accident and, even assuming she didn’t mention it again until some years later, Dr Hain was still entitled to form the medical opinion that her complaints of hip pain, whenever they were first made, were consistent with the injury he had seen at the time it occurred. Counsel submitted that on the evidence there was no other explanation for the findings made when the plaintiff was investigated by Mr Broughton in 2012, and that it was his clear conclusion that her then complaints arose from the accident.
[48]M42a
[49]M42b
50 Counsel relied upon Ansett v Taylor[50] and distinguished TAC v Florrimell,[51] because the acceptance relied upon here was no mere payment of some medical expenses, submitting that here, the acceptance and assessment of permanent impairment consequences made years after the accident was a significant and unexplained admission in the Ansett v Taylor sense. This was more so, as the impairment assessment was of “a permanent impairment of thigh muscle atrophy and of a permanent impairment for lumbosacral spinal injury.”[52]
[50]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171
[51]TAC v Florrimell [2013] VSCA 247
[52]T27, Exhibit 4
51 He submitted that there was nothing in the defendant’s submission that because two different pathological sites contributed to the same consequences, it was necessary to disentangle them, because the same consequences may support a serious injury finding even if caused by both the left hip and the lumbar spine.
52 Counsel submitted that the consequences of the injuries clearly met the requirement that they be at least “very considerable” as the injuries caused -
· constant variable pain increased by prolonged standing and walking;
· interference with sleep, usually more than once every night, and difficulty lying on her left side;
· interference with ability to complete graduate training programme;
· interference with walking distances;
· difficulties with sexual relations;
· difficulties with sporting activities with her many children;
· difficulty with housework and shopping;
· anxiety and depression (in the Richards v Wylie sense)
· reduced participation in husband’s business; and
· interference with leisure activity of quilting.
53 Counsel relied upon the economic consequences in that the plaintiff has been unable to work full-time and has difficulty working two days in a row, and also relied upon her evidence that if she does work for two days consecutively, she can hardly sleep at night. Counsel pointed to difficulty carrying out the more limited tasks the plaintiff performs in her husband’s business and the fact that her pain is not well controlled by the medication she takes on a regular basis. Counsel submitted that the plaintiff’s account of her pain and limitation of activities was corroborated in considerable detail by the lay affidavits in evidence, and was not the subject of any cross-examination at all. He said the plaintiff’s complaints, particularly of favouring the left leg, are corroborated by the consistently measured wasting recorded by Mr Grossbard and the physiotherapist, and submitted that this finding, and Mr Grossbard’s conclusions from it, are an important reason to prefer his opinion to that of Mr Dooley. It was pointed out also that despite his views on causation, Mr Dooley was still of the opinion that the accident-caused injuries would interfere with her ability to work as a nurse. Counsel relied, but not heavily, on Richards v Wylie[53] on the basis of Dr Weissman’s opinion.
[53] Richards v Wylie [2000] VSCA 50
Findings
54 On the evidence, I am satisfied that as a result of the transport accident the plaintiff suffered injury to her left hip causing tendinopathy of the gluteus tendons, and left trochanteric bursitis with significant muscle wasting of the left thigh, and traumatic soft tissue necrosis deep within the left buttock. The impairment of the body function of the left lower limb is already long-term, and on the evidence, is likely to persist.
55 In making that finding, I have accepted the plaintiff’s account (which, as noted, was not without its difficulties) for reasons set out in paragraphs15-18 of these reasons, and I have accepted the medical opinions of the treating general practitioner Dr Hain, Mr Broughton and Mr Grossbard. To the extent that they disagree with the opinions of Mr Dooley, I prefer them. Although Mr Dooley’s view is not unequivocally against that conclusion, Mr Dooley noted no thigh wasting (measured by Mr Grossbard both before and after Mr Dooley’s examination) and his attribution of her condition to a common naturally-occurring condition does not explain why it is only experienced on the side that was injured in the collision. The finding is also supported by the defendant’s acceptance of liability[54].
[54]Though it is a finding I would have made in the absence of any admission
56 I am not satisfied that the plaintiff’s back pain results from the accident. When it next[55] appeared in the medical records, some years later, no accident-related attribution was made in the histories recorded, and significant changes reported in the radiological studies are mostly on the right side. Her persisting symptoms are on the left.
[55]In the early history, her back complaints are first reflected in the fact that the plaintiff was sent for an x-ray of her lumbar spine and coccyx within weeks of the accident, then they are not reported until the later notes already referred to
57 As to the consequences of the injury to the left hip and buttock, I am satisfied that they are, after making the required comparison, more than significant or marked and are such as to be regarded as at least very considerable. I have reached that conclusion because I accept the plaintiff’s evidence that she experiences constant pain, easily exacerbated by walking, sitting and prolonged standing and for which she takes regular medication. The left leg gives way at times and the pain is such that she struggles to complete consecutive days of work. It interferes with her social, domestic, sexual, sporting and leisure activities in the way that she has described. She is often awoken by it, and the pain is not well-controlled by the medication she does take. The injury has caused wasting of the muscles of the left upper leg, and the fact that the degree of wasting had increased between Mr Grossbard’s two examinations in my view rather supports her complaints of pain and impairment of function. Whilst it is true that she might still be regarded by some as quite a busy and active person, measured against her former work and extensive family activities as the mother of 13 children with 11 of them still at home, and 5 of them under the age of 10, and all the extensive activities associated with that, and her work in her husband’s business, the diminution in activities she has described, despite her stoic attitude to the pain, combined with the pain she experiences in so many of the activities she still pursues, persuade me that the consequences of the injury to her hip are serious in the sense required.
Section 23A Limitation of Actions Act 1958
58 At the commencement of the case, counsel for the defendant informed me that it would make no submission in relation to the plaintiff’s application for an extension of time under the Limitation of Actions Act 1958. In that setting, the submissions made on the plaintiff’s behalf were brief. Counsel pointed out that there was no evidence of actual prejudice (no affidavit having been filed on the defendant’s behalf in this regard); there was no suggestion that any witness who might give evidence on any aspect of the case was unavailable; there are in existence contemporaneous clinical notes from immediately after the accident; and I was informed (although in the end it was not tendered) that the proposed defendant driver had made a statement at the time. It was submitted that the presumed prejudice that the delay produces was insignificant here.
59 As to the reasons for delay, counsel submitted that I should accept the plaintiff’s explanation – put briefly, that having been told it was a soft tissue injury she presumed that recovery would follow and that when it did not, she was distracted for a number of years by the onset, diagnosis and treatment of her breast cancer. It was pointed out by counsel that the most recent oncological opinion was that her prognosis was good, so that no difficulty for the assessment of damages arose on that account. Counsel submitted that the delay was further explained by the fact that the plaintiff’s own general practitioner had not seen fit to refer her for specialist consultation in relation to the accident-caused problems until the year 2012, and that the plaintiff’s unchallenged evidence was that she did not become aware of her legal entitlements or rights until a discussion with her son in that year. He submitted that I should accept, as it was unchallenged, the plaintiff’s account that she had no knowledge of legal matters, and had had no involvement with lawyers outside of conveyancing, and that that the plaintiff’s solicitors had acted promptly as soon as instructions were received in late 2012. Counsel submitted that if I found the plaintiff had a significant disability which continued to the present day, that too would point towards the exercise of discretion in the plaintiff’s favour.
60 In regard to the application for an extension of time under s23A, I am satisfied, having regard to all the circumstances of the case and the matters set out in ss.(3) (set out in the summary of counsel’s uncontested submissions) that it is in the interests of justice that the period of time in which an action may be commenced be extended.
61 I will hear from the parties as to the form of orders, as to the date to which time should be extended, and as to costs.
0
4
0