Whish-Wilson v Transport Accident Commission
[2017] VCC 573
•17 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05865
| SANDRA WHISH-WILSON | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 March 2017 | |
DATE OF JUDGMENT: | 17 May 2017 | |
CASE MAY BE CITED AS: | Whish-Wilson v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 573 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – aggravation – cervical spine impairment – left shoulder impairment – Complex Regional Pain Syndrome – Chronic Pain Syndrome – psychiatric impairment – credit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; De Agostino v Leatch [2011] VSCA 249; Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Petkovski v Galletti [1994] 1 VR 436
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K S Gladman with Mr J Harris | Melbourne Injury Lawyers |
| For the Defendant | Ms A M Magee QC with Mr D C Oldfield | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(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 9 December 2004 (“the said date”).
2 Section 93(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
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body functions pursuant to sub-paragraph (a) relied upon by the plaintiff are the cervical spine and left shoulder.[1] An application was also brought in relation to a Complex Regional Pain Syndrome (“CRPS”) which Dr Blombery thought was complicating left shoulder bursitis.[2]
[1]Transcript (“T”) 1
[2]See paragraph 261 of this Judgment
5 The enquiry 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, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[3]
[3](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 & Anor v Poljak.[4]
[4][1992] 2 VR 129 at 140-1
8 The plaintiff also brought an application pursuant to sub-paragraph (c) for a psychiatric impairment in terms of a Chronic Pain Disorder.[5]
[5]T2
9 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[6]
[6][2005] VSCA 227
10 The judgment of the Court of Appeal in Mobilio v Balliotis[7] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[8] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[7][1998] 3 VR 833 at 846
[8](1995) 21 MVR 314
11 Winneke P, in Mobilio,[9] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act: see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.
[9]Mobilio v Balliotis (supra) at 833
12 The plaintiff swore four affidavits and also relied on an affidavit sworn by her daughter, Carmen, on 20 May 2015, son, Ronald, on the same date, former partner, Angelo Torrisi, on 7 April 2016, and a friend, Peter Hocknell, sworn 4 March 2017.
13 The plaintiff was cross-examined. 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
14 The plaintiff is presently aged fifty-five, having been born in December 1961. She has a twenty-six year old daughter and a twenty-five year old son.
15 Having completed Year 10, the plaintiff had a variety of jobs before starting work as a machinist for Lee Jeans in Wodonga. She deposed that whilst working there, she developed a repetitive strain injury involving her right wrist, neck and right shoulder (“the work injury”).
16 After leaving Lee Jeans in 1986, the plaintiff worked for about eight weeks at Hanrahan’s laundry. Her only work thereafter was a few weeks of security work over Christmas at Myer in about 2000. There, she was given a special chair to sit on whilst working.[10]
[10]T13
17 The plaintiff further deposed that she was injured in a transport accident in 2002, suffering a whiplash injury which affected her lower back (“the 2002 accident”).
18 On the said date, the plaintiff was involved in a further transport accident when a vehicle suddenly pulled out from the side of the road, executed a U‑turn, and struck the passenger side of her vehicle, causing it to spin violently and strike the gutter. Her car did not roll but went up on its side[11] (“the accident”).
[11]T12
19 Following the accident, the plaintiff was immediately aware of neck pain and attended Wodonga Hospital, where she was examined and diagnosed as having suffered a whiplash injury. A CT scan was performed, revealing some problems at C5‑6.
20 Over time, the pain spread to involve not only the plaintiff’s neck, but it extended into her head and down her left shoulder into left arm. She had physiotherapy treatment from Michael McNally in Albury for a year, and took painkilling medication.
21 The plaintiff moved to Queensland in late 2005 where she lived until 2011 with her de facto partner, Angelo, who was working in the mines. There, she saw Dr O’Gorman because of persisting symptoms, particularly affecting her neck. She attended physiotherapist, Mark Poots, from February 2006 and had a cervical MRI scan in December that year.
22 From January 2007, Dr Arenas treated the plaintiff at Burdekin Family Medical Practice in relation to chronic and persistent neck pain and stiffness and symptoms going through her left shoulder into her arm and hand.
23 Dr Arenas in turn referred the plaintiff to an orthopaedic surgeon, Mr Low, whom she initially saw in July 2007. He referred her for an MRI scan of the left shoulder, which was carried out later that month. The plaintiff understood that scan demonstrated possible minor subacromial bursitis but no significant left shoulder joint pathology.
24 Mr Low also referred the plaintiff for nerve conduction studies, which were carried out in August 2007. The plaintiff understood these demonstrated evidence of a mild ulnar nerve lesion in the left elbow. A cortisone injection was suggested, which the plaintiff underwent in August 2007. Mr Low recommended decompression of the ulnar nerve, but the defendant refused to fund this procedure.[12]
[12]T39
25 The plaintiff laboured on with symptoms on a persisting basis over a number of years. When she moved to Lavington in New South Wales, she started seeing Dr Tong at the Lavington Clinic. The plaintiff then had ongoing neck problems extending down through her left shoulder and arm, and tingling and numbness into her left hand.
26 The plaintiff denied she had had ongoing problems with her lower back for quite a number of years, but then agreed that, in 2008, she was having problems with her lower back when she saw an occupational therapist, Ms Cole. The plaintiff had no idea how those problems came about and she had not had any specific treatment for her lower back.[13]
[13]T63
27 In October 2011, the plaintiff was referred by her general practitioner to a psychiatrist, Dr Wild, whom she saw twice because of anxiety resulting from personal problems.[14]
[14]T64
28 The plaintiff agreed she continued to go to the Commercial Club after the accident and, unfortunately, she developed a bit of a problem with the poker machines.[15] She agreed with a history to Dr Hayman, psychiatrist, in 2016, that six years ago, she abused poker machines for about eight months, but that had not been ongoing.[16]
[15]T66
[16]T67
29 Dr Tong referred the plaintiff to Mr McMahon, neurosurgeon, whom she saw in August 2011. He sought funding for an updated MRI scan of her neck and left shoulder, which was carried out in August 2012. The plaintiff deposed to her understanding of the results thereof.
30 Mr McMahon advised surgery was inappropriate for the plaintiff’s neck condition, and he suggested she undertake a pain management course. In conjunction with Dr Tong, they were responsible for implementation of the plaintiff’s medication regime which, as of October 2013, included Lyrica 100 milligrams, Panadol Osteo, Deep Heat packs, and massage.
31 The plaintiff had then begun to consult a new doctor, Dr Munoz at Rosslea Medical Centre. On her first visit in June 2013, the plaintiff complained of right knee pain and was prescribed anti-inflammatories. Her knee is now fine.[17]
[17]T60
Pain and restrictions
32 In her first affidavit sworn on 16 October 2013, the plaintiff deposed that she continued to suffer constant but variable neck pain, the severity of which varied during the day. She also suffered headaches, as well as pain extending through her left shoulder down her arm, into the elbow and outer part of the forearm, and down as far as her fingers. She also experienced a thumping sensation in the left side of her wrist and down through her little finger.
33 The plaintiff then had difficulty raising her head to look up if cleaning or changing light globes. She found her balance was affected and her walking was restricted, particularly over uneven surfaces.
34 The plaintiff’s tolerance for car travel was then limited, and she used a pillow to support her neck. Her left side seemed distinctly weaker than her right, particularly with hand movements and fine movements.
35 The plaintiff’s sleep patterns were disturbed, despite having bought a Side Sleeper Pro to help her position. She used a massage mate to try and help maintain muscle strength.
36 The plaintiff’s domestic activities were limited, and although she was caring for Angelo, who had suffered a breakdown, he did many of the physical tasks under her guidance. Apart from that, the plaintiff did light grocery shopping and domestic activities such as sweeping and vacuuming, using her right hand and arm.
37 The plaintiff’s memory and concentration were poor.
38 The plaintiff’s capacity for work had been significantly affected by her constant pain.
39 The plaintiff’s ability to jog without pain had been removed, and she tried to walk; however, even that caused pain.
40 The plaintiff used to do needlework and cross-stich as a hobby; however, she had been unable to continue those activities and even sewing on a button increased her pain.
41 In her second affidavit sworn in May 2015, the plaintiff confirmed ongoing attendances with Dr Munoz and his partners who prescribed medication, and, although limiting Panadeine Forte to two tablets a day, Lyrica had been increased to 25 milligrams a day. This medication impacted on her ability to think and function. She then also took Panadol and Amcal Strong Pain Relief tablets, and Cymbalta twice daily.
42 Despite those measures, the plaintiff continued to suffer constant but variable pain in her neck, left shoulder and down through her arm, where there was a tingling and numbness. If anything, the symptoms seemed to be deteriorating, but nothing further had been suggested beyond conservative treatment. She continued to suffer from headaches where the pain extended through the left side of her head.
43 The plaintiff’s activities remained restricted by her pain. The chronic nature thereof had gradually led to her limiting her lifestyle more and more to avoid exacerbations.
44 The plaintiff’s head movements were accompanied by pain, limiting her ability to look upwards or to the side. This severely inhibited her driving capacity, and she had struck other vehicles, as she was unable to control her own car. She had difficulty controlling a car when parking. Accordingly, she was considerably anxious and frightened to drive, and she had not driven for about two years. Prior thereto, she was only able to drive short distances locally, with the assistance of a passenger who did the head checks.
45 The plaintiff’s sleep continued to remain disturbed by pain. It was also disturbed by Lyrica which caused her to frequently urinate throughout the night. She found intimate relations caused increased pain and she had now accepted it was unlikely she would be forming any further relationships of this kind. She found sexual relations caused pain to the point where she no longer sought physical contact.
46 The plaintiff was limited in her ability to undertake cleaning, shopping or domestic tasks, and her concentration remained poor. Jolting caused by simply walking could increase her symptoms. She was no longer able to engage in handicrafts. She used to enjoy dancing and attending clubs but now rarely did so. She no longer went to the gym.
47 There was almost no aspect of the plaintiff’s lifestyle that had not been significantly affected as a result of her injuries.
48 The plaintiff agreed there was no mention of her medical condition prior to December 2004 in this second affidavit. She agreed this, and her first affidavit, set out a picture of someone who had recovered from earlier problems as at the time of the accident.[18]
[18]T15
49 To the best of the plaintiff’s recollection, the symptoms in her neck and right shoulder had significantly settled by the time she was involved in the accident, as she confirmed in cross-examination.[19]
[19]T18
50 The plaintiff agreed she told Mr Kossmann, on examination in February 2014, that prior to the accident, she was fit and well and had no previous injury or illness. She agreed that was not true. She confirmed she gave the same history when re-examined in December 2014. She just forgot to tell him about the 2002 car accident.[20]
[20]T68
51 The plaintiff agreed it was the third time she saw Mr Kossmann – January 2016 – that she first told him about the work injury and the 2002 car accident, and that was because her solicitors had informed her material had been produced about those claims. Up until that time she “forgot”, and she “beat [herself] up over it terribly”.[21]
[21]T69
52 The plaintiff denied she was silent about the extent of her work injury because she thought she could get away with saying she had recovered from it when the accident occurred.[22]
[22]T71
53 In her third affidavit sworn in April 2016, the plaintiff gave further details of the work injury.
54 The plaintiff described how the symptoms slowly settled with time, and she believed by early 1988, she was essentially pain-free, as her doctor noted, although later that year, symptoms flared up when she was working folding linen at Hanrahan’s.
55 The plaintiff brought a compensation claim in relation to the work injury and received $7,686.00 for a permanent impairment to her neck and right shoulder.
56 The plaintiff agreed that that in her affidavit in support of her impairment benefits application sworn in July 2000, she deposed to the following:[23]
[23]T21
· Medical treatment from her general practitioner at Lavington, referral to a specialist, physiotherapy, chiropractic treatment and cortisone injections that did not help her.
· Pain on a constant basis.
· Inability to wash windows or vacuum without experiencing severe pain.
· Ability to do some domestic duties, but suffered significant pain as a result afterwards.
· Attending the gymnasium, on occasion, to boost her fitness and in an attempt to lessen her pain and discomfort but ensuring she did not take on any gym work which could aggravate her neck condition.
· Trouble cooking meals as a result of her injuries and difficulty in cutting up meat and vegetables and lifting heavy pots and pans.
· She believed her future employment options were compromised as a result of her injury.
· Extremely difficult to maintain a garden as a result of her injuries.
· Difficulty playing with her children.
· Limited lifestyle as a result of her injuries in her domestic, social and working lifestyle.
· Inability to undertake, in full, pre-injury duties, as a result of which her injuries impacted very substantially on her life, and her future employment options were compromised.
57 The plaintiff confirmed her history to Mr Brearley on examination in 2000 was true.[24] The problems she described to him had commenced in 1988/89 and had continued on for over a decade.[25]
[24]T22
[25]T20, T24
58 In her third affidavit, the plaintiff made further mention of the 2002 accident. She described an accident on 8 January 2002 when her vehicle was struck from behind when stationary. The force of the collision was sufficient to jolt her forward in her seat.
59 Following this accident, the plaintiff suffered spinal pain, moreso affecting her neck and upper back. She suffered some referred shoulder pain.
60 The plaintiff sought medical treatment at Lavington Clinic. She recalled she was advised by her general practitioner that her symptoms would resolve, and she believed over a period of some months thereafter, they did settle.
61 The plaintiff also deposed that in 2003, there was a further whiplash-type injury in another transport accident in which her vehicle was struck in the rear. This collision was not as forceful, and the symptoms gradually stabilised thereafter. She was paid $6,000 in damages.
62 The plaintiff agreed that as a result of the January 2002 transport accident, she had also had some left shoulder pain.[26] If Dr Pattison had seen her on 8 November 2002 following a car accident, that would be the date of the second accident which she had deposed was in 2003.[27]
[26]T24
[27]T26
63 The plaintiff agreed she attended that clinic on 20 November 2002 with pain in her neck and left arm, and stiffness of her neck, and paraesthesia in the left forearm and hand. Her neck movement to the left was reduced and the left side of her neck was tender.[28]
[28]T27
64 The plaintiff agreed she had a continuing problem with her left arm after the November 2002 accident for a couple of months. As Dr Patterson recorded on 24 December that year, the plaintiff could then not lift her arm above shoulder height. Shoulder movements were still restricted on 13 January 2003 and the plaintiff agreed she was still having problems relating to the November 2002 accident in May 2003, if that was what Dr Moore recorded.[29]
[29]T28
65 The plaintiff denied that her affidavit understated the left shoulder problem that was apparent in the notes, but agreed, as of May 2003, she was still having neck and shoulder pain and reduced left shoulder movement. She could not recall if these problems continued to the said date.[30]
[30]T29
66 The plaintiff agreed, before the accident, she had restrictions in her left arm which meant she could not lift it above her shoulder at times. However, she could not recall that restriction was so bad she complained to her doctor about it.[31]
[31]T50
67 The plaintiff saw a counsellor, Mr Darby, about personal problems when she was in her twenties.[32]
[32]T65
68 The plaintiff must have been having some psychiatric problems and seeing a counsellor as of January 2004 if that was disclosed in her doctor’s notes. She agreed, as of 2 January that year, she was depressed and had suicidal thoughts. She was seeing a counsellor and Effexor was prescribed. She could not remember the counsellor’s name, but he was in Albury and the referral must have been made by Dr Moore. She saw him maybe three or four times.[33]
[33]T30
69 The plaintiff agreed she was having difficulties with her relationship with Angelo in the middle of 2004. In August 2004, she had been prescribed Effexor, which she could not tolerate, and Cipramil was prescribed. She was also given some advice about how to increase her sleep.[34] At that stage, she had been feeling depressed for the past six months after relationship difficulties.[35]
[34]T31
[35]T49
70 Before the accident, the plaintiff was going to the local clubs occasionally, maybe once a fortnight or so, despite great restrictions in her activities and being on medication for her psychiatric state. She thought she went to the Lavington Sports Club and Commercial Club, and also used the gymnasium as a social outing.[36]
[36]T48
71 The plaintiff has been on a Disability Support Pension (“DSP”) for a number of years and underwent ongoing assessments.[37] She confirmed the contents of a Centrelink report by Dr Moore dated 10 September 2004, where he identified neck and shoulder pain as her number one condition, and the second, as anxiety and depression.
[37]T31
72 The plaintiff agreed she had had longstanding neck and arm pain since the work injury, as Dr Moore set out in that report.[38] She also agreed that she had difficulty with a range of activities, as he described. If it was in the report, “it must be right.”[39]
[38]T33
[39]T34
73 The plaintiff also agreed with Dr Moore’s report insofar as it described she experienced anxiety and depression with frequent panic attacks, which were debilitating and prevented her from continuing normal activities. She was taking Cipramil at that time.[40] She did not socialise and her household tasks were left undone. She also had poor concentration and motivation. She was then in a long-distance relationship with Angelo.[41]
[40]T35
[41]T36
74 The plaintiff agreed that all the physical and emotional restrictions detailed by Dr Moore had been present on and off since at least 1990, but not continually. She had been on a DSP throughout that decade.[42] However, before the accident, she was attending the gym maybe three times a week to try to build up her body, doing a pump class or riding a bike.[43]
[42]T36
[43]T37
75 Before the accident, the plaintiff was jogging and she was looking after her children. She “just did it”. Her left shoulder must not have been as bad as Dr Moore described. She did not have any independent evidence of her attending the gymnasium at that time.[44]
[44]T37
76 In re-examination, the plaintiff said that on the day of the accident, she had been to the gym and was going to do some shopping, which she was then able to do by herself.[45] She was attending the gym before the accident to get herself healthy and also to socialise.[46] As at the said date, she was cleaning, doing her daughter’s washing, running around, picking her up, taking her to parties and cooking, et cetera.[47]
[45]T71
[46]T73
[47]T72
77 The plaintiff agreed that before the accident, she was not looking for any work as she was on the DSP.[48] She never took any steps to obtain the truck licence Dr Sheehan mentioned in his report dated March 2008.[49]
[48]T37
[49]T39
78 As April 2016, the plaintiff continued under the care of her general practitioner whom she saw usually every three to four weeks. Since June 2015, she had started seeing chiropractor, Dr Penrose, who provided treatment for her neck about once a month. This provided temporary relief for about a week, but thereafter the pain returned.
79 The plaintiff continued to be prescribed heavy medication for her neck and associated symptoms, as well as some psychological secondary symptoms. She was being prescribed Lyrica 150 milligrams, as well as two Panadeine Forte a day. She also bought over-the-counter Panadol and Amcal Strong Pain Relief tablets. Her general practitioner continued to prescribe Cymbalta 150 milligrams per day.
80 That medication tended to provide limited assistance to the plaintiff. It took the edge off her pain, but she was never pain free. It also had side effects impacting on her ability to think and function.
81 Despite medication, the plaintiff continued to suffer constant, but variable levels of neck pain, referred down through her left shoulder into her arm, where she continued to suffer numbness and tingling. She was never free of symptoms of neck pain and referred symptoms to the left upper limb, and believed that they would be with her for the long term.
82 The plaintiff had found, with the passage of time, that her symptoms seemed to be deteriorating, but no further treatment had been suggested. She also suffered from pain in her head and headaches because of the pain extending from her neck through the left side into her head.
83 The plaintiff’s activities remained limited, and she continued to limit them, because the more she did, the more severe pain she had in her neck and down her arm. She continued to find that even basic movements such as moving her head from side to side increased her pain. Her ability to look upwards or sideways was restricted. Those limitations continued to severely inhibit her driving capacity, although she had not had any more accidents involving another vehicle. That situation had led to some anxiety and fear when driving. Since her earlier affidavit, she had probably driven once, and then only a few metres, to attend to horses on her property.
84 The plaintiff’s sleeping patterns continued to remain disturbed by reason of her pain, and she woke because of it. Her problems with nocturnal urination continued. She had had no further intimate relations since swearing her earlier affidavit.
85 The plaintiff shared accommodation with Angelo, but that was a purely platonic relationship in respect of which she received a carer’s pension. He did not require physical assistance. His problems were psychiatric in nature, and she was around to make sure his mental state was maintained on an even keel.
86 The plaintiff’s ability to go outdoors to undertake shopping and like activities was restricted, as was her ability to undertake cleaning chores because of neck pain. She did those tasks slowly and with care to avoid aggravating her neck pain. Angelo helped around the house with the heavier tasks.
87 The plaintiff’s memory and concentration remained poor. She was not as physically active, and found the jolting caused by walking was sufficient to cause increased neck pain. She continued to be precluded from engaging in her handicraft hobbies, dancing and attending classes. She was not attending the gym. Every activity of her life which required her neck for twisting, turning or bending had been restricted.
88 The plaintiff swore a fourth affidavit on 4 March 2017.
89 The plaintiff continues to suffer constant but variable levels of neck pain and pain down her left shoulder, chest, and down her upper limb and into her hand and fingers. The pain from her neck also extends into the back of her head and up over into her forehead, causing daily headaches lasting up to an hour.
90 The plaintiff also experiences numbness and pins and needles in her left forearm going down to the little finger and to the side of her left hand. That hand also discolours and turns blue about every second day, and this is associated with a drop in temperature in that area. These changes also extend up into the forearm.
91 The pain is unremitting and varies from 5 to up to 10 out of 10 a day.
92 The plaintiff denied that when she saw Dr Blombery in April 2016, she reported there were no changes in temperature or colour, because she did get hot and her arm does go cold. She does not know why she would have made this report. She disagreed she did not say it, because it was not true.[50]
[50]T55
93 On examination on the morning of 12 September 2016, the plaintiff would have told Mr Kossmann about numbness and pins and needles in her hand. She did not complain to him about a blue hand. She would have complained to him about an alteration in temperature. She had told him her hand goes numb on the left side and down into the thumb.[51]
[51]T54
94 The plaintiff did not agree that she had not had a blue hand before the September 2016 examination with Mr Kossmann. She would say she had experience of feeling her hand being hot or cold. She could not recall whether she reported this to any medical practitioner.[52]
[52]T55
95 The plaintiff saw Dr Blombery on the afternoon of 12 September 2016.
96 The plaintiff agreed this was the first time any doctor recorded her having a blue hand, and that she had not reported it to her general practitioner at any stage.[53] Obviously it had “been there before”, but she had not recognised the medical term for it. Her hand gets cold the day after she has been “sort of trying to do stuff, for maybe twice a week, maybe every ten days”.[54]
[53]T57
[54]T58
97 The plaintiff agreed this examination was the first time she had ever discussed with a doctor her hand going blue.[55] She would say maybe, probably years ago, she first had a blue left hand but she just had not recognised it. She had noticed her fingers had also been slightly fatter but had not mentioned it to a doctor, until she saw Dr Blombery last year.[56]
[55]T58
[56]T58
98 The plaintiff had read Dr Blombery’s report relating to the first examination before she saw him a second time. She had noted in that report that he thought she did not have major features of a CRPS, and although there was some difference in temperature of the left forearm, he did not think they were of any significance.[57]
[57]T59
99 The plaintiff continues to see Dr Munoz, who prescribes a very high regime of medication. The plaintiff takes 475 milligrams of Lyrica a day, and morphine in the form of Endone 10 milligrams, one or two three tablets every second or third day. She also takes one or two Panadeine Forte a day, and Panadol Osteo when not taking Endone.[58]
[58]T10
100 These medications have caused the plaintiff very significant side effects, with the morphine affecting her ability to function generally. The other medication causes severe constipation, and it might be every five days when using laxatives before she can go to the toilet properly.
101 The plaintiff could not remember telling Mr Kossmann that she was to have more tests in Townsville.[59] She could not remember any further tests since September last year and, if there had been any, they would have been arranged by her general practitioner.[60]
[59]T52
[60]T53
102 The plaintiff confirmed she told Mr Kossmann that she had pain in her neck 24/7 when examined on 16 September 2016. Lyrica numbed the pain but she was always aware of the constant presence of pain in the cervical spine. She complained to him about increasing pain in her left shoulder and arm.[61]
[61]T54
103 The plaintiff agreed that she told Mr Kossmann that, on rare occasions, the pain radiated into her left leg into her thigh, like a spiking. She demonstrated the site of her pain, with it starting up on the left side of her neck, going under her bra and then “thump, thump”, like an iron bar into the side of her leg.[62] She described pain in her chest and over her left breast.[63]
[62]T57
[63]T57, T61
104 The plaintiff has a constant feeling of the need to urinate, and urinates very frequently. At night, if she does not get up to do so, she has found she can develop a bladder infection.
105 Very frequently, the plaintiff experiences visual and auditory hallucinations. Sometimes she hears her name being called out when no one is there, and on other occasions, she sees people in her peripheral vision who are not there.
106 In December 2016, the plaintiff changed chiropractors. She no longer sees Mr Penrose and now sees Mr Bauer whom she has seen three times. His treatment gives her partial symptomatic relief of neck and left shoulder pain, but it is only temporary, and the pain returns to full effect after about ten days.[64]
[64]T51
107 Despite an intensive pain control regime, the plaintiff’s pain is unremitting. She has been restricted in her activities over an extended period of time, and leads a very circumscribed lifestyle. She relies on friends to help her maintain her house, to shop, and occasionally provide meals.
108 The plaintiff tries to do very little around the house, and mainly does general dusting, but can only do so for about five minutes before she experiences an increasing level of neck and left upper limb pain. She does some vacuuming, but can only do so with her right upper limb and whilst positioned on the floor.
109 The plaintiff’s ability to move or use her body has been impaired. She avoids driving because of her neck limitations, and she does not feel safe driving. Her left arm locks up. When that happens, the pain extends into her chest and her neck, and spikes in her left shoulder.
110 The plaintiff agreed a number of problems would stop her driving, including anxiety, moving her neck, medication and concentration, and she has to “assess her risk”.[65] Having done that, she decided it was not appropriate to continue driving.[66]
[65]T63
[66]T64
111 The plaintiff’s ability to look upwards or sideways continues to be restricted. She no longer engages in activities she previously enjoyed such as running or going to the gym, and she is even restricted when walking because of the jolting involved.
112 The plaintiff has given up hobbies such as needlework and cross-stitching, as well as dancing and attending clubs. Her pain is such she is unwilling to engage in any intimate relationship. In any event, because of her heavy medication regime, she has virtually no libido.
113 The plaintiff’s sleep is constantly disturbed because of neck and upper limb pain. On a number of occasions, she has woken up on her left shoulder experiencing a strong electric-shock type pain in that area.
114 The constant but variable and severe pains have led to significant psychiatric deterioration for the plaintiff. She is constantly depressed and feels angry because she is unable to do things she could once do before the accident. Dr Munoz prescribes 60 milligrams of Cymbalta in the morning and 90 milligrams in the evening, although on occasion if her mood is feeling somewhat improved, she takes less.
115 Despite that medication, the plaintiff’s outlook on life is not positive, and there have been occasions where she has had suicidal thoughts, which occur on average about twice a week. On three occasions, she has self-harmed in an attempt to turn her mind away from her chronic neck and left upper limb pain. The first time the plaintiff took a razor blade and cut her left forearm, and on the other two occasions, cut the left side of her stomach.
116 The plaintiff has three cats, and derives some enjoyment and pleasure from them, but otherwise her lifestyle is a fairly bleak picture.
117 The plaintiff did not agree her case was pretty stressful and that once it was over, the stress would be gone.[67]
[67]T64
Lay evidence
118 The plaintiff’s daughter, Carmen, swore an affidavit in May 2015.
119 Carmen was familiar with the plaintiff’s accident injuries and could recall the plaintiff sustained an injury to her neck at work in the late eighties, but she was not fully familiar with that claim. She was twelve at the time.
120 Prior to the accident, the plaintiff was an active, outgoing and positive person who went to the gym and went dancing with friends. She was independent in terms of her ability to undertake domestic cleaning and chores.
121 Following the accident, the plaintiff’s neck condition deteriorated considerably and she had constant neck and left shoulder pain. Carmen had observed the plaintiff on a number of occasions experience cervical and left shoulder pain.
122 On a recent occasion, the plaintiff stayed with her for a week. The plaintiff was able to do very little around the house in terms of housework, and at best was only able to serve dinner which Carmen had prepared.
123 Carmen has noticed the plaintiff’s medication, in particular Lyrica, has left her disoriented in speech and behaviour, citing the example of instead of putting a teabag into a mug, put it in some beans that were on the stovetop. The plaintiff has told her that the medication she takes has little lasting effects, and she is never pain-free in her neck and left shoulder in particular.
124 The plaintiff rarely goes out socialising, which is a significant change from the person who previously was outgoing and active. From Carmen’s observation, there has been a significant decline in the plaintiff’s physical condition as a result of her injuries.
125 The plaintiff’s son, Ronald, swore an affidavit in May 2015. He resided with the plaintiff at various times, including up to 2 April 2004, and then from May 2009 to May 2010.
126 Ronald was aware the plaintiff had suffered from work-related injuries in the past, affecting her right shoulder, right wrist and neck. Prior to the accident, as far as he could remember, she remained active and outgoing.
127 In the period immediately before the accident, the plaintiff intermittently made complaints of right shoulder and neck pain, but was able otherwise to go to the gym every week and did a home fitness program. She was able to carry heavy groceries, and did not have any problems with shopping or household activities, and could iron without difficulty.
128 Since the accident, the plaintiff’s neck and left shoulder symptoms had gradually deteriorated, to where he had seen that she is living a significantly restricted lifestyle and is limited in many of her activities.
129 Whilst living with the plaintiff at her request after the accident, the plaintiff regularly rubbed her left shoulder, and had great difficulty doing domestic chores. She vacuumed whilst seated, and had said her pain was such she could not even lift her young granddaughter.
130 The plaintiff had difficulty driving when turning her neck, and relied on him for head checks.
131 Ronald had noticed the painkilling medication, in particular Lyrica, seemed to affect the plaintiff’s cognitive functioning. When speaking on the phone at times, the plaintiff sounded distant and her responses were nonsensical. She told him that was at a time when she was on a high dosage of Lyrica. The plaintiff had also advised of chronic digestive problems.
132 Since the accident, the plaintiff had stopped dancing, going to the gym and regular exercise. She had told him that she was no longer able to intimately engage in sexual relations by reason of her pain. She had accepted, as a matter of fact, that by reason of her pain and disability, she no longer leads a normal life. From his observation, the plaintiff suffered a significant aggravation of any pre-existing neck condition, and her symptoms appear to be deteriorating with time.
133 Angelo Torrisi, the plaintiff’s former partner, swore an affidavit on 7 April 2016.
134 Angelo presently lives with the plaintiff at premises which he owns. Their relationship is not sexual, and the plaintiff is his carer because of his past psychiatric illness including suicidal thoughts and attempts. He derives benefit from her living with him, and she provides no physical assistance.
135 Angelo has known the plaintiff since about 2000, and they were in a romantic relationship until about 2011. In 2013, the plaintiff moved back to his house and has lived with him as a carer.
136 Angelo is aware the plaintiff was involved in a transport accident in 2002 when she suffered injuries to her neck and shoulder, but he distinctly recalled those injuries and symptoms resolved with time.
137 Angelo is aware the plaintiff had suffered injury of some significance to her neck as a result of the accident. He sees her in pain on a regular basis, and taking medication for pain relief. These seems to only have a limited effect on her pain.
138 During the course of their romantic relationship, sexual and intimate relationships diminished over the years because the plaintiff experienced a flare-up of neck pain when engaged in sexual relations.
139 The plaintiff is able to do domestic chores around the house, but does so with great difficulty and pain. Accordingly, he offers to help her with tasks such as sweeping and the heavier type of tasks such as lifting pots and pans.
140 The plaintiff’s driving is extremely limited, and he has not seen her drive on the road for some years. Her sleep is disturbed at night, and he can hear her getting up and down during the night.
141 To his observation, based on his long knowledge of the plaintiff, the injuries which she sustained had a very significant impact on her lifestyle. He has noticed the gradual and ongoing deterioration in her neck over the years, despite treatment.
142 Peter Hocknell, a friend of the plaintiff’s whom she met through Angelo four years ago, swore an affidavit on 4 March 2017.
143 In the time Peter has known the plaintiff, he has observed her to be in fairly constant pain, affecting her neck, left shoulder and arm. She has also complained of numbness and pins and needles. He is aware she takes significant doses of medication, but that seems to provide only marginal relief for her, and has side effects of which she complains of severe constipation.
144 Peter goes weekly to the plaintiff’s home to help with cleaning, washing clothes and dirty dishes. He has her over for dinner about once a fortnight because of her difficulty cooking and lifting pots and pans.
145 Peter’s general impression is the plaintiff’s home is relatively unkempt and unclean, and would descend into significant uncleanliness if he did not provide some help. He has seen her use a vacuum, but she does so sitting on the floor, manoeuvring the hose with her right arm.
146 Peter also assists the plaintiff with her grocery shopping. He cannot recall her driving in recent times. She considers herself a hazard because of her limited capacity to turn her neck. When taking the plaintiff to town for grocery shopping, when she is in his car she uses a pillow and angles her neck to obtain a greater degree of comfort. When they shop, she only carries light items and he carries the bulk of the weight.
147 Peter has observed the plaintiff cry many times because of her pain. He has also heard her express thoughts of self-harm to rid herself of pain. On one occasion some months ago, she telephoned him around midnight and indicated she had self-harmed, and he immediately drove over to her house to console her.
148 To his observation, the plaintiff has a poor outlook on life, although she has three cats from which she derives pleasure and which give her an interest. He has observed over the time the plaintiff has been in considerable pain in the neck, left shoulder and upper limb areas.
The Plaintiff’s medical evidence
Treaters
149 Dr Moore at Lavington reported to the TAC in December 2005, having last seen the plaintiff that September 2005. He noted that she suffered a whiplash injury to her neck in the accident, with a similar injury having occurred on 8 November 2002, causing pain which lasted several years.
150 Further, Dr Moore noted there was a work injury in 1986 involving shoulders and arms. All those injuries caused problems with day-to-day life – constant neck pain, frequent headaches, arm pain, tingling radiating into the arms, depression and mood disturbance.
151 Dr Moore thought the previous injuries had probably been aggravated by the most recent accident. These previous injuries were still causing neck, arm and shoulder pain and headache, and the most recent accident had increased the previous pain and made life more difficult, and increased the plaintiff’s level of depression and anxiety. Dr Moore thought pre-existing depression and neck pain would have an effect on the plaintiff’s present slow recovery.
152 Dr Moore then considered permanent impairment was likely, and he expected some degree of neck pain to continue in the long term.
153 The plaintiff underwent physiotherapy treatment at Ayr Physiotherapy in Queensland, first attending on 2 February 2006.
154 Whilst in Ayr, the plaintiff was also treated by general practitioner, Dr Arenas, from early 2007.
155 Mr Bruce Low, orthopaedic surgeon, reported to the TAC in April 2008.[68]
[68]Mr Low earlier reported to Dr Arenas in July 2007- see para 281-2 of this judgment
156 The plaintiff told him she had right arm pain, with pins and needles, due to RSI in 1986, but there was no right arm pain following that injury, or right arm pins and needles; only on the left, and mainly in the little finger.
157 Mr Low thought that in the accident, the plaintiff suffered soft tissue injuries to her neck, with the most severe soft tissue injuries to the left shoulder, and left ulnar nerve neuritis. In his view, there were no aggravations, and these were new injuries. He sought permission to do a left ulnar nerve decompression.
158 Mr John McMahon, neurosurgeon, first saw the plaintiff in August 2011. In his report of May 2013, there was no mention of any pre-accident problems experienced by her.
159 On the most recent review in February 2013, the plaintiff continued to describe chronic left-sided neck pain, scapular pain, and suprascapular pain, with associated cervicogenic headaches. She also reported radiation of pain to her left arm and medial forearm, as well as her hand and fingers.
160 Mr McMahon diagnosed a left trapezius muscle and upper limb musculoskeletal pain syndrome. He thought the plaintiff’s prognosis was variable, and would certainly depend upon her response to chronic pain management and rehabilitation with Dr Todhunter.
161 Mr McMahon thought the plaintiff had been moderately impacted by her ongoing symptoms in terms of activities of daily living, and her ability to perform heavy household chores had been limited, and cleaning activities left on hold. He considered the injuries would affect the plaintiff’s ability for any meaningful employment.
162 The plaintiff presented to Dr Munoz at Rosslea Medical Centre as a new patient on 5 June 2013, requesting prescriptions and the examination of a lesion on her right knee.
163 On 3 July 2013, the plaintiff presented with chronic cervical spine pain in regard to injuries suffered in the accident, with pins and needles of the left forearm.
164 Dr Munoz referred the plaintiff for left shoulder investigations and also to mental health consultant, Neil McLeod, due to depression caused by chronic pain, neck and left shoulder.
165 In February 2015, Dr Munoz considered the plaintiff’s capability in regard to completing and taking part in her activities of daily living had been limited due to her chronic neck pain, and she needed referral to an occupational therapist.
166 In his report of 30 April 2016, Dr Munoz confirmed the plaintiff’s condition had not changed.
167 Dr Munoz most recently reported in late December 2016.
168 The plaintiff was then still complaining of pain, pins and needles in her left arm, neck and face. Her range of left shoulder movement was diminished, as was power and sensation in her left arm.
169 Dr Munoz noted the plaintiff’s symptoms were causing frustration and depression, and she had seen Neil McLeod for counselling. Dr Munoz thought the plaintiff was then incapable of engaging in remunerative jobs.
170 Dr Munoz noted the plaintiff’s current list of medication was as follows:
§ Cymbalta 30-milligram capsule one a day, 60-milligram two a day
§ Endone 5-milligram one a day
§ Lipitor 20-milligram one a day
§ Lyrica 150-milligram capsule twice a day
§ Panadeine Forte 500-milligram/30-milligram tablet, one tablet before bed
§ Somac 20-milligram tablet, one daily as directed; and
§ Temazepam 10-milligram tablet, one in the evening as directed.
171 The Pain Registrar at Townsville Hospital, Dr Dhanapala, wrote to Dr Munoz in November 2014, thanking him for referring the plaintiff to the pain management clinic.
172 It was Dr Dhanapala’s impression the plaintiff presented with features of whiplash associated disorder since the accident. He noted that unfortunately, she had not achieved any form of progress with regard to her pain, and had had several maladaptive cognitions and behaviours, and had a medically focused approach which was clearly impacting on any potential rehabilitation.
173 The plaintiff then was to gradually increase her Pregabalin dose, and a request was made for her general practitioner to organise for the plaintiff to see a psychologist through the mental health care plan.
174 The plaintiff was discharged from the pain management clinic in April 2015 as it was noted there was not much more that they could do for her at that stage.
175 It was then noted the plaintiff was able to do all her own ADLs. She was not driving due to pain and her inability to look over her left shoulder. She did all the housework and cooking, although sometimes she had to get help lifting. She had also had significant side-effects on her current dosage of Lyrica.
176 The plaintiff started to see Mark Penrose, chiropractor, in June 2015. He thought the chronicity of her presenting symptoms and signs was consistent with the diagnosis of post-whiplash syndrome, noting a long history of symptoms relating to left-sided cervical pain since the accident.
177 In his most recent report of December 2016, Dr Penrose noted, after reviewing all the findings, a diagnosis of cervical post-whiplash syndrome with associated left-sided radiculopathy was made. He reported that the plaintiff continued to respond well to spinal manipulation; however, her relief was relatively short lasting. He considered the progression of her injury would follow a normal degenerative path from this point forward.
178 Mr Neil McLeod, clinical mental health consultant counsellor/therapist from Townsville Private Mental Health Service, reported in April 2016.
179 Mr McLeod noted that the plaintiff frequently misunderstands questions and suffers difficulty maintaining concentration and was at times mentally disorganised or confused.
180 Mr McLeod noted that despite compliance with treatment, the plaintiff did not report any period in the day when she was not suffering severe pain.[69]
[69]PCB 240 ff
181 Mr McLeod diagnosed a Major Depressive Disorder, Anxiety Disorder and Adjustment Disorder, related to physical injury chronic pain. He considered these clinical mental symptoms had profoundly affected the plaintiff’s mood mental daily academic occupational performance. He considered her condition was treatment resistant and chronic.
Investigations
182 Dr Stuart from Wodonga organised a cervical spine x‑ray in December 2004, following which no fracture or subluxation was detected.
183 On 13 December 2004, Dr Stuart organised a cervical spine CT scan. It was reported the dimensions of the central body canal were within normal limits, and there was no sign of recent bony injury. The spinal cord appeared normal throughout.
184 Dr Moore at Lavington organised a CT scan of the plaintiff’s cervical spine in May 2005 which was reported to be a normal examination.
185 Following an MRI scan organised by Dr O’Gorman in Queensland in December 2006, it was reported there was a small left paracentral disc protrusion present at C5‑6, slightly effacing the thecal sac but not compromising the cord, exiting or descending nerve roots. There was no other abnormality detected.
186 There was a further CT scan of the cervical spine organised by Dr Arenas in Queensland in March 2007. It was reported no disc protrusion was detected.
187 There was an MRI scan of the plaintiff’s left shoulder organised by Dr Low in Queensland in July 2007. It was reported there was possible minor subacromial bursitis but no significant tendinopathy or tendon tear demonstrated.
188 There was an EMG of the plaintiff’s left arm organised by Dr Reimers, neurologist, in 2007. It was reported there was electrical evidence of a mild left ulnar nerve lesion at the elbow. The left median nerve was intact.
189 Mr McMahon organised an MRI scan of the plaintiff’s left shoulder in August 2012. It was reported that investigation was unremarkable, and there was no rotator cuff tendon tear or discrete labral tear.
190 Mr McMahon also organised an MRI scan of the plaintiff’s cervical spine that day. It was reported there was no evidence of any significant disc herniation, and no spinal canal or neural foraminal stenosis identified.
191 Dr White organised an MRI scan of the plaintiff’s cervical spine in May 2014.
192 It was reported there was mild cervical spine spondylosis and mild narrowing of the right C4‑5 exiting foramen; however, no cause for the left-sided cervical radiculopathy had been demonstrated.
193 Dr Munoz arranged a left shoulder MRI scan in September 2014. It was reported the rotator cuff appeared normal, as did the bicep, tendon and glenoid labrum. There was mild degenerative change at the AC joint and no evidence of significant subacromial or subdeltoid bursitis.
194 Dr Munoz organised an MRI scan of the plaintiff’s cervical spine in November 2015. It was reported there was very minor degenerative change. There was no neural compression seen to explain the left upper limb radicular symptoms.
Medico-legal evidence
195 Dr Halliday, consultant orthopaedic surgeon, examined the plaintiff in April 2007.
196 Dr Halliday thought the plaintiff’s injuries were consistent with the accident. She had a soft tissue injury of the cervical spine with radicular symptoms and no evidence of compression lesion in the cervical spine. He noted she had a past medical history of RSI of the right shoulder in 1986 which she reported had completely recovered.
197 Mr Noel Langley, orthopaedic surgeon, examined the plaintiff in September 2007.
198 The plaintiff told him that her general health is good. She had a history of RSI in her right shoulder and no medical illnesses. He thought there was no evidence of any aggravation of a pre-existing condition. In his view, the plaintiff sprained her neck and developed tendinitis in her left shoulder after she was involved in the accident.
199 Dr Sheehan, occupational health and safety consultant, examined the plaintiff in March 2008.
200 The plaintiff told him that in 1986, she strained her right shoulder at work, and eventually recovered from that injury. Her past history revealed that she suffered whiplash from a car accident in 2001 from which she had fully recovered. She also had a left-sided neck injury that she sustained in a separate car accident in 2002 that only inconvenienced her temporarily.
201 Dr Sheehan thought the accident alone had caused the plaintiff to suffer cervical spine disc protrusion detected on the December 2006 MRI scan.
202 Dr Sheehan noted the plaintiff had not worked since the accident, and had intended to drive vehicles in the mining industry of Queensland.
203 Helen Coles, occupational therapist, examined the plaintiff in May 2009.
204 The plaintiff told Ms Coles that she was not working at the time of the accident and was in receipt of a DSP for a former right shoulder injury.
205 The plaintiff told Ms Coles that at the time of the accident, she had been in good health, other than for a few problems with her right shoulder. She had been hoping to get into the workforce, and was expecting to be retrained by the government at that time.
206 Since the accident, the plaintiff complained of pain or altered sensation in the left shoulder, head, neck, left shoulder blade, mid-back, left loin, lower back, left arm and left leg.
207 The plaintiff also advised that prior to the accident, she was of cheerful disposition. She had had post-natal depression that had resolved, and she was not under any treatment for depression at the time of the accident.
208 The plaintiff listed a series of activities that she could no longer do since the accident, and the extent to which her impairment impacted on various aspects of her life.
209 Dr David Weissman, psychiatrist, first saw the plaintiff in February 2014. In terms of past history, she told him that she had post-natal depression with both her children, and her depression resolved.
210 As a result of the accident, Dr Weissman then thought the plaintiff had developed mild residual traumatisation features, a mild to moderate Chronic Adjustment Disorder with Depressed and Anxious Mood, and now had a Chronic Pain Disorder which may not have been full-blown prior to the accident.
211 On re‑examination in September 2016, the plaintiff gave no further details of her psychiatric history. After the examination, Dr Weissman went through material that had been forwarded to him by the plaintiff’s solicitors.
212 On the material then available to him, Dr Weissman thought the plaintiff suffered from significant and substantial pre-existing chronic pain. On balance, she was probably suffering from a Chronic Pain Disorder associated with psychological factors and a general medical condition, also known as a Somatic Symptom Disorder, prior to the accident. It was now probable, not just possible, that the psychological and emotional foundations for her Chronic Pain Disorder/Somatic Symptom Disorder were laid well and truly before the accident.
213 Dr Weissman now believed the plaintiff suffered from chronic, albeit fluctuating, depression and anxiety through most of her adult years prior to the accident. This was, and has been, exacerbated and aggravated by the accident, and has also been exacerbated and aggravated by various unrelated post-accident psychosocial factors. In addition, the plaintiff has a family history of Post-Traumatic Stress Disorder.
214 On balance, Dr Weissman thought the plaintiff had significant and substantial premorbid vulnerability traits, and he believed there was sufficient evidence to apportion both pre-existing and unrelated psychiatric impairment in this case.
215 Dr Weissman concluded the subject accident is only one of many contributing factors, and contributes to a maximum of 50 per cent of the plaintiff’s current Chronic Adjustment Disorder/chronic dysthymia. He also thought she suffered from a Chronic Pain Disorder associated with psychological factors and a general medical condition also known as a Somatic Pain Disorder – DSM‑V. Again, that seemed to be a pre-existing condition which had been exacerbated and aggravated by the accident.
216 Dr Brendan Hayman, psychiatrist, examined the plaintiff in January 2016.
217 Dr Hayman described the plaintiff as a poor historian, and noted that delineating exact timelines and symptomatology was difficult.
218 The plaintiff told Dr Hayman the neck and right upper limb pain settled by late 1988. There was a minor transport accident in November 2002 with a mild whiplash injury which largely resolved. There was a further accident soon thereafter, again, with a mild whiplash injury only, and no significant medical or psychological sequelae.
219 Dr Hayman was provided with the pre-accident medico-legal reports from Mr Brearley and Dr Rowe.
220 Dr Hayman also had available evidence supporting significant prior psychological issues dating back to 1990, with the plaintiff on and off anti-depressant medication from about 1996 onwards in a setting of anxiety and depression relating to family and marital issues. He thought whilst there seemed to be conjecture about her being on anti-depressants at the time of the accident, nonetheless it appeared the plaintiff was functioning adequately at that time. Thereafter, she has continued to have some depressive symptomatology in the setting of her ongoing pain.
221 Dr Hayman thought the plaintiff had continued to have significant pain disproportionate to that expected from the nature of her injuries. It was a major focus for her, and met the criteria for a Chronic Pain Disorder associated with both psychological factors and a general medical condition. He also noted she experienced depressive symptoms, and she had evidence of a Chronic Adjustment Disorder with Depressed Mood.
222 On the material provided, Dr Hayman suspected the plaintiff had been experiencing some low-grade depressive and anxiety symptoms prior to the accident, and thereafter she had developed the diagnosed psychological conditions.
223 Dr Hayman reassessed the plaintiff in September 2016.
224 Following that examination, Dr Hayman diagnosed a Chronic Pain Disorder associated with both psychological factors and a medical condition and a Chronic Adjustment Disorder with Depressed Mood.
225 Noting the plaintiff had prior psychiatric issues, Dr Hayman thought she appeared to be functioning adequately nonetheless prior to the accident. He considered her overall state had declined significantly, with a significant psychosocial decline since the accident. He thought her main issues currently related to her experience of pain. She also had a secondary depressive syndrome consequent thereto.
226 Mr Thomas Kossmann, orthopaedic surgeon, first saw the plaintiff in February 2014.
227 In terms of past history, the plaintiff told him that prior to the accident she was fit and well and had no previous injury or illness.
228 The plaintiff told Mr Kossmann she had pain in her cervical spine 24/7. Her Lyrica numbed the pain but she was always aware of the constant presence of pain in her cervical spine.
229 Mr Kossmann then diagnosed pain in the cervical spine on the basis of minor focal posterior right paracentral disc protrusion at C3‑4 and C5‑6 levels, minor bilateral uncovertebral arthropathy at the C4‑5, C5‑6 and C6‑7 levels, pain and movement restriction of the left shoulder of unclear origin, and clinical signs of sulcus ulnaris syndrome on the left.
230 Mr Kossmann noted the plaintiff had difficulties moving her left arm behind her head and behind her lumbar spine. That had an effect on activities of daily living like washing, combing her hair, and personal hygiene, and affected generally her social, domestic, and recreational activities.
231 Mr Kossmann thought the plaintiff’s injuries and level of impairment was permanent, and she may improve with conservative treatment in the future. At that stage, he thought her injuries were not stable.
232 On re‑examination in December 2014, the plaintiff confirmed the level of complaints from the earlier examination.
233 The plaintiff did not add anything to her past history.
234 Mr Kossmann confirmed his earlier diagnosis and his views on the effect of the plaintiff’s cervical injury on her daily activities.
235 Mr Kossmann saw the plaintiff again in January 2016. The plaintiff then confirmed she had had previous health issues prior to the accident.
236 The plaintiff told Mr Kossmann about the repetitive injury affecting her neck and right upper limb whilst at Lee Jeans, but the pain settled by early 1988. In October 1998, she injured her neck and right upper limb when folding linen at Hanrahan’s laundry.
237 The plaintiff was also suffering from anxiety in 1996 and had complained of insomnia in 1997 as a result of neck pain and anxiety, and was prescribed Aropax for depression in 1998. There was a right shoulder ultrasound in October 1999 and a referral in October 2011 for psychiatric treatment.
238 There was a car accident in November 2002 in which the plaintiff suffered injuries to her cervical spine with left arm pain and paraesthesia, and the plaintiff told him she was in another car accident in 2003 where she aggravated her cervical spine condition. She continued to suffer from depression and suicidal ideation, and in early 2004, was seeing a counsellor. She had ongoing complaints of neck pain in May 2004.
239 Mr Kossmann noted Dr Moore’s Centrelink report of 10 September 2004 and that the plaintiff had received a DSP since September of that year.
240 The plaintiff confirmed the level of her complaints described on the earlier examination.
241 Mr Kossmann diagnosed aggravation of pre-existing degenerative changes in the cervical spine, pain and movement restrictions in the left shoulder on the basis of an advancing osteoarthritis of the left shoulder joint, and clinical signs of golfer’s elbow left side.
242 Mr Kossmann noted the plaintiff had had investigations of her cervical spine since he last saw her, which showed some minor degenerative change. She underwent an MRI scan of her left shoulder in September 2014 which demonstrated she was suffering from an advancing osteoarthritis in her left shoulder joint for which she may require treatment.
243 Mr Kossmann thought the plaintiff’s overall prognosis was poor and that she would continue to suffer pain in her cervical spine and left shoulder and require ongoing conservative treatment, and that there was a certain risk she may have to undergo left shoulder surgery.
244 Should she develop advancing osteoarthritis in her left shoulder joint, Mr Kossmann thought the plaintiff may have to undergo an arthroplasty. He could not give a time if and when that would occur. She would also require further treatment for her golfer’s elbow.
245 On this occasion, Mr Kossmann thought the plaintiff had suffered an injury to her cervical spine in the form of an aggravation, acceleration and exacerbation of pre-existing degenerative changes plus a left shoulder injury.
246 Mr Kossmann prepared a supplementary report in February 2016, having been provided with investigations predating the accident, the plaintiff’s 2000 affidavit and pre-accident medico-legal reports.
247 There was a further re‑examination in September 2016.
248 The plaintiff then complained of cervical spine pain 24/7. It was numbed by Lyrica, but she was always aware of the constant presence of pain in her neck. She also complained about increasing pain in her left shoulder and left arm.
249 Mr Kossmann confirmed his opinion set out in his February 2016 report.
250 Mr Kossmann noted the plaintiff told him she will undergo further investigations in Townsville, but gave him no further details thereof.
251 Dr Blombery, vascular physician, first saw the plaintiff in April 2016.
252 The plaintiff described as a repetitive strain in 1986, with the initial symptoms settling by 1989, with a recurrence in about 2000. That mainly involved pain in the right shoulder and right side of the neck – the opposite side to that affected in the accident.
253 On examination, Dr Blombery noted there were no changes in temperature or colour of the left arm when the plaintiff described to him her current status of ongoing pain in the left upper chest and left trapezius muscle, radiating up to the neck and throbbing, and shooting pains in the left arm intermittently.
254 Dr Blombery thought the plaintiff sustained what appeared to be soft tissue injuries to the neck, left shoulder, and arm, in the accident, and that injury had resulted in the development of a component of a non-specific Pain Syndrome in the affected areas where there was sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cords, such that non-painful stimuli had become interpreted by the cerebral cortex as being painful – central sensitisation. This Pain Syndrome was an organic disorder of nerve pathways and not a psychological disorder.
255 Dr Blombery thought the plaintiff did not have major features of a CRPS Type 1, although there were some differences in the temperature of the left forearm which he did not think were significant.
256 Dr Blombery re‑examined the plaintiff in September 2016.
257 Whilst the plaintiff did not complain of colour or temperature changes in her left hand, on examination, Dr Blombery noted her left hand was blue and was three degrees cooler than the right, which was a marked difference. The left forearm was two degrees cooler than the right.
258 Dr Blombery concluded the plaintiff’s pain was therefore in the nature of both previously asymptomatic degenerative change which had been rendered symptomatic, complicated by a Pain Syndrome in the neck and shoulder.
259 There was no mention of a CRPS diagnosis in this report.
260 Following correspondence from the plaintiff’s solicitors, Dr Blombery provided a supplementary report in February 2017.
261 The plaintiff’s solicitors enquired about the changes in colour and temperature of the plaintiff’s left hand observed on the last examination. Dr Blombery confirmed this was indeed the case, and in fact indicated a diagnosis of Chronic Regional Pain Syndrome Type 1 affecting the left arm, complicating the original injuries.
262 Dr Blombery explained that for some reason he did not mention that in his opinion, stating that the plaintiff had a non-specific Pain Syndrome in the affected area, but in fact she does have quite definite features of Chronic Regional Pain Syndrome Type 1 and fulfils both the basic and Budapest criteria of the International Association for the Study of Pain for that diagnosis. He thought that was a major contributing factor to pain and disability in the left arm, and was complicating the subacromial bursitis in the left shoulder.
263 Dr Blombery also commented that he thought it seemed unlikely that frequent urination is a side effect of Lyrica.
The Defendants medico-legal evidence
Pre accident
264 The plaintiff was examined by Mr Kenneth Brearley, general surgeon, in September 2000 in relation to the work injury.
265 The plaintiff then complained of constant discomfort over the right side of her neck, top of the right shoulder and back of the right shoulder and right upper arm. The pain radiated down the arm to the middle finger and, occasionally, into the thumb.
266 The discomfort was worsened by using the arm when doing home duties. The plaintiff had difficulty with vacuuming and floor cleaning, peeling vegetables and with most other household tasks. She was not able to lift any heavy objects at all.
267 The plaintiff was not able to walk long distances because that worsened her neck and shoulder pain by jarring movements. She was then having chiropractic treatment and massage once every three weeks.
268 On examination, there was some tenderness over the base of the neck on the right and over the top of the right shoulder, and also on the scapular region. Neck rotation and side bending to the right were moderately restricted.
269 Mr Brearley diagnosed chronic right-sided cervicobrachial strain and thought the plaintiff had a significant impairment.
270 Mr Brearley thought the plaintiff was permanently unfit for her former work as a machinist and was fit for light, non-repetitive work. Chiropractic and massage treatment would need to continue for the foreseeable future. He concluded the condition would persist and there was no likelihood of improvement in the foreseeable future.
271 The plaintiff was examined by Mr Peter Battlay, orthopaedic surgeon, in November 2000.
272 On examination, the plaintiff indicated pain in the right shoulder girdle and right side of the neck, as well as the right arm, present all time. It was aggravated by particularly repetitious activity such as polishing a car, vacuuming, washing windows and even chopping vegetables. With these activities, she had to change arms frequently. She was restricted in her ability to do gardening, and vacuuming was difficulty.
273 Dr Moore completed a treating doctors’ report for Centrelink on 10 September 2004.
274 In that report, he set out that Condition 1 was neck and shoulder pain from 1986. He described longstanding neck and arm pain since a repetitive injury at work in 1986.
“Pain constantly present after most daily activities, so she needs to take care in all tasks, for example, dressing, hair care, lifting, shopping, household cleaning, et cetera. Pain in neck and arm. Headaches are associated and occur and up to several times per week, lasting several days … facial numbness present. … .”
275 Dr Moore noted the plaintiff was then having physiotherapy, chiropractic treatment, massage, acupuncture and analgesia. He expected the current impact of the condition on the plaintiff’s ability to function was to persist for more than two years.
276 Condition 2 was Anxiety and Depression which Dr Moore set out was largely caused by the plaintiff’s chronic pain. Depression was frequent, needing antidepressant medication. Anxiety was present much of the day, panic attacks occurred frequently. This was debilitating and prevented the plaintiff from continuing normal activities.
277 The current symptoms were depression, sleep disturbance, poor motivation, Depressed Mood, irritability, Anxiety - palpitation, paraesthesia and dyspnoea.
278 Treatment was Effexor, Providian, Serepax and Temaze. It was noted: “Does not socialise, household tasks left uncompleted, poor concentration, no motivation to go out and improve her life.”
279 The current impact of the condition on the plaintiff’s ability to function was expected to persist for more than twenty-four months.
280 Mr Bruce Low, orthopaedic surgeon, reported to the plaintiff’s Queensland general practitioner in Queensland in July 2007.
281 Mr Low noted the plaintiff had neck and left arm pain and had supposedly got a whiplash injury, and it would not go away until litigation had finished, “obviously”.
282 There were some complaints of shoulder pain, but Mr Low thought this was probably referred from the neck. He considered it probably worth getting an MRI scan of the shoulder. He noted the plaintiff had some pins and needles in her little finger and that did not seem to add up. He would get some nerve conduction studies for that as well, and advised there was nothing he could do about the plaintiff’s neck.
283 A nerve conduction study carried out on 24 October 2011 on referral from Mr McMahon was normal.
284 Mr McMahon also organised an MRI scan of the cervical spine radiculopathy in August 2012. It was reported that there was no evidence of any significant disc herniation and no spinal canal or neural foraminal stenosis was identified.
285 An MRI scan of the left shoulder also on that date was unremarkable. It was reported the plaintiff had no rotator cuff tendon tear and no discrete labral tear.
Medico-legal examiners
286 The plaintiff was examined by Associate Professor Richard Stark, neurologist, in January 2015.
287 The plaintiff gave him a past history of the work injury in 1986, where she was off work for three weeks, but then returned to work. She married in the nineties, and stopped work at that stage to be a housewife and have children.
288 The plaintiff told Associate Professor Stark, by the time of the 2004 accident, the symptoms in her neck and right shoulder from the work injury were much improved; however, she was still on a DSP because of ongoing neck and shoulder symptoms, and he noted medical reports indicated significant symptoms.
289 On examination, the plaintiff’s presentation did not suggest any specific neurological complication. Associate Professor Stark thought her symptoms could represent an injury to the cervical spine with referred pain, but there were a number of features that suggested the development of a pain disorder with prominent psychological elements. He thought the area of reported sensory disturbance would not be typical of an organic neurological disorder and would suggest a non-organic component.
290 In Associate Professor Stark’s view, it was relevant the plaintiff appeared susceptible to widespread pain syndromes, as this appears to have been the nature of her problem following the 1986 work injury.
291 Associate Professor Stark concluded the plaintiff had non-specific neck pain with referred pain in the left arm, with a number of features suggesting a strong non-organic component. He suspected she was someone who was susceptible to developing a diffuse pain syndrome, noting it was clear she had persisting symptoms from a work injury until the Year 2000, so it would be surprising if they had completely resolved by 2004.
292 While the plaintiff reported some restrictions in her domestic and leisure activities, Associate Professor Stark suspected they were related predominantly to the non-organic component of her condition.
293 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in December 2014.
294 The plaintiff told him, in around 1986, she developed an RSI in relation to her right shoulder and upper limb while at work. She went on a disability pension in 2000. She had a car accident in 2002, after which she noted neck and right shoulder pain.
295 Mr Dooley thought the mechanism of the accident would be consistent with the plaintiff sustaining a soft tissue injury to her cervical spine. He considered the constancy and intensity of her ongoing pain and described disability were greater than one would expect to see for an organic condition. In his view, the ongoing complaints and difficulties the plaintiff described seemed very similar to those outlined following the work related injury and motor vehicle accident of 2002.
296 Current clinical examination revealed no evidence of objective neurological deficit affecting the limb and there were inconsistent signs in relation to examination of the left shoulder.
297 Mr Dooley believed the plaintiff had a psychological reaction to a situation which significantly influenced her ongoing symptoms, and he thought that was the reason for her disproportionate pain.
298 In Mr Dooley’s view, the pain the plaintiff described in the region of her left upper shoulder could, in part, relate to referred cervical spine pain, but he thought it related, in the majority, to the plaintiff’s psychological condition.
299 Mr Dooley considered true separation of the previous injuries in a medical way, or true apportionment of accident-related injuries, was almost impossible.
300 Mr Dooley noted the plaintiff described difficulty with heavy household activities and, as far as he could tell, the difficulties she described were no different to those she was experiencing consequent on her previous injury.
301 Associate Professor Doherty, consultant psychiatrist, examined the plaintiff in November 2016.
302 The plaintiff told him that she remembered seeing a psychiatrist whom she vaguely recalled as Dr Darby when she was about twenty-two. She thought she was anxious at that time and might have been put on medication. When she had children, she suffered post natal depression. She attended a psychologist and may have been prescribed Prozac. There had been no other psychological treatment.
303 Associate Professor Doherty concluded there was no definable current diagnosable psychiatric condition. He thought a diagnosis of an Adjustment Disorder twelve years after the accident was unlikely. A diagnosis of Somatic Symptom Disorder with predominant pain was probably not warranted. In his view, the level of preoccupation with pain was not sufficient, and the interference was not so significant. Because of that, a diagnosis of a pain-related psychiatric condition was warranted. There were no pain-related behaviours when he examined the plaintiff, and he noted she related easily and comfortably to him.
304 The plaintiff told Associate Professor Doherty she had hallucinations and could see scarecrows, and got white flashes, and walked in an incoherent way, which she put down to Lyrica. He noted that cognitive dysfunction appeared to be the result of high doses of medication, in particular Lyrica and Cymbalta.
305 Associate Professor Doherty thought it was a reflection of the plaintiff’s personality and, somewhat, her eccentricities, that she continues to take medication while suspecting it is producing side effects, reporting that the underlying pain would worsen should she not take that medication. He thought it likely her cognition and coordination would improve on reduction of certain medication.
Overview – cervical injury/referred pain arm
306 There is no dispute the plaintiff suffered an aggravation of a pre-existing degenerative condition in her cervical spine in the accident.
Credit
307 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[70]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[70](2010) 31 VR 1 at paragraph [12]
308 Counsel for the plaintiff submitted that the plaintiff gave evidence in a forthright manner without exaggeration or overstatement. She was not evasive, and gave appropriate concessions and answers that were not in her interest.[71]
[71]T107
309 It was submitted no adverse credit finding should be made on the basis of the plaintiff’s answers where she was confused about a question or an event, as she is not a sophisticated person, and her lack of education should not be held against her.
310 It was conceded that at times the plaintiff has been a vague historian, and in recent times, that was in part due to the effects of Lyrica. Further, at times, her manner in giving evidence may have been affected by her own confusion, which is a known side effect of Lyrica.[72]
[72]T108
311 It was submitted there was no real challenge to the plaintiff’s description of the accident, and her version should be accepted. Further, her account of pain was not challenged in cross-examination. Taking into account her evidence as a whole, there should be no adverse credit finding and her evidence should be accepted.
312 It was submitted the suggestion by counsel for the defendant in cross-examination that the plaintiff deliberately feigned symptoms of a CRPS in order to manufacture a diagnosis by Dr Blombery should be rejected. It was submitted there was no objective evidence that would prove how and by what means she could manufacture the precise diagnosis. To the contrary, Dr Blombery, in his earlier report, made an objective findings consistent with this diagnosis.
313 Counsel for the plaintiff relied on the plaintiff’s evidence that any failure to tell doctors about her pre accident condition was not deliberate and that she forgot to advise them of relevant issues in this regard.
314 Counsel for the defendant submitted, however, the plaintiff was not a reliable witness, and therefore medical opinion was unreliable where based on an acceptance of her complaints.
315 I am mindful of what was said by the Court of Appeal in Dordev v Cowan[73] in relation to the plaintiff’s credit in this type of case. As Chernov JA said in his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[74]
[73][2006] VSCA 254
[74](Supra) at paragraph [14]
316 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
317 I accept that the plaintiff has consistently refused or failed or disclose the truth and nature of her pre-existing injuries relating to the work injury and also her 2002 transport accidents.[75] That failure adversely affects her credibility and reliability, and consequently undermines the probative force of medical opinions that are based largely on an acceptance of her condition.
[75]T81
318 The following examples of the plaintiff’s failure to disclose relevant matters of history and her positive inaccurate statements in this regard were relied upon by the defendant:[76]
[76]Woolworths Ltd v Warfe [2013] VSCA 22
· Failure to disclose she was being treated for depression and anxiety, and had been for fifteen years at the time of the accident.[77]
[77]First affidavit, Dr Moore’s clinical notes, Centrelink medical report of 10 September 2004, the reports of Mr Brearley and Mr Battlay, and the plaintiff’s affidavit of July 2000
· Failure to disclose that for nearly twenty years before the accident she had been treated for neck and bilateral shoulder pain which resulted in irritation, headaches, memory loss while driving, insomnia, limitation in daily activities such as hair care, shopping, household chores, cleaning, and gardening.[78]
[78]Dr Moore’s clinical notes, the Centrelink report, the reports of Mr Brearley and Mr Battlay, and the plaintiff’s July 2000 affidavit
· Failure to report that following the 2002 transport accident she had been treated for neck and left shoulder and arm pain.[79]
· Saying she only suffered a lower back injury in 2002, and failure to disclose that since 2002, receipt of a DSP for chronic neck pain, depression, and anxiety.[80]
[79]Lavington notes
[80]Mr Cole’s report at 92
319 The plaintiff did not correct these matters in her second affidavit.[81]
[81]T83
320 In her third affidavit, the plaintiff persisted with asserting any right shoulder and neck symptoms had significantly settled at the time of the accident. In light of the objective contemporaneous medical evidence, it was submitted by counsel for the defendant this was simply untenable.
321 Further, in her third affidavit, the plaintiff made oblique reference to some referred shoulder pain after the 2002 transport accident. This was misleading, in that she did not identify which shoulder was involved, and did not disclose she had left shoulder symptoms in 2002 and 2003, or that she had reported restrictions in moving her left shoulder to her general practitioner, and she was not able to lift her left arm above shoulder height.[82]
[82]See Lavington notes; T84
322 In addition to the criticism of the plaintiff’s affidavits, counsel for the defendant submitted the plaintiff had provided misleading histories to doctors repeatedly:
· September 2007 – she told Mr Langley she had only had a history of RSI in her right shoulder and that her general health was good.
· March 2008 – she told Dr Sheehan she strained her right shoulder in 1986 but eventually recovered from that injury; that she suffered whiplash in 2001 but had fully recovered; that she had had a left-sided neck injury in the 2002 transport accident that only inconvenienced her temporarily, and that before the accident she was fit and well.[83]
[83]T85
· April 2008 – she told Mr Low she had right arm pain in 1986, and led him to believe she had suffered an RSI injury to her right wrist, and there was no mention of her neck or the 2002 transport accident.
· March 2009 – she told Ms Cole she had only had a minor whiplash in about 2002, and again in 2003, but made a full recovery, confirmed by her general practitioner, and that she had developed RSI in October 1996, but at the time of the accident, had been in good health other than a few right shoulder problems.
· August 2011 – she did not tell Mr McMahon in August 2011 of any relevant pre-accident medical history.
· February 2014 – she told Mr Kossmann she injured her right shoulder in 1986 and had post-natal depression which resolved; prior to the accident, she was fit and well and had no previous illnesses or injuries.
· December 2014 – she told Mr Kossmann again she was fit and well prior to the subject accident.
· December 2014 – she told Mr Dooley of RSI in 1986, went on a DSP around 2000, and noticed neck and right shoulder pain after her 2002 transport accident.
· January 2015 – she told Associate Professor Stark by the time of her accident, her neck and right shoulder from work injury were much improved.
· January 2016 – she told Dr Hayman that at the time of the accident, she was not on anti-depressant medication.[84]
[84]although he seemed to think there had been some conjecture in that regard, noting the clinical record
323 It is only in recent months that the plaintiff’s medico-legal examiners have been provided a more detailed, but not entirely accurate, history of the plaintiff’s pre-accident history, provided by her solicitors. Counsel for the defendant submitted this amounted to a construct to fix, or attempt to fix, the plaintiff’s lack of previous candour.
324 Counsel for the defendant pointed out that whilst the plaintiff said that she “kicked herself” for not telling Mr Kossmann about her pre-existing problems, she took no steps to correct this for two years, and further, that does not explain the inaccurate histories provided.[85]
[85]T87
325 I do not accept the plaintiff’s explanation as to this and other non disclosure and consider it to be “untenable”, as counsel for the defendant submitted.[86]
[86]T84
326 As counsel for the defendant submitted, the plaintiff’s evidence, or lack thereof as to her pre-accident significant physical and mental problems, goes not only to her credit but also, importantly, to her true capacity and level of functioning immediately prior to the accident.[87]
[87]T88
327 I accept that given the concessions made by the plaintiff in cross-examination about the nature and extent of her pre-accident condition, symptoms and restrictions, the usefulness of the lay evidence was negated, and the counsel for the defendant cannot be criticised for not cross-examining the plaintiff’s lay witnesses.[88]
[88]T106; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8 at paragraph [47]
328 In any event, their evidence was of little assistance. At the time of the accident, the plaintiff’s daughter, Carmen, was living with her and aged only fourteen. Not surprisingly, in her affidavit, she made no mention of the 2002 accident or any consequences thereof.
329 The plaintiff’s thirteen-year-old son, Ronald, was with living with his father in Tasmania.[89] Carmen later moved to Tasmania with her father before deciding to move to Queensland in late 2005.
[89]T44
330 Carmen would have been fifteen or sixteen when she last lived with the plaintiff in Lavington. Ronald lived with the plaintiff for about ten months, when he was twenty.[90]
[90]T46
331 Over the last five years, the plaintiff has not seen her children much but contacts them by phone and texting.[91]
[91]T47
332 In terms of the other lay evidence relied upon, the plaintiff’s friend, Peter Hocknell, has only known her for four years. The plaintiff’s ex-partner, Angelo, was not living with her at the time of the accident. The only person living with the plaintiff before and after the accident was her mother, from whom no evidence has been given.[92]
[92]T72
Neck condition before the accident
333 In this case, where there is a pre-existing cervical condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether any additional impairment resulting from the accident is serious and permanent.[93]
[93]Petkovski v Galletti (1994) 1 VR 436
334 Counsel for the plaintiff submitted that before the accident, the plaintiff had variable neck pain. Dr Pattison, on 30 January 2003, noted more good days than bad, less numbness overall and none at times. Neck movements were fine and there was less pain. [94]
[94]T111; Lavington notes
335 Before the accident, the plaintiff was able to attend the gym for fitness and socialising, including pump class and using the exercise bike,[95] could drive well enough to drive around town once a week,[96] and was on limited medication of Panadeine and intermittent anti-depressants.
[95]T37
[96]T72- in re‑examination
336 However, as counsel for the defendant submitted, the evidence demonstrated significant consequences as a result of neck and left shoulder condition immediately prior to the accident:
· 1986 – RSI to the neck, right shoulder and right upper limb in the work injury.
· 1989 – recurrence of neck and shoulder symptoms.
· April 2000 – report of discomfort to Mr Brearley over the right side of the neck, top of the right shoulder, and back of the right shoulder, unable to lift heavy objects or walk long distances, because that worsened her neck and shoulder pain.
· July 2000 affidavit – reported range of difficulties.[97]
[97]See paragraph 56 of this Judgment
· November 2000 – complaint to Mr Battlay of pain in the right shoulder girdle spreading to the right arm as far as the ring and middle fingers and right side of her face since October 1986; a small degree of disc and/or facet joint degeneration in the cervical spine causing some discomfort in the neck.
· November 2002 – following the transport accident that month, muscular tightness around the left jaw, neck, upper back and arm, and shoulder pain and headaches.[98]
[98]Lavington notes
· December 2002 – pain and stiffness in the neck and left arm, and paraesthesia in the forearm and hand (ulnar border and thumb and index finger), physiotherapy referral.[99]
[99]Supra
· May 2003 – continuing to suffer neck pain.[100]
· September 2004 – Dr Moore’s report to Centrelink.[101]
[100]Supra
[101]See paragraphs 272- 278 of this Judgment
337 The plaintiff accepted in cross-examination that she had these restrictions and difficulties in December 2004, at the time of the accident, and they had been longstanding.
Accident consequences
338 Counsel for the plaintiff submitted that since the accident and the resultant aggravation of degenerative changes in her neck, the plaintiff has continued to suffer constant but variable neck pain and is on high doses of medication to control the constant pain. She reported pain “24/7” to Mr Kossmann, and Mr McLeod noted that despite compliance with treatment, the plaintiff did not report any period in the day when she was not suffering severe pain.[102]
[102]PCB 240 ff
339 Counsel for the plaintiff submitted that since the accident, the plaintiff had suffered a gradual and permanent decline in function.[103]
[103]T113
340 It was submitted that the major differences between the plaintiff’s pre and post-accident restrictions were that all head movements are now accompanied by pain, whereas before they were limited; she has greater difficulty driving, since 2012, not having driven at all; she is unable to go out on her own, and relies on a friend to take her places; and she has been prescribed increasing doses of medication.
341 Prior to the injury, the plaintiff was on intermittent over-the-counter medication, intermittent Temaze and anti-depressants.[104]
[104]T113
342 Since the accident, the plaintiff is on Endone, 5 milligrams, about four a week; Lyrica, 300 milligrams a day; Panadeine Forte, about one per day; Cymbalta, 60 milligrams a day; Temaze, 10 milligrams at night; and over-the-counter pain relief for days when she does not have Endone.
343 Counsel for the plaintiff submitted that the plaintiff has several ongoing effects from her post accident high levels of medication. Lyrica, started by Mr McMahon, has caused cognitive difficulties, as Mr Hayman and Dr Doherty mentioned and it was causing unreasonable side effects.
344 Reliance was placed on the affidavit evidence of the plaintiff’s children of the her confusion at home and Mr McLeod’s comment that she frequently misunderstood questions and suffered difficulty maintaining concentration, and was at times mentally disorganised or confused when interviewed.
345 Further, it was submitted the manner in which the plaintiff gave evidence was consistent with a person labouring under the effects of medication.
346 Having summarised the plaintiff’s description of her pain set out in her four affidavits and her viva voce evidence of pain like a hot poker extending down her left thigh, counsel for the defendant submitted the medical evidence gives no clear picture of the cause of her diffuse physical symptoms. There is no identifiable impairment of body function that can be reliably identified as to cause her numerous and diffuse complaints.[105]
[105]T96
347 I accept, as counsel for the defendant submitted, that any current cervical injury is not of great magnitude, as the following doctors opined.
348 In September 2007, Mr Langley thought that the plaintiff strained her neck in the accident. He considered there were no physical signs to verify the referred pain in the left arm. Having only been given a history of a pre-existing RSI of the right shoulder, he specifically excluded aggravation of any pre-existing condition.[106]
[106]T89
349 Also having a very limited pre-accident history, in April 2008, Mr Low diagnosed a soft tissue injury to the neck. When he reported to the plaintiff’s doctor in July 2007, he noted that the plaintiff supposedly got a whiplash injury and it would “obviously” not go away until litigation had finished.
350 In 2013, Mr McMahon thought the recent investigations did not reveal a likely cause of the plaintiff’s symptoms, and diagnosed a musculoskeletal pain syndrome.
351 In November 2014, Dr Dhanapala reported the plaintiff had several maladaptive conditions and behaviours, and had a medically focused approach which was clearly impacting on any potential rehabilitation.
352 In February 2015, Mr Dooley diagnosed a soft tissue injury to the cervical spine, and, whilst the mechanism of the accident could have caused some aggravation of degenerative disc disease, he thought the plaintiff’s described disability was greater than one would expect to see for an organic condition.
353 Further, Mr Dooley noted the plaintiff’s past history of “very similar” complaint and concluded that the plaintiff’s psychological reaction to a situation significantly influenced her ongoing symptoms, making the comment that her present difficulties were no different from those prior to the accident.
354 In January 2015, Associate Professor Stark thought the plaintiff did not present with any specific neurological complications, and, while symptoms could represent an injury to the neck with referred pain, he considered there were a number of features suggesting the development of a pain disorder with prominent psychological elements.[107] It was relevant that the plaintiff had been susceptible to widespread pain syndromes going back to 1986. He concluded that the she had non-specific neck pain with referred pain in the left arm, with a number of features suggesting a strong non-organic component.
[107]T89
355 In February and December 2014, having received no relevant history of pre-existing conditions, Mr Kossmann failed to diagnose the plaintiff with any identifiable organic injury.
356 Counsel for the defendant submitted that later, in his 2016 report, Mr Kossmann appears to have amended his opinion to include aggravation of pre-existing degenerative change to cervical spine on the basis of a very minor degenerative bulge at C5‑6 in the December 2015 MRI. No explanation was given for how that bulge seen on the scan was accident related, nor how that condition was observable in circumstances where it had been previously expressly excluded by orthopaedic and neurological surgeons such as Mr Langley and Mr McMahon. Moreover, no explanation was given for how the very minor degenerative bulge explained the plaintiff’s symptoms.[108]
[108]T91
357 Further, counsel for the defendant submitted no attempt had been made by the plaintiff to disentangle the consequences by attributing any of them to a particular injury, nor could she. It was submitted the cause of her numerous complaints was simply unclear.
358 The onus remained on the plaintiff to identify whether any physical injury was sustained in the accident, and, if so, whether the impairment and consequences attributed to it are serious.
359 As the Court said in De Agostino v Leatch,[109] where a claimed injury has numerous causes, the plaintiff:
“... must establish at the stage of applying for leave that ‘the injury which has been caused by or is the result of the relevant accident is a ‘serious injury’’. This means that, where there is an aggravation of a pre-existing impairment, the claimant must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the relevant accident.”
[109][2011] VSCA 249 at paragraph [11]
360 Counsel for the defendant submitted that the plaintiff made no attempt to distinguish the consequences from which she suffered pre-accident from those thereafter. While in her later affidavits she sought to disclose the existence of pre-existing conditions not previously referred to, the plaintiff had nonetheless continued to assert she was essentially pain-free at the time of the subject accident. It was submitted in light of the objective and contemporaneous medical evidence reported at the time of the accident, that position was simply untenable, and is in any event fatal to her claim.
361 Medical support for the plaintiff’s application is largely based on the inaccurate histories given by her, and Mr Dooley, who had a full history, did not consider much had changed in the plaintiff’s cervical condition as a result of the accident.[110] He noted the plaintiff had difficulty with heavy household activity and stated that, as far as he could tell, the difficulties that she described are no different from those that she was experiencing consequent upon her previous injury.[111]
[110]T97
[111]T88
362 The plaintiff accepted the description of her pre-accident restrictions were correct other than any problems attending the gym or jogging.[112] However, I find it extremely difficult to accept, in light of these difficulties, the plaintiff was attending the gym with the freedom and frequency she describes or that she was going jogging given her complaints of a feeling of being jolted even when walking before the accident.[113]
[112]T97
[113]T98; see paragraph 266 of this Judgment and the plaintiff’s 2000 affidavit
363 In my view, the plaintiff’s difficulties with driving relate to a range of issues, not her neck alone.[114]
[114]T98
364 Whilst it appears from the plaintiff’s evidence that Mr McMahon first prescribed Lyrica, it is not clear from his report why this medication was prescribed and for what condition.
365 I accept that the plaintiff’s evidence regarding her current medication regime is equivocal. There is no evidence as to what medication is prescribed for what injury, and whilst giving a list of current medication, Dr Munoz does not specify what medication is for what condition.[115]
[115]T104, T106
366 At the time of accident, clearly, the plaintiff was not fit and healthy nor had she substantially recovered from the work injury and earlier transport accidents as she has claimed at times.[116]
[116]T97
367 I accept the that given the extent of the pre-existing restrictions as treating general practitioner, Dr Moore’s, report set out relating to an examination only three months before the accident, and in particular his view their impact was expected to persist for more than 24 months, there is little difference between the pre-accident restrictions on activities of daily living and the plaintiff’s current complaints.
368 On that basis, the evidence in the present case is simply insufficient to enable the Court to be satisfied on the evidence before it that the plaintiff sustained a serious organic neck injury as claimed.
369 Accordingly, I am not satisfied any accident-related aggravation of the plaintiff’s cervical condition is “serious” and the application in relation thereto is dismissed.
The left shoulder
370 Counsel for the defendant submitted that the evidence does not disclose the plaintiff suffered injury to her left shoulder in the accident and that there was little or no evidence of a separate left shoulder injury.[117]
[117]T91
371 In support of that submission, counsel for the defendant relied on Mr Dooley’s February 2015 report where he not diagnose the plaintiff as suffering from any left shoulder injury. In his 28 April 2008 report, Mr Low described soft tissue injury to the shoulder, and suggested radiology be arranged.
372 In his September 2007 report, Mr Langley suggested the plaintiff developed tendinitis in her left shoulder but that had been superseded by the shoulder joint MRI.[118]
[118]T91
373 In his May 2013 report, Mr McMahon expressly excluded the presence of any discrete shoulder injury on the basis of the shoulder joint MRI scan of August 2012, which was normal and showed no rotator cuff tear and no discrete labral tear.
374 In February and December 2014, Mr Kossmann did not diagnose the plaintiff as having any identifiable organic injury. In later reports, he suggested there may be advancing osteoarthritis of the left shoulder joint on the basis of the September 2014 MRI scan; however, he did not say these minor degenerative changes were caused by the accident.[119]
[119]T92
375 The MRI scan of the left shoulder of October 2014[120] did not show any advancing osteoarthritis but showed mild degenerative change at the AC joint.
[120]PCB 55
376 In these circumstances, it was submitted there was no compelling evidence of a discrete left shoulder injury referable to the accident.
377 However, taking into account all the evidence, I am satisfied there is a discrete injury to the left shoulder, as counsel for the plaintiff submitted, based on the following medical opinions:
· Mr Low – clear diagnosis of impingement and subacromial bursitis.
· Mr Sheehan – accident-linked subacromial bursitis and supraspinatus tendonitis.
· Mr McMahon – left trapezius muscle and upper limb musculoskeletal pain syndrome.
· Mr Kossmann – advancing osteoarthritis of the left shoulder joint.
· Dr Blombery – features of subacromial bursitis in the left shoulder.
378 Counsel for the plaintiff described limited consequences relating to the left shoulder such as difficulty lifting pots and pans with her left arm and requiring assistance with heavy tasks. It was submitted the plaintiff was now restricted in her ability to carry groceries and shopping, and do household duties including ironing. Her left side seems weaker than the right side, contrasted with the situation before the accident when the left was stronger.
379 There was no suggestion of increased medication or the need for significant treatment of the left shoulder following the accident.
380 However, when one considers the left shoulder application, issues of aggravation and disentanglement also arise.
381 The plaintiff was still reporting difficulties with her left shoulder to her doctor the year before the accident, having problems moving it freely. Shoulder problems were also mentioned in Dr Moore’s September 2004 report.
382 The plaintiff was then having problems with housework and other heavy activities as a result of her neck condition.
383 In these circumstances, I am not satisfied that any aggravation of the left shoulder in the accident is more than significant or marked. Accordingly, this application is dismissed.
Complex Regional Pain Syndrome
384 An application was also brought in relation to a CRPS, a condition diagnosed by Dr Blombery in his supplementary report of February 2017 following his second examination, having been asked for clarification of his opinion by the plaintiff’s solicitors.
385 In that report, Dr Blombery added to the nature of the injuries, the development of CRPS Type 1 complicating subacromial bursitis in the left shoulder.
386 In this application, counsel for the plaintiff relied on Dr Blombery’s positive examination findings of temperature changes in the plaintiff’s hands on 4 April and 9 December 2016 and his statement in his supplementary report that the plaintiff has “quite definite features of CRPS Type 1 and fulfils both the basis and the Budapest criteria for such condition”.
387 Counsel for the defendant submitted the plaintiff does not suffer from a CPRS.
388 Dr Blombery is the only practitioner who made this diagnosis, and when he first saw the plaintiff in April 2016, he diagnosed a non-specific Pain Syndrome, expressly excluding a diagnosis of Chronic Regional Pain Syndrome.[121]
[121]T93
389 Following his second examination in December 2016, Dr Blombery diagnosed a whiplash-associated disorder. He subsequently changed that opinion, counsel for the defendant submitted, after being pressed by the plaintiff’s solicitors, but did not provide any cogent reasons for changing his view.[122]
[122]T94
390 It was submitted Dr Blombery gave no explanation for this apparent delay in the development of symptoms and how they could be attributed to the accident, and he provided no opinion about whether Chronic Regional Pain Syndrome was caused by the accident.
391 Further, the plaintiff could not give any clear indication as to when the features of CRPS started, and could not explain why those features were not present earlier in the day of the examination when she saw Mr Kossmann. She also could not explain why these matters were first mentioned in her fourth affidavit.[123]
[123]T95
392 Taking into account Dr Blombery’s expertise in this field, despite the late diagnosis and the nature and timing of the plaintiff’s complaints, I accept that there is a basis for the diagnosis of CRP and do not accept the plaintiff was feigning the symptoms thereof.
393 However, counsel for the plaintiff did not point out any specific consequences relating to Chronic Regional Pain Syndrome which is said by Dr Blombery to complicate the plaintiff’s left shoulder condition.
394 Having found the plaintiff had a left shoulder problem pre accident and that the consequences of any left shoulder related injury are not “serious”, I make a similar finding in relation to the Chronic Regional Pain Syndrome application.
395 Accordingly, that application is dismissed.
Psychiatric impairment
396 Counsel for the plaintiff submitted the plaintiff is a person with an organic injury with severe psychological amplification – a chronic pain syndrome.
397 It was submitted that prior to the accident, the plaintiff had intermittent prescriptions for various anti-depressants as a result of various problems, where the diagnosis was one of depression rather than a Somatic Disorder.
398 It was submitted the clinical notes indicated that at the time of the accident, although she had been prescribed Cipramil in August 2004, the plaintiff had not been receiving regular prescriptions for psychiatric medication in the previous years.
399 Since the accident, the plaintiff has had psychiatric treatment including resumption of Cipramil in May 2005, along with Naprosyn for pain, and the anti-depressant, Cymbalta, also used to combat pain.
400 In April 2011, after moving back to Lavington, the plaintiff attended her general practitioner and reported since the accident, her pain had been severe. In 2014, she had been referred to the Townsville Private Medical Health Service where she had treatment with a registered psychiatric nurse.
401 Reliance was placed on Dr Weissman’s opinion that the plaintiff has had significant and substantial vulnerability traits and that it was open to apportion contribution of 50 per cent to the accident. Further, Dr Hayman diagnosed a Chronic Pain Disorder with psychological factors and a general medical condition.
402 In response, counsel for the defendant submitted the following evidence demonstrated that the plaintiff was suffering from a longstanding psychiatric disorder immediately prior to the accident:
· 1990 – development of post-natal depression, treated by general practitioners at Lavington and prescribed anti-depressants.
· From 1996 – treated by general practitioners for anxiety and depression, variously prescribed Serepax, Prozac, Prothiaden and Aurorix.
· 1998 – treated by her general practitioner at Lavington for depression as a result of difficulties with her marriage, and was prescribed Aropax.[124]
[124]Mr Kossmann
· 2001 – started seeing Dr Wilde; saw him after the accident for relationship issues; attended an unnamed psychiatrist or psychologist prior to the accident.
· By January 2004 – the plaintiff was depressed, had suicidal thoughts and was seeing a counsellor, and was prescribed Effexor.[125]
· June and September 2004 – continuing reports of depression.[126]
[125]Dr Moore’s notes
[126]Lavington clinical notes
403 Dr Moore’s report to Centrelink of September 2004 is particularly relevant, describing a significant psychiatric illness three months before the accident for which the plaintiff frequently needed anti-depressants. As Dr Moore noted at that stage, the plaintiff was experiencing frequent panic attacks which were debilitating and prevented her from continuing normal daily activities.
404 A number of practitioners considered that pre accident the plaintiff may have suffered from a pain syndrome as a result of her earlier injuries including Associate Professor Stark and Mr Dooley.
405 Dr Weissmann having been provided with all the relevant material, considered the plaintiff was probably suffering from a somatic symptom disorder/chronic pain disorder prior to the accident. Dr Hayman thought the plaintiff had significant psychological issues.
406 Further, it was submitted any present psychiatric condition is not severe.
407 Dr Weissman and most recently, Associate Professor Doherty in late 2016, thought the plaintiff’s psychiatric condition is, at its highest, mild to moderate, and at its lowest, the symptoms are not sufficient to meet the criteria for a diagnosable psychiatric condition. This was before the effects of her pre-existing psychiatric condition are taken into account.[127]
[127]T104
408 Dr Weissman provided an initial opinion in February 2004, and then provided a more detailed report following receipt of material as to the plaintiff’s pre-accident condition. He ultimately thought the accident was only one of many contributing factors to the plaintiff’s psychiatric condition, and overall, it caused only a mild to moderate group of accident-related psychiatric conditions and mental injuries.
409 When Associate Professor Doherty saw the plaintiff in November 2016, he thought she had no current diagnosable psychiatric condition. He disagreed with Dr Hayman’s diagnosis of a chronic pain disorder, concluding there are persistent pre-transport-accident vague anxiety and depressive symptoms that did not constitute a diagnosable psychiatric condition. He thought she suffered from the deleterious effects of prescription medication, though not such as to develop into a syndrome that could be given a psychiatric diagnosis.[128]
[128]T101
410 Whilst there is some support for the diagnosis of a chronic pain disorder, the plaintiff has had little treatment for this condition post accident.
411 Following the accident, it appears the plaintiff attended a psychiatrist but these is no evidence from that practitioner.[129]
[129]T99; see paragraph 27 of this Judgment
412 The plaintiff is currently receiving no psychiatric treatment for her claimed mental or behavioural disturbance or disorder. The only evidence of any active psychiatric treatment appears to be counselling from a mental health nurse, Mr McLeod, and anti-depressant medication prescribed by her general practitioner, medication of this nature having been prescribed before the accident.
413 I accept, as submitted by counsel for the defendant, the evidence of psychiatric nurse, Mr McLeod, should be approached with caution and given little weight. It does not appear he has any knowledge of the plaintiff’s psychiatric condition pre accident. Further, his comments as to her psychiatric diagnosis have not been supported by any other evidence.[130]
[130]T103
414 Taking into account all the evidence, I am not satisfied any aggravation of the plaintiff’s significant pre-existing psychiatric condition is “severe”.
415 Accordingly, the application pursuant to clause (c) is dismissed.
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