Woods v Ross
[2000] VSC 501
•30 November 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No.8224 of 1998
| KIRSTY WOODS | Plaintiff |
| v | |
| MICHAEL WILLIAM ROSS | Defendant |
---
JUDGE: | Ashley J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 19,20,21 & 22 September 2000 | |
DATE OF JUDGMENT: | 30 November 2000 | |
CASE MAY BE CITED AS: | Woods v Ross | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 501 | |
---
Damages – personal injury – complex regional pain syndrome (type 1) – other injuries.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr R. J. Stanley, Q.C. and Mr A. Keogn | Roth Warren |
| For the Defendant | Mr J. Rush, Q.C. and Mr D. Myers | TAC Law Pty Ltd |
HIS HONOUR:
Overview
Kirsty Woods, a lady born on 8 October 1974, suffered injuries on 24 July 1994 when a motor vehicle in which she was a rear off-side passenger ran out of control and struck a telegraph pole. By this proceeding, in which the defendant understandably admits liability, she claims damages for her injuries.
The plaintiff’s medical picture has been dominated since 1994 by a problem with her left lower leg – most particularly her foot. Prominent examination findings over the period have been an abnormal coldness and discolouration of the affected area, restriction of movement and wasting. The extent of coldness and discolouration has not always been the same. The site and extent of wasting was a matter of some debate at trial.
Subjectively, the plaintiff has complained since 1994 of pain in the affected area, loss of movement and a feeling of weakness in the limb.
The main debate at trial concerned the nature of the injury reflected by the symptoms and signs to which I have just referred; and flowing on from that, the plaintiff’s future – both in terms of pain and suffering and employability.
For the plaintiff, evidence was led that her condition was properly described as complex regional pain syndrome (type 1) (CRPS), this descriptive term replacing the older reflex sympathetic dystrophy. The injury was said to be essentially physical in nature, though it was accepted that psychological factors commonly superimpose themselves upon the physical injury – a not surprising response to persistent pain and disability. The plaintiff’s future was said to be bleak, both in terms of continuing pain and disability and in terms of employability.
For the defendant it was contended that the injury to the leg was, at least predominantly, a psychological phenomenon. The examination findings of coldness, discolouration and wasting were said to be a disuse response. The plaintiff’s psychological status was said to be improving, in which case the future both in terms of pain and suffering and employability was said to be much brighter than the plaintiff’s side would say was the case. According to counsel for the plaintiff, the defendant’s case as I have outlined it was contention only. The evidence, including evidence called for the defendant, did not support it.
The plaintiff suffered other injuries. I need only sketch them briefly at this stage. At the outset the family general practitioner, Dr Heggie, noted large bruises with deformity on the right side of the scalp and the right jaw. There was bruising and laceration of the left shin. Complaint of chest pain was associated with tenderness over the left fourth rib, this suggesting a possible crack of that rib. Complaint was made of blurred vision. That plus the obvious evidence of a blow to the head led to diagnosis of a probable post concussional state, notwithstanding that the plaintiff provided Dr Heggie with no history of loss of consciousness.
At least within a few days of the accident the plaintiff developed marked head-bobbing. This was followed by development of a torticollis – colloquially, a wry neck. Both these features were evident when the plaintiff was admitted on 11 August 1994 to a rehabilitation facility then conducted by the Transport Accident Commission. The torticollis was treated with success over a period of time. The head-bobbing ceased. The plaintiff was left with some neck symptoms. There was debate at trial whether the head and neck symptoms were organically or psychologically determined, or partly the one and partly the other.
Treatment for the plaintiff’s leg condition in part involved epidural injections. The plaintiff complains of some back pain. That was said to be a not-uncommon consequence of such injections.
The plaintiff alleged that she damaged a tooth in the accident; and that later it had to be removed. She was not cross-examined to suggest that this was not the case. There is no reason not to accept her evidence upon the matter despite the fact that the treating dentist was not called. In the overall scheme of things this injury does not loom large. Neither counsel referred to it in his closing address.
Finally, it was part of the plaintiff’s case that - although physical injury was at the heart of her problems – she had suffered from anxiety and depression of varying degree since 1994.
Submissions as to quantification summarised
Although counsel for the defendant contended in his closing submissions that some of the treatment provided to the plaintiff since 1994 had been “unnecessary”, and that she had been “poorly served” by several of her doctors, there was in the end no dispute that the plaintiff had been wholly incapacitated for work to date – whether by physical or psychological problems or a combination of the two in whatever proportions. Nor was there dispute that the plaintiff had been symptomatically quite afflicted since 1994.
The dispute, so far as the plaintiff’s claim for loss of earnings to date was concerned, focussed upon the question whether she had established, on balance, that she would have obtained employment were it not for her injuries; and upon her likely rate of pay had she obtained employment. According to the plaintiff’s case it was likely that she would have obtained employment by 24 January 1996 – that is, 18 months’ post-accident (the first 18 months being quarantined against a claim). According to the defendant’s case I should find that the plaintiff would probably have obtained work for two to three years out of the six years odd since the accident happened. Counsel for the plaintiff proposed that the starting point for the lost earnings claim was an after-tax range of $325-350 per week. Counsel for the defendant proposed an average figure of about $317 per week.
Then, as to the plaintiff’s claim for loss of earnings capacity, the competing submissions focussed upon the probable future course of the plaintiff’s leg injury. For the plaintiff it was submitted that I should accept that the injury was essentially physical, that the future is bleak, and that the plaintiff is and will remain unemployable to ordinary retiring age of 60. Assuming an ability, today, to earn not less than $400 nett per week, applying the relevant 6% multiplier (765) and discounting by 15% for contingencies, a figure of $260,000 was proposed. That was not the only approach canvassed by counsel for the plaintiff. Several calculations were made that were based upon my accepting something less than the plaintiff’s preferred case.
For the defendant, counsel submitted that I should conclude on the evidence that the plaintiff’s symptoms will improve and eventually resolve over time, and that I should allow for some three to five years loss of earning capacity at current assumed earnings of $20,000 nett per annum – that is, $384 per week. Applying the appropriate multipliers (3 yrs = 143.6, 5 yrs = 226.3) counsel for the defendant proposed a discounted range of $50,000 – $80,000 for this sub-aspect of the claim.
Before going on, I should say that counsel for both parties advanced nett weekly figures in their calculations which made use of tax rates that were not in evidence. Neither counsel objected to the other doing so, or to the accuracy of the tax impact which was asserted in the various instances. I do not intend, in the circumstances, to consider the evidentiary propriety of the course adopted.
I turn to pain and suffering damages. It was, as I have said, common ground that the plaintiff had been significantly afflicted by compensable injuries over the past six years – whatever be the aetiology of the individual injuries. As to the future, the submissions of counsel mirrored the debate concerning future economic loss. Counsel for the plaintiff submitted that his client faces all of life pain and suffering and loss of enjoyment of life. In that event pain and suffering damages should certainly exceed $200,000. For the defendant it was submitted that, considering the past and up to five years into the future, the appropriate range of figures for pain and suffering damages was $90,000 - $110,000. To this submission counsel for the plaintiff responded that if I was to look only five years into the future I should conclude that the plaintiff would have had a most difficult time of it for a total of 11 years and that at an age when a young person should ordinarily have much to look forward to. In such circumstances, counsel submitted, an appropriate amount for pain and suffering damages would exceed $150,000.
The injuries suffered by the plaintiff
The main viva voce evidence pertaining to CRPS was given by Dr Peter Blombery, consultant physician specialising in vascular disease, and Dr Leonard Rose, founder and medical director of the Melbourne Pain Management Clinic (for the plaintiff) and Dr Robert Hjorth, consultant neurologist (for the defendant). It is from that body of evidence, and as well from a report of Dr David Vivian, a musculo-skeletal physician, which was introduced into evidence that I have been able to reach conclusions as to the existence and nature of CRPS. It is from that body of evidence and from other medical and paramedical evidence to which I will later refer that I have been able to reach a conclusion whether the plaintiff has suffered and does suffer from CRPS, and as to her likely prognosis.
Before going on, I should make one matter clear. I have had to resolve this proceeding, as must occur in every trial, upon the evidence which was adduced. My conclusions do not represent absolute truth, nor scientific certainty. They do reflect an evaluation of the particular evidence – oral and written – that was adduced at this trial, always bearing in mind the fact that in proof of injury, loss and damage the plaintiff carried an onus of proof.
Against the background described I have concluded that there is an entity properly described as CRPS..
I consider that the evidence established these propositions in respect of the syndrome: CRPS describes a syndrome in which, often in response to trivial injury, not necessarily at the precise site of injury, and often after the elapse of some latent period, the patient develops disproportionate pain, usually in an extremity, accompanied by changes in colour and temperature of the affected area, often with hypersensitivity and alteration in normal sweating. It is a characteristic of the syndrome that pain and autonomic manifestations (that is, colour and temperature changes) vary, pain often being worse in cold weather and autonomic manifestations almost always being less in warm whether. Persistence of the syndrome appears to lead to lack of movement in joints of the affected area. If the disorder is present for long enough there may be tissue swelling in the affected area, changes in the skin, nails and on x ray (osteopenia, a lack of calcium in the bones, may be observable), and loss of joint mobility. Wasting is a common accompaniment of the disorder. The diagnosis may be made without each of its listed features being present in the particular case. There is frequently, if not always, a close connection between the pain of which a patient complains and depression or psychological factors. When a person is depressed that person will report pain as being more severe than if the person reported upon pain when not depressed.
I have left over for discrete mention areas where the evidence concerning the syndrome was particularly debated. The first of these concerns the aetiology of the disorder.
Dr Blombery, who the evidence disclosed to be an eminent authority concerning the syndrome, agreed in cross-examination that the pathology is theoretical rather than proven. But it was his opinion, an opinion long held, that the condition is caused by abnormal connections developing in the tissues between nerve endings in the sensory nervous system (the system which allows the sensation of pain) and the nerve endings of the sympathetic nervous system. The latter is one part of the autonomic nervous system. The other part is the parasympathetic nervous system. The autonomic nervous system, not under a patient’s conscious control, supplies the blood vessels, heart, bowel, and sweat glands. It is involved in situations of fright and flight. In the case of the sympathetic nervous system it produces, inter alia, constriction of blood vessels. This produces, in turn, decrease in blood flow and thus changes in temperature and colour. The sympathetic nervous system is always involved in changes in temperature, colour and sweating. It may be involved in the pain process – apparently by sensitisation of pain nerve endings. If the sympathetic nervous system is involved in the pain process, a block of the sympathetic nervous system should reduce or eliminate the pain. If pain is relieved by such a block, it is described as sympathetically dependent pain. If pain is not relieved by such a block it is presumed that the mechanism involved in sensitising pain nerve pathways involves other nerve ending transmitters. A whole range of chemicals could be involved in the sensitisation process. If pain is not relieved by a block, it is described as sympathetically independent pain. Appropriate treatment is then treatment of a patient with a chronic pain syndrome.
Dr Blombery said that the argument that a person suffering from CRPS suffers primarily from a mental disturbance with secondary pain has been shown to be unsound by the vast majority of studies which have been conducted. He was specifically critical of a study conducted by Akowa which appeared to suggest the contrary.
Dr Blombery acknowledged that there is a small group of patients who exhibit features like CRPS and in whom the features are psychologically based. Those patients, he said, would not be classified as having the disorder. In this connection, I think, he agreed that a person with a psychological problem in relation to injury may come to exhibit features of disuse of a limb. Such features may include temporary colour change; but not sensitivity to touch.
Dr Rose agreed that the pathology of the syndrome is unknown. But he said that these days the syndrome is thought to be mainly related to abnormalities in receptor activity in some of the neurones controlling the flow of information to the brain and the interpretation of that information. He agreed, in cross-examination, that for a long time the question has been whether the condition is predominantly caused by psychological factors, or the reverse.
Dr Vivian, whose report only was adduced in evidence, opined that the pathology is theoretical rather than proven. He considered that the pain probably has a central origin, and reported that it has been shown to cause definite spinal cord changes. He opined also that: “The extent to which psychological factors play a part in the development and maintenance of this pain syndrome is impossible to state.”
Dr Hjorth told me that scepticism about the realness of CRPS to a large degree has been dropped. But there has always been doubt to what degree the syndrome represents a separate disease and to what extent just the effects of disuse. Later in his evidence he said that the whole issue whether disuse can ever cause a syndrome identical to reflex sympathetic dystrophy (RSD) – as he preferred to describe the condition – is argued in the literature. But there is general agreement that disuse contributes to it. He explained his position this way: “…I would still accept that she has reflex sympathetic dystrophy, but you might say that the disuse, itself of psychological origin, may well be contributing to the sympathetic change and the failure of recover”. In cross-examination he said, in respect of the plaintiff: “I’ve never actually put forward the idea that the pain is psychological. It might be. I have no way of knowing”; and: “I think the pain is explicable as part of ongoing reflex sympathetic dystrophy, but that’s the only explanation we’ve got; plus the fact that we know it is not uncommon to see people who have severe persisting pain where our investigations fail to find a cause.”
I was very impressed by the knowledge and fair-mindedness of both Dr Blombery and Dr Hjorth. Each of them (see also the evidence of Drs Rose and Vivian) told me frankly that the pathology of CRPS (or RSD) is uncertain. In the end, I have accepted Dr Blombery’s opinion that the disorder is essentially organic and not simply a response to psychological injury. Dr Hjorth did not challenge the analysis. He did not suggest that the postulated mechanisms were untenable. What he fairly did was to point out that the issue has not been finally concluded in medical circles. In the plaintiff’s case, to emphasise the point, he went no further than saying that disuse of psychological origin may be contributing to the sympathetic change and the failure of recovery.
Acceptance of Dr Blombery’s evidence leaves open the question whether the plaintiff has established that she suffered and suffers from CRPS; whether that disorder has been worsened in her case by psychologically–inspired disuse; whether the plaintiff falls into the small group whom Dr Blombery described as exhibiting the features of the disorder but in whom those features are psychologically-based; and the extent to which the disorder has been complicated by psychological features – anxiety, depression and so on.
A second area of debate concerned the prospect of resolution of CRPS. It was common ground that most cases of the disorder fully resolve. According to Dr Blombery, however, if a patient is going to improve he or she will do so in the first one to two years after sustaining injury. After six years, he said, the chances of recovery are zero.
Dr Hjorth gave evidence that only in a small minority of cases does the disorder remain permanently. Normally it runs for one to five years and just gets better. In the occasional case where it is persisting after 10 years the patient is often a person who developed it in young adulthood. Insofar as there is a psychological component to the disorder in a particular instance, motivation and "change in attitude" are critical matters tending in favour of successful rehabilitation. In cross-examination he held to his opinion that patients characteristically improve over a one to five year span, not the one to two year period of which Dr Blombery had spoken.
Dr Blombery has examined and treated more patients suffering with CRPS than any other doctor in Victoria over a long period of time. His opinion about prospect of recovery after an elapse of years certainly commands great weight. But Dr Hjorth's experience, somewhat to the contrary, cannot be dismissed. Later in these reasons it will be necessary to consider whether, and if so to what extent, the opinions are irreconcilable; and, insofar as differences exist, which if either opinion is useful in answering the question whether the plaintiff’s symptoms and signs are likely to resolve or improve.
I turn to consider the diagnosis in this case. Each of Drs. Blombery, Rose, Hjorth and Vivian diagnosed the plaintiff as suffering from CRPS (or RSD). They did do notwithstanding that she has not complained of each and every symptom described in connection with the disorder; nor exhibited each and every sign associated therewith.
I accept the opinion of those doctors. I am therefore satisfied that the plaintiff is not a member of the small group to which Dr Blombery referred who exhibit the features of the disorder, but in the case of whom the features are psychologically-based.
Whilst I have accepted the opinion of the doctors that the plaintiff has suffered and continues to suffer from CRPS, I am satisfied that there has been and remains a considerable psychological component to the disorder, that component reflecting itself in two ways: first, by causing the plaintiff to subjectively experience more pain than she would otherwise experience; and second, by contributing to disuse of the left leg, this in turn contributing to the sympathetic change and the failure of recovery.
I am further satisfied, as a matter of probability, that there will be a significant improvement in the psychological component of the disorder, and that after such improvement the plaintiff will be left with the organically-determined component of the syndrome and the residue of the psychological response. The accumulation of disability flowing from those two sources will, I am satisfied, be much less than that which the plaintiff now experiences.
There can be no certainty how long it will be before the psychological component of the syndrome diminishes. The timing of this development will be influenced by the plaintiff gaining in maturity, her involvement (a fortiori success) in gaining further employment skills, her obtaining (a fortiori holding) a job, and an increase in her ability to have social interaction with her peers. In a number of these areas there was evidence, to which I shall later refer, which gives cause for real optimism. Doing the best I can in light of all the evidence, I consider that the psychological component of the disorder is likely to be considerably improved in three years time.
The conclusions which I have expressed do not involve wholesale acceptance of the opinion of any one doctor. They involve rejection of some of the opinion of almost every doctor. But they are the conclusions to which the evidence, viewed overall, has led me. I should explain, by reference to the evidence, why I have reached those conclusions.
The evidence did not show that there was direct injury to the left ankle or foot, although the plaintiff was limping from the outset, and the possibility of injury to that area, not initially recognised because other complaints predominated, cannot be discounted. There was, in any event, injury to the lower leg, and the evidence of Dr Hjorth supported the proposition that there is no necessarily precise relationship between the site of trauma and the site at which CRPS develops.
The evidence of Dr Heggie shows unequivocally that by 30 July 1994, that is, six days post accident, the plaintiff was complaining of being unable to put weight on her left leg, and on examination was very tender around the ankle joint – so much so that the doctor suspected that she might have a possible fracture, and applied a plaster slab. There was, in fact, no fracture. But the doctor’s evidence suggests the presence of extreme sensitivity in the area that thereafter became cold and discoloured. Hypersensitivity is a described sign of CRPS. In retrospect, I consider that the doctor’s observation on 30 July 1994 supports the proposition that the disorder was then developing. The hiatus in time between 24 and 30 July (if hiatus there was in the onset of any relevant symptom or sign) is consistent with the natural history of the disorder as explained in the evidence.
At the time when the plaintiff attended the TAC rehabilitation centre, Glen Waverley, as an in-patient – this was from 11 August 1994 for a period of 5½ weeks – the problems of inability to weight bear on the left leg, pain in the ankle and foot, discolouration and temperature change were entrenched. The plaintiff was on crutches, and at times was in a wheelchair.
The plaintiff was admitted to the Alfred Hospital between 13-19 October 1994. The main reason for her admission was that she was suffering from symptoms affecting her neck and head – pain, torticollis and marked head bobbing. These problems, as I have already noted, developed after the road traffic accident.
Whilst an in-patient at the Alfred Hospital the plaintiff was first seen by Dr Blombery. He made a provisional diagnosis of CRPS and suggested a phentalomine infusion. This infusion was designed to improve circulation in the affected limb and lead to pain decrease if pain was sympathetically maintained.
In fact infusion was performed and it led to temporary relief – both in respect of circulation and pain. The fact that improvement in circulation was observable, and that improvement in pain was conceded supports, in my opinion, the diagnosis that Dr Blombery made; and a conclusion that the condition had an organic basis.
Following discharge as an in-patient the plaintiff continued to attend the Alfred Hospital as an outpatient until about May 1995. In the period to March she underwent further infusions (not all of the same kind). They were not productive of relief. Dr Blombery concluded that, since pain was now not relieved, it had become sympathetically independent.
In the period up to May 1995 the plaintiff was also attending the Alfred Hospital in respect of her neck condition; and was attending the TAC rehabilitation centre for occupational therapy and consultations with a social worker. Observations were made at the hospital’s neurology outpatients department upon which the defendant relied. In January 1995 the hospital notes recorded that the crutches which the plaintiff was using seemed totally unnecessary, as she was weight-bearing on her left leg. On 14 March 1995 it was noted that she did not walk with foot drop. On 9 May 1995 it was noted that there must be a significant functional component to the plaintiff's problems since she was observed at times to hold her neck straight and dorsiflex her foot when walking.
I accept the accuracy of the observations that were made. It was not suggested that the plaintiff has at any time feigned illness, and I do not make any such finding. The observations, then, do suggest that by early 1995 there was a functional component to the plaintiff's problems; a component which was, in the case of the plaintiff's left foot and ankle, likely to lead to a magnified perception of pain and disability and thus contribute to disuse – this leading in turn to worsened colour and temperature change.
In April 1995 the plaintiff was referred to the Caulfield Pain Management Clinic. Dr Blombery considered that this was appropriate. The referral only led to very few attendances. There was some problem about travel costs.
In the event, the plaintiff was referred to Bethesda Hospital for assessment and treatment. That was in September 1995. The evidence of the plaintiff and of Ms Lyn Boag, then program co-ordinator of the hospital's pain management team, shows that the referral did not work out. The problem seems to have been that the plaintiff was then quite immature and did not understand what the program was trying to achieve. In the circumstances it was unsurprising that her involvement at Bethesda, which involved a period of two weeks' intensive in-patient treatment in September 1995 and then irregular outpatient attendances until about March 1996, was a failure. The program was designed to teach the patient to manage pain and increase activity. The plaintiff, as Ms Boag perceived it, was looking for a miracle cure; and was distracted from receiving help by her social situation (the plaintiff had not long before begun to live with her father, at a considerable distance from Bethesda).
I do not draw from the plaintiff's involvement at Bethesda a conclusion that her disability was less great than she represented it to be; or that she has been generally half-hearted in seeking help since the onset of her problems. Her evidence, and that of Ms Boag, suggests that she was confused; and that there were logistical problems in her attending hospital outpatients.
I should next refer in the chronology to the fact that in April 1996 the plaintiff attempted suicide by an overdose of medication. She was admitted to Preston and Northcote Community Hospital. The records of that hospital did not go into evidence. The plaintiff was treated after discharge by a psychiatrist for a period of six months. That psychiatrist was neither identified nor called. The plaintiff ascribed her attempt to take her own life as being attributable to a break-up with her then boyfriend of one year, unhappiness about where she was then living (still with her father, as I understand the evidence), and unhappiness because she was not getting better.
The fact that the plaintiff did attempt suicide in April 1996 could only suggest that her mental state was then quite disturbed. In the absence of any evidence from a doctor who treated her in connection with that event I am not prepared to accept the plaintiff's own assessment that unhappiness about her medical condition was one cause of the attempt. I do consider, however, that the psychiatric disorder which must then have been present (a disorder which I do not relate to the traffic accident) probably acted to magnify the plaintiff's perception of her disability.
In September 1996 the plaintiff was referred back to Dr Blombery. He noted that there was discolouration of the left lower limb and that it was very cold. There was exquisite sensitivity to light touch over the toes, and glove and stocking anaesthesia from midcalf. There was no active extension and flexion of the ankle. The plaintiff suffered severe discomfort on passive movement of her ankle and foot.
The signs observed by Dr Blombery fitted the diagnosis of CRPS. Presently, however, I note three matters. First, exquisite sensitivity in an affected area is a hallmark of the disorder. In the plaintiff's case I am satisfied that it has not always been observed (I need not detail those instances). That is a matter tending against the diagnosis. In the end it has not outweighed other matters which support the diagnosis. But it is not devoid of significance when consideration is given to the extent of the psychological component here present. Second, Dr Blombery acknowledged that glove and stocking anaesthesia may have a psychological background. But in this case he regarded it as part of the CRPS. Viewed, however, in combination with other matters which suggest there has been and remains a significant psychological component of the plaintiff's problem, I do not accept Dr Blombery's opinion in the present connection.
Third, this was one of many occasions on which, according to the evidence advanced for the plaintiff, she exhibited loss of active movement of the ankle and foot. I am not prepared to conclude, having considered all the evidence, that the plaintiff has had and does have a significant loss of movement which is organically determined. I accept the evidence of Dr Hjorth, in this connection, that passive movement of the plaintiff's left ankle was fairly full when he examined the plaintiff in June 1997 - a time at which the signs of temperature change and discolouration were florid.
Returning to the chronology, Dr Blombery prescribed a series of guanethidine blocks. These were performed, in hospital, in late November and early December 1996. Their purpose was to block the sympathetic nervous system and so improve circulation and (hopefully) reduce or eliminate pain. In the plaintiff's case they achieved the former – in the short term; but the latter not at all.
In January 1997 Dr Blombery assessed the plaintiff as being in a lot of pain. He suggested further hospital treatment. In early March 1997 the plaintiff was admitted to hospital. A catheter was introduced around the spinal cord. Over a period of five days clonidine was infused through this catheter. The intention was to break the plaintiff's pain cycle. Where that is achieved, Dr Blombery said, there is a prolonged pain reduction in 40-50% of patients.
In the event, the treatment reportedly led to marked pain reduction. But over a period of about a month pain returned to its previous level.
I consider that the plaintiff's report concerning the effect of this treatment was significant. Unlike what she said about other treatments, in this instance she acknowledged improvement. It suggests to me the actuality of her pain, and the truthfulness of her report – both as to initial relief and as to recrudescence of pain.
In March 1997 Dr Blombery referred the plaintiff to Dr Rose at the Melbourne Pain Management Clinic. The plaintiff has consulted him in the intervening years. But she has also consulted Dr Blombery from time to time, and it is convenient to pursue the chronology through his evidence.
In November 1997 the doctor noted that the plaintiff was taking ketamine orally; and that she was using a TENS machine.
In July 1998 the plaintiff’s leg was fairly similar. The doctor had little else to suggest.
In June 1999 the plaintiff was still attending Dr Rose. She was taking panadeine forte and tramadol - the latter being a synthetic opiate painkiller.
Because Dr Blombery considered that the plaintiff needed further management, arrangements were made for her admission to hospital between 27 September and 7 October 1999. In that period she had intravenous infusion of lignocaine and ketamine, which the doctor described as a combination of high dose local anaesthetic and low dose general anaesthetic.
The plaintiff experienced, as she told Dr Blombery at the time and Dr Rose later, excellent reduction in her level of pain during treatment and for a week thereafter. But then pain returned, and worsened progressively.
Pausing for a moment, again it seems to me to be significant that the plaintiff acknowledged relief in response to a particular treatment. It suggests the actuality of her pain and the truthfulness of her response.
Following the return of pain Dr Blombery prescribed further medication. Some favourable response was reported by the plaintiff in January 2000. The plaintiff then told the doctor, and it is consistent with what should be expected, that she was better in the warmer weather.
Dr Blombery last saw the plaintiff in May of this year. She had then been prescribed a different medication by Dr Rose. She complained that the pain was worse in the colder weather. Her left foot was still cold and sensitive.
To further describe the symptoms of which the plaintiff has complained, and the signs which have been observed since 1994, I should briefly refer to the evidence of Dr Rose, and of the physiotherapists Ms Kerr and Ms Robertson; and as well to some parts of the evidence of Dr Hjorth.
Dr Rose has had a significant role in the plaintiff's treatment since May 1997. She has seen him quite frequently, and he has prescribed her medication. He has not examined her frequently, and senior counsel for the defendant was critical that he had not done so. I think that there was something to the criticism; but it was not really supported by Dr Hjorth.
When the doctor examined the plaintiff in May 1997 he noted the presence of tender points over the plaintiff's neck and shoulders. He diagnosed fibromyalgia syndrome. In cross-examination that diagnosis was challenged, as was a diagnosis made by Dr Rose that the plaintiff had suffered a closed head injury in the 1994 accident. The cross-examination was doubtless designed to show me that Dr Rose was an unreliable clinician, a man given to making diagnoses of serious injury in the absence of any such injury and to diagnosing the presence of conditions which replicate the emperor's clothes in the children's story.
It is not necessary for me to decide whether the doctor's diagnosis of fibromyalgia and closed head injury was sound or otherwise. Neither of them is an injury upon which the plaintiff relies in this proceeding, though the particulars of injury do make some reference to head injury; and the diagnosis of CRPS is well-established by evidence other than that given by Dr Rose. That said, I would not wish it to be thought that I found the witness's evidence concerning CRPS unreliable or overstated. That was not my impression.
In any event, returning to Dr Rose's examination of the plaintiff in May 1997, he observed, in addition to other signs noted by Dr Blombery, marked wasting of the plaintiff's left lower leg and foot. There was debate at trial whether wasting was present at different times. Its presence would be consistent with lack of use of the limb – the more the wasting, the more the implied lack of use.
Dr Rose's evidence that he noted marked wasting was challenged; but I accept its accuracy. It was supported by the evidence of Ms Kerr, a physiotherapist employed by TAC. She examined the plaintiff on 31 October 1997 and noted marked wasting of the left leg. It was supported to an extent by the observation of Ms Robertson, another physiotherapist, in May 1999 that muscle wasting was present. Dr Blombery, I add, thought that there was or may have been some calf muscle wasting; and Dr Hjorth said that at his examination in June 1997 there may have been a small degree of wasting. All in all, I am satisfied that muscle wasting of definite but not gross degree had been present at least since Dr Blombery began to privately treat the plaintiff in September 1996.
Dr Rose, resuming the chronology, referred the plaintiff to a psychiatrist, a psychologist and a physiotherapist following the examination in May 1997. The evidence showed that the plaintiff's attendances upon both the psychiatrist and the psychologist were few in number; and that they did not lead to any beneficial outcome. I do not accept that this outcome reveals that the plaintiff was half-hearted about obtaining treatment that would help her. Probably it reflects the plaintiff's immaturity at the time; and her conviction that her leg and neck problems were organically based.
Dr Rose prescribed the plaintiff medication in May 1997. It caused her to become nauseous, and it was ceased.
In that same month Dr Rose prescribed ketamine. The plaintiff reported that it helped her pain to some extent. Its use was continued. By June 1998 the plaintiff was also taking panadol forte.
Examination by Dr Rose in November 1998 revealed, in addition to temperature change, marked tenderness of the left foot and ankle, left foot drop and rotation. Dr Rose referred the plaintiff to Mr J.A.L. Hart, an orthopaedic surgeon. Mr Hart's report went into evidence. On examination, Mr Hart noted, the plaintiff exhibited no active movement of the left ankle. Some, but not all, passive movements were full. X-rays showed no evidence of osteoporosis. According to Mr Hart the problem was to determine how much of the plaintiff's disability was organic. He did not provide an answer to the problem which he posed.
A bone scan was performed in January 1999. There was evidence of decreased blood flow throughout the left ankle and foot consistent with disuse. It could not be said, however, that the appearances definitely contradicted a diagnosis of late-phase CRPS.
By January 1999 the plaintiff was wearing an ankle brace that Dr Rose had ordered. She complained that wearing it caused her considerable pain; that she could only wear it with running shoes. I interpolate to say that the plaintiff continued to make that complaint at trial.
It is unnecessary to trace the plaintiff's consultations with Dr Rose throughout 1999 and this year. It is enough to say that he has changed her medication more than once, and that her present medication is oxycontin for pain. Because this causes excessive sedation the plaintiff only takes it at night; and not at all if she is intending to drive her car the next day.
Ms Robertson, an impressive witness, treated the plaintiff between July 1999 and June 2000. The plaintiff's treatment, she said had two aspects: general re-conditioning; and therapy specifically directed to the foot and ankle. Over the period of time there was some overall improvement. The muscle wasting did not change, coldness was variable. Ms Robertson described the plaintiff as very motivated. There had been non-attendances, but these had been explained.
Dr Hjorth examined the plaintiff in June 1997 and December 1999. In June 1997 the plaintiff was using a single crutch, held in her right hand. The doctor said that it was not possible to use the crutch in that hand so as to reduce the amount of weight which the left leg would normally bear. I consider that the plaintiff does, by the manner in which she cants her body, take weight off her left leg to some extent; but not to the extent that would be comparable with a profound inability to weight bear on that leg. Taken together with other matters, this has led to my conclusion that the psychological component of the plaintiff's condition is greater than the plaintiff's doctors would concede.
Dr Hjorth noted in June 1997 that there was severe weakness of the plaintiff's left leg. In his opinion it was of psychological origin. He found much the same thing in December 1999 – a diffuse collapsing weakness of the left leg.
On examination in June 1997 Dr Hjorth also noted, as I mentioned a little earlier, that the passive movements of the plaintiff's left ankle were (reasonably) full. That stood in contrast with the virtual absence of active movement. It was not the picture of a frozen foot.
Dr Hjorth noted an improvement in the colour and temperature of the foot at his December 1999 examination. I do not take that to show an improvement in the plaintiff's condition because, as the doctor frankly and fairly conceded, his first examination had been conducted in mid winter and his second examination was conducted in summertime.
Dr Hjorth gave evidence that in December 1999 the plaintiff was using her crutch in the left hand. He held to this evidence, notwithstanding the plaintiff's denial that she ever used her crutch in that hand and the absence of any other evidence to the contrary of the plaintiff's assertion.
I have been unable to reach any firm conclusion as to the accuracy or otherwise of the doctor’s reported observation. I do not regard the matter as being of much significance. If Dr Hjorth noted the matter correctly, it would be another circumstance tending in favour of a conclusion that the psychological component of the plaintiff's condition has been and is greater than the plaintiff's doctors considered was the case. But I have reached that conclusion in any event. If, on the other hand, Dr Hjorth did not note the matter correctly, it would not cause me to alter conclusions I have reached regarding the reliability of his evidence generally, and regarding the part played by organic and psychological factors in the plaintiff’s left leg condition.
Psychiatric evidence was led from Dr Colm Moore at trial; and two reports by Dr Paul Kornan were tendered.
Dr Moore examined the plaintiff on one occasion only – 7 September 2000. In summary, he rejected the notion that the plaintiff was suffering from a conversion disorder. He considered that she was suffering from two psychiatric features which were a consequence of the road traffic accident - depression and slowness of thinking. These were in part caused by constancy of pain and in part caused by narcotic medication.
The doctor was of opinion that the plaintiff was at risk of development of major depression, or suicide. He further considered that unless there was dramatic improvement in her situation there was unlikely to be major improvement in the psychiatric component of her injury. He was also of opinion that the plaintiff would find it difficult, given particularly the second of the psychiatric disabilities, to retrain or reskill so as to enter the workforce. In reaching this last conclusion the doctor accepted that there was an organic explanation, in the main, for the plaintiff's symptomatology.
In cross-examination Dr Moore agreed that there was some psychological component to the plaintiff's leg problem; and that he could not say exactly how much. He regarded that component, whatever its dimension, as the outcome of the organic injury.
Dr Kornan’s two reports followed examinations on 5 February 1998 and 15 December 1999. In his opinion the plaintiff had been of finely balanced temperament before the accident; but not a person suffering from an overt anxiety state. Now she was a person with an anxiety state with phobic features (about cars and travelling); and with a depressive illness. He considered that the plaintiff’s psychiatric state was of chronic mild severity, though at times it might be of moderate intensity. He did not consider that she was suffering from a psychogenic type pain syndrome; but that “it may well be that anxiety and depression is a factor in her problems with her left leg and foot”. Any inability to work, in his opinion, would be primarily due to physical factors.
In reaching conclusions about the organic and psychological components of the CRPS from which the plaintiff has suffered and does suffer, and about prognosis for that syndrome, I have, in a way that I shall now explain, given consideration to other conditions from which the plaintiff has suffered, and their cause; and I have taken into account the plaintiff’s general situation before and since the traffic accident.
The other conditions to which I have just referred fall into two categories: a condition preceding the happening of the road traffic accident; and injuries relied upon in this proceeding.
As to the former, the plaintiff’s evidence in chief was that, just before she reached 18 year (which was on 8 October 1992) she had pains that ended up in her being admitted to hospital. She believed that she was to have her appendix removed, but in fact the problem turned out to be a cyst on an ovary. After operation, she agreed, she was “generally unwell for a while, getting over that illness”.
Dr Heggie, the general practitioner, gave evidence that the plaintiff consulted him in October 1993 complaining of ongoing pain in the right lower abdomen. At that stage, she told him, a laparoscopy was planned – to investigate her continued complaint of pain. Later she informed him that the procedure had been performed.
She continued to consult Dr Heggie with complaint of pain. He formed the impression that a lot of it was neuralgic. In December 1993 he referred her to a Professor Hunt at the Monash Medical Centre, to see if he could help the plaintiff with control of the presumed neuralgic pain. It seems that Professor Hunt referred the plaintiff to a pain management specialist.
In March 1994 Dr Heggie noted that the plaintiff still had neuralgia. In late April 1994 she complained of being upset about delay in having another laparoscopy. In early July 1994 the plaintiff was complaining of abdominal tenderness, but in a different area. After the road traffic accident on 29 July 1994 the plaintiff never complained of abdominal pain.
No records pertaining directly to the plaintiff’s admissions to hospital for her abdominal problems were admitted at trial. But in the records of the Alfred Hospital, which were introduced into evidence, there are repeated references to the plaintiff having given a history (admissible as evidence of the fact) that she had first been admitted to hospital for treatment of the condition at a time compatible with her evidence about the matter.
It would be unwise to make too much of this matter. The full picture was not revealed in evidence. It might be the case, if all the material had gone in, that it would be clear that the plaintiff’s pain had a definite physical cause, and that it was ultimately relieved in an explicable way. As the evidence stands, however, it seems to me open to conclude, and I do conclude, that over quite a protracted period prior to the happening of the road traffic accident – a period ending not long before that accident – the plaintiff complained of persisting pain for which no definite cause was found; but that in the end the pain which the plaintiff subjectively experienced presumably ceased, for she ceased to complain about it. That does not lead to a conclusion either that the prior complaint of pain was wholly psychologically determined, or that the aetiology of the CRPS from which the plaintiff has suffered and does suffer is of such a character. It does suggest, however, that the plaintiff is prone to react in a heightened way to pain; but that such reaction is not necessarily permanent.
I should next refer to the other injuries relied upon by the plaintiff in this proceeding. With the exception of the neck problem, and complaint of some back pain, the plaintiff did not seek to make anything of those other injuries. She did suffer injury to the chest. She did suffer a blow to the head with bruising. She did suffer damage to a tooth. These various injuries and their sequelae were sensibly described; just as the plaintiff described, understandably, a certain fear of car travel.
It follows from the plaintiff’s account of the physical injuries just mentioned that psychiatric features did not there intrude to complicate the plaintiff’s recovery. That tends in favour of a conclusion that in the plaintiff’s case a psychological component does not intrude into injury unless the injury has a persisting organic basis.
The same conclusion flows from the plaintiff’s complaint of back pain. The plaintiff did not make much of it. She described it as following on from treatment by epidural injections. Medical evidence supported such a sequence.
I turn to the neck problem: the plaintiff’s evidence was that following the accident her neck was sore and that she developed head bobbing and a bend in her neck to the left. She told me that the shaking of her head caused her a lot of neck pain, and that a neck collar was prescribed. She was admitted to the Glen Waverley rehabilitation centre. There, though she said little about it, she was apparently treated for the neck condition. Then, in October 1994, she had injections into her neck at the Alfred Hospital. After a series of injections had been administered the shaking started to slow down. Eventually, she said, it disappeared, and the neck straightened. She said concerning her neck, that there is now “nothing that concerns me”. She gets a “bit of pain” in her neck in the cold weather or if she moves too quickly.
The medical evidence in respect of the neck problem in part derives from the Alfred Hospital records, in part from the evidence of Drs Blombery, Rose, Hjorth and Heggie, and in part from the reports of Drs Vivian and Kornan.
The Alfred Hospital notes record that on 22 November 1994 the plaintiff was complaining of neck pain. Examination showed that the laterocollis was much improved. There was mild restriction of neck movements.
The notes further record that on 17 January 1995 the plaintiff's head tremor had completely resolved; and that her head position was virtually normal. The plaintiff was complaining of some pain on the left side of her neck. She was not taking analgesics.
On 14 March 1995, according to the notes, there was some evidence of torticollis, and active and passive neck movements were restricted to an extent.
On 9 March 1995 the plaintiff reported no improvement from a neck injection. The doctor noted that there must be a significant functional component to her problems. When not under immediate scrutiny she held her neck straight; and she dorsiflexed her left foot when walking.
Dr Blombery, as previously noted, first treated the plaintiff when she was an in‑patient at the Alfred Hospital in late 1994. She became his private patient in September 1996 and he has seen her from time to time ever since. He has concentrated upon her left leg problems. He gave very little evidence concerning her neck condition. He said that he had not really been concerned with the torticollis. It was outside his area. The plaintiff's history, given in January this year, was that the torticollis was less of a problem now.
Dr Rose became a treating doctor in March 1997. At that time the plaintiff told him that her neck was better than it had been previously but that she was still experiencing significant pain. Nonetheless, she was receiving no medication for that pain. Examination showed a left-sided torticollis and a limited range of neck movement, the decrease being particularly severe to the right. It does not appear that the doctor prescribed any treatment for this condition.
It is not apparent from the doctor's evidence that he subsequently directed much attention, if any, to the patient's neck problem – despite his offering an opinion in a January 1999 report that the plaintiff had a loss of function of the cervical spine of approximately 15 – 20% as a result of a continuing residual torticollis. In cross-examination he said that "the neck has not come up again, and presumably the neck has not been a major concern in the last year and a half". He said also, speaking of examinations since March 1999, "I have seen no evidence … that there has been an ongoing significant torticollis". He agreed that in some cases there is a psychosomatic component to the condition; and that, depending on its severity, it would be highly unusual for an organically-based torticollis to resolve pretty much spontaneously after five years.
Dr Hjorth noted at examination in June 1997 that the plaintiff had an abnormal neck posture and marked restriction of neck movements. The condition, he opined, might be psychological or a form of movement disorder. When he saw the plaintiff again in December 1999 she told him that her neck had become "a whole lot better", and that she now got pain only when she worked. It does not appear that he then formally examined the plaintiff's neck. But the presence or absence of abnormal posture would hardly require formal examination, and I conclude that no such abnormality was then observable.
Dr Heggie's evidence was that he examined the plaintiff, but to quite limited degree, the day after the accident. There was evidence of a blow to the right side of her head, and the plaintiff's neck was tender; but he did not measure the range of movement of the cervical spine. It was his recollection that the plaintiff had by then already developed head-bobbing. In the week following the accident the plaintiff consulted him on a number of occasions. She was observed to be very anxious. The doctor took the head-bobbing to be part of the plaintiff's stress reaction. He had an x‑ray done of the cervical spine. It disclosed no abnormality. He saw the plaintiff on a few occasions after July 1994. His evidence concerning those consultations did not bear upon the nature of her neck injury.
Dr Vivian's report was founded upon a consultation held in May 1996. The plaintiff complained to him that she suffered left sided neckache, with a tendency for the neck to bend to the left side when she was tired. Examination revealed restricted neck movements and left sided neck tenderness. The doctor described the neck condition as being "complicated". There appeared to have been a torticollis. Its aetiology was uncertain. He considered, nonetheless, that the plaintiff had a permanent and stable loss of function of her neck. The subsequent course of events has rendered that opinion unsound.
Dr Kornan merely took a history concerning complaint of neck pain. I note that in February 1998 the plaintiff told him that the neck pain was "not as bad as it used to be"; and that "when I try to do a lot it's worse but if I move the neck too fast"; and further that she told him, in December 1999, that "the neck is better, just pain in cold weather".
There was a little lay evidence directed to the neck problem.
Brendan Radford, a young man who has had acquaintance with the plaintiff on and off since secondary school days, told me of his contact with her for a period of about six months after the road traffic accident, and then of contact in more recent times. He said that the head-bobbing and the bending of the plaintiff's neck to one side had resolved within the six month period after the accident. In the case of the head-bobbing, his evidently uncertain answer was that it had stopped within a month. That answer revealed an honestly held but inaccurate recollection.
The nature of the plaintiff's neck injury, at the end of all the evidence, remains something of a mystery. The plaintiff evidently suffered a blow to the right side of her head in the accident. The evidence showed that she soon developed head‑bobbing and a wry neck. Dr Heggie concluded that the head bobbing was a psychological sequela of the accident. Both the head bobbing and the wry neck were to a significant extent relieved by treatment given to the plaintiff between late 1994 and early 1995 at the Alfred Hospital. Later observations at the Alfred Hospital suggest that there was at least a psychogenic element to the neck problems. The plaintiff has had no specific treatment for her neck for years now. Such current medical evidence as there is suggests that her neck problem has diminished to the point where nothing is now observable on casual examination. Moreover, the plaintiff's own account is her neck does not now concern her.
In all, the evidence has led me to conclude that the plaintiff's complaints with respect to her neck, and the signs observed, were in the main psychologically based. That is not to say, and I do not say, that there was no traumatic insult to the plaintiff's neck in the accident; nor that organically determined symptoms did not persist for a period. It is, I think, likely that the plaintiff suffered soft tissue injury to her neck in the accident. But I do not consider that the evidence is capable of supporting a conclusion that soft tissue injury produced neck pain and a wry neck which persisted for years and then, for the most part at least, disappeared.
One cannot extrapolate from the conclusions which I have just expressed and conclude in turn that the symptoms and signs of the CRPS from which the plaintiff has suffered and does suffer have been and are mainly psychologically determined. But I consider that the evidence with respect to the plaintiff's neck condition and (so far as it went) with respect to her 1993 and early 1994 complaints of persisting abdominal pain points to her being a person who in some instances reacts in pretty extreme fashion – but not indefinitely - to trauma.
I said earlier that I had taken into account, in reaching conclusions about the organic and psychological components of the plaintiff's CRPS, and the prognosis for that disorder, the plaintiff's social situation before and since the traffic accident, and the prospects concerning that situation in the future.
I summarise the pertinent evidence this way: First, before the accident the plaintiff's relationship with her mother was evidently somewhat difficult. There was no father in the home, for the plaintiff's parents had separated when the plaintiff was quite young. The plaintiff did not give proper attention to her schoolwork. Her focus was on the social whirl. Any part‑time work she did as a schoolchild was very part‑time. The picture is that of an immature young person without much sense of responsibility.
I do not consider that the plaintiff's school performance, as disclosed by the school reports which went into evidence, establish that she is an unintelligent person. The pertinent evidence of Dr Heggie contrasted with the picture created at first glance by those reports. I was impressed by Dr Heggie's evidence. I think that the plaintiff's school performance was a function of immaturity, and of her consequential refusal or inability to concentrate on her work.
Second, in the period between leaving school and being injured, the plaintiff's progress for the most part remained that of an immature young person. She moved residence a number of times. When she lost her job at the Fire Protection Industry Association she did not seek employment for at least months (and most probably longer). She did not complete a course at the College of Textiles to which she was referred, it appears, by the Commonwealth Employment Service. She moved residence from Melbourne to the Mornington Peninsula although she appreciated that it would be harder to find work on the Peninsula. On the other hand – and it is a sign that the plaintiff was growing up as well as growing older – there is good evidence that she was looking for work quite actively in mid 1994; and I am satisfied that she was intending, as she said, to move back to Melbourne in late July or early August that year either to find work or to undertake a course.
Third, in the aftermath of the accident, the plaintiff's social situation was for a protracted period considerably disrupted. There were periods of hospitalisation. Medical treatment continued. The plaintiff moved from one place of residence to another. Places of residence were not always convenient to places of treatment. The plaintiff's understanding of her condition and of the purpose of treatment was, at least sometimes, deficient. So, for example, Ms Boag, the co‑ordinator at Bethesda, agreed that the plaintiff was (in late 1995) an immature young woman who did not really understand what the hospital's programme was trying to achieve.
Fourth, in the last 12 to 18 months the plaintiff has taken a series of steps which are, I consider, indicative of her emergence from the worst of the social disruption caused by the accident, and indicative of increasing maturity. I accept the plaintiff's evidence that she had a role in arranging for treatment by the physiotherapist, Ms Robertson. I accept also Ms Robertson's evidence as to the general reliability of the plaintiff's attendance. I note that, the plaintiff having moved her place of residence in recent months, arrangements were made for her to have the assistance of a physiotherapist practising closer to her new home. I accept the plaintiff's evidence that she has attended that physiotherapist up to the present time, and her evidence that the physiotherapy given her in 1999 and 2000 has been of some benefit. See also, in the latter connection, the evidence of the plaintiff's sister, Tracey Woods, at T338 lines 5-10.
I note next that in August this year the plaintiff commenced a TAFE course in office administration having initiated steps in that general connection a year earlier. I regard the plaintiff's conduct in initiating and then pursuing steps to undertake the present course as significant notwithstanding that this is not the first time that she has embarked on a training course. In order to receive TAC approval and funding for the course which she is now undertaking the plaintiff had to maintain interest in the project over a considerable period, had to undergo assessment by a psychologist engaged by TAC, and had to face up to the need to commit herself to pursuing some form of suitable employment at the conclusion of the course. This all occurred whilst the trial of the proceeding drew closer, that presenting an inevitable distraction.
Concerning the plaintiff's present retraining course, I should add two matters: First, it appears to me to represent a stage in the plaintiff's overall development beyond that demonstrated by her attendance at a trial of work in a travel agency in 1998. Second, Ms Russell, the plaintiff's teacher, gave evidence, which I accept, that the plaintiff is very motivated and enthusiastic about her course. Whilst Ms Russell also said that the plaintiff tires very quickly, and that her concentration drops, those observations do not gainsay the plaintiff's commitment to the course.
I note, next, that the plaintiff has obtained a driver's licence this year. That is likely to improve her ability to mix with her friends and to break down an extent of social isolation that developed after the accident. See, in this connection, the evidence of the plaintiff's sister at T335, lines 7-8, (which may be compared with the witness' evidence at T335, lines 20-27 and other evidence which suggests that the plaintiff went out more frequently to clubs and the like in 1996 and 1997 than she does now). Further, the plaintiff's ability to complete the non-driving part of the licence test shows some capacity to assimilate new learning, and to concentrate upon a task.
The evidence which I have summarised concerning the plaintiff's social situation before and since the accident has, in my opinion, this significance: First, it suggests the likelihood that by reason of her immaturity and otherwise somewhat unstable pre‑accident social situation the plaintiff was vulnerable to development of an adverse psychological response to an unusual organic injury. Second, it suggests the likelihood that the plaintiff's social situation was adversely affected by the injury; and that such adverse effect fed the psychological response. Third, it suggests that the plaintiff's social situation has definitely improved in the past 12 to 18 months, an improvement which is likely to have been associated with improvement in the psychological component of the injury. Fourth, it suggests that there will be a further improvement in the plaintiff's social situation and in the psychological component of the injury – most likely to be most marked if and when the plaintiff obtains and holds employment.
As to the last of those matters, I consider that the plaintiff is likely to complete her retraining; and that she is likely to obtain employment thereafter. Taking into account the circumstances that the plaintiff has not worked for years now, that she does not have an extensive history of employment, that she has only modest formal education, and that she will be seeking work whilst still suffering from some symptoms and signs of CRPS, I consider that she will have difficulty in obtaining her first post-accident job. On the other hand, after retraining she will present as a person of some intelligence, not of an age when the doors to employment are closed, and as possessing office skills attuned to modern-day requirements. Bringing the competing considerations to account, I think that the plaintiff may not find employment for about two years yet; and that the beneficial effect of employment upon her social situation and in turn the psychological component of her injury is likely to be felt a year or so thereafter.
Having now described in some detail the plaintiff's medical history and her social situation before and since the accident it is possible to explain my conclusions about the relative organic and psychological components of the plaintiff's CRPS, and the likely course of the disorder.
First, medical evidence which I accept suggests that there has been and remains a major psychological component to the plaintiff's CRPS (though it has not persuaded me that there is no organic element to the problem). Thus:
·Dr Heggie was of that opinion at the outset (and that opinion was not necessarily wrong simply because some of his observations, in retrospect, support a conclusion that CRPS was then developing).
·Observations made at the Alfred Hospital in March 1995 showed inconsistencies in the plaintiff's presentation and her performance when not under immediate scrutiny.
·The plaintiff, I am satisfied, does carry her crutch in the "wrong" hand. That implies the imposition of greater stress on the left lower leg than the plaintiff would suggest is possible.
·I am satisfied that there has been an inconsistent complaint of hypersensitivity affecting the left lower leg. It is one thing to say that in some cases hypersensitivity may not be present, though in most cases it is. It is another thing that there is an inconsistent pattern of complaint.
·I consider that the glove and stocking anaesthesia of the lower leg which Dr Blombery observed was in this case a psychological manifestation.
·I am satisfied that the foot drop which has been noted at times has not always been present. This strongly suggests that the particular sign is psychologically based.
·I am satisfied that the plaintiff's observed loss of movement at the ankle joint and in the foot has not been constantly present, and I accept also Dr Hjorth's opinion that on the two occasions on which he examined the plaintiff there was a severe apparent weakness affecting the left leg which was of psychological origin.
Second, the impact of the medical evidence to which I have just referred is reinforced by the plaintiff's extreme response to other traumatic insults.
Third, the history of the plaintiff's extreme response to other traumatic insults has been that, with passage of time, and apparently spontaneously, such response has disappeared – or nearly so.
Fourth, in circumstances where I am satisfied that a very substantial component of the plaintiff's CRPS is psychologically based I do not accept the evidence of Dr Blombery (if that is what his evidence was) that the prospect of the plaintiff recovering from the disorder is now zero. I consider that the import of Dr Hjorth's evidence was to the contrary; and in the circumstances of this case I accept that it represents the probabilities of the situation. It may be, however, that Dr Blombery meant by his evidence to say no more than that the organically determined component of CRPS will not now recover. If that is what he meant to say I accept it – not as a statement of universal truth, but as representing the probabilities in the plaintiff's case.
Fifth, the plaintiff's social situation has improved in the past 12 to 18 months, and there is prospect for further improvement, likely to be most marked when the plaintiff obtains and holds employment. Such improvement is likely to be associated with improvement in the psychological component of the plaintiff's CRPS. Having account of the likely delay in the plaintiff obtaining a job, the probabilities are that the beneficial impact of the plaintiff obtaining employment will not be felt for some three years yet.
Failure to Call Witnesses
Each party sought to make something of the other party's failure to call witnesses. Counsel for the defendant mainly referred to the plaintiff's failure to call the unidentified psychiatrist who treated the plaintiff after her suicide attempt, and her failure to call Dr Holwill, a psychiatrist colleague of Dr Rose. Counsel for the plaintiff referred generally to the defendant's failure to call examining doctors to say that "this diagnosis (of CRPS) does not exist, it is not a true diagnosis at all, it is not a real condition, it is a psychiatric problem that will resolve in five minutes".
It is the fact that each party failed to call potential medical witnesses. No satisfactory explanation was given for the failure to call any of them. I include in that observation the unidentified psychiatrist to whom I referred a moment ago. For plaintiff's counsel simply to say that the doctor was unidentified does not mean that identification was impossible.
So far as the defendant's submission is concerned, I have earlier said that in all the circumstances I was not prepared to make a finding in the plaintiff's favour that her suicide attempt was linked with the physical or emotional effects of the accident. Nothing more need be said about that matter. As for the plaintiff's failure to call Dr Holwill, in light of the fact that Dr Rose brought all the clinic notes with him and gave evidence about the limited extent of Dr Holwill's involvement I think that there was no point to be made.
The defendant failed to call Dr D.F. King, a general physician, Ms J. McKenzie, an orthopaedic surgeon, Dr J. Cronin, a psychiatrist, and Professor Littlejohn, a rheumatologist. Dr Cronin's views, in substance, got into evidence. As for the other doctors, I have in fact accepted the plaintiff's case, upon the evidence which was adduced, that CRPS is a disorder which has an organic component and that she suffers from the disorder. It has been unnecessary for me to consider whether, in connection with those matters, I could and should have drawn inference adverse to the defendant by reason of his failure to call witnesses.
Pain and Suffering Damages
I have sufficiently described the plaintiff's various injuries and their effects upon her, whether short-lived or persisting to the present time. There was a good deal of medical and lay evidence which, together with the plaintiff's evidence, satisfies me that she has led a most miserable life since her accident. That period has involved pain, disability, multiple hospitalisation, doctors' attendances, a variety of medication and social dislocation. There has been some improvement in the plaintiff's social situation over the last 12 to 18 months, and it should not be said that her social life has been non‑existent since the accident; but overall the impact of the accident upon the plaintiff up to the present time has been quite severe.
As to the future, I have found that the plaintiff will continue to experience symptoms and signs of CRPS at roughly their current level for another three years; and that thereafter she will be left with some, though much reduced symptoms of that disorder, which will persist indefinitely. I consider that those reduced symptoms, partly organically determined and in small part psychologically determined, will have some impact upon the plaintiff's enjoyment of life. But I do not approach quantification of the plaintiff's claim on the footing that they will have a major impact on such enjoyment.
I have earlier noted the competing submissions as to the appropriate amount to award for pain and suffering damages. I shall not repeat them. The base amount proposed by counsel for the plaintiff made the assumption that she will throughout her life suffer unchanged symptoms and signs of CRPS. I do not accept the validity of that assumption. The base amount proposed by plaintiff’s counsel was too high. On the other hand, I consider that the range of figures proposed by counsel for the defendant, which assumed a resolution of all symptoms within five years, was too low. In all the circumstances I consider that the appropriate amount to award for pain and suffering damages is $150,000.
Pecuniary Loss Damages
There was, as I earlier noted, no dispute between counsel that the plaintiff has been incapacitated for all work since the date of the accident. The plaintiff cannot bring a claim for the period up to 24 January 1996. From that date to the present (17 November 2000) there have been 251 weeks.
Given the plaintiff's lack of formal education and poor pre-accident work record counsel for the defendant submitted that I should allow, for the past, loss of earnings for two to three years of the period since the accident. Counsel for the plaintiff submitted that she could be expected to have had a job by the time that the quarantine period elapsed; and that the quarantine period made sufficient allowance for the uncertainties of the plaintiff obtaining and holding employment were it not for the accident.
The entire period since the accident has been about 329 weeks. Of that period the quarantine period was about 78 weeks – that is, about 23%. Having regard to all the circumstances discussed in these reasons, I conclude that, putting the accident to one side, the plaintiff would not have had work for about 35% of the time, heavily weighted to the period of quarantine when the plaintiff was most immature. I will allow past loss of earnings for a period of 214 weeks.
There was not much difference in the figures for past weekly earnings relied upon by the parties. Having regard to the plaintiff's age, lack of formal education, poor pre‑accident work history and limited employment skills gained up to the time of injury, I allow an average $320 net per week over the period to date.
I assess past economic loss, then, at $68,500.
I turn to the future. The plaintiff will not have any work for two years yet. Were it not for the accident I consider that she would now be a regular member of the workforce, and considerably better skilled than she was in 1994. The evidence satisfied me that she would probably be earning about $400 nett per week.
Beyond the next two years the plaintiff will have a residual disability. It should not prevent her engaging in employment. But it is likely still to be something of a hindrance to her in getting work; and there may well be times when she has to take time off. She may well be the employee who loses her job in times of a tighter labour market. I think that the continuing impact of the injury on the plaintiff's employability should be translated into an approximate 20% reduction in earning capacity. Assuming that the plaintiff had by now been in employment for some years, I consider that with experience and increased skills her earning capacity in two years time should be conservatively assessed at $425 net per week. Twenty percent of that amount is $85. I consider that I should take that amount out to age 60, but discount quite substantially - by 30% - to account for all the contingencies that could be relevant both generally and in the particular circumstances of this case.
I was provided with a multiplier to age 60, but no multipliers for a short period and then for a period commencing in the future and continuing to age 60. It is possible, nonetheless, to assess loss of earning capacity in a sensible fashion. For the next two years I assess that loss, discounted a little to account for present payment, at $39,500. For the period thereafter to age 60, discounting by 30%, I assess the loss at $44,500.
In all, then, I assess the plaintiff's pecuniary loss damages at $152,500.
Judgment
Subject to anything counsel may wish to say, I should give judgment for the plaintiff for pain and suffering damages in the sum of $150,000 and for pecuniary loss damages in the sum of $152,500.
---
3
0
0