Wright v TAC

[2011] VCC 1340

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-02140

CHRISTINE WRIGHT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	13, 14 and 15 September 2011
DATE OF JUDGMENT:	27 September 2011
CASE MAY BE CITED AS:	Wright v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 1340

REASONS FOR JUDGMENT

---

Catchwords: TRANSPORT ACCIDENT – serious injury – s.93 Transport Accident Act 1986 – whether the consequences of the plaintiff’s injuries satisfied the “more than considerable” test.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Lewis SC with	Slater & Gordon Ltd
Mr N Dubrow
For the Defendant	Ms J Dixon SC with Mr R Dyer
HIS HONOUR:

1          On 1 June 2005, Christine Wright was driving her vehicle in Graham Road, Viewbank, when another vehicle collided with it (“the accident”).

2          As a consequence of the accident, she alleges that she has suffered an injury to her neck.

3 She seeks leave to commence a claim for damages against the driver of the other vehicle. Her right to do so is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”). To obtain such leave, Ms Wright must satisfy the Court that her injury is a “serious injury”.[1]

[1] Section 93(6) of the Act

4 The term “serious injury” is defined in s.93(17) of the Act (insofar as is relevant) as a “severe long term impairment or loss of a body function”.

5          For an injury to be considered “serious”:

[2]             Humphries & Anor v Poljak [1992] 2 VR 129 at 140

(a)	the consequences of the injury must be serious to the particular applicant;
(b)	those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)	the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least “very considerable” and more than “significant” or “marked”;[2]

6 Ms Wright submits that the injury to her neck is a “serious injury” within the meaning of s.93(17) of the Act.

7          The defendant submits that the injury is not a “serious injury”.

8          The issue to be determined in this application is whether the consequences of the injury to Ms Wright can be fairly described as at least “very considerable”.

Background

9          Ms Wright is currently forty-two years old. She has four children. The eldest two, aged twenty-three and eighteen, live away from home. The younger two, aged twelve and ten, live part of the time with Ms Wright and the remainder of the time with their father. Ms Wright separated from the father of the two younger children prior to the accident.

10        Now and for many years prior to the accident, Ms Wright has suffered from a condition known as Obsessive Compulsive Disorder (“OCD”). The condition involves obsessive habits such as constantly cleaning her home and car, and fastidiously attending to chores on behalf of her children. She does not claim that the subject accident either caused or aggravated her OCD.

11        At the time of the accident, Ms Wright was not in employment. She has more recently been employed on a part-time basis and I shall return to this subject later in these reasons.

12        Ms Wright’s evidence was that, prior to the accident, she was in good health and able to undertake an unrestricted range of social, domestic and recreational activities.

13        The clinical notes of Dr Robert Smith’s practice were tendered.[3] He has been her general practitioner since many years before the accident. These disclosed a number of references between 2000 and 2005 to her OCD condition, isolated complaints of headaches and various unrelated matters. I note in particular that there were few attendances in the two years leading to the date of the accident. In 2003, Ms Wright attended upon Dr Smith twice for matters unrelated to any physical ailment or injury. In 2004, she attended on three occasions for unrelated matters. In 2005, she had attended on one occasion prior to the accident, but in respect of an unrelated matter. The records support her evidence that, before the accident, she was in good physical condition.

[3]             Court Book (“CB”) 184

Post-Accident

14        Immediately following the accident, Ms Wright attended upon Dr Tan, a general practitioner, near where she lived. Initially she made no complaint of neck pain.

15        In the days that followed, she developed neck and left arm pain. She attended Dr Robert Smith. He referred her to the Austin Hospital, Neurosurgical Outpatient Clinic, where she attended. Her left arm felt clumsy and she experienced a tingling sensation in it.

16        Dr Smith arranged for a CT scan of her cervical spine on 10 June 2005 which was reported at showing a left C6-7 disc herniation with suspected left C7 nerve root compromise.[4] A repeat CT scan was carried out in March of 2006, which was reported as again disclosing a left posterior disc prolapse at C6-7 impinging upon the left anterior aspect of the spinal theca and also upon the origin of the left C8 nerve root.[5] The radiologist reported that this had not altered significantly since the earlier scan. I note the references to the C7 and C8 nerve roots in the two reports. I think it unlikely that there was any significant change between the two scans and that the radiologists are referring to the one level at which there is impingement on the nerve root.

[4]             CB 104

[5]             CB 105

17        In the weeks and months that followed the accident, she was prescribed Voltaren (an anti-inflammatory), Valium (a muscle relaxant), and Tramal (a strong analgesic).

18        Dr Smith recommended a soft cervical collar but Ms Wright was not able to tolerate that, finding the pain unbearable.[6] Her neck and arm problems persisted.

[6]             CB 19

19        Ms Wright continued to experience pain and restriction of movement in her neck with referred pain and weakness in her left arm. She also had pain and paresthesia in her left hand. She experienced frequent headaches.

20        In 2007, she was referred by Dr Smith for physiotherapy with Mr Sam Oldfield and, in March 2008, Dr Smith referred Ms Wright to a neurosurgeon, Mr David Wallace.

21        She had difficulty performing activities above her head, such as blow waving her hair, and she had not done this since the subject accident. A girlfriend does this for her. She had difficulty carrying heavy items and difficulty in picking up her younger children. She had difficulty dressing, in particular reaching her arm behind her back to do up her bra or do up dresses at the back, and required assistance with this. She said that she was able to turn her neck, however, with difficulty. She had difficulty undertaking domestic chores and gardening. These increased pain in her neck and arm and increased her headaches. From time to time she had to employ someone to trim hedges and mow lawns. She did not have a large garden.

22        Although Ms Wright had suffered from occasional headaches before the subject accident, her evidence was that since that time she had suffered regularly from intense and debilitating headaches. She had described these as migraines, but conceded that there had never been any formal diagnosis of that condition. They were, nevertheless, headaches which could last for considerable periods, on occasion up to four days.

23        In the first half of 2007, she obtained some part-time work at a nightclub in the City. She worked Friday and Saturday nights. Her duties there involved her being seated at a desk, taking money from customers entering the club and also performing some duties in the cloak room. She generally worked about four hours per shift, although occasionally worked longer hours. This work continued for approximately four years until early 2011, when she was retrenched following a change of ownership of the club.

24        In approximately May 2011, she obtained part-time work as a waitress at a café near to where she lives - Café Bien. Generally, she works there on weekdays, working approximately three hours per shift, a total of about fifteen hours per week. Her duties involve serving of food and collection of plates from tables. In addition, she does some washing of dishes and some limited food preparation.

25        In the first week of August 2011, the café was short staffed. She was asked to and did work a full week – just over 40 hours. She suffered significant pain as a consequence. Since, she has only worked her normal 15 hours per week and does not consider she is capable of working longer hours on a regular basis.

Medical Evidence

26        In April 2008, Ms Wright was referred to Mr David Wallace, neurosurgeon. He described her as a tough, uncomplaining, hardworking lady in considerable pain with severe left brachial neuralgia.[7] Mr Wallace, whilst noting that the CT scans previously referred to raised the possibility of a C6-7 disc prolapse, considered that this would be an unusual cause for symptoms experienced by Ms Wright in using her arms above her head or in an outstretched position. He considered that a differential diagnosis rested between a condition known as left thoracic outlet syndrome and a left cervical disc prolapse at C6-7, or a combination of both these conditions.[8]

[7]             CB 26

[8]             CB 27

27        Mr Wallace considered that Ms Wright had suffered a soft tissue injury of her neck and a probable cervical disc injury at C6-7, but that her most compelling problem since the subject accident had been the onset of severe left thoracic outlet syndrome. He considered that she had suffered a very significant disability from that disorder and very frequent, severe pain. There was limitation in her ability to use her arms in the outstretched or elevated position. Notwithstanding, he thought she had continued on in gainful employment in a most stoic fashion. He thought that the injuries had had a major impact upon her life, including her capacity for normal domestic duties, social and leisure activities, and normal employment.[9] He thought her symptoms were likely to continue long-term and that some form of surgical intervention might need to be considered in the future.

[9]             CB 31

28        Ms Wright was seen by Mr Peter Moran, orthopaedic surgeon, in March 2007, June 2009 and in early August of 2011. His initial diagnosis was one of an unresolved chronic cervical disc prolapse resulting in significant physical impairment and with a vulnerability to further injury and potential for more significant neurological impairment.[10] By June 2009, he thought that his initial opinion remained valid. He thought that she had sustained a significant injury to her cervical spine, leaving her with neck pain and brachialgia, in association with weakness of wrist and elbow extension and numbness extending to the left hand. This had left her with a limited capacity in terms of day-to-day activities and would also limit her ability to pursue employment in a part-time or full-time capacity.[11]

[10]           CB 38

[11]           CB 43

29        On his most recent review in August 2011, he considered that the subject accident had left her with persistent neck discomfort, headache and symptoms and signs suggestive of a C7 radiculopathy. He had noted Mr Wallace’s diagnosis of thoracic outlet syndrome, but felt that the aetiology of her symptoms was not critical unless surgical intervention was being contemplated. He concluded that she now presents as a Complex Regional Pain Syndrome.[12] He believed that she was completely genuine and had a significant degree of physical impairment. Her prognosis remained guarded.[13]

[12]           CB 47

[13]           CB 47

30        Professor Davis saw the plaintiff at the request of the defendant in March 2008, March 2010 and July of 2011. He considered that Ms Wright initially had left-sided brachial neuralgia, which correlated with the disc protrusion at C6-7, and noted that on his recent examination, the major pain was now located in the right arm with less left arm pain. He considered that she was no longer describing significant brachial neuralgia but rather, variable pain problems in her neck, one or both arms and severe migraines, together with marked anxiety. He considered that there were no objective features to support the diagnosis of thoracic outlet syndrome. He thought that there was a complex interplay between her physical symptoms and psychiatric status.[14] He concluded that she had a form of Chronic Pain Syndrome without significant findings. He thought the link between the accident and her ongoing symptoms was very much affected by psychological/psychiatric factors.[15]

[14]           CB 87

[15]           CB 88

31        Mr Shannon, orthopaedic surgeon, saw Ms Wright at the request of the defendant in February 2010 and July 2011. He concluded that she did not have objective evidence of neurological abnormality. He did not think that her right arm symptoms were related to the subject accident. He did consider that she had degenerative changes in her cervical spine and that this may have been aggravated by the injury suffered in the subject accident. He was unable to find evidence of thoracic outlet syndrome. In response to a specific question from the defendant’s solicitors, he stated that he was unable to exclude that Ms Wright had an ongoing cervical spine injury referable to the subject accident. He thought her neck condition was likely to fluctuate but would cause ongoing stiffness and discomfort.[16]

[16]           CB 101

32        Both parties acknowledged that the CT scans of Ms Wright’s neck taken in March of 2006 disclosed a disc prolapse at C6-7 impinging on the left C8 nerve root.

33        In this application, the impaired body function relied upon by Ms Wright is that of the upper spine. I do not consider that it is necessary to attribute a precise aetiology to the impairment of body function of which she complains. As Mr Wallace opines, the differential diagnosis is either thoracic outlet syndrome or a C6-7 disc prolapse.

34        I accept that one or other (or possibly both) of these conditions has resulted in Ms Wright suffering pain in her neck and left upper limb.

35        I accept the evidence of Mr Moran that Ms Wright was genuine, was not exaggerating her symptoms and did not exhibit symptoms of abnormal illness.[17] No medical practitioner suggested otherwise.

[17]           Mr Moran - CB 37, 46 and 47

Consequences of the Injury

36        I accept that since the accident, Ms Wright has suffered persisting pain and restriction of movement in her neck, and pain and weakness in her left arm.

37        In addition, she has suffered extensive headaches which have been intense and which often were of lengthy duration. Whilst she described them in her affidavits as “migraines”, there is no formal diagnosis of migraine by any doctor, and I consider it more likely that these are cervicogenic headaches, as described by her physiotherapist.[18] I note that prior to the accident, complaints of headaches to her general practitioner, Dr Smith, were only noted on a handful of occasions – once in each of July 2000, November 2000 and March 2001.

[18]           Mr Oldfield – CB 24

38        Almost every day she wears a posture brace recommended by Mr Wallace.[19]

[19]           CB 10

39        She takes Nurofen analgesic for neck and arm pain, consuming about a packet of 24 per week.[20] She takes aspirin for her headaches, approximately a packet of 24 in nine days.[21]

[20]           CB 10

[21]           CB 10

40        Her sleep has been significantly impaired.[22] She takes up to four Xanax tablets per night to assist.[23]

[22]           CB 12

[23]           CB 10

41        She has difficulty performing tasks above the level of her head, such as blow waving her hair. She now has a girlfriend to assist her with her hair.

42        She experiences pain whilst driving a motor vehicle, holding onto the steering wheel.[24]

[24]           CB 7

43        She experiences pain when attempting to lift items such as a shopping bag containing a couple of soft drink bottles.[25]

[25]           CB 7

44        She has difficulty carrying her children.[26]

[26]           CB 7

45        She has difficulty dressing and reaching behind to do up her bra.[27]

[27]           CB 7

46        Her injury has brought about a change in arrangements for the care of her two younger children. At the time of the accident, they resided with her in Rosanna. Her former partner resided some distance away at Mount Waverley. The two younger children were at school locally, near to where Ms Wright lived. She had planned for them to continue to attend that local school as her elder children had done. At that time, the children resided with her during the week. Her former partner collected the children on Friday evening and dropped them back on Sunday night.

47        Following the accident, Ms Wright states that she was generally, by the end of the day, in considerable pain. As a consequence, her former partner would regularly drive from Mount Waverley, pick up the children from the Rosanna school, provide them with a meal and then drive them back to Ms Wright’s residence. This involved him driving a considerable distance every afternoon and evening. Eventually, an agreement was reached whereby the children changed schools to a location in Mount Waverley near to where he resided. The system in place at present and for some time is that he picks the children up from the Mount Waverley school each afternoon and drops them back to Ms Wright’s residence after dinner. There has, therefore, been a diminution of her contact with the children. She sees them each morning but then not until just before bedtime on weekday nights. Effectively, as a consequence of the pain that she has experienced, she was not able to cope with full management of the children as she had previously done.

48        Ms Wright’s social life has been curtailed. She often makes arrangements to meet with friends but then is not able to attend. A particular example was when a good friend, Mr Almatrah, married in May 2011. She very much wanted to attend his wedding but had suffered from a bad “migraine” or headache and was unable to go. She was devastated and felt that she had let him down by not making it to his wedding.

49        Overall, Ms Wright has taken relatively little by way of prescribed medication in more recent times. Her mother had, some years before, become addicted to Valium and the plaintiff herself displayed a lack of trust and confidence in the medical profession. She has been concerned about becoming dependent upon analgesic medication.

50        Since 2007, she has not attended often upon her general practitioner in respect of her neck and arm pain. The defendant submits that lack of prescribed medication and lack of regular attendances upon her general practitioner in recent times is indicative of the consequences of the injury being relatively minor.

51        Whilst this may be so in some cases, I had the opportunity of assessing Ms Wright as she gave her oral evidence and was cross-examined. I consider that she presented her evidence in an honest and straightforward manner. I accept that she has experienced consistently, since the subject accident and up until the present time, extensive neck pain and left arm pain. I accept her evidence that her understanding is that medical profession can do little for her except prescribe painkillers and that she wants to avoid strong, prescribed analgesics. Hence, I accept that this explains her relatively few attendances on her general practitioner.

52        She has complained in more recent times of pain in her right arm. Mr Shannon does not consider that such pain could relate to the subject accident of June 2005. On the balance of probabilities, I consider that there is no physical cause for such right arm pain and that it is probably functional in nature. No medical witness positively ascribed her right arm pain to the accident.

53        Mr Almatrah has known Ms Wright for approximately sixteen years. He had previously worked with her at a hotel in South Melbourne. Before the subject accident, he described her as an active, easygoing and fun individual. She was very social. His evidence was that she now often looks worn out, unhappy and stressed. She has become distance and less inclined to go out socially.[28]

[28]           CB 13

54        I do not consider that her ability to partake in part-time employment at the Baroque Club, or later at Café Bien, indicates that her injury or its consequences are minor. I consider that she has been relatively stoic in continuing to perform that work and that her stoicism should not be held against her in this context.[29]

[29]           Dwyer v Calco Timbers Pty Ltd No. 2 [2008] VSCA 260 at paragraph [4].

55        Ms Wright was frank in conceding that, notwithstanding her injury, she had continued to carry on a number of activities that she related to her OCD. These consisted of somewhat frenetic cleaning activities relating to her home and to her car. She had always behaved in this manner, well prior to the accident. The difference now, she said, was that she did so in considerably more pain. I accept that she, as a person suffering from OCD, will not necessarily be able to simply cease performing those obsessive activities. As I understand it, those activities are not necessarily performed as a matter of ordinary choice but, in a sense, out of necessity. The tasks in question, from her perspective, just have to be done. Another person might cease to perform such tasks because of pain and discomfort. As a consequence of her condition, she does not.

Surveillance

56        During the course of cross-examination of Ms Wright, counsel for the defendant showed her DVD film taken of her on 17 December 2010, 12 April 2011, 15 April 2011, 30 July 2011, 1 August 2011 and 4 August 2011. In my opinion, the films showed that Ms Wright was able to bend forward for short periods, fill her car up with petrol at a local service station, and to generally be able to move around in a brisk and relatively normal manner. There was no obvious or overt indication of pain.

57        In particular, the film taken on 17 December 2010 showed the plaintiff walking towards school with her two younger children. She carried both of their back packs, one over each of her shoulders. There was no evidence as to their weight. She said that that was something that she has always done, not just on that occasion. She says that it does cause pain but she always did it. She stated that as part of her OCD condition, there were numerous things that she did for her children which she need not have done. This was one of them.

58        On 12 April 2011, the film showed Ms Wright sweeping the pavement outside her home for a little less than a minute. She swept in a reasonably vigorous action with a straw broom, using both her arms.

59        On 30 July 2011, the film showed the plaintiff walk to the nearby Café Bien where, as a customer, she sat with another person for approximately twenty- five minutes talking to her. Ms Wright stated that the person was not a friend, but an acquaintance whose name she did not know. She knew her only from the café.

60        There was about four minutes of film taken on 4 August 2011 showing the plaintiff working at the café. She was working as a waitress and engaged in serving, and wiping of tables. This was taken at around 2.00 pm. At about 4.30 pm, there was a very short section of film taken over about five or six seconds of Ms Wright walking down the street. She agreed that this was after she had completed her shift at the café. She walked in a brisk manner.

61        The short film of Ms Wright engaged in waitressing duties showed that she smiled and appeared to interact well with customers.

62        Counsel for the defendant submitted that the films taken of Ms Wright indicated that the consequences of her injury were slight. I do not accept this.

63        The films in question were sent to Mr Moran for viewing. Having done so, he provided reports in which he stated that at no stage during the films of Ms Wright did he observe more than limited flexion or extension of her neck and that this absence of movement was particularly evident in the most recent film which showed Ms Wright working at the café. He thought that, in bending forwards, she tended to bend at the waist and not at the neck and shoulders, a posture consistent with someone protective of unguarded neck movement. He did not consider that she moved freely or without restriction. He did not find the video footage inconsistent with Ms Wright’s history of neck injury. It was consistent with his clinical findings on formal examination.

64        Professor Davis was provided with only the film taken on 17 December 2010. He commented that it would suggest that Ms Wright appeared to be coping well with the neck and arm problems. He thought that she walked generally without any obvious distress, in a fairly brisk manner. He thought the film suggested that she could probably engage in a variety of routine activities of daily living but that it was impossible to be more specific about her level of more demanding activity such as gardening. He thought that she would certainly be employable in a range of occupations.[30]

[30]           CB 81-82

65        He was not shown any of the later films or asked to comment on them.

66        Similarly, only the first film taken in December 2010 was shown to Mr Shannon by the defendant. He thought the film showed no evidence of ongoing guarding or protecting of the neck. However, he stated that he was unable to say, on the basis of the film, that she did not continue to suffer from injuries to her cervical spine region. He thought that the film suggested she was capable of at least light work, including work as a part time receptionist. Mr Shannon was not shown any of the later films.

67        No explanation was proffered by the defendant as to why neither Mr Shannon nor Professor Davis were shown the films of the plaintiff taken in April, July or August of 2011. In Church v Echuca Regional Health,[31] at paragraph 100, Ashley JA stated:

“Sixth, it is notable that the films were not shown to any of the doctors who had interviewed and examined the appellant on the respondent’s behalf. As counsel for the respondent readily conceded in this Court, that is often done. It provides an opportunity for medical men to contrast the patient whose history was taken, or who was examined, with the person depicted in the film. It was arguably significant that no such opportunity was given in this case. No doctor had labelled the appellant as being other than genuine. Their opinions stood.”

[31] [2008] VSCA 153. See also Allsmanti Pty Ltd and Ernikiolis [2007] VSCA 17 at paragraph 53

68        Those comments are equally applicable here. The defendant appears to have made a strategic decision not to show the later films to either Mr Shannon or to Professor Davis. I shall not speculate as to what either of those doctors might have opined, had they seen those films. However, I consider that I am entitled to have greater confidence in the views expressed by Mr Moran, he having viewed each of the films.

69        In addition, I take into account that the parties agreed that the defendant had arranged for surveillance of Ms Wright totalling 18¾ hours, of which it showed 28 minutes of film spread over approximately six dates. In particular, in relation to the film taken on 4 August 2011, the surveillance report indicated that surveillance of Ms Wright was undertaken for approximately 4¼ hours. Approximately four minutes of film was shown of her on that occasion.

70        In the circumstances, having viewed the film and having taken into account the opinion expressed by Mr Moran and the limited opinions expressed by Professor Davis and Mr Shannon, I have concluded that the film does not assist the case of either party in any significant way. Whilst the films display the plaintiff walking in a brisk manner on several occasions and performing waitressing duties over a short period, I do not consider that is inconsistent with the evidence given by Ms Wright as to the level or frequency of her neck pain, arm pain or headaches.

Conclusion

71        For the reasons set out above, I am satisfied that Ms Wright suffered injury to her cervical spine in the motor vehicle collision occurring on or about 1 June 2005. I am satisfied that the consequences of that injury satisfy the “very considerable” test.

72 Accordingly, Ms Wright will have leave, pursuant to s.93(4)(d) of the Act to bring proceedings to recover damages in respect of injuries suffered by her in the motor vehicle accident occurring on or about 1 June 2005.

73        I shall hear the parties in relation to costs.

- - -