Yates v Transport Accident Commission
[2010] VCC 1974
•16 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04593
| MELANIE YATES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 December 2010 |
| DATE OF JUDGMENT: | 16 December 2010 |
| CASE MAY BE CITED AS: | Yates v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1974 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986 – Section 93 – impairment to the lumbar spine – Limitation of Actions Act application under Section 23A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC and | Henry Carus & Associates |
| Ms J Forbes | ||
| For the Defendant | Mr D Curtain QC and | Solicitors for the Transport |
| Mr J Gorton | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff:
(a) applies for an extension of time pursuant to 23A of the Limitation of Actions Act to bring proceedings; (b) seeks leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 30 December 2002 (“the said date”). 2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the lumbar spine.
5 The inquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on one affidavit and gave viva voce evidence. She was cross-examined. The defendant relied upon two affidavits, one sworn by its solicitor, Mr Giacchi, on 23 November 2010 and the other sworn by the plaintiff’s former employer, Mandy Skopelianos, on 9 November 2010.
9 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
10 The plaintiff is presently aged thirty three, having been born on 14 September 1977. She completed VCE in 1995. Between 1996 and 1998, she worked in sales and administration.
11 In 1999, the plaintiff commenced a hairdressing apprenticeship and as at the said date, was working as a qualified hairdresser at Innovations Hair & Beauty (“Innovations”), earning just under $500 net per week.
12 On said the date, the plaintiff was involved in a transport accident whilst a passenger in a vehicle driven by her then partner, Clint Debono, which was involved in a head-on collision when driven onto the wrong side of the road (“the accident”).
13 Following the accident, the plaintiff was taken to Colac Hospital, where she was admitted. Spinal x-rays confirmed a compression fracture of the vertebral body at L1 (but called L2 on the CT scan).
14 The following day, the plaintiff was discharged to the care of her general practitioner, Dr Plunkett, at the Westcare Medical Centre (“the Medical Centre”) with advice for orthopaedic review. At that time, the plaintiff was in considerable pain and discomfort from her back injury. She was prescribed Tramadol and rest and referred for physiotherapy and hydrotherapy treatment.
15 In the early days after the accident, the plaintiff needed help to get out of bed because of pain and stiffness in her back, hips and pelvis.
16 As a result of her injuries, the plaintiff was off work for nearly a year.
17 On 1 May 2003, the plaintiff underwent a CT scan of her lumbar spine, confirming a wedge fracture of L2. On 2 July 2003, Dr Plunkett referred the plaintiff to rheumatologist, Dr Travers.
18 In mid 2003, Tramadol was ceased due to gastric affects and the plaintiff’s medication was reduced to Panadol, and on occasion Nurofen.
19 Bone scans were carried out in July and August 2003, the latter confirming the continuing healing process of the L2 fracture. On 21 October 2003, the plaintiff underwent an endoscopy confirming moderate reflux esophagitis and mild erythematous/exudative gastritis in the stomach.
20 On 5 November 2004, the plaintiff was referred by Dr Plunkett to Ms McColl, psychologist, for psychological counselling about her driving anxiety. The plaintiff attended sessions in early 2005 with improvement.
21 The plaintiff has attended the Medical Centre since the accident . She has not received any treatment or been prescribed medication by any other general practice. In cross-examination, the plaintiff agreed that the last time she mentioned her accident injury to doctors at the Medical Centre was on 30 May 2005 when a certificate in relation to a trial of hairdressing work was provided.
22 The plaintiff agreed from that time until the present, she had attended doctors at the Medical Centre on many occasions for other complaints and had not mentioned her back condition.
23 The plaintiff was not aware, after she received her impairment payout in 2005, that she was entitled to payment of medical expenses. She has not had any physiotherapy since the early days after the accident, as treatment did not help her. The plaintiff agreed that she had never made a claim on the defendant for medication or for any other medical expenses in the last five and a half years..
24 Some time after March 2009 when the plaintiff attended her current solicitor, Mr Carus, he told her she could continue to claim medical expenses from the defendant. However, she has not seen a doctor or had any treatment since that time.
25 The plaintiff deposed that she had changed to Panadol and Nurofen from Panadeine Forte. When it was put to her in cross-examination that she recently told Professor Myers she only took Panadol, the plaintiff said this was the case most of the time. She had not taken Nurofen because it upset her stomach, but she did take it on occasion. She takes two to four Panadol for pain depending on her level of activity. The plaintiff last bought a box of one hundred tablets two weeks ago. She had one tablet with her in Court.
26 The plaintiff also uses Deep Heat treatment for her back several times a day.
Return to Work
27 On 28 November 2003, Mr Huntington, occupational therapist, conducted a worksite assessment and recommended modification of work methods to take place to assist the plaintiff to return to work as a hairdresser.
28 In December 2003, the plaintiff commenced a graduated return to work at Innovations, working six hours a week, with no bending duties.
29 By May 2004, the plaintiff was working twenty four hours a week on normal duties, with no bending. At that stage, Innovations was sold and the plaintiff’s return to work plan ceased. The plaintiff was then looking for work but was limited by driving problems and anxiety related to driving.
30 In March 2005, the plaintiff returned to work, this time at Manorvale Hair Studio (“Manorvale”) and worked on a fulltime basis from mid 2005, being certified fit to do so by Dr Plunkett.
31 The plaintiff confirmed her tasks at Manorvale were to wash and cut, colour and style hair, perform cleaning, sweep the floor, put away towels, put the drier on and fill the steriliser. At least half the time the plaintiff was standing cutting clients’ hair. The plaintiff never complained to anyone at the salon that the work she was doing was causing her pain.
32 The plaintiff was able to take breaks throughout the day at work, which she needed because of her back pain. Every time she finished with a client there would be a space before the next client and the plaintiff could go and have a drink and sit down and rest or have a smoke with the other girls in the backyard. There was not a set lunch hour time unless it was marked out specifically.
33 The plaintiff was not aware of having taken any days off as a result of her back injury. She was sore, but the days she took off were normal sick days.
34 In re-examination, the plaintiff said that she could not recall every single day she took off, so she cannot say whether it was because of her back pain or not.
35 The plaintiff thought her hours at Manorvale varied, but she confirmed the hours set out in Ms Skopelianos’ affidavit. The plaintiff worked fulltime, although it was difficult, but it had to be done, because she needed the money
36 Whilst working at Manorvale, the plaintiff never went to the doctor and complained that working was making her injuries worse or causing symptoms. She complained to family members, such as Clint and her sister, of her difficulties. She could not recall Mr Carus asking her any questions about whom she had complained to about her problems.
37 The plaintiff agreed that she did not show signs of any pain or difficulty while working at Manorvale. She sat when she could, rather than stand whilst cutting, but agreed plenty of hairdressers sat while cutting.
38 The plaintiff did not leave Manorvale because of problems with her work, but left because she was seven months’ pregnant with her son TJ, who was born on 22 July 2007.
Pain and Restriction
39 The plaintiff continues to suffer pain and restriction in the lower part of her body, especially in her lower back. Her back pain varies in intensity and never a day goes by without pain. On average about three times a week the plaintiff has to stop what she is doing and lie down and take painkillers.
40 In cross-examination, the plaintiff said initially that her condition had stayed pretty much the same in the last five years.
41 When she was working at Manorvale she did not have TJ. She was not doing the duties at home that she would be doing now, so therefore she would be doing more now and did not think she could work her previous hours. The plaintiff then said she is now in more pain than when she was working.
Future Work
42 When the plaintiff was working at Manorvale she worked in pain. She could not work fulltime now because she would be in constant pain.
43 The plaintiff thinks that she could go back to work part time. She would have to take breaks and lie down. She thought she would be able to work three to four hours, four days a week.
44 These were hours the plaintiff herself thought she could work and they were not suggested by a doctor, although the plaintiff had received medical advice that because of her constant pain, she would have problems standing, working as a hairdresser.
45 The plaintiff could not do more than those hours because she is in pain. Washing a client’s hair increases her back pain due to the bending over involved.
46 In re-examination, the plaintiff confirmed she did not think she would be able to reliably work even these hours because she did not know when her back pain was going to come on. One day it could be a good day; the next day it could be a bad day.
47 The plaintiff had to be very reliable as a hairdresser, because she would have clients booked in every single day at set times. As she explained: “With any job, really, no one is going to hire a person who is not reliable.”
Relationships
48 Clint felt a high level of responsibility for the plaintiff’s injuries. In the early period after the accident the plaintiff’s relationship with him was quite close and they eventually had TJ in July 2007.
49 After the accident, they moved out of the plaintiff’s parent’s home and set up their own house. However, over time their relationship became strained as a result of the plaintiff’s injuries. Her inability to continue social and sporting activities placed a strain on their relationship, and they separated in late 2007.
50 The plaintiff feels that her accident injuries were the main cause of the separation from Clint.
51 The plaintiff agreed she is now occupied fulltime in domestic duties and caring for TJ, who is now aged three.
52 The plan is for TJ to start at three-year-old kinder, hopefully next year, for one day a week, and then four-year-old kinder the following year.
53 The plaintiff agreed she told Mr Dooley in 2009 that her time was totally taken up with TJ. Further, she told him that she was able to cope with domestic activities, and that she was fully mobile and she hoped to return to hairdressing part time when TJ went to kindergarten. If she did go back to work, she would have to work around the hours of TJ’s kindergarten.
54 In re-examination, the plaintiff said that she did not think she would now be reliable with her demands at home to hold down a job. She needed help with TJ “basically to just keep him occupied, give him something to do rather than being under her feet because of her pain.”
Domestic and Sporting Activities
55 Whilst the plaintiff agreed she told Mr Dooley in 2009 that she was fully mobile and able to cope with all domestic duties, she deposed that because of her back condition, she is restricted in the housework and gardening she can do. She cannot move her bed or turn her mattress. She cannot do much heavy squatting, bending or digging in the garden. On some days it is even painful for her to pick up TJ and cradle him.
56 The plaintiff deposed that she has had to learn to work around everything – spacing out the housework and gardening. If she does not alternate activities, she ends up with a very sore back.
57 The plaintiff deposed that her life changed for the worse after the accident. Prior thereto she used to spend many weekends riding horses, going cross country motorbike riding or on four-wheel drive outings into the hills. Clint and the plaintiff led a very active social life, spending every weekend together. The plaintiff can no longer dance the way she used to. In essence, she has lived a somewhat hermit life since the accident.
58 Since the accident, the plaintiff has sold her horse as she can no longer ride for any length of time or jump the horse because of her back pain. She is also unable to go cross country motorbike riding or on the four-wheel drive weekends she previously enjoyed with Clint and friends until they split up in 2007. The plaintiff still owns a Toyota Hilux four-wheel drive.
59 In cross-examination, the plaintiff said she had never owned a trail bike. She had ridden Clint’s bike a few times. The plaintiff still has access to Clint’s bike as she and Clint still saw each other every day and he is close to TJ. She agreed that she and Clint do not do things socially together like motorbike riding or horseback riding.
60 The plaintiff denied the reason she no longer does social things with Clint was because of the breakup of their relationship, not because of her injury.
61 In re-examination, the plaintiff confirmed that she misses motorbike riding and four-wheel driving a lot. Basically that was the social life that she and Clint enjoyed. The plaintiff now has no real social life.
Section 23 A
62 On 4 February 2004, the plaintiff first consulted the firm regarding her accident injuries.
63 The plaintiff saw a number of solicitors at the firm over time, until it ceased to act on her behalf in 2005, having assisted her to obtain a lump sum benefit.
64 In conversations with the firm’s solicitors, the plaintiff asked about whether she would be getting compensation for pain and suffering. She was told this would not be the case and that her entitlements would be limited to the impairment benefit.
65 In August 2005, the plaintiff’s impairment entitlements were finalised at fifteen per cent and she later received about $4,000.
66 The plaintiff was never told by anyone at the firm that she could seek the opinion of another solicitor as to her pain and suffering entitlement.
67 By the time she received her lump sum in 2005, the plaintiff was very tired with the long process it had taken just to get a small amount of money and she walked away from the firm hoping her back pain would just get better.
68 On 9 August 2005, the firm sent her a letter finalising her impairment and confirming she was still entitled to sue if a serious injury had been sustained.
69 A final letter from the firm mentioning the six year limitation period was sent to the plaintiff on 12 September 2005.
70 The plaintiff saw Michael Lombard on two occasions at the end of the process to obtain an impairment assessment. After she saw him the second time, she was under the impression that after she had received the impairment payout that she was not entitled to anything further. She had left matters to the firm.
71 In cross-examination, the plaintiff said that she relied on what she was told by the firm. She had not read all the letters. She thought the letters were just about what had been discussed with her over the phone or in the office.
72 The plaintiff read all of the 4 February 2004 letter, including the reference to the “important time limit”. At the time did she not have any queries, but she left everything in the firm’s hands and was following their instructions. The plaintiff agreed she was invited to contact the firm if there was anything she did not understand, and that she did not make contact.
73 The plaintiff received and understood the letter of 3 August 2005, including the offer for her to contact the firm if she had any queries. She did not do so. She was under the impression from Michael Lombard that basically the impairment benefit, the payout she received of the $4,000, was the end of it.
74 The plaintiff could not recall, as set out on a file note on 12 August 2005, that she phoned the firm to discuss her entitlements as per the recent letter sent by the firm.
75 The plaintiff said that obviously she would have read the third letter dated 12 September 2005.
76 The plaintiff accepted she had read all the three letters, but then said she did not really understand them. She was relying on the firm’s advice and guidance on what to do:
“This is a piece of paper. Whether I received it or not, I still relied on their
guidance what to do.”
77 On 30 December 2008, the limitation period expired.
78 In cross-examination, the plaintiff agreed she did not suggest she was not told her rights by the firm.
79 In the years that followed the plaintiff last seeing the firm, the plaintiff’s pain remained and it did not appear it would improve. This realisation led the plaintiff, at the beginning of 2009, to seek the opinion of another lawyer, Henry Carus (“Carus”).
80 At her first meeting with Carus on 20 March 2009, the plaintiff was told there was a six year limit to seek common law compensation. She did not recall that information before this meeting. She was advised questions of serious injury would be reviewed after the impairment medical evidence had been obtained.
81 In re-examination, the plaintiff said it was basically the impression she got from firm:
“Take the money and go, that’s all you’re entitled to.”
The Plaintiff’s Medical Evidence
82 The plaintiff first attended the Medical Centre in Melton after the accident on 3 January 2003.
83 She was seen by Dr Plunkett at the Medical Centre on 6 May 2003, and as her condition was not improving, he referred her to Dr Travers, rheumatologist, who noted a crush fracture of L2 of uncertain age and musculoligamentous injury.
84 Dr Plunkett noted that Dr Travers suggested anti-inflammatory medication and a rehabilitation program, and also a number of screening tests, including a DEXA scan, which was normal. Subsequent bone scans showed a healing L2 fracture.
85 Dr Plunkett noted the plaintiff’s recovery was in part complicated by reflux symptoms, probably due to anti-inflammatory medication, and this was confirmed on gastroscopy. The plaintiff was then treated with Nexium.
86 Dr Plunkett noted the plaintiff was involved in another transport accident on 14 November 2003. She was jolted but otherwise felt okay. She commenced on a return to work program in December 2003.
87 He noted the plaintiff remained on this program until the business she was working at was sold in July 2004 and the plaintiff then went to Job Search for assistance.
88 In October 2004, the plaintiff mentioned a fear of driving and Dr Plunkett referred her to Mr Pagano, psychologist, for assistance. Her confidence improved over the next few months and she was placed on another return to work program and eventually started work on 1 June 2005.
89 In his one report of 26 July 2005, Dr Plunkett thought the plaintiff’s general prognosis should be good, although she should take care with bending and lifting.
90 Ms Jenny McColl, psychologist, from Western Psychological Services, gave the plaintiff counselling on three occasions between 6 January and 24 February 2005 at Dr Plunkett’s request.
91 During that time, the plaintiff effectively utilised breathing strategies to control her driving anxiety. She stated she felt comfortable about her level of confidence and at the last session she was about to commence her new job in Melton and reported feeling enthusiastic and relaxed about the future.
92 Ms McColl assessed the plaintiff as suffering from moderate anxiety, primarily in relation to her handling of motor vehicles. At the termination of counselling, Ms McColl noted the plaintiff’s prognosis seemed reasonable. However, she thought the plaintiff had undoubtedly been left with a reasonably high vulnerability to recurrence of anxiety, if any future difficult driving situations transpired. She also had suffered a loss of peace of mind and a high level of distress around these issues since the accident which hopefully Ms McColl noted counselling had been useful in reducing.
93 Dr Richard Travers, rheumatologist, examined the plaintiff at Dr Plunkett’s request on 1 July 2003.
94 Dr Travers diagnosed a musculoligamentous injury which did not require further investigation and he thought the plaintiff’s progress was excellent.
95 The plaintiff told Dr Travers that since the accident she continued to have back pain, felt mainly at the thoracolumbar junction. He noted there was distinct tenderness over vertebral spine of T12, probably, and at the lumbosacral junction. Sometimes the plaintiff had pain extending up to the shoulder blades but most of the time the thoracic spine was normal and she did not have any neck symptoms.
96 On examination, forward flexion was restricted to 45 degrees although the lumbar lordosis became convex within this range. Extension was to 10 degrees. The L2 itself did not seem tender. There was tenderness at the posterior iliac crest, particularly the left side. Straight leg raising was full and deep tendon reflexes were active.
97 The plaintiff stood with internal rotation at the left hip – she always had done – and there was a soft clunk in flexion and extension. Dr Travers thought it might be worth x-raying the plaintiff’s pelvis to see if there was some mild dysplasia.
98 Dr Travers thought that the x-rays showed rudimentary ribs on L1, which is why the fractured vertebra was called L2 on the CT scan (where they did not see the rudimentary ribs) and L1 on the plain x-rays (where they did see them, and therefore called it T12).
99 The crush fracture was mainly central. Dr Travers noted that the interior border of L2 was 30-millimetres’ long, which was the same at T12 and L1. That of L3 was 35 millimetres.
100 In addition, there was an osteophyte on the anterior border which showed up on the CT scan. He thought the implication was that the facture of L2 was old, perhaps related to one of the plaintiff’s three earlier episodes of trauma. Dr Travers commented, however, that he was not a radiologist, so that was a provisional opinion.
101 Dr Travers recommended hydrotherapy and swimming. He thought it would be good to a do a radio isotope bone scan to see if L2 was still hot and to see about T12 which was tender. He thought the plaintiff should also have screening blood tests, as well as tests of bone metabolism and a DEXA scan, in view of her past fractures. He considered that the plaintiff might benefit from regular anti-inflammatory therapy, but would defer this until after the upper GI endoscopy.
102 Dr Travers concluded it was most likely these investigations would not turn up any particular condition that needed treating. He did not think an MRI scan was required in the absence of any clinical evidence of neural compression.
103 His diagnosis would therefore be non-specific back pain and the plaintiff’s prognosis would depend on factors other than morbid anatomy.
104 Dr Travers noted the plaintiff was of the view, very reasonably, that as soon as her pain settled she would return to work. It was his feeling that the longer she waited before returning to work, the more difficult it was going to be, and he thought the defendant should be asked to get some rehabilitation underway.
105 Professor Kenneth Myers, general surgeon with a specialty in vascular surgery, examined the plaintiff on 9 June 2010, and more recently on 4 December 2010.
106 The plaintiff told Professor Myers on the first examination that there was persisting pain in the back, which stopped a lot of activity, such as horse riding, riding a motorbike or driving a four-wheel drive. She stated pain was present much of the time and appeared to be in the upper lumbar region, and there was no radiation.
107 On examination, there was no deformity of the spine. There was full range of movement of the low back.
108 On re-examination, there was slight restriction of the range of movement of the lumbar spine.
109 Professor Myers had available to him the x-ray of 31 December 2002, CT scan of 1 May 2003 and the nuclear medicine whole body scan of 25 August 2003.
110 Professor Myers thought that the plaintiff had ongoing back pain from a crush fracture of the second lumbar vertebra. He thought her pain restricted her returning to employment. He considered she would be fit to resume part time employment as a hairdresser but that prolonged standing would undoubtedly aggravate her condition. He suspected that would be a long term problem with inability to obtain employment due to ongoing pain. He did not consider any treatment appropriate other than analgesics.
111 Professor Myers thought that the plaintiff was well adjusted with no psychiatric sequelae and he believed all of the present disability resulted from physical causes.
112 Dr David Weissman, psychiatrist, examined the plaintiff for medico-legal purposes on 28 June 2005.
113 The plaintiff told Dr Weissman that over the last two and a half years, she had improved a little bit. She still experienced bilateral hip pain, lower back pain, pain between the shoulder blades, neck pain and occasional headaches. She had just commenced full time work. She told Dr Weissman that she became fatigued and felt sore standing up and had to have a rest after each client and did not lift anything heavy at work.
114 The plaintiff told Dr Weissman she did not play any form of sport before the accident but she very much enjoyed horse riding. She owned a horse but did not ride it any more. She also used to go four-wheel driving and motorbike riding with her boyfriend, but was not able to do so any more.
115 The plaintiff told Dr Weissman that sometimes she felt depressed. Sometimes she woke at night with pain and discomfort and sometimes woke up following a nightmare. She did not have any interests anymore. She also became upset and sometimes gave up, and she was socially withdrawn. She had problems with her concentration. She thought about the actual accident all the time.
116 On mental state examination, the plaintiff appeared a very pleasant, polite, punctual and co-operative young woman. Her eyes appeared moist for the entire interview.
117 At the outset the plaintiff appeared anxious and told Dr Weissman that was because she had to drive to the interview and it was the first time since the accident that she had driven through the city. Her affect was sad, morose and depressed. She had good eye contact but decreased reactivity and responsivity of her affect.
118 The plaintiff had thoughts and flashbacks of the accident. She expressed mild to moderate depressive themes and mild post-traumatic stress and anxiety symptoms as well as disappointment and depression regarding her physical pain, injuries and disabilities.
119 There was a heightened awareness of the accident; there were bad dreams about once or twice a week; there was driver and passenger related anxiety, nervousness and hypervigilance and accident site avoidance. The plaintiff’s cognition was intact and her self-esteem and confidence appeared lowered.
120 Dr Weissman concluded the plaintiff had a mild but not insignificant Post- Traumatic Stress and Anxiety Syndrome and she probably did not have a full blown Post-Traumatic Stress Disorder.
121 In addition, he thought the plaintiff also had mild to moderate, closer to moderate, secondary or reactive depressive symptoms, which occurred as a consequence of or secondary to her accident related pain, injuries and disabilities. In his view, there had been a major impact on the plaintiff’s work as well her leisure, recreational and social activities.
Investigations
122 Dr Mackay in Colac organised x-rays of the plaintiff’s cervical, thoracic and lumbar spine on 31 December 2002.
123 In the lumbar spine, it was reported that there was a sacralisation of L5. Anterior wedging was seen involving the vertebral body of L1 and it was noted that was consistent with a compression fracture. It was noted duration of the fracture was uncertain, but a recent fracture could not be excluded. The sacroiliac joints appeared normal.
124 A CT scan of the lumbosacral spine was carried out on 1 May 2003 at the request of Dr Dowd from the Medical Centre.
125 It was reported that there was a wedge fracture of the second lumbar vertebra seen in the scout films. This was also seen in the axial films, with a little irregularity of the upper end plate and osteophyte formation. There was however no evidence of any narrowing of the spinal canal at that level. There was minimal annular bulging noted at the L5-S1 disc level, which it was thought unlikely to be of any clinical significance. All the other discs appeared normal. There was no abnormality seen in the other vertebral bodies and the facet joints and pars interarticularis appeared intact.
126 A DEXA bone mineral analysis was carried out on 18 July 2003 at Dr Plunkett’s request. Scanning was performed through the lumbar spine and the left neck of femur. It was reported that a composite value of 1.19 in the axial skeleton and 0.93 in the left neck of femur lies within a normal range with no evidence of significant bone mineral loss at that stage.
127 A whole body scan of 25 August 2003 organised by Dr Plunkett showed bone scan features were in keeping with the continuing healing process of the L2 fracture.
Correspondence
128 Counsel for the plaintiff tendered the letters to the plaintiff from the firm dated 4 February 2004, 3 August 2005 and 12 September 2005.
The Defendant’s Medical Evidence
129 In his report to the defendant dated 28 October 2003, Dr Plunkett diagnosed a crush fracture to the second lumbar vertebra and musculoligamentous injury of the back. He noted the plaintiff’s back was slowly getting better.
130 Dr Plunkett advised physiotherapy and hydrotherapy had helped the plaintiff and she also had been prescribed Tramadol. She had developed reflux esophagitis which was possibly associated with that.
131 At that stage, Dr Plunkett thought the plaintiff was not yet ready to return to her pre-accident employment. She had some backache and stiffness which was improving. He suggested the plaintiff start back at work on reduced hours and modified duties the following month, and he hoped to see her return to full time duties within two to three months.
132 Dr Plunkett advised a rehabilitation program and a return to work plan would be useful and the aim would be to get the plaintiff back to her full pre-accident employment.
133 Mr Jonathon Rush, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 25 July 2003.
134 The plaintiff told him that ever since the accident she had been off work because of ongoing thoracolumbar back pain. She was unable to bend or reach out and was in a lot of pain, so much she would find it impossible to work as a hairdresser.
135 Ever since the accident, the plaintiff had ongoing symptoms with pain radiating from between the shoulder blades into the thoracolumbar region, down the lumbar spine and into both hips and pelvis. There was also associated neck pain and stiffness and she also complained of right leg pain and parathesia on the lateral aspect of the right thigh.
136 On examination, the plaintiff complained of pain at the back of the neck present all the time and aggravated by movement. There was associated marked stiffness of the neck.
137 The most severe pain was in the thoracolumbar region in the region of the fracture, but it extended from between the shoulder blades down to the base of the spine and around to involve both hips, particularly the right hip and pelvis.
138 On examination, the plaintiff was very anxious. There was a significant loss of motion of the cervical spine and all movements were painful. There was tenderness at the base of the neck posteriorally
139 There was marked tenderness in the thoracolumbar region with painful limitation of all movements. Throughout the clinical examination, the plaintiff was very anxious and very reluctant to move her spine very much at all.
140 There was a full range of movements of both hips and knees. Straight leg raising was limited on both sides to 70 degrees by pain in the back and thigh, but there were no abnormal neurological signs in the lower limbs.
141 Mr Rush noted plain x-rays performed on 30 December 2002 showed a compression fracture of an upper lumbar vertebra which could be regarded as either L1 or L2. There was a transitional vertebra at the lumbosacral region which complicated the issue with regard to the precise numbering of lumbar vertebra. The compression fracture, however, was in that vertebra where there were no associated ribs in the upper lumbar spine and so it could be regarded as either L1 or L2. The compression fracture involved about twenty five per cent compression.
142 A subsequent CT scan in May 2003 confirmed the presence of the wedge fracture in the upper lumbar spine but no other abnormality.
143 As a result of the accident, Mr Rush though the plaintiff had suffered a soft tissue injury to the cervical spine and a compression fracture to the first or second lumbar vertebra and an associated soft tissue injury to the thoracolumbar spine.
144 He noted the situation had been complicated to a certain extent by a significant psychological reaction to the accident, with some anxiety and depression. As far as Mr Rush could determine, the plaintiff had not had a serious injury to the cervical spine and she should look forward to making eventually a full and complete recovery. With regard to the thoracolumbar spine, and in particular the wedge fracture of the upper lumbar vertebra, Mr Rush thought the pain from that injury should settle with the passage of time and it would be most unlikely for there to be any deterioration.
145 At that stage, he thought the plaintiff was not fit to resume her pre-accident employment and was in fact unfit for all work because of ongoing neck pain and thoracolumbar pain associated with marked stiffness. He noted if there was no improvement in the situation over the next six months, the plaintiff may have to seek alternative employment.
146 Mr Rush thought physiotherapy should stop, but that the plaintiff should be referred to a specialist rehabilitation physician for assessment and she should be given an appropriate regime of physical activity.
147 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in May 2004. The plaintiff complained to him of ongoing mid to low back pain, at times associated with right and left anterior thigh pain. She was then working eight hours a day, three days a week.
148 On examination, there was tenderness in the midline from the low thoracic to mid lumbar region. Flexion was to 30 degrees and extension to 15 degrees. Lateral flexion and rotation to both sides was to 25 degrees.
149 Straight leg raising was to 60 degrees on both sides and at that level there was pain felt in the lumbar region, improved with hip and knee flexion. Neurologically, the lower limbs were intact with normal pain sensation and reflexes.
150 Mr Dooley noted x-rays and the CT scan confirmed a wedge type fracture of either the L1 or L2 vertebra with thirty per cent compression of its vertical height. Mr Dooley thought that the so-called middle column of the vertebra was intact, indicating a stable injury.
151 In his view, the lowest lumbar vertebra may be sacrolised and therefore it was difficult to be sure whether it was the L1 or L2 vertebra that was fractured.
152 Mr Dooley thought the plaintiff’s injury in the accident involved a wedge type fracture of the L1 vertebra and associated musculoligamentous damage. He considered it probable that in combination with the vertebral fracture, some damage had occurred to either T12 – L1 disc, or the L1-2 disc. He believed that the injury accounted for the plaintiff’s ongoing mid lumbar spine pain. He thought the intermittent anterior thigh pain noted by the plaintiff was referred pain from that vertebral level.
153 Mr Dooley suggested the appropriate treatment was for the plaintiff to continue a general exercise and fitness program. He thought she would continue to note some intermittent aching of the back, especially with prolonged activity and standing. He did not believe there was any indication for ongoing formal conservative measures and he thought the plaintiff should be able to self-manage.
154 Mr Dooley thought the psychological reaction reported by Mr Rush was a normal one. As far as Mr Dooley could tell, the plaintiff had improved in terms of general activity and mood since Mr Rush’s review.
155 Mr Dooley believed she was making steady progress in this regard at the rate one would expect. Based on his examination, Mr Dooley did not regard the plaintiff as being depressed, but noted, understandably, that she was anxious.
156 Mr Brendon Dooley, orthopaedic surgeon, examined the plaintiff on 1 June 2009. The plaintiff told him she has been unable to return to any of her pre- accident outdoor activities but that her time was totally taken up looking after her young son. She lived alone, drove the car short distances, but she was still frightened when driving and did so only locally. She was fully active otherwise and needed no ongoing physical treatment.
157 The plaintiff was then taking Voltaren, 50 milligrams, as needed, taking on average about five to six tablets a week.
158 On examination of the thoracolumbar spine, there was a mild kyphosis with local tenderness at the level of the upper lumbar spine, i.e. the first lumbar vertebra. The plaintiff had a good range of movement present in her lumbosacral spine. Straight leg raising was to 70 degrees bilaterally but neurologically the lower limbs were intact with normal knee and ankle reflexes, normal muscle power, and there was no visible wasting or weakness in any of the muscle groups, and normal sensation.
159 The plaintiff had a full painless range of neck movements in all directions without any evidence of muscle spasm.
160 Mr Dooley noted the initial x-rays showed a stable compression fracture at the body of the first lumbar vertebra, with a sacrolised fifth lumbar vertebra with thirty two per cent loss of vertical height in the fractured first lumbar vertebra, as seen on the x-rays taken on the accident date.
161 A subsequent CT scan showed minor disc damage at T12-L1, but there was no magnified x-ray in the lateral films of the CT scans to measure the degree of impairment. The nuclear bone scan of 25 August 2003, showed the fracture was well healed with no marked uptake of radioactive dye.
162 Mr Dooley concluded the major injury was a wedge type compression stable fracture involving in the body of the first lumbar vertebra, with between twenty and fifty per cent loss of vertical height without any neurological involvement.
163 The plaintiff also sustained soft tissue injuries to the cervical spine but within twelve months had made a full recovery from her neck injury. The x-rays of her neck at the time of the accident had been normal. Mr Dooley thought the plaintiff’s orthopaedical injuries were fully stabilised.
164 Mr Dooley noted the plaintiff was fully mobile but that she had not been able to return to outdoor sports. She lived on her own and her time was totally taken up looking after her young child. She was able to cope with all her domestic activities, including vacuuming and cleaning, washing and cooking. She was hoping to return to hairdressing part time when her young son goes to kindergarten in February 2011, but that would depend on whether she was able to get him into a government subsidised childcare centre.
165 Mr Dooley thought overall the prognosis was very good, but not completely normal, as was to be expected. He thought it unlikely the plaintiff will develop any serious long term complications as a result of the stable compression fracture. He thought neurological complications were unlikely, but almost certainly the plaintiff would continue to complain of varying degrees of backache, depending on activity levels.
166 In his view, probably the plaintiff did not require any ongoing physical treatment apart from exercises and swimming. Having mentioned the plaintiff’s preference to stay at home, not intending to return to work until early 2011, Mr Dooley noted the plaintiff, as she was fully active in every way, even at that time would be fit to return to work if she could make suitable arrangements for her son to be cared for in a crèche. In time, probably the plaintiff could also return to outdoor activities once her son was settled into school.
167 Dr Lester Walton, psychiatrist, examined the plaintiff on the defendant’s behalf in October 2003.
168 The plaintiff told Dr Walton that she continued to suffer from pain in her lower back and hips, as well as her interscapular area. Overall, she reported her pain as having much improved.
169 The plaintiff told Dr Walton she had developed anxiety in relation to car travel. She complained of being frustrated by her ongoing pain and physical limitations, which rendered her pretty moody. She had been depressed to the point where she had fleetingly entertained suicide on one occasion, but reported her lowered mood had much improved. Her sleep was disrupted by pain and there had only been relatively few nightmares after the accident.
170 The plaintiff reported no particular difficulties with concentration or memory but reminders of the accident did prompt vivid recollection.
171 On psychiatric examination, the plaintiff was pleasant, friendly and forthcoming. She identified her mood at that time as “I feel a bit yuck because of my stomach. I’m not jumping for joy.” She did not exhibit marked mood disturbance.
172 Otherwise the plaintiff, save for struggling to perform arithmetical calculations which had been a long term problem, was thoroughly cognitively intact. There were no signs of psychotic phenomena.
173 Dr Walton had diagnosed an Adjustment Disorder with Anxiety and Depressed Mood, but he thought the plaintiff’s condition had not yet fully stabilised and would depend upon when stabilisation of her underlying pain occurred.
174 Dr Walton thought the plaintiff’s prognosis was favourable. At no stage had she been suffering from any severely debilitating psychiatric condition and he considered that her progress was one of improvement. He noted, overall the plaintiff impressed as a reasonably emotionally resilient individual and she remained well motivated towards resuming her usual activities including work.
Lay Evidence
175 Mr Giancarlo Giacchi, solicitor for the defendant, swore an affidavit on 23 November 2010.
176 In addition to exhibiting various medical reports, he deposed from that from about 22 September 2005 until on or about 11 March 2009, the defendant’s file showed there was no communication between the plaintiff and the defendant, no communication between the defendant and the firm, and no further activity performed or further payments made by the defendant with respect to the plaintiff’s entitlement to medical and like expenses.
177 Mr Giacchi deposed the firm is well known and experienced in personal injury matters, including those under the Act. The managing partner, Mr Lombard, is an accredited personal injury law specialist with the Law Institute of Victoria.
178 During the period in which the defendant was communicating with the firm, neither the firm nor the plaintiff indicated an intention to apply for a certificate under s.93 of the Act for the defendant’s consent to the plaintiff commencing a common law damages claim.
179 By letter dated 11 March 2009, nearly six years and four months following the accident, Messrs Henry Carus & Associates confirmed they acted on behalf of the plaintiff and sought a copy of the defendant’s file pursuant to the Freedom of Information Act 1982.
180 By letter dated 22 April 2009, Henry Carus & Associates wrote to the defendant regarding its response as to whether the plaintiff was entitled to a serious injury certificate, referring to an earlier letter dated 11 March 2009 requesting same.
181 By subpoena filed in these proceedings on or about 16 August 2010, the defendant subpoenaed the firm’s file. By letter dated 31 August 2010, Henry Carus & Associates objected to the defendant’s inspection of the firm’s file on the basis the documents were subject to legal professional privilege, contending that privilege had not been waived.
182 The question as to whether such privilege had been waived was argued before her Honour Judge Davis on 1 October 2010. Her Honour ordered the plaintiff to produce all documents regarding the plaintiff’s statutory six-year limitation period and common law rights by 8 October 2010.
183 The correspondence subsequently produced revealed that the firm advised the plaintiff as to the potential availability of common law rights and the six- year time limit that applied.
184 An Originating Motion was filed in these proceedings on 24 September 2009 and no relief was sought regarding an extension of time pursuant to s.23A of the Limitation of Actions Act 1958.
185 The plaintiff filed an Amended Originating Motion dated 7 December 2009 on 27 January 2010, by which she sought leave for an extension of time to commence any common law action.
186 Ms Mandy Skopelianos swore an affidavit on 9 November 2010 exhibiting a statement made by her on 6 May 2010. Ms Skopelianos is currently the owner of Manorvale. She has known the plaintiff since the middle of 2005, when the plaintiff started working at Manorvale as a hairdresser after the accident. She did not know the plaintiff previously.
187 During the course of her normal duties, the plaintiff worked varying hours, generally 9.00 am to 5.30 pm on Monday and Tuesday. She had Wednesdays off. On Thursdays the plaintiff worked from 9.00 am until 8.00 pm, on Fridays from 9.00 am to 7.00 pm and on Saturdays from 9.00 am until 2.00 pm. She was entitled to scheduled breaks of a one-hour lunch break, which was not a set time but taken rather when there were no customers. Also taken were several unaccounted for breaks throughout the day and there was no overtime.
188 For the first year of her employment, the plaintiff, a qualified hairdresser, was paid initially a gross weekly wage of $589.40, and for the rest of her employment she was paid $606.89 per week.
189 During the course of her duties at Manorvale, the plaintiff was required to wash and cut hair, colour and style hair, perform cleaning and tidying duties, such as sweeping floors, putting away towels, putting the dryer on and filling the steriliser. Sweeping did not require excessive bending. Filling the steriliser involved lifting a one-litre glass container.
190 The work was not strenuous, probably the most physical work would have been loading the dryer and washer. Most of the plaintiff’s working hours consisted of her standing in one position. On breaks between customers, she would have been seated. Some duties, such as sweeping, required her to move around.
191 Ms Skopelianos thought the duties were light. All of them, such as cutting, were repetitive.
192 Ms Skopelianos recalled the plaintiff attended work punctually. She only took her entitled annual and sick leave. It was never excessive.
193 At the very beginning for the first couple of weeks, she had to caution the plaintiff regarding being late. She was only ten or so minutes late and she did not have to caution her again. She could not recall the plaintiff suffered from any medical conditions, either physical or psychological, that may have affected her timekeeping. The plaintiff told her she was late on that occasion on account of the traffic.
194 The plaintiff commenced her employment after the accident. Ms Skopelianos recalled the plaintiff’s performance was good. She could not recall the details of the accident and does not remember having any specific conversation with the plaintiff about it. She did not observe any incapacity and the plaintiff never mentioned any impairments or issues with her.
195 The plaintiff was not absent from work as a result of her alleged injuries to Ms Skopelianos’ knowledge. The plaintiff was not on restricted duties when she started work at Manorvale.
196 When seven months’ pregnant, the plaintiff took leave. Her job was held open for her for a year but she did not return and she resigned shortly afterwards.
197 Ms Skopelianos has not spoken to the plaintiff since then, so she is unaware of the plaintiff obtaining further employment. The plaintiff visited the salon once or twice after giving birth, but there were no discussions relevant to employment on those visits.
198 When the plaintiff was working at Manorvale, she communicated normally with other employees. If she had a moody day, it never caused any concern to the staff or her. The plaintiff was generally a happy and friendly person.
199 Ms Skopelianos does not know much about the plaintiff’s life outside work, such as her hobbies. The plaintiff never asked for time off to undertake a specific activity.
File Note
200 A file note dated 12 August 2005 from the firm’s file set out that on that date the plaintiff called from work to discuss her entitlements as per a recent letter.
201 There was a handwritten note of a telephone conversation with the plaintiff on that date:
“Explained serious injury not likely on current impairment but if things deteriorate and becomes SI- she will be fine with that. Will send release this week.”
Overview
202 I am satisfied that the plaintiff suffered injury to her lumbar spine in the transport accident involving a crushed fracture of the second lumbar vertebra, and a musculoligamentous injury.
203 Whilst Dr Travers thought the fracture at L1-2 shown on the CT scan four months after the accident was an old one, no other medical practitioner has commented on the age of the fracture and all have attributed it to the transport accident.
204 Further, an impairment benefit was allowed in relation to the fracture.
205 However, it is the impairment not the injury that is relevant when considering serous injury and whether such impairment is serious and long term.
206 No medical practitioners have described any ongoing significant problems with the fracture in particular, Mr Dooley describing it as stable and Mr Rush noting, in 2003, that the pain should settle within the passage of time and it would be most unlikely for there to be any deterioration. Professor Myers simply described ongoing pain from the fracture.
207 When Dr Travers last reported in July 2003, he thought the plaintiff had a musculoligamentous injury which did not require further investigation, and he thought her prognosis was excellent.
208 When Dr Plunkett last reported in July 2005, he thought the plaintiff’s general prognosis should be good but she should take care with bending and lifting.
209 The plaintiff has not had any medical treatment related to her back for the last five and a half years.
210 Counsel for the defendant conceded the plaintiff had some ongoing back pain but it did not meet the Humphries v Poljak (supra) definition of serious.
211 Whilst no matters of significance as to credit were raised by counsel for the defendant, and there was no film detrimental to the plaintiff’s application, I do not accept that she has suffered the level and frequency of pain she has described since the accident.
212 I do not accept, as submitted by counsel for the plaintiff, that a catastrophic consequence for the plaintiff is the effect of her back condition on her career as a hairdresser.
213 If her pain had been of the magnitude as she has described, the plaintiff would not have been able to return to full time work in mid 2005. Further, one would have expected that she would have sought some medical treatment in the last five and a half years in addition to over-the-counter painkillers which she has purchased.
214 As confirmed by Ms Skopelianos, the plaintiff was able to work full time for two years at Manorvale without any apparent difficulty. She required no time off from her work as a result of her back injury. She was a reliable, competent and punctual employee during that time, requiring no special treatment by her employer and not being placed on any restrictions by her doctor.
215 Like other hairdressers working at that salon, the plaintiff took breaks between customers and stood and sat whilst cutting. She was able to do sweeping and load and unload dryers in addition to hairdressing duties.
216 Whilst she may have had some problems with prolonged standing whilst cutting or washing hair, the plaintiff was able to manage full time duties to a late stage in her pregnancy and left the job because she was seven months’ pregnant, not because of any problems with her back.
217 I am not satisfied that there has been any change to the plaintiff’s condition since leaving work at Manorvale which has altered her capacity for full time employment.
218 In cross-examination, the plaintiff initially said there had been no change in her condition in the last five years but then went on to say her domestic responsibilities had increased her pain. However, the plaintiff has not sought any medical assistance in this regard since TJ was born, nor did she report of any problems with back pain during her pregnancy. As the plaintiff told Mr Dooley, she is fully mobile and at this stage is totally occupied with her domestic and family duties.
219 Accordingly, I am not satisfied that any employment-related consequences of the plaintiff’s back condition are serious.
Consequences
220 I accept that the plaintiff has not been able to continue some of her sporting and recreational activities because of her back condition.
221 Perhaps the most significant of these activities is horse riding, with the plaintiff no longer able to ride and having to sell her horse. However, this is the extent of the evidence in this regard, with no detail as to the frequency with which she rode or where she rode. Further, there is no supporting evidence from any lay witnesses on this or any other issue.
222 Trail bike riding does not seem to have been one of the plaintiff’s great passions, not owning her own bike and only having ridden a few times before the accident. She still has her four-wheel drive but no longer goes driving into the hills.
223 The plaintiff’s social life has been restricted by having to care fulltime for a three year old.
224 Professor Myers, in his two 2010 reports, made no mention of any interference with hobbies or activities resulting from her back condition, save for some problems with prolonged standing.
225 Over-the-counter medication is the extent of the plaintiff‘s treatment in the last five years.
226 Whilst I accept the plaintiff does have some pain and restrictions resulting from her back condition, they are not “serious” within the definition.
227 I am also entitled to take into account, as Winneke P allowed in Richards v Wylie (supra), the expected consequences of a physical injury, such as frustration and anxiety, when considering an application pursuant to subsection (a).
228 However, even when such consequences are taken into account, I do not consider that the plaintiff has a serious injury to her spine pursuant to subsection (a).
229 Accordingly, her application is dismissed.
230 Having made this finding, there is no reason to consider the application pursuant to Section 23A of the Limitation of Actions Act.
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