Yaydemir v Transport Accident Commission
[2014] VCC 1268
•15 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04410
| GULTEN YAYDEMIR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 July 2014 | |
DATE OF JUDGMENT: | 15 August 2014 | |
CASE MAY BE CITED AS: | Yaydemir v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1268 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the cervical spine – injury to the lumbar spine – impairment of the spine – nature and extent of damage
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Ms M Lang | Zaparas Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr S Martin | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application by the plaintiff for leave under s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence proceedings seeking damages at common law for injuries suffered as a result of a transport accident which took place on 22 August 2010. On that occasion, the plaintiff was a passenger in a vehicle driven by her husband when another vehicle travelling at approximately 80 kilometres per hour hit the left rear side of her vehicle.
2 The serious injury relied on in this application is essentially an impairment to the entire spine as a result of aggravation injuries to the cervical spine and lumbar spine, with referred pain into the upper and lower limbs. The plaintiff accepts that she had pre-existing degenerative changes in the cervical spine and the lumbar spine, but there had been at least a five-year period without any complaint of symptoms.
3 The pre-existing degenerative changes were evidenced by CT scans of the cervical and lumbar spine taken on 16 November 2011 which were reported as follows:
Cervical Spine:
“Degenerative change anteriorally (sic) at C1/2. Disc space narrowed at C5/6. At this level, mild broadbased posterior disc bulge contacts the thecal sac. Bilateral exit foraminal narrowing.”
Lumbar Spine:
“Mild canal stenosis at L3/4 and L4/5. Multilevel facet joint degenerative changes. There is anterior spondylolisthesis of L5 on S1.”[1]
[1]Medical report of Mr Charles Flanc dated 6 June 2013, exhibit G
Legal Principles
4 The test for determining whether an applicant has suffered a “serious injury” within the meaning of s93(17)(a) of the Act was prescribed in Humphries & Anor v Poljak,[2] which was subsequently approved by the Court of Appeal in Mobilio v Balliotis.[3]
[2][1992] 2 VR 129
[3][1998] 3 VR 833
5 In Humphries v Poljak,[4] Crockett and Southwell JJ, stated as follows:
“… the task of a judge confronted with the requirement to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. … .”
[4](Supra) at 140
6 In cases involving an aggravation of a pre-existing injury or condition, the plaintiff must establish what injury was caused in the relevant accident and then there must be an analysis of the extent of the impairment of the relevant body function before and after the injury caused in the relevant accident.[5] In other words, in order to satisfy the Court of a “serious injury”, the aggravation of the pre-existing injury must, itself, amount to a “serious long-term impairment or loss of a body function”.
[5] Petkovski v Galletti [1994] 1 VR 436
7 A plaintiff who has suffered a physical injury may develop a mental or psychiatric response to the pain associated with the physical injury. In a case where a plaintiff claims that she has suffered a “serious injury” within subparagraph (a) of the definition, in assessing the seriousness of the impairment of the relevant body function, it is permissible and appropriate for the Court to take into account the development of any psychiatric condition in response to the physical injury when deciding whether the consequences of the impairment of the relevant body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “serious”.[6]
[6]Richards v Wylie (2000) 1 VR 79
8 Senior Counsel for the plaintiff submits that the first task for the Court is to determine what injury the plaintiff suffered to her neck and lumbar spine as a result of the transport accident on 2 August 2010. The Court is to then conduct a before and after analysis as to the extent of the impairment of the relevant body function caused in the transport accident. The body function relied upon is impairment to the function of the cervical and lumbar spine. I agree.
9 The defendant in this action has conceded that the plaintiff has suffered an impairment to the spine as claimed, but submits that the impairment does not reach the “very considerable” stage. Accordingly, in my view, the real contest in this matter is whether the consequences to the plaintiff are such that they meet the “very considerable” test referred to in the cases above.
10 Senior Counsel for the plaintiff submits that the appropriate template is first set out in the Court of Appeal decision of Kelso v Tatiara Meat Co Pty Ltd,[7] wherein her Honour Dodds-Streeton JA stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[7](2007) 17 VR 592 at paragraph [199]
11 Further, Counsel relied on Sutton v Laminex Group Pty Ltd.[8]
[8](2011) 31 VR 100 at paragraphs [50] and [112]
12 The latter paragraph requires me to consider the “very considerable” consequences to the spine as a whole and not looking at the individual consequences of the cervical or lumbar spine. The former paragraph is recorded as follows:
“Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
‘Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.’”
13 In reliance on the latter template, Senior Counsel for the plaintiff cites the following symptoms as evidence of the “very considerable” consequences from the injury:
·Persisting neck pain
- Referred symptoms to the left upper limb with numbness.
- Referred symptoms to the right upper limb to a lesser degree.
- Restricted range of motion of neck.
- Recurring headaches.
- Persisting and worsening lumbar pain.
- Referred pain to the left lower limb with numbness.
- Restricted range of motion lumbar spine.
- Reactive Depression symptoms.
- Medication: Tramal, 100 milligrams, one at night; Oxazepam, 30 milligrams, one to two tablets per day; Panadol Osteo, two per day. (It was also conceded that Zoloft had ceased in May of 2014).
14 In terms of the consequential restrictions on activities, defence Counsel concedes that there has been a compromise of the plaintiff’s domestic capacity, in that she has difficulties with domestic tasks; she has assistance from her daughter, including laundry, vacuuming, window cleaning, cooking, cleaning generally and shopping tasks. It is also conceded that the symptoms would be aggravated with ordinary household duties. The plaintiff has also claimed that her intimate life with her husband has also been compromised.
15 Ultimately, the test in this matter is whether the plaintiff has established that the pain and suffering consequences of her injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function may fairly be described as being “more than significant or marked” and as being “at least very considerable”.
16 This test involves a value judgment in which matters of fact and degree and or impression are operative.[9]
[9]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
17 Further, the emphasis in s93 of the Act is upon seeing where the facts of this particular case sit in the broad spectrum of cases, remembering that includes cases which do not end up in litigation – “… because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed”.[10]
[10]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [42]
18 In this matter, I accept that the plaintiff suffers ongoing pain in her cervical and lumbar spine on an intermittent basis which has probably affected her ability to fully participate in household duties, gardening and interaction with her grandchildren and with her intimate life with her husband. I also accept, in the foreseeable future, continuation of painful symptoms in the two areas nominated, such that the effect on her spine as a whole would inhibit upon her enjoyment of life.
19 As conceded by defence Counsel, the plaintiff’s evidence in this matter probably discloses pain and suffering consequences which are both significant and marked. The ultimate question in this case however is whether these consequences can fairly be described as being “more than significant or marked” or as being “at least very considerable”.[11]
[11]Transcript 51, Lines 13-18
20 In submitting that the plaintiff has not discharged the onus of proof, defence Counsel impugned the plaintiff’s credit because her husband had wanted to claim bookkeeping expenses by way of loss of income benefits from the Transport Accident Commission. The plaintiff, for her own part, has assuaged such a suggestion, both in cross-examination in this Court and when the matter was squarely put to her by the defendant’s medical practitioner, Dr Elder. I accept her renunciation of such a claim and make a specific finding that, overall, I found her to be a truthful witness. Moreover, when histories that she had apparently given to medical practitioners were put to her, she would most often reply “I cannot remember”. Plaintiff’s Counsel urges upon me the conclusion that the memory problems are probably associated with her medication. For the purposes of this decision, I am prepared to accept that submission.
21 Defence Counsel rely heavily in this case upon the apparent non support by the treating general practitioner, Dr H Khwaja, with the claim of serious consequences following the injury. In particular, reliance is placed as follows:
(a) Neck pain was not complained of until approximately one month after the accident on 17 October 2010;
(b) On that occasion, the treating general practitioner, Dr Khwaja, noted a good range of movement, “only slightly restricted”. The general practitioner explained to the husband that the plaintiff was not unfit to do bookkeeping for his business on that occasion;[12]
[12]Exhibit 3
(c) Upon treating the plaintiff for the impairment to her spine, there has been no referral to an orthopaedic surgeon, nor a rheumatologist nor a pain clinic for specialised treatment;
(d) In his report dated 29 March 2014, Dr Khwaja considered that the plaintiff’s current symptoms, which were of a degenerative nature, would continue to cause her problems. However, he did not think she would be incapacitated either partially or completely for work in relation to the injury. He stated further:
“…Even in her current state, … [the plaintiff] spends most of her days working in the kitchen cooking and cleaning for the family which involves lifting heavy dishes, pots and pans. So she is definitely not incapacitated to do book keeping work at home.”[13]
[13]Exhibit C, Plaintiff’s Court Book (“PCB”) 24
At that stage, Dr Khwaja did not believe that the motorcar accident was responsible for the plaintiff’s current symptoms, as distinct from the underlying condition. However, upon further representations being made by the plaintiff’s solicitors, he reported again on 17 July 2014 to the following effect:
“…In light of … new information that she was receiving regular physiotherapy … between October 2010 and June 2011 does change my opinion and indicates that the accident was at least the triggering factor for her pain in her neck and shoulder during that period.”[14]
[14]Exhibit C, PCB 25(a)
Dr Khwaja then goes on to state however:
“But whether the accident is to be blamed for her current ongoing neck and back pain will be a difficult question to answer. … [The plaintiff] does have chronic degenerative changes in both her neck and lower back. I know that she is active throughout the day busy with household activities such as cooking and cleaning. She is overweight which also contributes to the changes in her spine. The problem gets more complicated when chronic ongoing pain also causes mental changes such as anxiety and depression. We often find that patients who don’t improve within 3 months of an acute injury develop a chronic pain syndrome where multiple factors come into play for their ongoing pain. And this ‘chronic pain syndrome’ is what I think is the basis of her ongoing symptoms. But had she not had the accident, would she have suffered from all these symptoms? I agree that the accident was the precipitating factor here and at least partly to blame for her ongoing neck and back pain.”[15]
[15]Exhibit C, PCB 25(b)
22 I am prepared to distil from this opinion that there has been a permanent aggravation of the underlying condition in the spine which contains within it a mental component as defined by Richards v Wylie.[16] However, the comment that the plaintiff is active throughout the day, busy with household activities such as cooking and cleaning, does call into question whether the statutory threshold has been met. When these matters were put the plaintiff in cross-examination, her reply was either she could not remember giving such a history, or when it was put that she was able to do housework and most of the cooking, she would reply “I try to”.[17]
[16]Supra
[17]Transcript 16, Line 6
23 Further, when seen on 26 May 2014, Dr Khwaja made the following entry:
“Pain neck, lower back, shoulders, working whole day at kitchen cooking for husband, not coping well, feels tired, no holiday for years.”[18]
[18]Exhibit 3
24 The plaintiff was examined for medico-legal purposes by vascular and general surgeon, Mr Charles Flanc, first on 6 June 2013. At that stage, she stated she was attending Dr Khwaja once a week. Further, the pain in her neck and lower back had improved slightly but had been quite stable over the previous six months. The neck pain was said to be the more severe and it fluctuated in severity and was felt mainly after performing housework. The low-back pain was said to be intermittent and fluctuated in severity. There was some pain daily which improved with rest but was aggravated by housework such as vacuuming, mopping or hanging clothes on a line. Despite this however, Mr Flanc noted she “does perform these activities”.[19] Further, she is able to drive a car “if she has to”. She goes shopping with her children and she was able to do her housework despite pain in the neck and lower back. On examination, she took off her t-shirt easily with full elevation of both arms. On examination of the cervical spine, there was no tenderness, but she complained of pain on the left side of the base of the neck, spreading to the left trapezius muscle and into the left upper arm as far as the elbow on movement of her neck. However, the range of motion of the neck revealed full flexion, but extension was moderately restricted to 20 degrees by neck pain.[20]
[19]Exhibit G, PCB 59
[20]Exhibit G, PCB 59
25 In the lumbosacral spine, she had a full range of flexion while extension was moderately restricted by low-back pain. There was also no neurological abnormality.[21] Mr Flanc’s opinion at that stage was as follows:
“… her condition has stabilised and she has residual neck and lower back pain which affects her activities to some extent, although she indicated that she does continue doing her housework despite pain.
In my opinion, her cervical lumbar pain is likely to persist but will fluctuate in severity. It is most unlikely that she will require any surgical intervention.”[22]
[21]Exhibit G, PCB 60
[22]Exhibit G, PCB 62
26 When he saw the plaintiff again on 2 May 2014, Mr Flanc noted a history that the low-back pain had become more severe than previously, whereas the neck pain had not altered. She was then taking Tramadol and Zoloft (since ceased). Physiotherapy had resumed again, being funded by Medicare. Once again, examination of the cervical spine revealed flexion was almost normal at 40 degrees whereas extension was severely restricted to 10 degrees by neck pain. Flexion of the lumbosacral spine was almost normal at 70 degrees but extension was severely restricted to 10 degrees by low-back pain.
27 In terms of her domestic duties, Mr Flanc noted that they had been “affected because she requires assistance with heavier tasks including housework and cooking”.
28 The plaintiff was also examined by the orthopaedic surgeon, Mr Thomas Kossmann, and he reported on 27 February 2014 and 24 June 2014.[23] Defence Counsel submits that his history that the children take care of the household chores is not accurate, and I accept this submission. In any event, his opinion is otherwise not at odds with the other medical evidence if one considers that his final opinion is as follows:
“… Ms Yaydemir is not working at present, however she has a partial incapacity in respect of her social, domestic and recreational activities and most likely this incapacity will continue for the foreseeable future.”[24]
[23]Exhibit H
[24]Exhibit H, PCB 70
29 The plaintiff was also examined for medico-legal purposes by psychiatrist, Dr Paul Kornan, on 7 January 2013 and 12 December 2013. On the first occasion, he took a history of her daily activities as follows:
“I get up at 4.30 or 5 o’clock in the morning. I make coffee, and say prayers. I watch the news. I go to the garden. I do some housework with difficulty. There is not much gardening. … .”[25]
[25]Exhibit F, PCB 35
30 Dr Kornan diagnosed “an Adjustment Disorder with Mixed Anxiety and Depressed Mood”.[26]
[26]Exhibit F, PCB 36
31 In terms of any incapacity due to the psychiatric injury, he considered:
“… her psychiatric condition would add to whatever physical incapacity existed with her. Primarily, if she could not work, it would be due to physical factors, which are outside my area of expertise.”[27]
[27]Exhibit F, PCB 37
32 Further, he did not consider that she required any treatment from a psychologist or a psychiatrist other than that being provided by her local doctor.
33 Dr Kornan notes further, and I accept:
“There does appear to be a noticeable loss of enjoyment in her lifestyle, as she can no longer be as active, and as organised, as she was previously.”[28]
[28]Exhibit F, PCB 38
34 On the second occasion, the plaintiff said that her pains had increased. She stated that she was getting three hours of sleep a night, although taking sleeping pills twice a week. Her daily activities were described as follows:
“I would get out of bed at 3 or 4 in the mornings and I would get up. I pray using the beads, and the prayers. I don’t do gardening. I send my husband off to work. I make the meals. They make me, if I need to go to the shops [her children]. No [to doing all the housework] because of pain in my neck. My daughter and my daughter-in-law help. … They come Monday, Tuesday and Thursday. … They live close to me. Sometimes I go to the garden and sit and sometimes I feed the chickens. The grandchildren, if they come, I speak to them.”[29]
[29]Exhibit F, PCB 41
35 The plaintiff was examined for the defendant by occupational physician, Dr David Elder, on 1 March 2011. She confirmed to him that she had never been a bookkeeper for her husband’s business.[30] On examination:
“… she demonstrated an almost full range of motion in both the cervical and lumbar spines.”[31]
[30]Exhibit 1, DCB 17
[31]Exhibit 1, DCB 17
36 Dr Elder’s analysis was as follows:
“I would accept that the claimant has mild resolving mechanical back and neck pain with no clinical evidence of radiculopathy.”[32]
[32]Exhibit 1, DCB 17-18
37 Finally, he stated:
“I would accept that she has mild ongoing symptoms and they do have an organic basis and are attributable to the transport accident.”[33]
[33]Exhibit 1, DCB 18
38 Finally, the defendant had the plaintiff examined by orthopaedic surgeon, Mr Robert Dickens, on 25 April 2014. On examination of the cervical spine, he noted:
“She had a restricted range of movement which was asymmetrical particularly in rotation and lateral flexion. She was tender at the C6-7 level.”[34]
[34]Exhibit 2, DCB 23
39 On examination of the lumbosacral spine, he noted:
“She was tender from L3 to S1. Her range of movement was restricted without about half the normal range of flexion and virtually no extension. Lateral flexion to the left was less than to the right and rotation was also asymmetrical.”[35]
[35]Exhibit 2, DCB 23
40 Further, he noted:
“Sensory alteration involved the whole of the left leg in a global fashion and even went up to the left side of the torso. Again assessing strength resulted in a collapsing response in the left leg when trying to assess power. … Overall one got the impression there was a significant abnormal illness response.”[36]
[36]Exhibit 2, DCB 24
41 Mr Dickens’ diagnosis was one of –
“… soft tissue injuries to the cervical and lumbosacral spine in the presence of what was quite well established pre-accident degenerative changes at both levels.”[37]
[37]Exhibit 2, DCB 26
42 Mr Dickens considered that the injuries to the plaintiff’s cervical and lumbosacral spine were aggravations of quite significant pre-existing pathology and such injuries were consistent with the accident.[38]
[38]Exhibit 2, DCB 25
43 In terms of her capacity, he stated:
“I do not believe that she would suffer harm from engaging in activities of daily living. … The only restrictions or accommodations warranted or necessary with respect to her activities of daily living would be common sense avoidance of those things that cause her discomfort.”[39]
[39]Exhibit 2, DCB 25
Conclusions
44 Even accepting Mr Dickens’ findings regarding limitations of movement, and accepting that the plaintiff has aggravated underlying degenerative changes to the cervical and lumbar spine on a permanent basis, in view of the plaintiff’s ability to perform her cooking and other household tasks, albeit with certain restrictions as outlined, and is able to engage in shopping and other social activities with her daughters, I am not persuaded that these consequences can fairly be described as being “more than significant or marked” or as being “at least very considerable”.
45 Further, in reaching this conclusion, I take into account the “significance of what has been lost which bears upon the seriousness of the consequences, may be informed to an extent by what she has retained”.[40]
[40]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
46 Accordingly, the application is dismissed.
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