Zula v TAC
[2010] VCC 802
•9 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04037
| JOHN ZULA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 May and 1 June 2010 |
| DATE OF JUDGMENT: | 9 June 2010 |
| CASE MAY BE CITED AS: | Zula v TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0802 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Application pursuant to s.93(17) Transport Accident Act 1986 – injury to cervical spine – pre-existing injury to lumbar spine – whether impairment to cervical spine satisfies the criteria of being “at least very considerable” and certainly more than “significant” or “marked”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy with | Slater & Gordon Ltd |
| Mr G Wicks | ||
| For the Defendant | Ms J A Dixon SC with | Solicitor to the Transport |
| Ms F M Ellis | Accident Commission | |
| HIS HONOUR: |
1 This is an application pursuant to s.93(17)(a) of the Transport Accident Act 1986 (“the Act”) in which the plaintiff seeks leave to commence a proceeding claiming damages in respect of an injury to his cervical spine suffered by him in a transport accident in which he was involved on 16 June 2006.
2 In considering the effect of the plaintiff’s injury and related impairment, I am required to consider whether the consequences of that impairment upon the plaintiff are “serious”. The plaintiff must satisfy me on the balance of probabilities in order to meet the threshold test established by s.93(17)(a) of the Act that the consequences of his injury in terms of impairment, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as being at least very considerable and certainly more than significant or marked.
3 The injury relied upon in the present application is an injury to the cervical spine. The impairment relied upon is an impairment to the function of the cervical spine, together with associated pain, headaches and dizziness.
4 The claim is made in circumstances in which the plaintiff suffered from a pre- existing incapacity in the function of his lumbar spine associated with an injury suffered by him in the course of his employment in 1981. It is not in issue in this proceeding that the impairment to the plaintiff’s lumbar spine was of considerable consequence, in that:
• it precluded him from working; • it caused significant symptoms of low-back pain which the plaintiff managed by the ingestion of significant quantities of Panadeine Forte and by moderating his activities so as to avoid, if possible, exacerbation of his symptoms. 5 In the application, the plaintiff relies upon an affidavit sworn by him on 28 November 2008, the content of which was supplemented by brief viva voce evidence. In the course of the proceeding, the plaintiff was cross-examined, as were the plaintiff’s general practitioner, Dr Parathira, and a consulting orthopaedic surgeon, Mr O’Loughlin. Otherwise, both the plaintiff and the defendant rely upon various pages of the Joint Court Book which they have tendered, together with the practice records of Dr Parathira.
6 In his affidavit, the plaintiff deposed to the following matters:
•
He was fifty-seven years of age[1] and was injured in a transport accident which occurred on 16 June 2006. He said that at the time of the accident, he was dazed and shaken up and that on the next day he began to suffer from symptoms of pain and stiffness in his neck, in respect of which he consulted a doctor at the Chandler Road Medical Clinic in Noble Park, who prescribed Nurofen to help manage his pain.
•
Following the accident, by reason of continuing symptoms of neck pain and headaches which affected his ability to sleep, he consulted Dr Despina Parathira at the Chandler Road Medical Clinic on 31 July 2006, who prescribed Mobic for his use and recommended physiotherapy (which he attended, and which did not have a significant impact upon his symptoms). The plaintiff said that he was subsequently referred to Dr Feletar, a rheumatologist, who recommended conservative treatment, including ongoing physiotherapy, and he did a home exercise program.
•
He had injured his back in the course of his employment in 1981 and he had not, since that time, been able to return to work. The plaintiff said that prior to the motorcar accident, he had managed his back symptoms with the use of Panadeine Forte and occasional physiotherapy as required. He said that he did not previously suffer from any symptoms in his cervical spine.
•
Following the accident, he had developed symptoms which included pain and stiffness in his neck with muscle spasms aggravated by movement; headaches; dizziness and sleep disturbance. He said that he managed his symptoms of pain by the use of oral medication in the form of Tramal and Panadeine Forte. The plaintiff said that prior to the accident, he took an average of four to six Panadeine Forte tablets a day to manage his back symptoms, but that he was not at that time using Tramal. At the time at which he swore his affidavit, the plaintiff said that he was taking three to four 50-milligram tablets of Tramal daily to cope with a significant increase in his pain and that he continued to take Panadeine Forte as required. He said that despite the use of this medication, he experienced constant pain in his neck with associated headaches, dizziness and right shoulder pain. He said that if he turned his head suddenly he experienced a sharp jolt of pain in his neck, as well as muscle spasm. He described his neck symptoms as affecting his life in the following manner:
[1] The plaintiff is currently fifty-nine years of age.
(i) he had difficulty driving, as he had trouble turning his head to check for traffic;
(ii) whereas prior to the motorcar accident one of his main leisure activities involved reading, this had become very difficult for him, as reading tended to aggravate his symptoms;
(iii) whereas prior to the car accident he had learned to cope with his back injury and was able to sleep comfortably, his neck symptoms were such that they significantly interfered with his ability to sleep;
(iv) the symptoms in his cervical spine impacted adversely upon his ability to manage domestic chores, and had limited his social activities.
The Plaintiff’s Viva Voce Evidence
7 In the course of his evidence, the plaintiff said that his neck pain was getting worse, that he suffered from neck pain which was present all the time in the middle of his neck and at the back of his right shoulder. He said that he suffered from headaches associated with his neck pain and that his headaches were “getting worse” and that he suffered from dizziness. He said that his headaches and dizziness limited his ability to read to a few minutes as this activity aggravated his symptoms. He said that before the motorcar accident, he read a lot, that he read the Bible, books involving Yugoslav history, newspapers and magazines.
8 The plaintiff said that following his 1981 accident, both his activity level and his ability to drive was restricted, but that as time passed he had learned to cope to some extent with his back pain, with the result that he had been able to drive longer and to do more things around the house. He said that this change in his capacity:
(i) was achieved after approximately ten years had elapsed from the date of his injury and
(ii) had been affected by him altering the way he went about things and doing things more slowly.
9 He said however, that since the accident, he had suffered from pain in his back all the time but that by using medication in the form of Panadeine Forte and approaching activities carefully, he had learned to cope.
10 The plaintiff said that as the result of the 1981 accident he had been prescribed Panadeine Forte by a general practitioner, Dr Molnar; that he had initially, following his injury, been required to take up to ten Panadeine Forte tablets a day, but that before the car accident, he had reduced his use of Panadeine Forte tablets to three or four tablets a day. He accepted that before the motorcar accident, his back caused him significant pain, and said that Dr Molnar managed the condition in his back, but that Dr Parathira was his family doctor.
11 The plaintiff said that prior to his motorcar accident, whilst he was careful not to aggravate the condition in his back by reason of activity performed by him:
“When I took those medication (sic), sometime I felt better, so I could do some things, you know, around the house and whatever, but like I said, at the beginning I couldn’t do it very much because the pain was very strong so I just took the medication and had a rest and things like that.”[2]
[2] T 26
12 The plaintiff described, prior to the motorcar accident, undertaking activities such as servicing his son’s motorcar and performing various activities around the house which he performed slowly and carefully.
13 The plaintiff said that following the motorcar accident, Dr Parathira had prescribed Tramal for his use. He said that at the same time he was being prescribed Panadeine Forte by Dr Molnar for the purpose of managing his back pain, and that upon losing contact with Dr Molnar, Dr Parathira managed his pain control, prescribing for him both Panadeine Forte and Tramal. He said at the present time he was taking three Panadeine Forte tablets a day and three tablets of Tramal, and that this prescription had been much the same for a number of years.
14 The plaintiff said that his cervical spine pain impacted upon his ability to mow his lawns, trim his garden and to drive a car, but that it did not preclude him from engaging in these activities. He said that due to the ill-health of his wife, he had to take a significant responsibility for the management of the household chores and for grocery shopping.
15 The plaintiff said that he had, prior to his motorcar accident, derived considerable pleasure from maintaining cars. He said that he had worked on his own car and that of his son, albeit with caution so as not to place undue strain upon his back, and that whilst at the time of the accident, he was only working on his son’s car (having sold the car which he had owned and maintained for many years), he had had to give up that activity.
16 The plaintiff described suffering from ongoing severe back pain but said that he had learned to cope with those symptoms and:
“You know, to do things and this and that and I don’t need stronger
medication or to increase the medication, except for my neck.”
17 The plaintiff said that before the motorcar accident, his capacity to sit, stand, lift and bend had improved when compared with the capacity which had existed in the immediate years which followed his industrial accident when he was “nearly unable to bend and to do things”. He said that as the years had passed he found that he was able to “sit a little bit longer; I can stand; I can bend a little bit easier”. Whilst he accepted that his back imposed significant limitations upon the things he could do before his motorcar accident, he said that the effect of the motorcar accident was to change “very much” the things he could do. He said:
“Like I said, when I had the back injury after that – a few years when I started to do my cars, and painting and everything, I could do it slowly, but now I can’t do it at all. I can’t go underneath the car to, you know, change the oil and filters there or anything, because of the pain – that’s under the car – on top of the car, on top of the engine, the same thing.”
18 The plaintiff said:
“I was active before the accident, like I said, I did things, you know, around the house, and inside, outside, most of the things but after the accident not that much.”
19 The plaintiff said that before the motorcar accident, he had slept well, notwithstanding the presence of a problem with snoring which did not affect his own sleep. He said that since the accident, he slept very little during the night.
“I wake up three, four times a night. Sometimes when I wake I have to take medication. When I wake up with a pain in my neck and headache I feel dizzy sort of, so sometimes I start leaving room for half an hour, twenty minutes, you know walking around, going back to bed so I’m not sleeping much at all.”
20 The plaintiff said that since the motorcar accident, the pain he experienced in his neck was worse than that in his back, that he took more medication since his motorcar accident, that his neck pain and headaches were at a level of eight or nine out of ten, and that at the lowest he would rate them as being five or six, or something like that. He described his neck as having the greatest impact upon his ability to garden, work on cars, undertake housework and undertake shopping.
The Medical Evidence
21 A cervical CT scan undertaken on 4 September 2006 reported upon the condition of the plaintiff’s cervical spine in the following terms:
“Conclusion
… C5-6 discogenic narrowing with disc osteophyte complex. The main canal diameters and exit foraminae at this level are normal. Central disc protrusion of C4-5 and left paracentral disc protrusion at C6-7.”
22 Generally there is no issue in the case that it is appropriate to describe the radiological changes present in the plaintiff’s cervical spine as disc bulging.[3]
[3] See the report of Mr S O’Loughlin – CB 511; the report of Dr C Thomas – CB 26; and the report of Mr M Shannon – CB 20.
23 In a medical report dated 28 January 2008, Dr Parathira described the plaintiff as suffering from persistent upper back and neck pain and also from symptoms of disrupted sleep following the accident. She concluded her report, opining:
“Mr Zula suffers from a chronic pain syndrome of his neck. CT and x- rays of his cervical spine show degenerative changes at C5/6 with disc prolapses at C4/5 and C6/7 with no nerve root impingement. I believe the motor vehicle accident has resulted in a soft tissue injury to the neck and ongoing muscle spasm and has resulted in chronic pain. Apart from the chronic pain, he has not sustained any neurological abnormalities in his upper limbs. Management of this man’s pain continues to be oral analgesia and physiotherapy. It is difficult to predict how long Mr Zula will continue to complain of pain but he has now been suffering from neck pain for eighteen months and I feel his condition has become chronic.”
24 In the course of viva voce evidence, Dr Parathira said that before the motorcar accident, the plaintiff had not consulted her for management of his back pain and that he had not, previous to the motorcar accident, made complaints of the presence of neck pain or of headaches. She said that she commenced prescribing Tramal for the plaintiff’s use on 7 August 2006, which she described as a painkiller for moderate to severe pain. She said that the plaintiff had described the effect of the motorcar accident in the following terms:
“It has affected any activities that involve repetitive movement of the upper shoulders, carrying shopping. He would comment that he had not been able to do his gardening. He finds it difficult to read the paper because of the flexion of the neck and also driving; he finds that he gets pain when he, you know, laterally rotates the neck to look around. They’re just a few.”
25 In a report dated 3 April 2007, Dr M Feletar, rheumatologist, who examined the plaintiff at the referral of Dr Parathira, opined that the plaintiff’s neck pain was not a major impediment in his physical function at the moment; that he appeared comfortable during her examination of the plaintiff and suggested that the plaintiff be managed by physiotherapy with an active rather than passive approach.
26 In a report dated 19 August 2008, Mr Stanley O’Loughlin, an orthopaedic surgeon, opined that the plaintiff had suffered a whiplash type of injury as a result of his motorcar accident which may have caused a disc bulge at the C6-7 and C4-5 level of the cervical spine, or more likely caused an aggravation of underlying degenerative disc disease. He said that this had led to the development of a painful stiff neck which had not responded to conservative treatment and that the plaintiff had an ongoing impairment which was related to this.
27 In a further report dated 4 August 2009, Mr O’Loughlin opined that the plaintiff’s degenerate disc disease was present prior to the accident but that the accident had caused an aggravation of that disease and that it was quite likely that the disc bulges at C4-5 and C6-7 were caused by the accident.
28 In the course of viva voce evidence, Mr O’Loughlin:
•
expressed the opinion that after the motorcar accident, the plaintiff required stronger medication than the Panadeine Forte which he had previously been taking and “hence he was put on Tramal”[4] and described this approach with respect to the change in prescription in the following terms:
[4] T 63
“You’ve got to play around with the medication to see what is effective. I gather that he, when I saw him, was on Tramal and Panadeine Forte and that did not surprise me in any way.”[5]
[5] T 64
•
disagreed with the opinion of Dr Kostos that the plaintiff’s condition had become medicalised;[6]
•
described the plaintiff as suffering from a moderate disability in his cervical spine;[7]
•
accepted that the plaintiff suffered from minor disc bulges in his cervical spine[8]
•
accepted that the condition in the plaintiff’s neck was responsible for the referral of symptoms of pain into his shoulder blades and upper back,[9] and opined:
[6] T 74
[7] T 71
[8] T 69
[9] T 70
“Some people can have very little changes on x-ray and they can
have very severe symptoms.”[10][10] T 76
29 Finally, although Mr O’Loughlin accepted that, in the absence of pre-accident imaging which revealed the state of the plaintiff’s cervical spine, no definitive statement could be made as to whether the accident caused the disc bulging which was shown to be present in the plaintiff’s cervical spine following the accident, he maintained his position that the plaintiff’s disc injury was responsible for his discogenic pain and that it was likely that the disc bulges present at the C4-5 and C6-7 levels of the plaintiff’s cervical spine were caused by the accident.[11]
[11] T 68 - Whilst in the course of his evidence at this point, Mr O’Loughlin merely commented that he did not wish to alter the views expressed in his reports, I note that in his report dated 4 August 2009, he expressed the following opinion:
30 In a report dated 13 May 2009, Dr Tony Kostos, a rheumatologist opined that the motorcar accident had imposed some minor restriction upon the plaintiff’s domestic and leisure activities, but stated that the plaintiff seemed to be very active despite having an ongoing back problem since 1981. I find the report of Dr Kostos to be a shallow and unconvincing analysis of the effect which the plaintiff’s cervical injury has had upon his life.
31 I note that Dr Kostos obtained from the plaintiff a history:
(i) that the plaintiff suffered from constant pain in his neck and his right shoulder and that he had developed pain in his right arm extending
down to his right hand;
(ii) that his cervical pain was a problem at night and that his sleep pattern
was poor;
(iii) that during the day his cervical pain was aggravated by sitting in a stationary position and by any neck movement, which movement was
restricted;
(iv) that the plaintiff suffered from occipital headaches and dizziness;
(v) that he was unable to read for more than one minute at a time and that
he made use of Tramal and of Panadeine Forte to control his
symptoms.
32 Nowhere in his report does Dr Kostos comment that the history obtained by him from the plaintiff was inconsistent with the nature and extent of his injury or that there was any inconsistency in the plaintiff’s presentation. In these circumstances I find his opinion that “the motorcar accident had imposed some minor restriction upon the plaintiff’s domestic and leisure activities”, is out of keeping with the history he had obtained and is unconvincing. For these reasons, I do not accept the opinion of Dr Kostos as being persuasive in the task which I am required to undertake.
33 In a report dated 20 November 2009, Mr Michael Shannon, orthopaedic surgeon, expressed the opinion that the plaintiff was suffering from a mild to moderate disability in his neck which was related in part to the presence of pre-existing changes in his neck and in part to the effects of the accident. He opined that the plaintiff’s neck was permanently worse as a result of the accident but that his neck injury had not influenced his work capacity, noting that the plaintiff had been out of work for some twenty years.
34 Mr Shannon commented:
“I did not think that there were inconsistencies between the radiology and the physical findings and I suspect that if he had been examined prior to the accident based on his radiology, he would have had some restriction of neck movement, although he may not have had symptoms.”
35 I do not accept the position on behalf of the defendant that this evidence in any way supports the proposition that, prior to the motorcar accident, the plaintiff suffered from a condition in his cervical spine which requires me to undertake a disentangling of the type required in Petkovski v Galletti.[12] Rather, I am satisfied that, immediately prior to the motorcar accident, the plaintiff suffered from a degenerative condition in his spine which was asymptomatic.
[12] [1994] 1 VR 436
36 In a report dated 3 December 2009, Dr C Thomas, a consultant in rehabilitation and pain medicine, found the plaintiff to present with neck movements which were limited to approximately 35 per cent of normal, and opined that the plaintiff had suffered an injury in the form of an aggravation of an asymptomatic degenerative condition in his cervical spine which was responsible for his neck condition, that there were no inconsistencies in the plaintiff’s presentation and that the mechanism of the accident explained the symptoms which were present in his neck.
Findings
37 The plaintiff impressed me as a reliable witness. At no time did he seek to diminish or understate the effect which his 1981 motorcar accident had upon his life. He readily conceded that the effect of that accident had been to cause him to experience significant levels of pain which were constantly present in his low-back and required management by a significant intake of Panadeine Forte. I found the plaintiff’s evidence that over the years he had learned to accommodate to some extent the level of his symptoms such that he was able to undertake modest levels of physical activity at a slow and measured pace, convincing.
38 I accept that in assessing whether the plaintiff has suffered a “serious injury” pursuant to the provisions of the Act, I am required to assess the pain and suffering consequences of the plaintiff’s injury upon him to determine whether those consequences meet the “serious injury” test established by the Act. I further accept that for the purpose of that assessment, I am required, having regard to the plaintiff’s previous injury to his lumbar spine, to assess the pain and suffering consequences of the injury to the plaintiff’s cervical spine in the context of the disabilities which the plaintiff was suffering and was likely to continue to suffer by reason of the pre-existing condition in his lumbar spine.
39 In undertaking the analysis required of me, I make the following findings:
•
I accept the plaintiff’s evidence that the effect of the motorcar accident has been to cause him to suffer severe pain in his cervical spine,
•
I accept that the plaintiff’s symptoms have deprived him of one of the chief pastimes which had not been affected by the injury to his lumbar spine, namely his ability to read, from which he derived considerable enjoyment
•
I am satisfied that the plaintiff’s symptoms of neck pain have been such as to interfere with the plaintiff’s ability to sleep on a regular basis in the manner described by him in his evidence.
•
I am satisfied that the plaintiff’s neck injury has impacted adversely upon his already restricted ability to engage in household and domestic tasks; that he is now prevented from engaging in activities such as tinkering with motorcars, which he enjoyed, and undertaking maintenance activities within his house, such as painting; and that he is restricted in his ability to garden and to perform other domestic chores.
•
I am satisfied that the plaintiff suffers from symptoms of headaches of considerable significance.
•
I am satisfied that the severity of the symptoms from which the plaintiff suffers in his cervical spine is attested to by the fact that the use by the plaintiff of Panadeine Forte, which he was taking at the time of the car accident on a daily basis to assist him in controlling his back pain,[13] did not adequately control the symptoms in his cervical spine such that the plaintiff was required to make use of an additional painkilling drug in the form of Tramal.[14]
[13] I am satisfied that his medication would have had the effect of dampening the symptoms associated with the injury to his cervical spine.
[14] In this regard:
40 I am of the opinion that the consequences which I have found have been caused by the injury to the plaintiff’s cervical spine, notwithstanding that they were occasioned in circumstances in which the plaintiff already suffered from considerable pain and disability by reason of the pre-existing condition in his lumbar spine, are very considerable for him when considered in the range of possible impairments or losses. Further, the evidence satisfies me those consequences will persist for the foreseeable future. Indeed I am of the opinion that, the fact that the injury to the plaintiff’s cervical spine has robbed the plaintiff of the few pleasures which he enjoyed following his previous injury together with the gains which he had made in his ability to engage in physical activity over the years as he accommodated the condition from which he suffered in his back, makes the losses which he has suffered by reason of the injury to his cervical spine all the more significant.
41 In the circumstances, I am satisfied that the plaintiff has suffered an injury which fulfils the definition of “serious injury” within the meaning of s.93(17)(a) of the Act and I propose to make an order granting the plaintiff the relief which he seeks.
42 I will hear the parties as to the precise terms of the order which I should make and also on the issue of costs.
- - -
“However, I believe that the accident of 16 June 2006 caused an aggravation of degenerative disc disease at C4/5, C5/6 and C6/6. There were disc bulges at C4/5 and C6/7 and it is quite likely that these were caused by the accident.”
(i) I accept the evidence given by Mr O’Loughlin (T 63) that Tramal was added to the plaintiff’s regime of pain control as he required stronger medication; (ii) I do not accept the submission on behalf of the defendant that the prescription by Dr Parathira of Tramal in the absence of her knowledge that the plaintiff was already taking Panadeine Forte as prescribed by Dr Molnar speaks upon the issue of the severity of the plaintiff’s cervical symptoms. (iii) I am satisfied that prior to the motorcar accident, the plaintiff’s back pain was being appropriately managed by his use of Panadeine Forte and that it was, by reason of the symptoms which were present in his cervical spine, that Tramal was introduced into his management.
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