Davies v Nilsen & Transport Accident Commission [2013] VCC 1242

County Court of Victoria|2013-09-25|Before: Mr P

Judgment: Plaintiff's Originating Motion dismissed.

**1 Before the Court is an application brought by Originating Motion filed on 22 October 2009 by which the plaintiff applies for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 ("the Act") to bring a proceeding to recover damages for injuries suffered by her arising out of a transport accident which occurred on 22 November 1995.

3 The application is brought pursuant to s93(4)(d) of the Act. Subsection (6) provides that a Court must not grant leave under ss(4)(d) unless the Court is satisfied that the injury is a "serious injury".

4 The definition of "serious injury" relied upon by the plaintiff is under ss(17) - "serious long term impairment or loss of a body function".

5 The injuries suffered by the plaintiff for which leave is sought are injuries to her left knee and lower back, and a psychiatric injury.

6 In addition, the plaintiff seeks to have time extended within which to bring a proceeding pursuant to s23A of the Limitation of Actions Act 1958 ("the Limitation Act").

7 The following evidence was adduced at the hearing of the plaintiff's proceeding:

• The plaintiff gave evidence and was cross-examined;

• Jeanette Mary Davies gave evidence and was cross-examined.

• The plaintiff tendered her Court Book ("PCB") pages 7-158B, and from the Defendants' Court Book ("DCB") pages 34-48: Exhibit A;

• Report of Dr Lloyd, psychiatrist, dated 16 June 2000: Exhibit 2;

• One page of Dr McPherson's clinical notes, commencing 8 January 2002: Exhibit 3;

• The defendants tendered their Court Book, pages 1-10; 64; 81-99; 104-113; 116; 147 to 202: Exhibit 2.**

**8 The plaintiff contends that, as a direct result of the transport accident, she suffered injuries to her left knee and lower back, and that both satisfy the definition of "serious injury". The plaintiff also contends that she has suffered a psychiatric injury which also satisfies the definition of "serious injury".

9 Mr Masel submitted that the plaintiff cannot prove that the injuries were caused by the transport accident.

10 Mr Masel helpfully submitted that, if I was satisfied on the question of causation, then the defendants will concede that the injuries to the knee and lower back have consequences which are "serious", and the psychiatric injury has consequences which are "severe".

11 Mr Masel lastly submitted that, if the plaintiff has a serious injury, she must fail in her application to have time extended within which to file a common law proceeding.

12 I have considered the evidence of the plaintiff, the relevant documents on the question of causation in the Court Books, and the helpful submissions of Counsel. I have concluded that the plaintiff's proceeding must fail.

13 It is trite to say that the plaintiff bears the onus to prove that the injuries which she contends are serious were caused by the transport accident. I am not satisfied that she has discharged that onus.

14 It is also trite to say that the opinions given by medical practitioners on a question such as causation are only as good as the accuracy of the evidence upon which the opinion is based. On my analysis of the evidence, it is clear to me that the medical practitioners who have given opinions on causation were not given the advantage of the primary evidence going to the question of causation. It is not for me to speculate as to what they might have made of that evidence, but, in the absence of each of them addressing that primary evidence, I consider their opinions to be unsound.

15 It is perhaps unnecessary to demonstrate what I mean, but by analogy, my reasoning is as follows. If an injured person gives a history to a medical practitioner that an injury resulted from a compensable incident, then, of course, the medical practitioner will turn his or her mind to the question of causation based on the history. If it transpires that the injury manifested itself months or years later, then that must inevitably require consideration by that medical practitioner as to whether causation can be established.

16 The example I have given is apt in this proceeding. It appears to me that the primary evidence, which I consider to be reliable, are the clinical notes of Dr Rose, general practitioner, and Dr McPherson, general practitioner, who treated the plaintiff immediately following the occurrence of the transport accident.

17 For reasons which will become plain, I do not consider the plaintiff to be a reliable witness. I think the effluxion of time, together with the fact that the plaintiff is plagued by illness, has led the plaintiff to be adamant that she made relatively contemporaneous complaints of injury to her left knee and lower back to Dr Rose and Dr McPherson. That is the history which the plaintiff gave to medical practitioners who were asked to give an opinion on causation.

18 The opinions on causation given by the psychiatrists that the psychiatric injury was caused by the transport accident are likewise unsound. On my analysis of their reasoning, it would appear that they have accepted that the plaintiff suffered injuries to her knee and lower back caused by the transport accident, and that she has been seriously troubled by pain and disablement by those injuries. As a matter of logic and commonsense, if the knee and the lower back injuries were not caused by the transport accident, then the opinions of the psychiatrists that the psychiatric injury they diagnosed is secondary to those physical injuries is inevitably unsound.

19 In their addresses, Ms Judd and Mr Masel largely concentrated their attention on what I have described below as the primary evidence on the question of causation. I propose to do likewise, because it would appear that that is the evidence which is critical to the issues raised for my consideration.**

**20 The plaintiff was born in 1971. She is now 42 years of age. She was 24 years of age when the transport accident occurred on 22 November 1995.

21 On 22 November 1995, the plaintiff was the driver of a car which was stationary at the intersection of Manningham Road and Williamsons Road, Doncaster. The car driven by the first defendant collided into the rear of the plaintiff's car at a speed which the plaintiff believed to be around 60 to 70 kilometres per hour.

22 The plaintiff said that, as a consequence of the collision, her knees struck the air conditioning unit under the dashboard of her car. She subsequently became aware of injuries affecting her neck, lower back, left shoulder and knees.**

The Plaintiff's medical treatment/the knee injury

**23 Dr McPherson was the plaintiff's treating family practitioner in 1995. He passed away some years ago. The plaintiff was initially seen by Dr Rose, who was a colleague of Dr McPherson. They worked from the same clinic.

24 The plaintiff saw Dr Rose on 23 November 1995. His clinical notes of that consultation reveal:**

"Last night in middle of 3 car pileup - to impacts Neck v saw. Seatbelt & headrest.

Fit both knees. Upper back was sore. Now only neck.

V tender upper thoracic spine & neck & shoulder esp Cx spine."[1]

(sic)

25 The plaintiff saw Dr McPherson on 27 November 1995. His clinical notes of that consultation reveal:

"Having massage on neck.

... At work today - neck pain and stiffness upper thoracic backache.

L brachialgia - L elbow / L shoulder & hands. No parasthesia. Headaches

O/E neck - good ROM part some restricted extension & lateral flexion.

Tender R L trapezius , esp cervico thoracic → L shoulder.

Tender distal clavicle & coraco - clavicle ligament.

Reflexes √ Power √ Sensation √

→... neck & clavicle & R lower ribs.

Panadol. Physio."[2]

(sic)

**26 The foregoing consultations contain the most extensive notes of the complaints made by the plaintiff within a week of the occurrence of the transport accident. The plaintiff attended a medical practitioner at the clinic on 29 November 1995; a date in December 1995; 1 March 1996; 1 April 1996; 18 May 1996; a further date in 1996 which is partly obscured; 5 June 1996; 18 June 1996; a further date in June 1996 which is partly obscured; 1 July 1996; 4 August 1996; 19 August 1996; 22 August 1996; 20 September 1996, and 27 September 1996. On none of those occasions did the plaintiff complain of suffering a knee injury.

27 The first entry which makes a reference to a knee injury is a date in October 1996. Part of that date is obscured. The entry appears to reveal the following, among other things:**

**28 The entry is difficult to read. Despite an apparent reference to the left knee, there are no other references to the knee or any treatment provided for it.

29 The next entry which makes a reference to a knee injury is 5 October 1996. It reveals:**

30 There is then an entry for October 1996 which refers to x-rays. The notes written next to the word "x-rays" is difficult to decipher, but following it there is this note:

**31 It may be that the reference to "osteochondritis" and "dissecans" are references to the pathology found in the knee.

32 The balance of the entry refers to the plaintiff's back. The next entry of 14 November 1996 does not refer to the plaintiff's knee,[5] but to other medical conditions.[6]

33 The only other reference to the knee is in a report of Dr McPherson dated 18 July 2007, in which he said the following:**

"On the day after motor vehicle accident, Mr Davies attended my surgery and was noted to have tenderness in the upper thoracic spine and over both knees ... ."[7]

34 However, the balance of his report makes little reference to the knee. It refers to other injuries the plaintiff told him she had suffered in the transport accident. It is only in the last paragraph of the report that Dr McPherson said the following relevant to the knee:

"At the time of my departure, Mr Davies had developed left knee pain as well as persistent sacroiliac and left leg pain of sciatic nature ... ."[8]

35 It is not clear when Dr McPherson departed from the clinic. It was probably in August 2002. I assume that to be the case, because in the second paragraph of his report, he refers to treating the plaintiff from the mid-1980s up to and including August 2002.[9]

36 Under cross-examination relevant to the question of causation, the plaintiff said:

"... I've had back and knee pain ever since the accident. The neck pain did ... dissipate after a period of time, but the knee and ... and back pain had been constant."[10]

37 Later, and still under cross examination, she gave a florid description of the pain she was experiencing in the knee within days of the occurrence of the transport accident:

"It was within a matter of days after the accident that the knee pain started. I remember very clearly waking up in the middle of the night and I was banging my leg against the bed and I was in tears with the pain. I went and woke up mum and dad and asked for their help."[11]

**38 The answers given by the plaintiff exemplify the position occupied by her that she suffered an injury to the knee at the time of the occurrence of the transport accident which developed into her major physical injury. Additionally, when it was put to her that there is no record in Dr McPherson's clinical notes that she was treated for a knee injury, she said that she could not understand why that was so, because she was treated for a knee injury within two or three days after the occurrence the transport accident.[12]

39 The plaintiff's mother, Mrs Jeanette Mary Davies, supported the plaintiff's case that the plaintiff suffered an injury to her left knee as a result of the transport accident. She said that she was aware that the transport accident caused her daughter physical problems. She said she and her husband were woken by the plaintiff a couple of days after the transport accident with the plaintiff complaining to them that she was suffering from bad nerve pain in her knee. Mrs Davies said that she was up all night with the plaintiff.[13]

40 At the time when the transport accident occurred, the plaintiff was employed by Centari Systems. In her first affidavit, she said that she returned to work after a short period of time after the occurrence of the transport accident. She said at that time, she was suffering extensive spinal pain, particularly in her lower back, and problems with her left knee. She said she was provided with Certificates of Incapacity by Dr McPherson. She said that she was not away from work all of the time, although she said it was becoming difficult for her to remain at work. She was terminated from her employment in June 1996.

41 The impression created by what she said in her first affidavit is that she was having obvious difficulties in her workplace because of her physical injuries, and that the termination occurred as a result of the injury she suffered in the transport accident. The inference is that her performance was unsatisfactory in the opinion of her employer, which was a reason why it terminated her employment.

42 However, the foregoing does not appear to be so. The plaintiff made a Workers' Claim for Compensation dated 27 June 1996 alleging that, as a result of pressure from supervisors, she suffered work-related stress. It developed on 5 June 1996, resulting in the plaintiff ceasing work on 24 June 1996.[14] In support of her claim for compensation, the plaintiff made a statement dated 27 June 1996.[15] She described the onerous nature of the work she was required to perform, and the conduct of a Mr Jon Johnston who, she said, was principle in imposing pressure on her, which resulted in her suffering work-related stress. She made a fleeting reference to suffering injuries in a transport accident comprising of "a back injury, whiplash and shoulder injury". Nowhere in the statement did she refer to suffering a knee injury. Nowhere in the statement did she refer to being unable to work and needing to take time off because of the injury she suffered in the transport accident.

43 Mr Johnston swore an affidavit on 26 July 2013. He said that he recollected that the plaintiff told him that she had been involved in the transport accident. He believes that she took some time off work. She did not inform him of any physical problems which she had, nor did he observe any.[16]

44 Mr Luke Roy swore an affidavit on 26 July 2013. He said that he recollected that the plaintiff told him that she had been involved in a transport accident. He believed she wore a neck brace from a short period of time. She did not inform him of any physical problems which she had, nor did he observe any.

45 Neither Mr Johnston nor Mr Roy was cross-examined. Their evidence was put to the plaintiff. She maintained, in the face of the evidence, that she was having significant problems in her workplace because of her physical injuries.**

**46 The evidence I have reviewed has led me to conclude that the plaintiff did not make a relatively contemporaneous complaint that she suffered an injury to her knee. I do not accept her evidence nor do I accept her mother's evidence.

47 I have examined the clinical notes of Dr Rose and Dr McPherson carefully. It appears to me that both Dr Rose and Dr McPherson were careful note takers, as is apparent from the summary I have made of the clinical notes commencing at paragraph 17 above. If the plaintiff did suffer a knee injury of such magnitude, then it is very surprising that it was not recorded in the clinical notes.

48 The clinical notes and Dr McPherson's report demonstrate that, whilst the plaintiff had tenderness in her knees when she presented to Dr Rose on 23 November 1995, it was not until around August 2002, when Dr McPherson left the clinic, that the plaintiff's knee injury became a real issue for her, and for him as her treating medical practitioner. That is about seven years after the occurrence of the transport accident. It should also be remembered that Dr McPherson was a friend of the plaintiff. It is clear that she was fairly close to him. That makes it even more surprising that, if she told him of the knee injury within days of the transport accident, he apparently ignored her complaint.

49 Although an x-ray was taken of the plaintiff's knee in October 1996, a careful examination of the clinical notes demonstrates there was no follow-up of any kind which suggests that what was shown on the x-ray was of no apparent clinical significance.**

**50 Ms Judd conceded that the claim that the lower back injury is causally connected to the transport accident is "not quite so certain" that it "started from day one". I think that concession was properly made, and is entirely consistent with my analysis of the primary evidence.

51 The first reference to pain in the plaintiff's lower back in the clinical notes is the entry of 1 March 1996. It reveals:**

52 The next entry is 1 April 1996. It refers to the plaintiff's "dorsal" spine; in other words, her upper back. Dr McPherson provided the plaintiff with a medical certificate certifying her as suffering from:

"Recurrence of dorsal spinal injury."[18]

53 The next entry is 14 November 2006. The entry is cryptic. The part of it which may be relevant is:

**54 Up until that last entry, the plaintiff had complained of pain in her neck, upper back, shoulders, right lower ribs, left elbow and hand. The references to "back" appear to refer to the neck or upper back or interscapular pain. That appears to be so, because the medical certificate dated 1 April 2006 appears to confirm that at around that time the plaintiff was suffering from pain in her upper back.

55 The first entry referring to pain in the plaintiff's "lumbar spine" as opposed to her "back" is 31 March 1998. There is a reference to L4-5 disc damage and a referral for the plaintiff to have a CT scan. The next entry dated 6 April 1998 suggests that the plaintiff suffered a disc prolapse of L5-S1, and the next entry dated 27 July 1998 refers to the plaintiff having an MRI scan, presumably of her lower back.

56 Dr McPherson explained the entries in the clinical notes in his report. He referred to the pain experienced by the plaintiff in her neck, head, shoulders and arm as "easing". He then said the following:**

"However, she was having considerable discomfort relating to her lumbar spine - particularly on the left side."[20]

**57 Dr McPherson referred to his examination of the plaintiff, and commented that the examination results were perplexing because the plaintiff's straight leg raising was only 40 degrees, but that when she sat upright on the examination couch, it was equivalent to 90 degrees. He referred to the CT scan and the MRI scan as basically demonstrating no abnormality, although there was a suggestion on the MRI scan of wear and tear of the facet joints of L5-S1 and a possible disc prolapse which could not be confirmed on later imaging.[21]

58 Unfortunately, Dr MacPherson did not explain when the plaintiff began having problems with her lumbar spine, and whether he considered that those problems were caused by the transport accident. However, what is clear is that the problems were not present for some time, and perhaps not until around the time when the plaintiff had the CT scan on 4 April 1996, which is some four months after the occurrence of the transport accident.**

**59 The first reference in the clinical notes to the plaintiff suffering depression is October 1996. The word "depression" is used, but adjacent to it is a question mark.

60 The next entry dated 14 November 1996 also refers to the plaintiff suffering depression and other symptoms of tiredness and insomnia. She was prescribed Lovan, 20-milligrams.[22]

61 The cause of the plaintiff's depression appears to be related to the work-related stress she suffered when working for Centari Systems. When she saw Dr MacPherson on 4 June 1996, he recorded the following:**

"Acute work ... → Boss seems hell bent on booting her out - very stressed ... ."[23]

62 Dr McPherson referred the plaintiff to Dr Lloyd, neuro-psychiatrist. The plaintiff saw Dr Lloyd on 16 June 2000. He obtained a history that the plaintiff had been referred to Mr Rosenfeld, neurosurgeon, who apparently described the plaintiff as being "a total mess". He apparently considered her to be somewhat histrionic, and suggested that she be referred to a pain management clinic. Dr Lloyd examined the plaintiff and formed the following opinion:

"Diane is presenting with a Chronic Pain Syndrome which may well have elements of a somatoform Pain Disorder and I note the earlier diagnosis of chronic fatigue syndrome which of course has a very strong overlap with somatoform symptomatology and depressive symptomatology. She did not appear to be depressed as such at the present time."[24]

**63 The plaintiff has been examined by a number of psychiatrists. They appear to have worked on the basis that the plaintiff suffered injuries to her lower back and knee as a result of the transport accident, and those injuries have continued to trouble her significantly. That appears to be the basis, or part of the basis, of the opinions expressed by Dr Higginbotham;[25] Dr Epstein;[26] Dr Strauss[27] and Dr Walton.[28]

64 The difficulty in trying to make sense of the evidence in this proceeding is that I find myself thrown back to the primary medical evidence which largely comprises the clinical notes of Dr McPherson and his report, and precious little other primary medical material. In the context of the psychiatric injury, there are a number of possible/probable causes for the plaintiff's present psychiatric consequences. She has a prior history of significant Chronic Fatigue Syndrome, significant work-related stress, and then there is the transport accident.**

**65 I return to the observations I made about this proceeding when identifying the issues which the defendant intended to raise.

66 It is very obvious that the plaintiff is adamant that she made relatively contemporaneous complaints to Dr Rose and Dr McPherson of injury to her knee and lower back. That is not borne out by an analysis of the clinical notes and Dr McPherson's report. It is for that reason that I do not accept the plaintiff's evidence, nor the evidence of her mother.

67 Furthermore, I do not accept the plaintiff's evidence that the injuries she suffered in the transport accident were responsible for the termination of her employment. It appears to me that the plaintiff was able to return to her employment, and thereafter, did not suffer any significant interference with her capacity to discharge her obligations to her employer. It was the work-related stress which resulted in the termination of employment. It was not something which the plaintiff chose to disclose in her first affidavit.

68 Looking at the evidence objectively, it would appear that the plaintiff did suffer injuries in the transport accident. They eased, according to Dr McPherson. The plaintiff was able to return to her employment. It is likely that she would have continued in her employment had the work-related stress not occurred. It was the work-related stress which brought about the termination of her employment. The evidence of Mr Johnston and Mr Roy confirms that the plaintiff did not appear to suffer interference with her capacity to discharge her obligations to her employer by any injuries which she suffered in the transport accident.

69 All of these matters are of critical importance to the question of causation. The medical practitioners who offered opinions regarding causation were unaware of what I have described as the primary evidence. Although some of the psychiatrists were aware of the plaintiff's medical history, and the work-related stress, they were not aware that there is serious doubt about whether the injuries to the plaintiff's knee and lower back were caused by the transport accident.

70 I repeat, it is trite to say that the absence of an accurate history on which an opinion is based must inevitably impact upon the soundness of the opinion. It is not something which was ignored by some of the examining medical practitioners. For example, Mr Miller, orthopaedic, surgeon examined the plaintiff on 11 July 2013. At the commencement of an analysis of his findings he was careful to describe that analysis as being "on the information available to me", and he then said:**

"I believe she has suffered organic injury to lumbar spine, left knee and developed secondary issues with chronic pain. I believe her current clinical status reflect[s] accident related effects. I acknowledge the difficulties in making such a determination."

(emphasis added).

**71 It appears to me that the medical practitioners who were asked to examine the plaintiff and offer opinions on causation all suffered from the same difficulties in making a determination on causation as had Mr Miller, because of the effluxion of time, the absence of the primary evidence I have referred to and because they had been given a history by the plaintiff which was very inaccurate.

72 In the end, I am not satisfied that the plaintiff has discharged the onus which she bears for the reasons outlined above.**

**73 I order that the plaintiff's Originating Motion be dismissed with costs.

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