Medical assessments of the plaintiff
60Between 6 February 2008 and 30 July 2009, the plaintiff had some 14 consultations with her treating general practitioner concerning problems noted as back pain, depression, insomnia, postural problems due to back pain, insomnia and weight gain, and difficulties with activities requiring bending, sitting, standing and walking for prolonged periods.
61On 19 August 2009, at the request of her treating general practitioner, the plaintiff was assessed by Dr Anthony Kwa, a consultant neurosurgeon and spinal surgeon. He considered that the plaintiff's left ankle pain was due to some form of radiculopathy from her back. He suggested the plaintiff have an MRI scan investigation.
62On 3 November 2009, the plaintiff underwent an MRI scan of her lumbar spine. That scan was interpreted as revealing an early left posterior, postero-lateral and far left protrusion, and an annular tear at L4/5 with minimal neural encroachment.
63On 4 November 2009, the plaintiff was reassessed by Dr Kwa. He reviewed the results of the MRI scans of the plaintiff's lumbar spine. He considered the plaintiff had a tear in the left foraminal region of the L4/5 disc, with associated low back pain and left leg pain, potentially due to an annular tear at the level L4/5 in the vicinity of the L4 nerve root. At that time he did not consider that surgery was indicated.
64On 22 December 2009, at the request of her solicitor, the plaintiff was examined by Dr Peter Conrad, a consultant surgeon. Dr Conrad recorded a history of the plaintiff's complaints as being, ongoing back pain radiating down to her left leg, aggravated by activities such as standing, sitting, bending or lifting, which causes her to reduce her activities. Dr Conrad was in no doubt that the plaintiff suffered a disc prolapse at the level L4/5 when she fell. He was of the opinion that this was the cause of the plaintiff's back pain and her complaint of left-sided radiculopathy.
65On 22 April 2010, at the request of her solicitor, the plaintiff was assessed by Mr Gerard Glancey, a clinical psychologist. He recorded that the plaintiff had reported concentration difficulties and depression associated with her injuries. He also recorded a history of the plaintiff's increasing social isolation as a result of her injuries and increased weight gain due to her reduced capacity for physical activity. He also noted that her attempts at exercise had increased her level of pain. He also noted the plaintiff experienced increasing levels of anxiety, and disturbed sleep associated with spasms in the left leg. Mr Glancey made a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
66On 6 August 2010, the plaintiff was re-examined by Dr Conrad. He noted the plaintiff's back pain was deteriorating and she had developed bilateral radiculopathy.
67On 5 November 2010, the plaintiff was again reassessed by Dr Kwa. He noted the plaintiff's symptoms had improved since the last consultation. He recommended treatment by medication.
68On 3 August 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Ross Mellick, a consultant neurologist. Dr Mellick recorded the plaintiff's symptoms as back pain, referred pain to the left leg and ankle, headaches, fatigue, forgetfulness and excessive weight gain. Dr Mellick accepted a temporal connection between the accident and the onset of symptoms. He also identified a mood disorder comprising anxiety and depression. Dr Mellick characterised the plaintiff's injury as being soft tissue in nature and therefore of short duration. He considered the ongoing complaints of back pain were as a result of aggravation of an underlying degenerative disease of the lumbar spine, contributed by excessive weight. He also suggested that the plaintiff's mood disorder and depression would decrease the pain threshold and exacerbate symptoms of chronic pain.
69On 9 August 2011, the plaintiff was reassessed by Mr Glancey. He reported she had experienced problems of mood control, with continued depression and anxiety. The problem with sleep disturbance and pain was also reported to be continuing. Mr Glancey confirmed his earlier diagnosis. He indicated that the plaintiff's prognosis appeared uncertain, and that alternative diagnoses to be considered were those of major depressive disorder and adjustment disorder with anxiety. He noted that she was reluctant to take antidepressant medication because when she had taken it she had gained some 25-30kg in body weight. Mr Glancey thought she should consider a course of antidepressant medication, although that view was not a medical opinion, and Mr Glancey was not in a position to prescribe such medication.
70On 17 August 2011, the plaintiff was again re-examined by Dr Conrad. He noted the plaintiff's back condition had continued to further deteriorate since the time of his last examination of her. He was of the opinion the plaintiff would need surgery in the form of laminectomy and discectomy to her lumbar spine at the affected level.
71On 30 August 2011, at the request of the solicitor for the defendant, the plaintiff was examined by Dr John Smith, a consultant psychiatrist. Dr Smith reviewed medical records and other reports and then took his own history from the plaintiff of low back pain, with pain referred down the left leg, headaches and depression. Dr Smith concluded that as a result of the accident and the resultant pains and symptoms, the plaintiff has suffered an adjustment disorder with depression and mild anxiety. Dr Smith argued that since it was documented that the plaintiff had suffered some episodic depression before the accident, the post accident depression should be seen as an aggravation of pre-existing emotional problems. He considered there was scope for improvement with medication and pain management treatment.
72In my view, the evidence for Dr Smith's view that there had been an aggravation of a pre-existing problem was tenuous. This is because the underlying causes of the respective periods of depression were different in the sense that the first in time was due to the plaintiff's grief over her deceased husband, and the second was due to the ongoing and debilitating effects of her injuries. In that sense, there were different entities for consideration. In my view it is artificial to consider the entity of depression without also considering the underlying cause of such depressive episodes.
73Accordingly, I did not find Dr Smith's formulation to be of assistance because he did not adequately address a differentiation of these respective conditions, and has instead regarded one as an extension of another, which was not helpful to a causation analysis where the pivotal issue was whether the events in question were a significant or material contributing cause of the plaintiff's depression.
74Furthermore, I considered Dr Smith's reference to the potential for improvement of the plaintiff's depression with medication and pain management to be supportive of the accident in question being a material cause of the plaintiff's depression.
75On 19 September 2011, pursuant to a request made of him by the solicitor for the defendant, Dr Mellick provided some supplementary comments after considering the records of the plaintiff's general practitioner, which had been provided to him for that purpose. Dr Mellick confirmed his earlier views concerning the aggravation of underlying degenerative changes in the plaintiff's back, and a connection between the underlying degenerative disease in the back and the plaintiff's radicular symptoms.
76On 19 October 2011, at the request of the solicitor for the defendant, Dr Ronald Schnier, a consultant radiologist, reviewed a series of x-rays, CT scans and MRI scans taken variously of the plaintiff's lumbar spine and left ankle over the period 25 June 2009 and 3 November 2009. Dr Schnier was of the opinion that the plaintiff had minor annular bulging and tearing of the L4/5 lumbar disc in two described places, as well as the presence of some degenerative change along the margin of the L5 vertebra. With regard to the radiological findings generally, Dr Schnier observed that the progression of lumbar symptoms was variable between patients. He indicated it was possible that there could be some deterioration in the future.
77On 18 July 2012, the plaintiff was seen again by Mr Glancey. He noted she was taking antidepressant medications, but at half dose out of concerns over side effects. She reported ongoing and persisting back pain and heartburn from the use of medications. The problems of sleep disturbance, anxiety and depression were reported as being continuing problems. Mr Glancey recorded that the plaintiff had told him she experienced aggravation of her pain with physical activity. Mr Glancey confirmed his earlier diagnosis, and recommended treatment with antidepressant medication and counselling with a psychologist.
78On 30 July 2012, the plaintiff was again re-examined by De Conrad. On that occasion he noted that the plaintiff's condition continued to deteriorate since his last examination, with increasing pain in her back and left leg. He recommended conservative treatment in the short term but noted that a lumbar fusion and discectomy procedure may be required if the plaintiff's condition continued to deteriorate.
79On 16 August 2012, at the request of her solicitor, the plaintiff was assessed by Dr Thomas Clark, a consultant psychiatrist. He reviewed her history and identified his diagnosis of the plaintiff as being a major depression with prominent associated anxiety features. He noted that the plaintiff's symptoms overlapped with the diagnosis of a post-traumatic stress disorder type syndrome.