Leighton v Blundell [2011] ACTSC 136

Supreme Court of the ACT|2011-08-31|Before: Refshauge J

1. There be judgment for the plaintiff in the sum of $866,266.66.

1. After an adulthood marred by tragedy and adversity, the plaintiff, Yvonne Leighton, appeared by November 2004 to have turned the corner, returning to the workforce with a job that she appeared to like.

2. On 18 November 2004, when driving to work, a motor vehicle collision shattered that expectation completely.

4. In the circumstances, liability was accepted by the defendant and in these proceedings was not in issue. The only question before me is as to the damages payable to Ms Leighton to compensate her for the injuries she has actually suffered.

5. While the defendant agrees that, because of the collision, Ms Leighton should be compensated, he denies that her ongoing medical symptoms and her disabilities are the result of the collision but are, instead, caused by degenerative conditions which are not compensable by him.

6. To understand the whole of this case, it is appropriate to recount Ms Leighton's personal history up to the collision.

7. Ms Leighton was born in Crookwell, New South Wales. She is now 56 years old. The family moved to Canberra when she was about four years old. Her father was a drainer and came to Canberra for work.

8. She was educated at government primary and secondary schools, leaving at about age fifteen or sixteen. While at school she had worked at a local pharmacy on Saturday mornings and when she left school worked in a local dental practice as a dental nurse.

9. After about twelve to eighteen months she gained employment as a clerical assistant in the Department of Air.

10. In 1972 she married Glen Luton, a mechanic with a local car dealer. They had one child, Rachel, and Ms Leighton ceased work for about two years. She then returned to work, this time in the Bureau of Statistics as an assistant training officer. Around this time, her marriage broke down and the marriage was terminated.

11. In 1976, she re-married. With her new husband, Mr Dainty, the local Queanbeyan postmaster, they had one child, Brooke, shortly after. She took some time off work. That marriage also broke down, however, and they separated.

12. During the separation, she had a relationship with Frank Spulak and a child, Joel, was born. Around this time, Ms Leighton commenced work at a motel in Narrabundah as a receptionist. She and Mr Spulak married in 1983.

13. In 1984, Ms Leighton joined a company which conducted a number of sports stores selling running shoes and the like. The stores were located in Belconnen, Woden and Queanbeyan. She had a responsibility for the stores, and had six full-time staff and a number of weekend casuals reporting to her.

14. In the same year, she had a hysterectomy and the next year left her work to become office manager of another company in Fyshwick which converted cars from petrol to LPG. The business employed three or four mechanics but she was not directly responsible for any staff.

15. Problems, however, developed between Ms Leighton and her husband and they ceased living together, he moving in with another woman. The three children remained living with her. Unfortunately, Mr Spulak killed himself in Ms Leighton's garage on 30 September 1987. She discovered his body. He left a note, blaming her. He had apparently threatened suicide if she would not take him back.

16. Ms Leighton sought and received counselling for the effects of this trauma, but, although she had some time off, she kept working, though it was a difficult time for her, especially around Christmas.

17. At some stage, she commenced work at Bill Lilley Motors at Queanbeyan as she had formed a relationship with the principal of that business, Bill Lilley.

18. In June 1991, she and Mr Lilley were married. At first, it was a very happy marriage. There were, of course, no children from the marriage, but she had three children by previous marriages and he had two sons, though they were adults at that time. They lived on a farm, which Ms Leighton very much enjoyed.

19. Ms Leighton continued to work in the office of the business, doing the banking, the bookwork and answering the phones. The business was a substantial one with three other women in the office, three salesmen and a workshop.

20. Towards the end of the 1990s, Mr Lilley experienced a problem with an investment scheme in which he had been involved. It appears it was a pyramid selling scheme. As they do, the scheme collapsed and the fair trading authorities investigated. They threatened to charge Mr Lilley, but that would have jeopardised his dealer's and service station licences and so Ms Leighton took responsibility for the failure of the scheme.

21. This placed strains on the marriage, though Ms Leighton described Mr Lilley as moody anyway. It made things quite hard, however, for six to 12 months.

22. At some stage, Mr Lilley became involved with the Church of Scientology.

23. Although she attended the meetings of the Church, which she thought were "very strange", his involvement put stresses on the marriage. Mr Lilley became a committed Scientologist and pressured her and her son, Joel, to join the Church. She did, in fact, attend an induction course but did not become involved.

24. Ms Leighton described Mr Lilley as becoming aggressive and violent as a result of these stresses and that he "withdrew from her" because she would not join the Church. He was also violent towards Joel, who was then about sixteen or seventeen years old. Indeed, on one occasion, Ms Leighton said he became physically violent towards Joel and she had to get him out of the house.

25. At some stage, she stopped working in the business. She was becoming depressed. She also experienced chronic cervical pain from about early 1999, though there was no identified injury that caused it. She was examined in Sydney by a specialist rheumatologist in January 2003.

26. She also found out that Mr Lilley was involved with another woman, also a Scientologist. At this time, Joel was in America. She travelled to America to visit. While in America, she became unwell and had to seek treatment there. When she returned, she confronted Mr Lilley about the other woman and he told her to leave the house immediately.

27. Feeling that she had no option, she left. She moved into a townhouse in Jerrabomberra.

28. In October 2001, Ms Leighton had some bladder surgery. Her general practitioner also treated her for depression and she found this period a very difficult one. She developed agoraphobia, though she did force herself to get out, for example, for shopping.

29. She applied for, and was granted, a disability support allowance for about 18 months to two years. That allowance was based on regular reports from her general practitioners that she was suffering depression and was described as chronic neck and back pain.

30. The divorce proceedings were unpleasant. Mr Lilley made threats to her and the proceedings had ultimately to be resolved in the Family Court of Australia. This, no doubt, increased her depressive symptoms.

31. In August 2000, however, she approached Adecco, a recruitment firm, and was assessed and put on their books.

Very professional presentation, very well spoken, great sense of humour and very chatty and friendly - a bit of a "cack" really - 46 years going on 21!!!! Can be serious when required and has a professional approach.

33. Ms Leighton did not work between these temporary positions and when she returned to employment in July 2003.

34. In January 2001, Ms Leighton enrolled in a correspondence course of interior design with the Interior Design Academy. She had a long-standing interest in interior design. At the end of the course, she was awarded a diploma. She has, however, earned no money from this qualification, though she has done some unpaid work for friends.

35. She was given work to do in Commonwealth Public Service agencies, initially on the switchboard. These positions appeared to continue until about April 2001.

36. On 29 October 2002, Ms Leighton underwent an x-ray of both hips. As noted above (at [29]), she also experienced chronic low back pain and left lower limb pain. This was not related to specific postures, movements or activities, though it disturbed her sleep at night. She says that she was "driven mad by pain". No pathology was discovered on investigation, which included neurology review, CT scan of the lumbo-sacral spine and nerve conduction studies.

37. During her time with Adecco, no medical or similar problems seem to have been noted until the motor vehicle collision.

38. In about July 2003, she was employed through Adecco at the Canberra Avenue Executive Centre as a receptionist for about nine months. Through another recruitment agency, Omega, she also worked at AusTrade as a visa clerk and receptionist while at the Executive Centre.

39. In March 2004, Ms Leighton travelled to Thailand to an orphanage for which, through Rotary, she had raised money to assist the diversion of young girls from prostitution and sex slavery. She took a team of five women and was involved in painting the orphanage and teaching English and sewing. She planned to return there at least twice a year.

40. Some time before the collision, she also worked as a contract administrator for a company associated with the Canberra Executive Centre, not arranged through Adecco. All of these positions meant that she was very busy, working at various places for a full working day and a full working week. She was coping well, though her medical records show some ongoing complaint not of a particularly serious nature.

41. In August 2004, Adecco referred her to ACTEW Corporation Ltd. She said she was employed there on a full-time basis for an initial period of three months. She says that at the end of that period she was asked to stay on, though the Adecco records show the job was only for the period 30 August 2004 to 31 December 2004 and no evidence was led to support her suggestion of further employment after that date.

42. It also appears that on 25 November 2004, she submitted an application through Adecco for a permanent position of administration assistant at the Housing Industry Association, but was not interviewed.

43. On 15 November 2004, Ms Leighton consulted her general practitioner for some tenderness in her left chest up towards the shoulder. An x-ray was taken and some medication prescribed. She also had a colonoscopy following by a gastroscopy in November 2004. She also, at some stage, had an ultrasound investigation but it was found to be normal without any sign of gallstones.

44. At some stage, Ms Leighton complained of problems with asthmatic breathing but has had no recurrence.

45. As at 18 November 2004, Ms Leighton was living at Jerrabomberra, a suburb of Queanbeyan. She was employed in Canberra and was driving to work soon after 8.00 am on that day.

46. The traffic had become stationary when she reached an incline in the road, past the Harman Naval Station and approaching the Canberra suburb of Fyshwick. She was in the right-hand lane of the westward carriageway, travelling towards Canberra.

47. The vehicle she was driving, a Mitsubishi Magna station wagon, was an automatic and she had her foot on the brake. She was wearing a seatbelt. She had the car radio on, playing music, and she was singing to it.

48. Suddenly, Ms Leighton was thrown forward and then backward and forward again. Other than this description, I did not have any evidence of the force of the collision, though it was caused, it appears, by the force of not just one but two cars behind her, one colliding into her and the other colliding into it whether before or after the earlier, I cannot say.

49. She saw smoke "coming past the car" and thought it was "going to blow up". She felt she had to get out of the car fast for, if she did not, the car might "blow up" and she would be killed. She left the car hurriedly by the driver's side door and then fell over, being unable to find her feet.

50. She noticed that the two other vehicles behind her were involved in the collision.

51. She had alighted onto the edge of the road and then onto the grass on the median strip between the two carriageways of what was a divided highway. She was clearly unsteady on her feet and fell over.

52. Ms Leighton could not really see the source of the smoke. She saw the drivers of the other two vehicles talking to each other.

53. A friend of hers, who happened to be driving to work along Canberra Avenue, saw her and pulled over to assist. Ms Leighton then telephoned her employer and rang her daughter, who was also then living in Jerrabomberra, but her friend actually spoke to her daughter.

54. Ms Leighton did speak to the driver of the car which had collided into her car and also to the driver of the car behind it which had collided with the one immediately behind Ms Leighton's car.

55. It is clear that the driver of the car behind Ms Leighton was negligent and, as noted above (at [4]), liability has been admitted.

56. Ms Leighton's daughter arrived and Ms Leighton drove home, followed by her daughter.

57. When Ms Leighton arrived home, she was clearly distressed and she was physically ill. She was also experiencing a headache. Her daughter then took her to her local general practitioner, Dr Bernard Leung, whose rooms were about a block away from her home. Dr Leung wrote her a medical certificate to the effect that she was not fit for work on that day or the next day and saw her again the following Monday.

58. By the Friday, she was starting to get very sore along the left-hand side of her neck down to the point of her shoulder and just below the shoulder blade at the back. In addition, she felt pain in her lower back just above her buttocks on the left-hand side and, in her left leg; she experienced numbness and pins and needles in the upper thigh region down over the front of her calf to her toes.

59. Over the weekend she said she had a continual headache, developing on early Saturday morning to a "dreadful" migraine on the left side of her head which she felt behind her ear and went into her face and to the top of her head. She felt she could not move. She had difficulty sleeping. She dosed herself with Nurofen, a non-prescription analgesic.

60. She also experienced intense pain in the left-hand side of her neck down the back to just below her shoulder blade. The outer thigh of her left leg went numb and she experienced pins and needles which went down over the front of her calf to her big toe and the next one to it and she felt pain in her low back on the left side.

61. Over the weekend her daughter helped her, particularly with ensuring she had proper meals.

62. On Monday 22 November 2004, she saw Dr Leung again. She was clearly not able to return to work and obtained a further certificate from him. She saw Dr Leung again the following Friday.

63. Between those two appointments she was unable to do very much. She continued to have a very sore neck and shoulder and also experienced the headaches and the problem she had mentioned with her left leg.

64. Dr Leung prescribed Tramal and Celebrex for her and referred her to Ms Sally Hanrahan, physiotherapist. She saw Mrs Hanrahan on the next Friday also and on two further occasions. Mrs Hanrahan used heat packs and some massage and other treatment which may have been ultrasound therapy. Ms Leighton found that none of this treatment provided either temporary or permanent relief from her pain.

65. At some stage, she discussed with Dr Leung whether she could return to work and, sometime before Christmas 2004, she discussed the possibility of a graduated return to work, but it did not happen at that stage.

66. Sometime after Christmas, however, she returned to work but, at this stage, at the offices of Adecco, a recruitment firm, in Griffith, ACT. It involved mainly clerical work, filing and some reception work and she said it was for four half days a week with some restrictions, such as only sitting for fifteen minutes at a time to avoid prolonged keyboard work.

67. At this time Ms Leighton was taking an antidepressant, Cipramil, but in early January 2005 agreed with Dr Leung to discontinue its use.

68. On 8 February 2005, Ms Leighton was referred to Lisa Castles & Associates, Rehabilitation and Occupational Health Consultants (Lisa Castles) by the workers' compensation insurer. That organisation was tasked with getting Ms Leighton back to work.

69. In late February or early March 2005, she had been referred to a different physiotherapist, Mr Jac Cousin. Mr Cousin examined her and considered that physiotherapy would not help her at that stage. She only saw him once.

70. On 12 May 2005, she saw Dr Colin Andrews, Consultant Neurologist on referral from Dr Leung because of her ongoing symptoms, mainly the pain in her neck and her migraine headaches. These symptoms had been persisting ever since the collision. She also mentioned her back pain to Dr Andrews.

71. Ms Leighton said to me that she was, at that stage, intent upon returning to the same kind and intensity of work that she had been doing prior to the collision. She expected Dr Andrews to assist with this.

72. Dr Andrews carried out some tests. He reviewed a CT scan of her brain which had been carried out on 28 January 2005 and an MRI scan of her lumbar spine which had been carried out on 2 March 2005. These were normal, though the MRI did show a mild abnormality. He carried out a SPECT scan of her cervical and lumbar spine. Dr Andrews said it showed facet joint radiculopathy with marked inflammation in the left C4/5 and 5/6 joints, the latter of which he proposed to treat with facet joint blocks.

73. Dr Andrews then proceeded with that treatment, but, unfortunately, it failed and he considered Botox injections. While that was being considered, he increased the intensity of the prescribed medication to try and suppress some of her headaches. These included Deseril, a vasoactive agent, and Gabapentin, an anticonvulsant, particularly for the migraine headaches.

74. Ms Leighton was also referred to a psychologist, Ms Michelle Lavers, whom she saw first on 11 June 2005. She continued to see her on a weekly to fortnightly basis until late 2006 and then four times in 2007 and once in 2008.

75. She was seen by Ms Lavers principally for pain management but later to assist with her depression and she proved valuable in helping her regain her self-esteem and with returning to driving.

76. In August 2005, Dr Andrews proceeded with a course of treatment through Botox injections. Ms Leighton found this treatment "awful". The injections were "nasty". They did, however, give her some relief, though they did not rid her of pain completely. The intensity of her headaches subsided.

77. In about July 2005, Lisa Castles then arranged for Ms Leighton to return to work at Adecco, for four hours each Monday, Wednesday and Friday. She was asked to undertake filing. She was not busy, but was tidying up records that needed to be cleaned out and tidied up. There was some data work.

78. Botox injections are expected to last for three months, but Ms Leighton had further injections in October 2005.

79. In late 2005, Ms Leighton again participated in a further graded return to work program. Again, the work was at Adecco and was general office duties including filing. It included some reception work. She was not sent out to work for clients of Adecco. Though progress was slow, Ms Leighton was still hopeful of being able to return to full-time employment.

80. Medical treatment, however, was not seeming to progress and she felt that she had not achieved any lasting improvements.

81. In November 2005, Ms Leighton decided that she would not have any further Botox injections. She saw Dr Andrews again in December 2005 and again declined to have any Botox injections, though it appears she may have had a further injection of Botox in February 2006. Dr Andrews prescribed various medications, including Mobic. Dr Trinh, another general practitioner at her Medical Centre, later prescribed Lexapro for her depression. By this time, Ms Leighton was quite depressed and was starting to think that she would not return to work. This increased her depression.

82. That Christmas was hard for her and she felt very depressed and low. That was in part exacerbated because she was told by her supervisor at Adecco that she was not needed at work until January. Her supervisor remembers this a little differently and says she did not recall a negative reaction from Ms Leighton when telling her that there would be no work available until January. It was clear from evidence of her friends that Ms Leighton does not readily share her negative emotions and experiences, so I am prepared to accept that she did feel rejected by this decision, though it was neither intended nor perceived by her employer.

83. In late January 2006, a further graded return to work program was instituted which was initially for six hours a week, undertaking reference checks by phone with minimal computer work leading up to ten and a half hours per week by late February.

84. In late January she consulted Dr Andrews again, as she was still troubled by migraines and neck pain. It appears she may have had a further Botox injection in early 2006.

85. On 18 March 2006, Ms Leighton's daughter gave birth to twins. Unfortunately, one of the twins died. It had a devastating, traumatic effect on her. She consulted her then general practitioner, Dr Jane Sheedy, and was prescribed a significantly increased dosage of anti-depressant. She was unable to work for some time after that, though this does not seem to me to be a result of the collision.

86. About the same time, she was referred to the Pain Management Unit of the Canberra Hospital. She attended and was assessed by a psychologist, a nurse and physiotherapist in mid 2006. She also saw Dr Geoffrey Speldewinde in August 2006. She was assessed as suitable for participation in a program of the Unit. She then attended an induction day in February 2007 but moved to Cowra on 31 March 2007 and so was not able to continue with the treatment.

87. At this time, Ms Leighton was not coping well with her problems. She was acutely depressed and still in pain. She was still getting migraines and had neck and back pain.

88. Before moving to Cowra, she had been referred for physiotherapy with Margaret Harrap in Queanbeyan. She initially attended on 26 July 2006 and had a total of nine treatments. The treatment consisted mainly of massage. It was, in the opinion of Mrs Harrap, of little benefit for her with little improvement in her objective range of neck movement or subjective pain levels from the treatment.

89. Because of the nature of the treatment at the Pain Management Unit, namely an intensive period of two to three weeks where daily attendance for five days a week is required, Ms Leighton has not participated. Her residence in Cowra has made that impossible. Neither the workers' compensation nor third party insurers have been prepared to fund the program. At the time of trial, however, she remained on the list. She, herself, has been unable to fund her participation in the program. There was, so far as she was able to ascertain, no other source of funds from which she could pay for the treatment.

90. Until moving to Cowra, Ms Leighton continued her attempts to return to work. She was given, and followed, advice about how to manage work, such as having rest periods, not sitting too long at a desk, getting exercise and the like.

91. As at the date of the trial, Ms Leighton was still prescribed a range of medication.

92. She was prescribed Tramal for pain relief and Avanza for depression.

93. She continues to have pain in her low back, neck and head. It is relieved by medication and by lying down. She also manages it by not pushing herself too hard. Her left leg remains painful. She described it as though "steel wool was coming out of the skin" from the lateral side of her left thigh from about the hip down the inside of her shin to her foot to the big toe and the toe next to it. She also has pain in her neck on the left side down to her shoulder; at its least painful she described it as "severe", at its most painful "dreadful". It gets worse at the end of the day. She also has headaches on the left side of her head over and behind the ear, ranging from the temple to the front of her face. She experiences them once a week

94. She also experiences migraines, which makes her withdrawn and become so severe that it makes her vision blurry and gives her problems with her speech. She experienced headaches before the collision but those headaches were not of the severity of the headaches she now experiences.

95. This limits her activities considerably, both as to recreation and as to domestic chores.

96. Ms Leighton has also lost weight since the collision, of about seven or eight kilos.

97. The medical evidence seemed uniformly to confirm that Ms Leighton suffered with pain and disabilities that she reported as a result of the motor vehicle collision and that these are ongoing.

98. Whilst I did not have a formal report from her general practitioners for the period up to trial, I did have the clinical notes they prepared. They supported this view.

99. Even the defendant's medical experts took this view, supported as it clearly was by the careful and detailed assessment by Dr Geoffrey Speldewinde and the team at the Canberra Hospital Pain Management Clinic.

100. Perhaps the defendant's medical expert most critical of Ms Leighton's claim for damages was Dr Burke who, while perhaps somewhat agnostic, did not really suggest that her reported symptoms did not exist.

101. It appears from a fair reading of both of Dr Burke's reports that he accepted that she continued to experience pain in her neck, back and leg and that she continued to experience headaches.

102. In his oral evidence, he expressed a more guarded view, commenting that "it's always difficult to make an assessment on whether the patient is in pain or not", though he noted that "[c]ertainly there was ... pain related behaviour". He then commented that while he could not come to a conclusion that someone is pretending, "one can comment on ... the difference between what one would expect and whether the type of behaviour ... exhibited in your opinion is consistent with how this person should behave." I read both his oral evidence and his two reports and found no such comment.

103. Mr Gordon Stuart, the other medical practitioner retained by the defendant, also accepted that she was symptomatic, though he considered her fit to resume work. He clearly considered she continued to suffer as he recommended ongoing "active" rehabilitation. He considered her symptoms, however, were the result of degenerative disease.

104. The real medical issue, then, was as to the cause of her present symptoms. All of the medical opinions suggested that:

(a) Ms Leighton had suffered a whiplash injury on 18 November 2004;

(b) she suffered consequential pain and restricted movement; and

105. The medical experts relied upon by the defendant, however, assert that the present symptoms and disabilities are the result of a degenerative condition and not a consequence of the collision.

106. A major difficulty with this case was that Ms Leighton was a poor historian. It is clear that in the period as long ago perhaps as 2000-03, she had a range of symptoms, many of which were similar to those that she suffered in the period after the collision and still suffers though, as Dr Speldewinde sagely noted, there are differences, for example in their focus.

107. Thus, in her dealings with Centrelink, when she applied for her disability support allowance, she disclosed in her application forms depression, chronic cervical pain from about January 1999, headaches from about February 2000 and backache. Later, she reported agoraphobia and panic attacks.

108. The reports of her treating doctor, Dr Stuart Haynes, to Centrelink referred to agitated depression together with, on two occasions, acute adjustment disorder and agoraphobia. He also referred on three occasions to neck and back pain or chronic cervical spine pain.

109. In March 2001, a psychologist employed by Health Services Australia had described her as "subdued, unanimated", becoming emotional and tearful during the interview and increasingly physically uncomfortable, with severe back/neck pain and associated headaches as the interview progressed. He noted symptoms of depression since about mid 2000 and "somatic features of musculo-skeletal pain in the neck and shoulders". He also noted weight loss in the previous six to nine months.

110. The clinical notes from her general practitioners showed that she presented from time to time for pelvic pain, back pain since July 2001, which at one stage was thought to be sciatica, depression, pain in her left hip leading to her left leg and paraesthesia in her middle toe. In October 2002, she complained of pain "in all the joints ... shoulder and neck, elbows, knees, hips" but other than on that occasion, I saw no reference in the notes to neck pain.

111. In January 2003, she was referred to Dr Lea-Anne May, a Sydney consultant rheumatologist, who examined her and provided a detailed report dated 14 January 2003.

112. Dr May reported that Ms Leighton (then using her married name of Lilley), complained of chronic low back and left lower limb pain, which, she said, had been present for five years. There was no history of back injury and the pain was not related to movement or position. It was said to limit her standing, sitting, walking, resting and sleeping.

113. Dr May wrote that Ms Leighton was "constitutionally well" and that neurology review, CT scan of the lumbo-sacral spine and nerve conduction studies discovered "no pathology". She also noted that Ms Leighton had been diagnosed with depression two to three years previously and treated with Cipramil which was helpful.

114. Dr May's view was that Ms Leighton had a "non-specific chronic pain disorder with allodynia and associated neuropathic symptoms in the absence of significant musculo-skeletal or neurological findings on examination and reported assessments". She recommended against long-term opiate therapy and recommended an exercise program. She also made some recommendations as to medication.

115. Ms Leighton, however, did not give much of this history to the medical practitioners who were dealing with her problems after the motor vehicle collision, even when they specifically asked about pre-existing conditions. She also did not provide such details in answer to requests for particulars made by the defendant's lawyers.

116. It was, however, not suggested to Ms Leighton in cross-examination that she did this deliberately or to hide the past complaints. It was suggested that her reports of her past history was inaccurate but it was not suggested that this was deliberately inaccurate nor that it was intended to deceive the medical practitioners and enhance her case.

117. Indeed, that it was not deliberate is partly shown by the fact that she did, in fact, sometimes disclose these matters. For example, when she saw Dr Speldewinde on the second occasion, she did refer him to her depression. She also told Dr Burke that she had a past history of low back and left-sided sciatic symptoms and depression. She also told Dr Stuart on her second visit of her lower-back sciatica.

118. Further, there was no attempt to hide or prevent access to the Centrelink material, the clinical notes of her medical practitioners or the report of Dr May.

119. Finally, I was able to observe Ms Leighton carefully as she gave evidence for almost two whole days. She admitted the matters alleged. I formed the view that she was honest and truthful to the best of her memory, but that her memory failed her.

120. It seemed to me that she was just a poor historian. These matters, however, have to be taken into account.

121. Dr Andrews saw Ms Leighton on 16 May 2005. He noted persistent headaches, mainly on the left, neck pain at the base of the neck without associated nerve root symptomatology, constant low back pain which radiates into the left buttock and left thigh and some panaesthesia in the left foot.

122. He noted that a CT scan of the brain on 28 January 2005 was normal and an MRI scan of the lumbar spine on 2 March 2005 showed some mild abnormality but nothing conclusive. He arranged for her to have a SPECT scan of the cervical and lumbar spine.

123. His clinical examination revealed that pressure on the facet joints on the left at C4/5 with rotation resulted in muscle tightening and pain.

124. The SPECT scan, he said, showed both facet joint and degenerative changes and marked inflammation in the left C4/5 and C5/6 facet joints. He said in evidence that the inflammation is that which one finds as a post-traumatic factor in the cervical spine. He, therefore, agreed that it was reasonable to attribute the inflammation to the motor vehicle collision. He did note some degenerative changes, though such changes may be symptom free.

125. He arranged for facet joint blocks, but they failed and he then considered Botox injections for the neck pain and headaches. The first Botox injection gave a moderately good response, though there was still a fair amount of neck pain. In September 2005, he was optimistic about the improvement from the injection, though he noted the ongoing neck pain.

126. In October 2005, a further injection was given and medication was also prescribed, particularly to help control the headaches.

127. In January 2006, he noted that Ms Leighton had become depressed and that she had been prescribed Lexapro. He noted that she was working part-time, though she was still hoping to work full-time eventually.

128. Though Ms Leighton seemed to think that her last Botox injection was in 2005, it appears Dr Andrews did administer a further injection in February 2006. He noted at that time back pain with referred pain to her left leg. He also noted an earlier MRI showed a probable impingement on the left L5 nerve root.

129. By March 2006, when she last saw Dr Andrews, she still had headaches, numbness on the left side and ongoing neck pain. She was seeing a clinical psychologist. He described her on medico-legal review in 2007 as having "documented problems in the neck of a facet joint nature at the left C4/5 and C5/6 level. This is still causing her neck pain and cervicogenic headaches".

130. At that time, he felt there was a reasonable prognosis and that she should be fit for work in a part-time clerical position.

131. The cross-examination of Dr Andrews concentrated on the alleged administration of Botox to her prior to the motor vehicle collision. It became rapidly clear he had not administered any Botox to her then and that any pre-motor vehicle collision administration of Botox had not only not been performed by Dr Andrews, but appeared to have been for cosmetic purposes.

132. In particular, it was not suggested to Dr Andrews that:

(ii) the pain experienced by Ms Leighton was caused by a degenerative condition and not the injury suffered in the motor vehicle collision; or

(iii) his method of relying on the SPECT scan was outmoded and unreliable.

133. Thus, apart from the fact of different reports by medical practitioners whose opinions had been sought by the defendant and which I could not ascertain that Dr Andrews had seen, there was no real opportunity for him to respond to the medical case put by the defendant.

134. It seemed to me that I could rely on Dr Andrews. In particular, he was Ms Leighton's treating doctor. He had a good deal of contact with Ms Leighton, his diagnosis had to be tested in the crucible of his treatment and his opinion was, in fact, supported by a number of the other medical practitioners.

135. Dr Speldewinde is a specialist in rehabilitation and pain medicine, having practised in that field for twenty years.

136. Ms Leighton was referred by her general practitioner to the Pain Management Unit of the Canberra Hospital in 2006. She had completed a questionnaire in about March 2006 and on 1 June 2006 was seen by a psychologist, physiotherapist and registered nurse for assessment.

137. The psychologist noted that her scores for depression and anxiety were in the "extremely severe" range while stress was "moderate". She noted that depression and anxiety are "pain aggravating factors" and their management an important part of the pain management strategy.

138. The nursing assessment reported her current medication, the limitations on her daily activities, the difficulties she had with sleep and her volunteer work.

139. The physiotherapist also noted the limitations of her activities and that on a disability questionnaire her scores showed "a severe impact of her back and neck pain on her daily activities". She reported "markedly restricted active ROM of her cervical and lumbar spine due to pain".

140. A medical appointment was made with Dr Speldewinde on 23 August 2006. He reported on his examination to Ms Leighton's general practitioner. He recorded that she denied any previous significant neck or lumbar spinal complaints or major depression. He noted, too, restricted cervical rotation and even more so introflexion and no feasible extension. The lumbar region, however, demonstrated a full range of movements, with only minor variable tenderness. He recommended zygapophyseal joint injections and a specific cervical strengthening program.

141. He saw her again on 27 August 2007. This time, she did tell him that she had a pre-existing depression since 2000 for which she was prescribed anti-depressants for eight months. She noted that the depression had resolved by the time of the motor vehicle collision.

142. Dr Speldewinde considered that her present disabilities were "directly related to the effects of the motor vehicle collision" as described to him.

143. He considered that she had no ability to return to her pre-injury employment or any other form of employment. The main reason for this was her depression, "not assisted by her widespread pain condition". He made some treatment recommendations.

144. He did carry out injections into Ms Leighton's spine. He described this as follows:

Well what I've undertaken, your Honour, is - sometimes or even commonly the underlying cause of pain, the situation particularly trauma like a car accident and particularly in the cervical spine, the commonest identifiable cause is that of injury to joints in the neck. And the only means of validly and reliably defining that is by these fine needle anaesthetic injections and determining from the patient's pain response whether one or more joints is symptomatic. And there is a specific way for - a specific best-recommended technique for undertaking these procedures. They're very safe and simple and you can get an answer within the day.

145. Regrettably, this process was not complete at the time of the trial.

146. He was also referred to the material that he had received from Dr Andrews and described that as "very helpful material" and Dr Andrews as "a good worker. An honest doctor".

147. He did feel, however, that Dr Andrews was misled by tradition. He noted that the SPECT scan had suggested that she had some facet joint arthropathy but felt that was "an inadequate and inappropriate way of diagnosing it". He felt the findings were "misleading" and that it was necessary to rely on the diagnostic joint injections that he had undertaken.

148. In cross-examination, Dr Speldewinde was taken to the earlier pre-motor vehicle collision complaints. He considered there were differences. As he put it "there may now be a stronger focus of pain at the left cervico-thoracic and left lumbar sacral areas. So there may be a variation of what she had previously which may reflect, for example, an injured joint or disc ligament or top of having aggravated an underlying pain condition".

149. It was not suggested to him in cross-examination that his diagnosis was wrong, nor that the pain Ms Leighton suffered was or might have been caused by a degenerative condition.

150. He was, it was made clear in cross-examination, aware by the time of the trial of the complaints that Ms Leighton had made of her depression and pain before the motor vehicle collision. He also had seen a copy of Dr May's report. He was, however, not asked whether that changed his diagnosis or whether it otherwise modified his opinion. He did say, in re-examination, that he thought that Dr May may have been trying to imply that Ms Leighton's then pain was psychogenic.

151. It seemed to me that Dr Speldewinde's careful approach enables me to rely on his diagnosis more comfortably and helped me to distinguish the situation Ms Leighton was in before and then after the motor vehicle collision.

152. As a sidelight, he reacted strongly to the term "somatisation", calling it "hocus pocus" referring simply to "pain complaints ... for which there's no identifiable organic cause", noting that often "identifiable organic causes ... subsequently come to light".

153. Dr Speldewinde also noted, which is relevant, that there was a considerable waiting time between initial referral and assessment and then between assessment and participation in the program. The period to assessment was between six and eighteen months and between assessment and participation a further six to twelve months.

154. Dr Burke was a consultant occupational physician who had been a qualified medical practitioner for twenty-five years and a specialist for twenty years. It was not clear to me whether he was still engaged in clinical practice.

155. He produced two reports. The first was dated 18 June 2007 after he had made a medical assessment of Ms Leighton. The second, dated 14 March 2008, was prepared following receipt by him of Dr May's report and certain documents from Centrelink, presumably the reports I have referred to above.

156. In his first report, Dr Burke noted a prior history of low back and left-sided sciatic problems associated with a significant depressive episode. There was, however, no mention of the neck pain previously suffered.

157. Dr Burke carried out a physical examination of Ms Leighton and found no observable spasm or guarding of her head or neck, though she complained of tenderness in the lower half of her paravertebral region of the cervical spine and left suprascapula region. The range of movement of her cervical spine was reduced mainly due to pain-related inhibition. The range of movement of her back was slightly reduced. Straight leg raising was possible on the left to 60º on the right to 45º with pain in the hamstrings.

158. He had access to the SPECT scan which he said showed marked C6/7 and mild L3/4 discovertebral disease and marked left C4 and left C 5/6 facet joint arthropathy. He had access to an MRI scan which showed possible left L5 foraminal impingement. He noted a facet joint block performed at left C4/5 and C5/6 and a left L4 foraminal injection.

159. He noted her significant ongoing symptoms and fairly severe depression. He also noted the history of low back and left-sided leg symptoms.

160. His diagnosis was of "a probable musculoligamentous injury to her cervical and lumbar spine". He felt, however, that other factors were contributing to her ongoing symptoms, including "psychosocial factors and underlying degenerative disease in both her lumbar and cervical spine".

161. His opinion was not entirely clear. He felt that certain of the injuries, presumably the musculoligamentous injuries, were caused by the collision. He felt, however, that the pre-existing degenerative disease to her lumbar and cervical spine, as well as psychosocial factors, were "significantly contributing" to her ongoing symptoms and disability.

162. I was not entirely clear what psychosocial factors he meant. Presumably he included her depression, though it did not seem to meet the "social" part of that reference.

163. He opined that there would be no significant permanent impairment arising from the collision and that she had the capacity to return to work in a secretarial/administrative capacity. Further she would not need domestic assistance.

164. In his second report he referred to "additional information" he had received, including the notes from Ms Leighton's general practitioners, apparently, though only from 18 November 2004. It appears it also included Dr May's report and the "Centrelink notes".

165. He referred to an assessment in 2002 by Dr Haynes in which he "describes neck and back pain associated with her depression" and similarly in 2001. These appear to be references to the treating doctor's reports to Centrelink.

166. As a result, Dr Burke considered that Ms Leighton had then a non-specific chronic pain disorder, principally related to her lower back but also to neck issues.

In my previous assessment, I indicated that it was probable that Ms Leighton suffered a musculoligamentous injury of the cervical and lumbar spine.

Given the nature of the impact and injury described, one would have expected a fairly rapid resolution of any injuries associated with the car collision. In her situation there have been protracted symptoms and disability.

In my opinion, it appears that the most probable cause for the protraction of symptoms and disability relates to the underlying and pre-existing chronic pain disorder. The chronic pain disorder is likely to be contributed to by psychological and other processes, including degenerative changes in the cervical and lumbar spine.

In my opinion, it is most probable that her ongoing symptoms and disability would relate to the chronic pain disorder.

168. In his oral evidence, before me, he said that the lack of reference to her earlier neck pain was "dramatically incorrect". He reaffirmed his later findings and opinions.

169. In cross-examination, he explained that by referring to "non-specific chronic pain disorder" and by the use of the word "somatic", he was referring to the fact that multiple sites within the body would express pain. This was a different use of "somatic" to the use by other medical practitioners, especially Drs George and Speldewinde. He also agreed that pain was a frequently found concomitant with depression. He agreed that Dr May had found no organic basis or particular pathology for the widespread complaints of pain made by Ms Leighton.

170. He did agree that he had no specific information about the period of nine to 12 months immediately prior to the collision. It was unclear whether he had seen the general practitioners' notes for that period; it seems from his evidence unlikely. In any event, he did not refer expressly to any.

171. He stated that he disagreed with the diagnosis of Dr Andrews, though he accepted that Dr Andrews had "the advantage over [him] ... in the sense that [Dr Burke] was expressing opinions for the court case, but not opinions upon which [he] would base a clinical decision".

172. He also agreed that degenerative changes may be symptom-free, they may cause symptoms or they may sporadically cause symptoms. He also expressly agreed at one point that Ms Leighton has "marked inflammation on the SPECT in the two facet joints" though he then resiled from that opinion, though I did not quite follow why he did so.

173. He accepted that marked inflammation can be associated with trauma, but added that it can be associated with other events.

174. Dr Burke considered that Ms Leighton had degenerative changes before the collision, though he could point to no specific investigation or report that showed this. While it is true that degeneration commences virtually upon first walking, it has to be said that most of that is symptom-free. He appeared to be basing his view on a generalisation that he articulated "in a person of [Ms Leighton's] age one would expect degenerative changes of this nature"

175. He also admitted that his report was apparently rushed and that, for example, he referred in his report to the SPECT scan to changes at C 6/7 and not to C 4/5 and C 5/6 which Dr Andrews identified as being inflammation caused by trauma.

176. He also explained it was difficult to assess whether a patient is in pain but he did not appear to suggest that Ms Leighton was feigning or pretending pain. He found a markedly reduced range of movement, which was different from Dr May's findings that there was no similar range of restriction in January 2003. He also agreed that, unlike Dr May's findings, he did not find widespread complaints of pain.

177. He acknowledged that Ms Leighton has ongoing symptoms.

178. It was difficult for me to make Dr Burke's evidence compatible with other evidence. The various investigations did show some degenerative change but it seemed mild. While degenerative change can be symptomatic, it can be asymptomatic and the opinion Dr Burke expressed seemed reliant on generalisations, from what one expects generally, rather than from the specific circumstances here.

179. The report of Dr May appeared to me to show no significant cervical or neck pain. In addition, there was no reference to neck pain in the clinical notes of Ms Leighton's general practitioners thereafter until well after the collision.

180. Dr Burke seemed to agree, confirmed by the first report of the Pain Management Unit, that depression had pain as a concomitant, and that then there had been a substantial period where Ms Leighton had of absence of neck pain for nearly two years.

181. In addition, if the pain was a result of degenerative changes then that had to be so for the low back, lumbar pain also. Here, however, there were radiological findings. There were scans that were conducted both before and after the collision. Both found no relevant abnormality. This is a powerful challenge to Dr Burke's approach.

182. I had concerns, too, about the error in Dr Burke's report and his acceptance of and then resiling from the findings of Dr Andrews. These are small matters, but I take them into account when considering all the evidence and how to evaluate Dr Burke's approach.

183. All in all, I prefer the evidence of Drs Andrews and Speldewinde to that of Dr Burke.

184. Dr Stuart is a consultant neurosurgeon, having practised as such for thirty years. I had no curriculum vitae and am not aware whether he continues in clinical practice. He examined Ms Leighton on 17 October 2005 and reported to her workers' compensation insurer on 20 October 2005. He re-assessed her on 29 May 2007 and reported to the defendant's lawyers on 4 June 2007.

185. In his first report, he found a marked reduction in active voluntary movements in her neck due to pain, but did not attempt passive neck movements. Her straight leg raising achieved 90º with some slight sensory impairment of her left foot. He had access to the CT scan of her head in 2005, the MRI of her lumbosacral spine in 2005, the SPECT scan of 2005 and the CT guided facet block of 2005.

186. He opined that she had suffered a soft tissue injury from the motor vehicle collision with ongoing headache and neck pain. He also noted she suffered from headaches of cervical origin.

Symptoms of neck pain following soft tissue injury or whiplash usually resolve within one month of such an injury. However, Deans Gal, 1987 in Injury 18:10-12 reported that after 12 months following a whiplash injury 6% of patients have constant neck pain and 36% experience intermittent neck pain. Accordingly, ongoing headache and neck pain occasionally occur following such injuries.

188. He found the features he noted as "consistent with the stated cause". He also found Ms Leighton fit to undergo a progressive resumption of full duties. He accepted that she had some limitation of recreational and social functioning, but recommended active rehabilitation as "highly desirable".

189. In answer to specific questions, he said that these did "not differ from the diagnosis provided". From the letter of instruction, this appeared to be "whiplash syndrome". I am not sure exactly what that encompasses. There was a later reference to his own diagnosis of "soft tissue injury following a motor vehicle accident".

190. Dr Stuart's second report was made following a further examination of Ms Leighton and a review of "the available records and file data". It appears that these did not include the Centrelink documents and Dr May's report. The letter of instructions did refer to the clinical notes from her general practitioner.

191. He noted that, on this occasion, he found her extremely depressed and that she was receiving psychiatric treatment. He found her neck still painful, that she continued to experience migraine and still had some residual limitations. He noted that she experienced deep lower back pain which made the tops of her legs hot and with some numbness at the left foot.

192. He found, again, reduction of active voluntary neck movements because of pain and, again, some altered sensation to the dorsum of her left foot.

193. His opinion was that she had suffered a soft tissue injury but that her current symptoms were the result of degenerative disease of the cervical and lumbrosacral spine and no longer related to the motor vehicle collision.

194. He felt her short term prognosis was poor and her long term prognosis was uncertain. He considered she would not require further treatment for the physical aspects of her condition and that her current disability would continue indefinitely. He considered there was no physical reason why she would not resume full work duties.

195. Since then, he had received a copy of the Centrelink documents and Dr May's report. No further report was received from him about that material.

At a glance

Court

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Before

Source

Judgment (396 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)