Tainsh v Transport Accident Commission [2014] VCC 1022 (16 May 2014)

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CIVIL DIVISION

Revised

Not Restricted

Suitable for Publication

GAYLYN TAINSH	Plaintiff

v

TRANSPORT ACCIDENT COMMISSION	Defendant

JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Bendigo
DATE OF HEARING:	15 and 16 May 2014
DATE OF JUDGMENT:	16 May 2014 (Revised)
CASE MAY BE CITED AS:	Tainsh v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2014] VCC 1022

Catchwords: Serious Injury – disentangling 2004 & 2007 accidents, left foot and ankle injuries

Cases Cited: Tainsh v Kalianna Special School & Victorian WorkCover Authority [2011] VCC 1495; Peak Engineering v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; (2012) 34 VR 309

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell QC with	Arnold Dallas McPherson
	Mr D J N Purcell

For the Defendant	Mr W R Middleton QC with	Hall & Wilcox
	Mr R Kumar

1 In this application for leave to bring proceedings under the Transport Accident Act 1986 (“the Act”) the plaintiff relies on injury to the left foot involving dislocation close to the ankle, together with development of Complex Regional Pain Syndrome Type I (“CRPS”). This follows a transport accident on 20 October 2004 (“the 2004 accident”). She suffered a work injury to the left ankle involving fractures on 16 February 2007 (“the 2007 accident”).

2 On any view of the material CRPS has been relevant to both conditions; there is a clear overlap of the foot and ankle symptoms from 2004 and 2007. An anatomical chart was tendered, and illustrated how proximate the respective sites of injury are in the left foot and ankle.[1] The plaintiff also suffered CRPS in earlier days in the upper limbs. This was in 1999 following fractures of the wrist and thumb and, again, in 2000 after a bee sting to her hand.

3 In August 2011, she prosecuted a serious injury application in relation to the 2007 accident before his Honour Judge Saccardo in Ballarat. He granted leave and gave a written judgment.[2] She had applied to TAC for a serious injury certificate for the 2004 accident injuries but it had been refused. There is a TAC protocol statement that she made in December 2006 that is part of the material tendered before me.[3]

4 After the County Court judgment in 2011 in Ballarat with respect to the 2007 accident,[4] an Originating Motion dated 24 July 2013 commenced these proceedings in Bendigo. Essentially the task is for the Court to disentangle the consequences attributable to the foot injury in the 2004 accident from the overlapping left ankle injury in 2007.

5 I must assess them now, ten years after the 2004 accident and seven years after the 2007 accident. They must be assessed against the range of possible impairments and judged whether or not the consequences can be fairly said to be at least very considerable. The plaintiff carries the onus of proving that. In this case she has failed to discharge that onus and the application must be dismissed.

6 Applications in this jurisdiction are difficult enough in the sense of the absence of oral evidence from doctors. Medical reports obviously focussed by solicitors on medical practitioners providing opinions about the particular accident they are asked to comment on are not accompanied by explanation or development in the witness box.

7 A Ballarat firm of solicitors acted for the plaintiff in the serious injury application in Ballarat regarding the 2007 accident. A Bendigo firm acts in this application in Bendigo with respect to the 2004 accident. No adverse inference can be drawn from that but what is clear is that each firm has directed attention, quite properly, to the serious injury leave they were pursuing and so medical reports have a certain focus.

8 It makes the task of understanding and interpreting what doctors’ views were even more difficult than in the usual serious injury application. Of more importance, the plaintiff provided two affidavits about the 2007 accident, one in 2009 and one in 2011.[5] Then she provided an affidavit, that is now quite dated in this application, in June 2013.[6] It is dated in the sense that I have to assess consequences now, almost twelve months later.

9 The different focus of each of these affidavits on the accident then being pursued adds to the great difficulty in reaching findings in this case. The plaintiff was not cross-examined except to establish that she swore the two earlier affidavits in 2009 and 2011 in regard to the 2007 accident.[7] In evidence-in-chief, she had only been taken to the 2013 affidavit and to demonstrate her foot.[8] I had no opportunity, thus, to gauge her as a witness. The Court is left then to decide this case on the papers and really nothing else, save for the visual demonstration of an inverted left foot.

10 Plus there is no evidence before the Court of her symptomology now, in May 2014, of the treatment in May 2014 and the present consequences by way of sworn testimony. Her last word is almost twelve months ago, in the June 2013 affidavit.[9] No explanation was advanced as to why up-to-date affidavit material was not provided, as is the norm in these applications. Also, no affidavit material from her adult children, workmates or anyone else was provided to assist the disentangling exercise.

11 The consequences have to be assessed now, not in June 2013. The Court is not entitled to guess at the current situation, it is entitled to expect sworn evidence. In one sense, on the papers, the only real window of opportunity of assessing the necessary consequences of the 2004 accident, absent 2007, is a short timespan of two years and four months. This is from 20 October 2004 to 16 February 2007. Apart from that brief period, the exercise is coloured by the impact of the 2007 left ankle symptoms, treatment and consequences, in trying to extract the 2004 left foot consequences now, some ten years after the transport accident.

12 A number of doctors found the exercise difficult. I share that view. The plaintiff has not proved consequences attributable to 2004 that are “serious”.[10] Without any oral evidence or affidavit about the current position, the Court is left with the dubious prospect of evaluating whether the June 2013 affidavit reflects what the position the plaintiff says is the current situation in terms of consequences or not.

13 The requirement to make findings, even on the standard of probabilities, cannot be completed in this case in the plaintiff’s favour. There is a much more fundamental problem with being left with no material save for the three affidavits, two on the 2007 accident and one on the 2004 accident, as well as the TAC protocol statement. When looked at together, these documents just cannot be reconciled. Any fair reading of the three affidavits and the way the 2004 accident is dealt with in the protocol statement, leads to patent inconsistencies that are more than just focus. It is only necessary to point to a few examples among many.

14 Dealing in the 2009 affidavit with the 2004 accident, the plaintiff says she got back to fulltime normal duties by late 2005.[11] She ceased any physical treatment by 2006, apart from some general practitioner reviews.[12]

15 She had made a “reasonable recovery” before the 2007 accident.[13] She spoke of a level of functioning the 2007 accident as though it was acceptable and not particularly disabling.[14] In her 2011 affidavit, she treated the 2004 evidence similarly. She deposed to the return to full duties and that during 2006 “... the symptoms were diminishing and I was becoming increasingly less disabled. I had made a reasonable but not full recovery by the time of my workplace injury in 2007.”[15]

16 The contrast with the December 2006 TAC protocol statement is extreme. She said there “I have continued to find it extremely difficult to cope with fulltime duties given the demands of my job”.[16] She said further: “I have difficulty carrying out my domestic duties, so I rely upon my husband and daughter to help me. I have difficulty driving long distances, because pushing the clutch in causes ankle pain.”[17]

17 His Honour Judge Saccardo accepted the description of a near recovery from the 2004 transport accident in his judgment given in the Ballarat serious injury application. I am not bound in any way by the findings his Honour reached, but the material is illuminating when read in the context of the documents I have described.

18 The 2011 affidavit then goes on to use the word “now” in paragraph after paragraph, reflecting the stark contrast with disabilities, symptoms, treatment and consequences she attributed to 2007 as opposed to 2004.[18] This just cannot be ignored by the Court. When it is all read it is designed to point out a very real contrast between 2007 and 2004 and to paint a picture that any consequences attributable to 2004 were a thing of the distant past.

19 The June 2013 affidavit then tells a very different story when it is sworn to support this current application that the 2004 accident has caused a “serious injury” from the impairment of the left foot. To realistically try and reconcile the protocol statement made by the plaintiff to TAC in December 2006 when pursuing serious injury for the 2004 accident from the TAC with her 2009 and 2011 affidavits is just not possible.

20 This all leads to my finding that the affidavit evidence is almost totally unreliable. I have not been able to enjoy the usual great advantage of assessing a witness in court. I am left with the affidavits by way of sworn evidence, together with the TAC protocol statement. The documents make it impossible to find on the papers consequences attributable to an accident ten years ago that amount to very considerable consequences, absent the 2007 events.

21 There is no other lay evidence provided that may have assisted in the exercise. Turning to the medical opinions, most if not all of the medical evidence the plaintiff relies on by way of treaters and medico-legal experts is flawed. Save for Professor P Disler, none of the doctors had the three affidavits on my reading of their reports. They were essential to getting anything like a full history.

22 Therefore none of the doctors have anything like a complete and proper history of the 2004 accident. Their opinions and attempts at putting percentage apportionments on the 2004 accident, and the 2007, are not reliable. I do not accept them. Indeed, the information the plaintiff herself disclosed at these medical consultations were seriously deficient. A great overlap exists on any view between the symptoms in the foot, and ankle regions complained of in regard to the 2004 leg injury, and the 2007 leg injury as well as the CRPS. None of the doctors were given by her a complete history regarding the previous injuries, WorkCover claims, which included wrist and thumb problems in 1999 and the bee sting in 2000 that both led to CRPS requiring treatment.

23 These injuries are not relevant in themselves in terms of assessing the consequences of the current leg injuries, but they point to the inadequacy of the material that the doctors have founded their opinions on. The July 2003 wrist claim and the October 2003 neck and back claims were not elaborated.[19] While the CRPS was not in the leg or legs, there is no comprehensive picture given of the treatment, or the extent of the CRPS when doctors are required now to discuss CRPS and its effects from an accident ten years ago, as well as from one seven years ago.

24 No doctor in my opinion has an accurate and comprehensive history of the “reasonable recovery” mentioned in regard to the 2004 accident.[20] Nor has any doctor been given, in relation to the CRPS, the history that it had “settled down” after some treatment.[21]

25 The plaintiff's affidavit in support of the 2007 serious injury application deposed to the pain and swelling in the lower leg following the 2004 transport accident as returning “to similar levels that I experienced prior to 16 February 2007”.[22] When looking at the 2007 serious injury affidavits, the picture painted was of symptoms that had all but gone away and from which largely a recovery had occurred.

26 There is no adequate explanation from what, in one sense, is a change in symptomatology presented to the Court in 2011 regarding the accidents and now. The 2011 serious injury hearing was heard almost four-and-a-half years after the 2007 accident and yet now, seven years later, the presentation is one of symptoms significantly having abated. The consequences are now pointed to and said to be attributable to the 2004 accident. They have somehow come to the fore as the predominant problem when one reads the affidavits. No medical reason is advanced for such a change.

27 Medical experts found difficulties with diagnoses even without the spectre of the particular medico-legal focus that solicitors quite properly turn their attention to with respect to 2004 and 2007. Mr J Nelson, treating orthopaedic surgeon, expressed such concerns in 2005 and 2006.[23]

28 At Bendigo Health John Lindell Rehabilitation Unit in September 2006, about three months before the 2007 accident, reported. It recorded how the previously ordered pain management course was no longer necessary. The plaintiff had been an appropriate patient for such a course in early 2006, but by September 2006 it was no longer necessary. She had finally improved to the extent of being able to return to work, and no longer needed the support of the therapists at the John Lindell Unit.

29 This improvement was without her ever taking up a pain management place at the unit. I infer she had spontaneously improved from other treatment, or just with time. She had been on the waiting list for a place. “This is a very pleasing result for all concerned” was the final comment from Dr Wood at the John Lindell Unit.[24] This is clear evidence that the 2004 symptoms were no longer a major consequence at this time.

30 A large number of doctors engaged in this application have not been given this important piece of information from the September 2006 letter from the John Lindell Unit. Dr P Blombery, physician, was engaged by Ballarat solicitors in August 2006.[25] The prognosis for recovery was moderate.[26] He then saw her in April 2009, so after the 2007 accident, and again for her Ballarat solicitors.[27]

31 He then said, in 2014, that the CRPS was 70 per cent caused by 2004 and 30 per cent by 2007.[28] From the judgment of his Honour Judge Saccardo, it does not appear what medical evidence was presented to him. He mentioned only three doctors specifically. A transcript of those proceedings has not been provided to me, nor has the exhibit list. On any view they would have been illustrative of matters that at present I am just uncertain about.

32 However, his Honour’s judgment does seem to point to some selective use of available evidence in terms of the focus back then in 2007. I am not bound by any of his findings. Some differences in the evidence presented even from his judgment have obviously occurred at different times and with respect to different applications. This, in my opinion, is consistent with the focus of the plaintiff’s affidavits, protocol statements and histories to doctors that depend really on what particular serious injury is being pursued at that particular time. Sometimes the emphasis is on 2007 and at other times it is on 2004. They do not sit together when looking at the material in its entirety.

33 Dr Blombery gave a short opinion about vulnerability caused by an earlier CRPS affected area, but it does not take the matter much further in disentangling consequences.[29] Dr D Murphy, consultant physician, treated the plaintiff in August 2007. He has an inadequate history about the 2004 accident. It consisted of three short sentences.[30] What he was told contrasts starkly with the December 2006 protocol statement to the TAC.[31]

34 Dr Murphy reported she was making a slow but reasonable recovery from this 2004 accident until the 2007 aggravation.[32] The 2007 accident, he concluded, led to a much more significant disability.[33] In June 2011, he thought the condition stable and would persist indefinitely.[34] His reports were relied on by the Ballarat solicitors in the 2011 serious injury application. He then reported again in 2014 to the current solicitors and he had more history by then of the 2004 accident.

35 He still said the more flagrant version was June 2007. He thought 50/50 apportionment was appropriate as between 2004 and 2007.[35] These attempts at apportionment are brave, in my opinion, because this doctor, as with others, had nothing like the material set out in the three affidavits upon which to base sound medical opinion. I do not accept his evidence in relation to this apportionment. He does not seem to have seen her since December 2011, so his report is limited and is somewhat stale.

36 The late Dr A Capes reported in January 2007, one month before the 2007 accident.[36] He diagnosed CRPS. He was relied on in the 2007 serious injury application. He is probably the high point of the plaintiff’s medical evidence on one view. Nevertheless his history of what the plaintiff said about her 2004 accident and its effects is vastly different from the two affidavits that she swore in relation to the 2007 serious injury case. His opinion is flawed in that regard. Also, he has not reported since 2009. His opinions are too far back in the past to assist disentangling now in May 2014.

37 Mr H Weaver, orthopaedic specialist, reported to Saines Lucas Solicitors in Ballarat in July 2010. He thought there was a cumulative effect from the 2004 and 2007 accidents and also offered a 50/50 apportionment.[37] I do not find the information he relied on is complete or even adequate. He did not sufficiently separate out the consequences attributable to the 2004 accident from the 2007 accident. His report, too, is almost four years old and little help in an evaluation now, especially in view of what the plaintiff has said in her 2011 affidavit.

38 Mr R Miller, orthopaedic surgeon, reported in February 2011 to the Ballarat solicitors. He separated the accidents out. As to the 2004 accident, he reported “she stated that her symptoms settled to a large extent”. He said later, she again told him her 2004 symptoms had largely settled and she was having no ongoing treatment.[38]

39 This is very inconsistent and indeed contrary to what the plaintiff’s 2013 affidavit described in terms of the 2004 accident. Why is it so medically different now in 2013 is just not explained by anybody. Mr Miller thought the current symptoms in the foot were caused by the aggravation of the reflex sympathetic dystrophy suffered in 2007.[39] It was in his opinion the dominant factor.[40]

40 He was right in saying the question of causation was clearly a complex issue.[41] His report does not support “serious” consequences attributable to the 2004 accident.

41 Professor P Disler, a specialist in internal medicine, rehabilitation and geriatrics, reported in January 2014 for the current solicitors. He saw no current evidence of CRPS.[42] He thought her current condition of pain and symptoms was predominantly a function of the 2004 accident, rather than 2007. He was given a large number of attachments, including the affidavits. He quoted briefly from two of the affidavits but does not in any way deal with the real conflict in them or in the whole affidavit material about the respective accidents.[43] He just quoted very selectively from two of them.

42 His qualifications also do not seem entirely appropriate in a field of orthopaedics or that of a physician but that is probably a matter on which I cannot form any firm conclusion. His opinion on the consequences of the injury ten years ago is unconvincing. He only saw her once, a decade later, and he does not adequately deal with the real factual conflict that is at the heart of this application. That conflict has to be confronted in order to disentangle consequences attributable to the 2004 accident, whether that is a disentanglement undertaken by a medical practitioner or by me.

43 In the end there was no up-to-date sworn evidence from the plaintiff about symptoms and consequences now. There was no oral evidence to speak of. I upheld an objection by the defendant that in the absence of an up-to-date affidavit, the plaintiff should not be examined in chief, particularly in view of the defendant having arranged two medical examinations on the basis of the last affidavit in June 2013. No explanation, as I have indicated, was given for the failure to provide a current up-to-date affidavit.

44 In the end the plaintiff has not discharged the onus of showing “serious” consequences attributable to the 2004 accident. For the reasons given the application is dismissed.

[4] Tainsh v Kalianna Special School & Victorian WorkCover Authority [2011] VCC 1495

County Court of Victoria

Tainsh v Transport Accident Commission [2014] VCC 1022 (16 May 2014)