Ahern v Transport Accident Commission
[2012] VCC 1214
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01976
| STEPHEN GERARD AHERN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Ahern v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1214 | |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT
CATCHWORDS – Damages – serious injury – injury to the neck and low back – credit of the plaintiff – aggravation – consequences attributable to unrelated injuries
LEGISLATION CITED – Transport Accident Act 1986, s93 – serious injury – paragraph (a)
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Richards v Wylie (2000) 1 VR 79; Barlow v Hollis (2000) 30 MVR 441; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr J Goldberg | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr G Lewis SC with Mr S Martin | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident that occurred on 22 September 2003 (“the second accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraphs (a) of the definition of “serious injury” to be found s93(17) of the Act. There –
“serious injury means –
(a) serious long-term impairment or loss of a body function;”
4 The body functions relied upon in this application are injury to the neck and the low back. Counsel for the plaintiff said that I should consider the injuries separately. The injury to the neck being a soft-tissue injury with an aggravation of pre-existing degenerative change at the cervical region with referral symptoms into the left upper limb. The injury to the low back being soft-tissue injury to the low back with probable aggravation of degenerative change.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon three affidavits, two sworn by him on 1 September 2009 and 16 August 2012, and an affidavit sworn by his wife, Louise Segafredo, sworn 16 August 2012.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8 The plaintiff was involved in a transport accident in December 1994 (“the first accident”) and suffered injury to the cervical spine, low back and left knee.
Relevant Legal Principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities:
(a)that the injury suffered by the plaintiff was as a result of the transport accident; and
(b)that the injury is a serious injury within the meaning of the definition of “serious injury” contained in s93(17) of the Act.
10 The enquiry under sub-paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term. The requirements of the test are set out in the decision of Humphries & Anor v Poljak,[1] where the majority of the Court of Appeal said:
“Sub-section (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under paragraph (a) and the latter under paragraph (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under paragraph (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of paragraph (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to sub-s.(4)(d) when reliance is placed upon sub-s(17)(a) may be stated in the following terms: he is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”[2]
[1][1992] 2 VR 129
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at [140]
11 The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[3]
[3]Richards v Wylie (2000) 1 VR 79
12 The term “serious” requires the impairment and its consequences to be viewed objectively, and also judged on an external comparative basis against possible impairments not necessarily in the same category.[4]
[4](supra) at 170 and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. In particular, Chernov JA at paragraph 29
The Issues
13 Counsel for the defendant informed the Court that this was an aggravation case and that the principle in Petkovski v Galletti[5] applies. That is, a comparison of the plaintiff’s injuries, being his neck and low back, considered separately, before the accident, with the plaintiff’s current state. Counsel for the defendant submitted that the additional impairment does not satisfy “the very considerable” test. Further, there are ongoing and unrelated matters which are causing the plaintiff’s incapacity which, when taken into account, mean that the plaintiff does not satisfy the “very considerable” test.
[5][1994] 1 VR 436
The Plaintiff’s Evidence
14 In his affidavits sworn on 1 September 2009 and 16 August 2012, the plaintiff deposes that:
· On 22 September 2003, he was stationary in his motor vehicle when another vehicle struck him from behind and forced his vehicle into the vehicle in front.
· He took a taxi home. At home he began to feel pain in his neck and back and was very emotional and stressed.
· He attended his general practitioner the following day and was prescribed Voltaren. After two days he developed an upset stomach and stopped taking Voltaren.
· Over time his neck became more stiff and sore. His lower back was also very sore and got worse. He continues to have neck and back pain, which occasionally radiates down into his right leg and causes difficulty with walking and standing for long periods. Occasionally, his back or neck freezes up and locks in place. These episodes are more frequent and more severe with his lower back.
· He was referred for physiotherapy treatment and attended until December 2007. He continues to consult his general practitioner and has physiotherapy when he needs it. He takes Panadeine when he needs pain relief.
· It took him a few months before he was able to drive again following the accident. As a result, his business suffered and he had to give up working as a consultant.
· He obtained employment in August 2004 as a graduate teacher and now works as a teacher and presenter at the Western Autistic School.
· He has commenced a Masters in Special Education at The University of Melbourne. He struggled with the three-week placement and doubts his ability to return to a classroom role.
· Since the accident, he is restricted in jogging, which he used to do for 30 minutes on a weekly basis. He is also restricted in weight training because of his injuries. He has to be careful when lifting because he has had episodes when he has aggravated his back.
· Prior to the accident, he participated in yoga, but since the accident, he has been restricted because many of the poses aggravate his injuries.
· He cannot sit for more than about 20 minutes before needing to stand and move around. His neck pain makes it difficult to read for long periods. He avoids household activities that aggravate his neck or back. He does some gardening and maintenance, but avoids mowing the lawns, and hired tradespersons to complete house painting. He helps with cooking and shopping but only drives locally as he is still anxious and scared when in a car.
· He is not a good sleeper. The pain wakes him.
· The injuries cause depression and he has put on weight since the accident because he is not as active.
· On 22 December 1994, he had a motor vehicle accident, where he injured his neck, lower back and left knee. He was taken to hospital. He had fractures of the cervical vertebrae, a tear of the medial meniscus and ruptured anterior cruciate ligament. He was advised to have a reconstruction of the cruciate ligament but chose not to. The back pain from this accident resolved within six to twelve months following the accident. He continued to have problems with his neck, but chose not to have surgery and continued with conservative treatment. Over time, the symptoms in his neck and back improved and at the time of the second accident, he was not having any active treatment and his injuries were not interfering with his ability to work.
· He also suffered a psychological reaction to the 1994 accident, but did not seek psychological or psychiatric treatment. He took anti-depressants for some time, but he had stopped taking them by the time of the second accident.
15 In her affidavit sworn on 16 August 2012, Ms Louise Segafredo deposes that:
· She is the wife of the plaintiff.
· The plaintiff’s sleep is interrupted and he now often sleeps in a separate room.
· When the plaintiff’s neck or back pain is particularly bad, she has assisted him with dressing and bathing.
· Since the second accident, the plaintiff no longer does the painting, gutter cleaning, mowing or heavy lifting around the house. He does some light gardening and maintenance work.
· They are often forced to leave social gatherings because the plaintiff has difficulty sitting or standing for long periods.
The Plaintiff’s Evidence in Cross-Examination
16 The plaintiff gave the following pertinent evidence:
· In relation to the first accident, he consulted a neurosurgeon, Mr Popovic, who advised surgery on the neck, which was not performed, and the pain in the neck went away completely. To this day he has problems with his left knee.
· In September 2009, he swore an affidavit in this proceeding in which he said that following the first accident, the low-back pain virtually resolved within six to twelve months. He was referred to a statement he made in August 1998 where he deposed he was still suffering ongoing discomfort and on occasions severe back pain, for which he required physiotherapy treatment and which affected his career. He said he was confused about the length of time he suffered back pain after the first accident.
· He said his capacity to perform physical activities improved in the period between the two accidents once he commenced yoga, some time between 1997 and 1999, which he thought he performed for three to four years.
· He agreed that in November 1998, he was still having problems with his knee. He was unsure whether he had resumed running on a treadmill.
· He agreed that when he saw Mr Peter Moran in 1998, he was suffering persistent neck and back pain, and problems with his left knee, requiring time off work. He agreed he told Mr Moran that he could not run because of his knee, but said in cross-examination that he could use a treadmill.
· Before the second accident, he had to take care with bushwalking. He said he has not done much bushwalking since the second accident.
· He could not jog on grass for two or three years prior to the second accident.
· He had given up his regular attendance at the gymnasium by 1999.
· He agreed that before the second accident, his injuries were interfering with his sleep.
· He denied that he had slept reasonably well since the second accident. He was referred to the psychiatric report of Dr Nigel Strauss, who had recorded on two occasions that he “slept adequately”. He said he did not agree with the word “adequately”; it was not a word he used. He agreed he rarely had nightmares and he had not taken any anxiety medication since the second accident.
· He agreed that in the period immediately before the second accident, he had to exercise care with bending and lifting and with physical activity generally. He said the left knee problem is not that significant. He agreed that if he had no other problems other than the left knee he would not be able to run on grass, but then said he did run on grass so he disputed that. He said the difficulty running is about the back and neck.
· He denied telling Mr Simm in July 2011 that he had difficulty walking down hills because of the left knee pain.
· He agreed he had problems with his right foot, which limited his walking and running.
· He agreed that he had a reasonably active social life.
· He agreed he was currently walking but not consistently.
· He agreed that he might have told Dr Strauss last year that he was regularly exercising. He said he might have told him he was walking at stages.
· He agreed he had done some painting and sanding around the house. He said approximately eight years ago, he attempted a house renovation. He would have used ladders and done some painting himself, and digging.
· He said he did not bike ride but has ridden since the second accident, approximately three years ago.
· He was not sure if he had ever mentioned to his general practitioner that he had trouble sleeping. He thought the answer would be drugs and he did not wish to take drugs.
· He agreed he had seen his general practitioner between June 2005 and February 2006 in respect of two incidents at work when he suffered low-back strain.
· He could not recall when he last had physiotherapy treatment. He agreed it was very infrequent.
· He resigned from his job at Tech School in April 2003. He decided to establish his own business. He applied for a position at Chubb Security in August 2004 but was not successful. He applied for a number of jobs at about that time.
17 In re-examination, the plaintiff said:
· He had had no treatment for his mental state following the first accident.
· Prior to the second accident, he thought he was capable of sanding, preparing and painting the inside walls of his house. He put in stumps with the assistance of others.
· He was working fifty to sixty hours a week.
· He was running on a treadmill, power walking and jogging around Princes Park either with his wife or on his own.
· Since the accident, he has been advised to walk. The problem with the bike riding is it affects his lower back and he has to lean forward, which is not good for his neck. He has attempted returning to the gymnasium but certain activities affected his neck.
· The medical advice is that he takes medication for the pain. Historically, he has avoided prescribed medication.
· He attempted to do work around the house but ended up hiring professional house painters as he could not do the physical work. He hires others to clean the gutters and to do other household maintenance. He can mow the lawn.
· His sleep is disturbed. There are nights when he has to take analgesia to assist him in sleeping and often mixes analgesia and alcohol.
· He said the neck is more severe than the back pain. He said he has been doing short unchallenging walks, but cannot perform the walks in the Grampians he undertook prior to the second accident.
· He agreed the left knee had been a problem after the first accident leading up to the second accident. Now, other than aching in cold weather, it does not affect him greatly.
The Plaintiff’s Medical Evidence
(a) The First Accident
Dr H van Doorm
18 Dr H van Doorm, general practitioner, provided medical reports dated 22 July 1996 and 22 March 1999.
19 Dr van Doorm said the plaintiff had chronic pain at the site of the fracture in his neck which wakes him at night. He avoids gardening, driving any medium distances and sitting at a computer. He had residual stiffness in the neck and suffered from post-traumatic stress.
20 He said the plaintiff underwent an arthroscopy, and a rupture of his anterior cruciate ligament was diagnosed. He had a tear in his medial meniscus which was excised. There was a possibility the plaintiff would require reconstructive surgery of the left knee in the future.
Mr Emil Popovic
21 Mr Popovic, treating neurosurgeon, reported to the plaintiff’s solicitors, in August 1996.
22 He treated the plaintiff for his neck condition between January and July 1995. He diagnosed a fractured C6 vertebra with minor subluxation of C6-7 on the right. He said the plaintiff was unlikely to have any significant problems with his neck, apart from the occasional sore neck. In the future, the plaintiff was at increased risk of developing degenerative osteoarthritis at the C6-7 level and adjacent levels, which could result in chronic neck pain and possibly nerve root compression.
23 At his last review in July 1995, he said there was no residual disability. He said the plaintiff was fit for his normal activities. He advised him against jobs involving heavy physical activity which are likely to accelerate any neck problem.
Mr Peter Moran
24 Mr Moran, orthopaedic surgeon, provided a medico-legal report in July 1998.
25 When seen by Mr Moran, the plaintiff complained of persistent neck and back pain and problems with the left knee. Mr Moran said that the plaintiff had suffered a fractured subluxation of the cervical spine, a soft-tissue injury to the thoraco-lumbar spine and a major soft-tissue injury to the left knee. He considered the plaintiff’s condition had stabilised. He thought the plaintiff would develop accelerated degenerative changes within the cervical spine and was at risk of developing premature osteoarthritis of the knee. The x‑rays of the plaintiff’s lumbar spine taken on the day of the examination were unremarkable.
(b) The Second Accident
Dr H van Doorm
26 In a report dated May 2006, Dr van Doorm, general practitioner, said he treated the plaintiff in relation to the injuries he suffered in the second accident. The plaintiff complained of neck and back pain, and also foot symptoms. He had suffered serious depression and Post-Traumatic Stress Disorder (“PTSD”) following the accident and received psychological support and counselling from Dr Harris.
27 Dr van Doorm stated he had only been in contact with the plaintiff recently when he reported experiencing neck pain and headaches, lower back pain and affected sleep. His mental state had improved and he still had occasional depressive moods.
28 Dr van Doorm’s clinical records were available to the Court. The records confirm that the plaintiff attended his general practitioner the day after the accident complaining of neck pain, a strange feeling in left leg and “tiredness”. By December 2003, the plaintiff was complaining of sleep disturbance and emotional reaction to the transport accident. Other than a reference in May 2004 and January 2006 when there was a reference to back pain from the transport accident, the records disclose that the plaintiff did not consult his general practitioner for treatment in relation to the effects of the accident other than for the purpose of administrative matters relating to the accident. However, the plaintiff consulted Dr van Doom regularly for unrelated matters.
Professor Edward Byrne
29 On 3 September 2005, Professor Byrne, neurologist, provided a medico-legal report to the plaintiff’s solicitor.
30 He obtained a history that the plaintiff was essentially pain free at the time of the second accident, with the occasional ache in his neck in cold weather. Since the accident, the plaintiff complained of persistent neck pain, worse with movement, which was his major problem. He complained of constant lower backache, which worsened with movement, and limited his physical activity. The lower back pain occasionally radiated into the right leg but the neck pain was his major problem.
31 It was Professor Byrne’s view that the plaintiff had suffered injuries to the cervical and thoraco-lumbar spine in 1994. He had persistent symptomatology in that area for many years, which the plaintiff informed him had almost entirely settled prior to the second accident. He said it was reasonable to attribute the current spinal disability in both the cervical and lumbosacral areas as relating to the second accident in its entirety. Professor Byrne said if the plaintiff’s pain had completely settled as a result of the first accident, then the ongoing disability would appear to relate to the second accident. However, if there was evidence that the plaintiff had significant pain related to the first accident, up to the time of the second accident, then it would be appropriate to allow a proportion of the impairment as relating to the first accident.
Mr Rodney Simm
32 Mr Simm, orthopaedic surgeon, provided medico-legal reports to the plaintiff’s solicitor in December 2007 and July 2011.
33 Mr Simm was provided with a history of both accidents. In respect to the second accident, he said the plaintiff’s main complaint was neck pain which was more severe than the low-back pain. When examined in July 2011, the plaintiff said overall, his condition had become worse with more severe pain occurring more frequently. He complained of constant pain in the neck and lower back and pain in the left knee.
34 Mr Simm diagnosed a soft-tissue injury to the cervical spine. He said the persistent symptoms probably related to an unresolved aggravation of degenerative cervical pathology which was demonstrated on plain x-rays in September 2003. There were no clinical signs of radiculopathy.
35 Mr Simm said the plaintiff reported lower back pain which had been intermittent but was now almost constant. The pain wakes him at night and is worse with prolonged sitting. He diagnosed a soft-tissue injury to the lumbar spine. The plaintiff’s history was that the low-back pain from the first accident had resolved. He said the plaintiff’s persistent symptoms were consistent with an unresolved soft-tissue injury, which may relate to aggravation of underlying degenerative pathology. It was Mr Simm’s view that the injuries were consistent with the stated cause.
36 Mr Simm said the plaintiff was capable of performing full time work on his current routine of classroom commitment one day per week and four days of administration. He said the plaintiff could not increase his classroom commitment beyond one day per week as the work aggravates the neck and back pain more than the administrative work, where he is able to be more flexible with his posture. He could not undertake physically demanding work involving bending, twisting and lifting. He needed to be able to alter his posture as required.
37 He said the plaintiff’s ongoing treatment will, to a large extent, involve self-regulation of activities and over-the-counter medication. He suggested he attend a physiotherapist.
38 He said the cervical and lumbar injuries have the potential to accelerate degenerative changes in these regions of the spine. He said the symptoms are gradually deteriorating and this may be a reflection of the progression of the degenerative changes in the neck and back.
The Defendant’s Medical Evidence
(a) The First Accident
Mr Brendan Dooley
39 Mr Dooley, orthopaedic surgeon, provided medico-legal reports to the defendant dated 27 November 1998 and 9 April 1999.
40 The plaintiff reported to Mr Dooley that he suffered injuries to his neck and left knee. It was Mr Dooley’s view that the plaintiff’s injuries were predominantly a neck injury and left knee injury with soft-tissue injury to the thoraco-lumbar spine. He said the plaintiff’s neck gave him little trouble in 1998 and probably would remain so in the future. It was possible he could develop nerve root irritation but it was unlikely he would require surgical treatment. He said the plaintiff would require operative treatment to his left knee. He said the plaintiff’s left knee precluded him from running and engaging in competitive sport: playing tennis. He said that even though there had been no investigation with special imaging of the lumbar spine, the probability was that the plaintiff had lumbar disc degeneration which he apportioned between episodes of back pain prior to the first accident and a consequence of the first accident. He noted that the plaintiff was managing to work quite well.
Dr Stephen Stern
41 Dr Stern, psychiatrist, reported to the Transport Accident Commission in February 1999. It was his view the plaintiff was suffering a chronic PTSD caused by the accident and resultant injuries. He suggested anti-depressive medication for the plaintiff’s depression and panic attacks.
Dr William Glaser
42 In March 1999, Dr Glaser, psychiatrist, saw the plaintiff for the purpose of a Medical Impairment Assessment. He diagnosed PTSD, which he said remains of a mild but appreciable severity.
(b) The Second Accident
Dr Stephen Stern
43 Dr Stern, psychiatrist, examined the plaintiff at the request of the Transport Accident Commission in June 2004. It was his view that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said the first accident was still partly contributing to his anxiety and depression and that his psychiatric prognosis was of continuing improvement, but that he would be left with some residual anxiety.
Dr Robert Lefkovits
44 In June 2004, Dr Lefkovits, physician, examined the plaintiff at the request of the defendant.
45 The plaintiff’s current symptoms were low-back discomfort, particularly after prolonged weight bearing and physical activities. His stress symptoms had improved but not completely resolved and did not require active treatment. It was Dr Lefkovits’ view that the plaintiff’s neck and back movement, numbness in the foot and psychological symptoms had largely resolved. He had been left with significant nuisance discomfort in the neck, particularly when using his computer and when he engaged in vigorous physical activity. He said the plaintiff had some residual features of soft-tissue injuries to the cervical spine and aggravation of pre-existing degenerative disease. He said the plaintiff did not require active treatment but would benefit from an exercise program, and weight reduction would improve his general fitness and mobility. He said the plaintiff is likely to suffer nuisance symptoms in the neck long-term.
Dr Chris Baker
46 In August 2004, Dr Baker, occupational medicine specialist, examined the plaintiff at the request of the defendant.
47 Dr Baker said the plaintiff had pre-existing niggling neck symptoms which were aggravated as a result of the second accident, but with the passage of time and treatment, his condition had improved. He described the injuries suffered as a transient aggravation of pre-existing symptomatic changes in his cervical spine. He had a minor soft-tissue injury to the lumbar spine and he was suffering with some PTSD symptoms. He recommended the plaintiff keep physically active and lose weight. He did not consider that there had been any permanent impairment related to the accident.
Dr Brendan Hayman
48 In July 2006, Dr Hayman, consultant psychiatrist, examined the plaintiff at the request of the defendant.
49 Dr Hayman said, following the second accident, the plaintiff had a reactivation of PTSD symptoms which took the form of nocturnal re-experiencing phenomena. They occur when going off to sleep and during sleep. He said the plaintiff had also suffered a mild Depressive Disorder and developed a degree of alcohol abuse. He said the plaintiff’s prognosis was good. He recovered well from a significant PTSD after the first accident, which augurs well in terms of his recovery.
Mr Michael Shannon
50 In July 2006, Mr Shannon, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant.
51 Mr Shannon diagnosed soft-tissue injury of the cervical and lumbar spines. It was his view the plaintiff had ongoing problems with his neck and back and does have some minor spasm in the back on lateral flexion but that the back is not significantly different from the assessment made by previous examiners in 1998. He was unable to say with any certainty that the impairment in his neck and back is related to the second accident in view of the assessments made by Mr Dooley and Mr Moran in 1998.
Dr Nathan Serry
52 In February 2010, Dr Serry, psychiatrist, examined the plaintiff at the request of the defendant.
53 It was Dr Serry’s view that the plaintiff’s injuries are attributable to both accidents, but mainly the second. He noted that the plaintiff had little in the way of formal psychiatric treatment and limited treatment with anti-depressant medication. He noted that the plaintiff’s psychiatric injuries did not interfere with his ability to work. Further, that he had lost a degree of motivation in terms of leisure activities. He said the plaintiff’s prognosis would be somewhat guarded given his chronic pain and associated restrictions.
Mr Paul Kierce
54 In February 2010, Mr Kierce, orthopaedic surgeon, reviewed the plaintiff at the request of the defendant.
55 As a result of the first accident, he said the plaintiff suffered at least a soft-tissue injury to his cervical spine. He did not see any definite evidence of any fracture nor any resultant instability. The plaintiff said he had not had any significant involvement of his back in the first accident. Mr Kierce said that given other reports, it is likely the plaintiff did have soft-tissue injury to his lumbar spine.
56 It was Mr Kierce’s view that, as a result of the second accident, the plaintiff suffered a further ligamentous injury or soft-tissue injury to his cervical spine, as well as a further soft-tissue injury to his lumbar spine.
57 It was his view that the plaintiff will suffer from recurrent neck pain and stiffness and it is important that he perform active mobilising exercises for his neck. He said degenerative changes are of significance in the neck injury. The plaintiff had a significant soft-tissue injury in the first accident which led to the development of cervical spondylosis. It was Mr Kierce’s view that his cervical spondylosis was aggravated in the second accident.
58 In respect to the low back, the plaintiff described to Mr Kierce constant low-back pain which varies with intensity. The pain was aggravated by bending and sitting and relived by standing and walking.
59 Mr Kierce said, with regard to the plaintiff’s lumbar spine, he will suffer with a degree of recurrent back pain and stiffness. He did not think that his injuries would interfere in his ability to work as a teacher. He imposed limitations of lifting weights greater than 15 kilograms, using jarring equipment or driving machinery which would give rise to vibrations.
Dr Nigel Strauss
60 Dr Strauss, psychiatrist, medically examined the plaintiff in November 2007 and September 2011 at the request of the plaintiff’s solicitors.
61 Dr Strauss said the plaintiff had some residual post-traumatic symptoms largely from the second accident, and to a much lesser degree from the first accident. He said his psychiatric symptoms were mild and he does not require treatment.
Dr Russell Harris
62 Dr Harris, psychologist, treated the plaintiff between February and August 2004 on eight occasions. He said by mid April 2004, his PTSD symptoms had effectively gone, except the depressed moods, which fluctuated. Dr Harris finally saw the plaintiff in August 2004, when he reported recurring symptoms of depression, anger, nightmares and waking in fright.
Credit of the Plaintiff
63 The plaintiff’s memory was poor, which could be attributed to the fact that he was being cross-examined in relation to his injuries over a period of eighteen years. On occasions, the evidence he gave to the Court contradicted the statements in his affidavits. In his affidavit he contradicted what he said in an earlier statement he made at VCAT. He made inconsistent statements to the doctors he saw. He was unwilling to make appropriate concessions.
64 He was well-educated and articulate, but said he found the process difficult.
65 Given the difficulties with his memory and the inconsistencies in his evidence, I place greater weight on his evidence when it is supported by independent evidence.
Analysis of the Evidence
66 All of the medical opinions accepted that the plaintiff suffered injury to the neck and low back as a result of the second accident. Mr Simm told the plaintiff that the back pain was not recorded in the general practitioner’s records in the months following the second accident. The plaintiff said that he suffered low-back pain after the second accident and advised his general practitioner about the pain. In a report dated May 2006, the general practitioner confirmed that the plaintiff suffered pain in the neck and back in the second accident. The plaintiff reported to all the doctors that he saw that he suffered pain in the neck and back following the second accident. Based on the medical evidence, I accept that the plaintiff suffered a compensable injury to the neck and back.
67 Both injuries claimed in this proceeding involve an aggravation of pre-existing degenerative change.
68 In respect to an aggravation to a pre-existing injury, Southwell and Teague, JJ, in Petkovski v Galletti,[6] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[7]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[6]ibid
[7]ibid at 443
69 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must itself involve serious long-term impairment (or loss) of a body function.
70 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the second accident was serious.[8]
[8]ibid
71 The first accident occurred on 22 December 1994, when the plaintiff injured his neck, lower back and left knee.
72 The plaintiff said that the symptoms in his neck and back caused by the first accident improved over time. He said he commenced yoga exercises, which assisted in the improvement of his condition. At the time of the second accident, he was not having any active treatment and his injuries were not interfering with his ability to work. He was working 60 hours per week and was required to travel. This was consistent with what he told doctors who examined him in relation to the second accident. In cross-examination, he agreed that immediately prior to the second accident, he had to exercise care with bending and lifting, and with physical activity generally.
73 By 1998, most doctors thought the plaintiff’s injuries from the first accident had stabilised. Mr Popovic and Mr Moran said he was at risk of developing degenerative osteoarthritis within the cervical spine. Mr Moran said he suffered a soft-tissue injury to the lumbar spine. In 1998, Mr Dooley said, whilst the neck gave the plaintiff little trouble and that probably it would remain so in the future, it was possible he could develop nerve root irritation. In relation to the back, he said the probability was that the plaintiff had lumbar disc degeneration which he apportioned between episodes of back pain prior to the first accident and the first accident. In 1998, Mr Dooley said the plaintiff was managing his work quite well.
74 In the three years prior to the second accident, the general practitioner’s clinical records confirm that the plaintiff was not seeking treatment for injuries to the neck and back as a result of the first accident.
75 The plaintiff’s evidence about what activities he could undertake before the second accident was at times inconsistent.
76 I find that by the time of the second accident, the back and neck injuries had stabilised. The plaintiff was essentially pain free and his neck and back injuries were not limiting his activities of daily living and work. However, he exercised care with bending and lifting and with physical activities generally.
77 In addition to the neck and back injuries, the plaintiff also injured his left knee in the first accident. This injury did not resolve, and at the time of the second accident, the injury to his left knee restricted his ability to participate in recreational activities, in particular, bushwalking and running.
78 The plaintiff’s evidence about the restrictions imposed by the left knee injury was inconsistent. In 1998, Mr Dooley said the plaintiff’s left knee precluded him from running and engaging in competitive sport and tennis. This was consistent with the opinion adopted by Mr Simm in 2011. Accordingly, I accept that prior to the second accident, the plaintiff was restricted in his ability to participate in running, bushwalking and twisting sports.[9]
[9]Plaintiff’s court book p82
The Condition of the Plaintiff after the 2003 Accident
79 The day following the accident, the plaintiff attended his general practitioner, Dr van Doorm, and was prescribed Voltaren. He consulted his general practitioner in relation to the second accident on six occasions in 2003, on one occasion in 2004 and one occasion in May 2006. Thereafter, he consulted his general practitioner for unrelated matters without reference to his neck and back. At the time of this hearing, the plaintiff was not receiving any medical treatment from his general practitioner for his injuries. The plaintiff did not receive treatment from any specialists and infrequent treatment from a physiotherapist in relation to the neck and back injury following the second accident.
80 I must consider the plaintiff’s injuries at the time of the trial. Accordingly, I place greater weight upon the more up-to-date medical evidence and in particular, I am more influenced by the views of Mr Simm, who saw the plaintiff in 2011, and Mr Kierce, who examined the plaintiff in 2010.
81 Both Mr Kierce and Mr Simm diagnosed a soft-tissue injury to the cervical spine in the second accident. Mr Simm said more recently the plaintiff had developed a pattern of referral pain into the trapezius and down the left arm, which he thought related to an unresolved aggravation of degenerative cervical pathology demonstrated on x-rays taken the day after the second accident. In 2010, Mr Kierce reported that there was no radiation into the upper limbs. Mr Kierce said that as a result of the second accident, it was likely that the plaintiff suffered a further ligamentous injury or soft-tissue injury to his cervical spine.
82 Mr Kierce and Mr Simm said the plaintiff had suffered a soft- tissue injury to his lumbar spine. There was no radiological investigations of the lumbar spine. Mr Simm said the unresolved soft-tissue injury may relate to aggravation of underlying degenerative pathology. Mr Kierce said the plaintiff is likely to suffer with a degree of recurrent back pain and stiffness in the lumbar spine.
83 Counsel for the defendant submitted there was no medical evidence which adequately delineates the consequences of the second accident. I reject that submission. Mr Kierce said the plaintiff’s cervical spondylosis was further aggravated by the second accident. Mr Simm said the degenerative pathology was quiescent, or almost quiescent, until the second accident, and may have remained quiescent in the absence of the second accident. He said that the cervical and lumbar injuries have the potential to accelerate degenerative changes in the spine. I accept that Mr Simm takes a more tentative approach to the effects of the second accident than Mr Kierce, but both practitioners accepted that the plaintiff’s symptoms were a consequence of the second accident.
84 I accept that the plaintiff has had limited treatment. The plaintiff told the Court he does not like taking medication. However, a review of the general practitioner’s records confirms that the plaintiff was prescribed and was taking medication for unrelated matters. He has not sought treatment from any specialist in relation to the second accident; however, both Mr Simm and Mr Kierce thought he needed to have physiotherapy for exacerbated pain. Mr Kierce suggested four to five sessions at a time once or twice per year. Mr Simm said the plaintiff was using physiotherapy appropriately and his treatment involved self-regulation of activities. Whilst I accept Mr Simm said the plaintiff’s ongoing treatment will, to a large extent, involve self-regulation of activities and over-the-counter medication, I note that the plaintiff regularly consulted his general practitioner for unrelated matters.
85 The plaintiff’s evidence was that over time his neck became more stiff and sore. His lower back was also very sore and got worse. He continued to have neck and back pain, which occasionally radiated into his right leg and caused difficulty with walking and standing for long periods. Occasionally, his back or neck froze up and locked in place. In August 2012, the plaintiff said, in relation to the low back, he was experiencing less intense pain but more frequent discomfort and pain. These episodes were more frequent and more severe with his lower back. He takes Panadeine when he needs pain relief.
86 In relation to the plaintiff’s employment, Mr Kierce said his injuries would not interfere with his teaching. Mr Simm said the plaintiff could not increase his classroom commitment as this work aggravates the neck and back pain more than the administrative work which he performs four days per week. The evidence is that for many years, apart from one day per week of classroom teaching, the plaintiff has been involved in training and administrative work. The plaintiff said his role is dependant on yearly department funding and if funding ceased he would be required to return to classroom teaching or seek alternative employment. He would be at a disadvantage in the labour market and would be disadvantaged in a competitive situation. There was no vocational assessment to support the proposition that the plaintiff would struggle to find employment in a competitive market. Accordingly, I only attribute limited weight to such a consequence.
87 The plaintiff said his sleep was affected by his neck injuries and dull ache in his left lower limb. The pain sometimes wakes him. He reported this to Mr Simm. He said there were nights when he takes analgesia to assist him in sleeping. This was confirmed by his wife. However, he said he did not complain to his general practitioner, as he knew the answer would be medication, yet he was taking medication for other conditions. Dr Strauss reported that his sleep was “adequate”. The plaintiff denied telling Dr Strauss this. I find that the plaintiff’s sleep was affected by his neck symptoms but not to the extent that he was prepared to take medication.
88 The plaintiff suffered panic attacks when driving. He was subsequently diagnosed with PTSD. In 2011, Dr Strauss said the plaintiff’s psychiatric symptoms were mild and he does not require treatment. The plaintiff has not received any treatment for many years. In view of Dr Strauss’ opinion and the lack of treatment, I do not take into account the mental consequences. I note that neither party addressed me in respect to this.
89 The plaintiff said he could no longer do handyman jobs around the house, due mainly to the pain in the low back and, to a lesser extent, the neck pain. He now employs gardeners and painters, jobs that he would have done prior to the second accident. He said he can mow the lawn. This is supported by his wife’s evidence.
90 The plaintiff said the injuries affect his ability to exercise. He said he could not resume yoga exercises because of the posture required, which affected his neck. He said he can no longer weight train at the gym as it aggravates his neck and he is restricted from jogging. He has put on weight.
91 Given the level of pain he experiences, he has not resumed Tai Kwon Do since the second accident. The evidence was that he commenced Tai Kwon Do in 1998 or 1997, which he performed for approximately two years. I find that he had ceased the sport prior to the second accident. Accordingly, I do not accept that his failure to resume Tai Kwon Do was a consequence of his injuries.
92 In 2011, the plaintiff enrolled in a Masters in Special Education at The University of Melbourne. The course involved a three-week placement, which he undertook. He found the bending and physical activity involved with younger children difficult. He struggled to complete the placement. The study required him to sit for extended periods at a computer, typing the written component of the course. The posture affected his neck and he suffered increased pain. Because of the difficulties, he did not re-enrol in 2012. The plaintiff agreed he could work at a computer provided he could move around.
93 I accept that the plaintiff was stoical. His approach and attitude to his injuries was an indication of his stoicism; namely, he was living with his problem. In such a case, the “objective” evidence of the disabling effect maybe of less significance than usual.[10] Accordingly, I must take this into account in considering the plaintiff’s evidence.
[10]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 [37]
94 I take into account the plaintiff’s evidence that, immediately before the second accident, he had to exercise care with bending and lifting and with physical activity generally.
95 Since the second accident, the plaintiff has developed an unrelated condition,[11] Morton’s neuroma, that can affect his ability to walk and to climb ladders. I accept any restrictions he suffers relating to bushwalking, jogging and the like would be inhibited by the previous left knee injury and the Moreton’s neuroma. Those consequences were not due to the second accident, but to unrelated matters.
[11]Medical report of Mr Kierce: Defendant’s Court Book page 73
96 I accept that the plaintiff’s incapacities from unrelated matters are to be considered by the Court as forming part of the matrix of the capacity or incapacity the plaintiff otherwise had.
97 I must consider the impairment of body function suffered by the particular plaintiff, but the test requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments. In addition, in assessing the consequences the significance of what has been lost must be informed, to an extent, by what has been retained.[12]
[12]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
98 I shall now consider the respective injuries separately.
Injury to the Neck
99 The plaintiff said this is the region of most severe pain. I find that by the time of the second accident the neck injury had stabilised, that the plaintiff was essentially pain free and that his neck injuries were not limiting his activities of daily living and work.
100 I accept that immediately prior to the second accident, the left knee injury from the first accident restricted his ability to participate in running, bushwalking and twisting sports.
101 As a result of the second accident, both Mr Kierce and Mr Simm diagnosed a soft-tissue injury in the cervical spine. Mr Simm said the symptoms of the cervical spine are gradually deteriorating, which may be a reflection of the progression of the degenerative changes in the neck. Mr Simm said he would not expect any rapid or severe deterioration to occur in the foreseeable future.
102 The plaintiff has had very limited treatment from his general practitioner and no treatment from a specialist. He said he had very infrequent physiotherapy treatment and over-the-counter medication, Panadeine, as needed.
103 The plaintiff’s evidence was that over time, his neck became more stiff and sore. He continued to have neck pain. Occasionally, his neck froze up and locked in place. He now has left arm symptoms, which come and go. He has intermittent episodes of more severe pain from the outer side of his neck and down into his arm, with pins and needles. This was reported to Mr Simm. I accept that the plaintiff suffers pain as he has described as a result of his neck injuries.
104 The plaintiff said he could not increase his classroom commitment as his work aggravates his neck. This was supported by Mr Simm’s evidence, but not by Mr Kierce. In any event, there is no evidence that he is or would be required to increase his classroom work and therefore I have only attributed limited weight to such a consequence.
105 I find the plaintiff’s sleep is affected by his neck symptoms, but not to the extent that he is prepared to take medication other than the limited analgesics he said he took.
106 I find that the plaintiff is not able to resume yoga exercises because the posture required affected his neck. He can no longer lift weights at the gym, and, to a limited extent, gardening causes pain in his neck.
107 I accept the plaintiff’s neck injury has had a notable affect upon his life.
108 In view of the time since the transport accident, I am satisfied the plaintiff has suffered a long-term impairment to the neck.
109 The plaintiff retains the capacity to participate in many activities and to undertake full-time work. It is accepted that he drives his motorcar and that he can walk, which is actively encouraged by his doctors. His social life is unaffected.
110 I accept that, after considering his neck condition immediately before the second accident with his current neck condition, the plaintiff has suffered an additional impairment resulting from the second accident. I must be satisfied that the additional impairment to the neck is a “serious injury”. I accept that the additional impairment to the neck has had consequences to him.
111 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities, and in light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept that the additional injury has had consequences to him, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the consequences of the neck injury can fairly be described as being “more than significant or marked, and as being at least very considerable”.
Injury to the Lumbar Spine
112 At the time of the second accident, I find that the low-back injury had stabilised, that the plaintiff was essentially pain-free and that his back injuries were not limiting his activities of daily living and work. However, he exercised care with bending and lifting and with physical activities generally. I accept that prior to the second accident, the left knee injury caused by the first accident restricted his ability to participate in running, bushwalking and twisting sports. This was supported by the medical evidence. Accordingly, that must be taken into account by me in considering whether the second accident resulted in additional consequences to this plaintiff.
113 As a result of the second accident, Mr Kierce said the plaintiff had sustained a further soft-tissue injury to his lumbar spine. Mr Simm agreed, and said the plaintiff had persistent symptoms with some referred lower limb symptoms which may relate to an aggravation of underlying degenerative pathology. Mr Simm said his condition had stabilised but said there was a potential to accelerate degenerative change in the low-back region. Both imposed restrictions of not undertaking physically demanding work, in particular, work that involves bending, twisting and lifting. Mr Simm accepted he could not increase his classroom commitment.
114 The plaintiff’s evidence was that his back freezes up and locks in place, he applies heat packs and is restricted in his mobility. He said he has required physiotherapy treatment to regain mobility, but was unable to recall when he last attended physiotherapy. In July 2011, he told Mr Simm he last saw a physiotherapist six to eight months earlier. He said he experiences less intense but more frequent discomfort and pain in the lower back, especially when sitting or lying for extended periods. This causes problems with reading, writing, driving and watching television and contributes to his inability to sit and operate a computer for more than twenty to thirty minutes. He said the leg symptoms are in the nature of a dull ache and interrupt his sleep. The plaintiff reported these consequences to Mr Simm and Mr Kierce. I accept that the plaintiff suffers pain as he described as a result of his low-back injuries.
115 The plaintiff said he could not increase his classroom commitment as this work aggravates his low back. This was supported by Mr Simm’s evidence but not by Mr Kierce. In any event, there is no evidence that he is or would be required to increase his classroom work, and I only attribute limited weight to such a consequence.
116 The plaintiff said he could not paint the house or landscape the garden. He said he can mow the lawn and perform household duties, including shopping and cooking. I accept he can no longer perform heavy domestic tasks but retains the capacity to perform light gardening and maintenance work.
117 I accept the plaintiff’s low-back injury has had an effect upon his life. However, he retains the capacity to undertake full-time work. He drives his motorcar, he can walk and his social life is not affected.
118 In view of the time since the transport accident, I am satisfied that the plaintiff has suffered a long-term impairment to the low back.
119 I accept that, after considering the lumbar region condition immediately before the second accident with his current lumbar condition, the plaintiff has suffered an additional impairment resulting from the second accident. I accept that lumbar region has consequences to him.
120 Taking all of the evidence into account, I am not persuaded, on the balance of probabilities, and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept the plaintiff suffered a further low-back injury as a result of the second accident. I accept that that injury has had consequences to him, but I am not satisfied that, when judged by comparison with other cases in the range of possible impairments, the consequences of the low-back injury can fairly be described as “more than significant or marked and as being at least very considerable”.
121 I have considered the consequences of the low-back injury and neck separately, as submitted by counsel for the plaintiff. Counsel for the defendant directed his submissions to the spine. Even had I combined the neck and low-back injury and considered the spine as the body part, I would not have been persuaded, on the balance of probabilities, that the consequences to him could be fairly described as being “more than significant or marked and as being at least very considerable”.
122 Accordingly, I dismiss the plaintiff’s claims.
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