Amiryan v TAC

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-02610

NAHAPET AMIRYAN	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 May 2011
DATE OF JUDGMENT:	17 June 2011
CASE MAY BE CITED AS:	Amiryan v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 955

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT –Transport Accident Act 1986, Section 93 – serious injury – impairment to the lumbar spine.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie and	Henry Carus & Associates
Ms A Magee
For the Defendant	Mr R Gorton QC and	Solicitor to the Transport
Mr R McNeil	Accident Commission
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(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 (“the accident”) which occurred on 25 June 2007 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”

3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the lumbar spine.
4          The enquiry under subparagraph (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.
5          The serious injury defined by subparagraph (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: see Richards v Wylie (2000) 1 VR 79.
6          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7          The plaintiff relied on one affidavit and gave viva voce evidence. He was cross-examined. Tatiana Grosheva and Edgar Amiryan were required for cross-examination as was the plaintiff’s treating doctor, Dr Waluk and medico- legal examiner, Mr Kudelka. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence
8          The plaintiff is a forty seven year old disability support pensioner. He is Armenian and was born in Russia on 31 May 1964.
9          The plaintiff finished secondary school and studied economics at university. He then worked as an accountant and as a taxation police officer. The plaintiff later went into business, managing a shopping centre. After some years, the plaintiff went to Bulgaria and ran a business exporting wine to Russia.
10        The plaintiff’s ex-wife and son moved to Australia in 1997. The plaintiff visited Australia in 1999 and 2000. He remarried his ex-wife and came permanently to Australia in 2000. They have subsequently divorced again. The separation in 2006 and divorce was difficult for the plaintiff and for a time he was homeless.
11        The plaintiff deposed that after that time he was gradually picking up pieces of his life, doing some casual labouring work in the building industry for cash on an irregular basis.
12        In cross-examination, the plaintiff confirmed he had plans to set up a business when he came to Australia but it was difficult to plan anything concrete, as he did not have the necessary English.
13        Prior to the said date, the plaintiff worked for AAZ Transport as a truck driver on a casual basis. He obtained a heavy rigid truck licence in May 2006 to improve his chances of obtaining truck driving work. The plaintiff’s heavy vehicle driver’s licence is current until 26 November 2012.
14        By letter dated 17 April 2009 A Grade Motor School confirmed on 17 April 2009, that the plaintiff had attended a three day heavy rigid non-synchromesh course which was completed on 10 May 2006 and he was issued with a certificate of competence by Vic Roads.
15        In 2006, the plaintiff had been looking for work with the assistance of Centrelink for several months prior to the said date. Although he had interviews, the plaintiff’s lack of English made it difficult for him to obtain work and some jobs were not suitable as he needed his own truck.
16        The plaintiff deposed he was due to have a further interview for a position as a driver. However, this did not occur because of the accident.
17        In cross-examination, the plaintiff said he passed a test in written and spoken English, ceasing study perhaps at the end of 2006. He then said that he may have finished studying in the middle of 2006, because at that stage he became homeless when his marriage broke up.
18        The plaintiff did not lodge any taxation returns between 2003 and 2006. He agreed he worked as a casual truck driver for AAZ between 4 July and 1 October 2005 until the work ran out. He looked for work elsewhere but was unsuccessful in obtaining a job. He had sought the assistance of a job centre which looked for work for him. He did not make any job applications himself.
19        Although the plaintiff could not recall, he agreed he worked for AAZ from 10 March to 23 September 2006 and possibly earned $51 per week. After that, he went to the job centre and asked them to look for work for him. He attended two interviews unsuccessfully because of his English.
20        The plaintiff did not apply for driving work between that time and the said date. He was counting on the job centre and asking them to look for work for him, having obtained the truck licence on their advice.
21        In cross-examination, the plaintiff could not remember the job to which the interview related but he knew that on 9 July 2005 he was to attend a job interview.
22        The plaintiff agreed that when examined by Dr Weissman the plaintiff told him that he was going to work as a truck driver on 9 July 2005 and that he had just obtained his heavy rigid licence. The plaintiff denied he was trying to give Dr Weissman the impression that he had a job lined up at the time of the accident.
23        The plaintiff agreed that he may have told Dr Hokin that, at the time of the accident, he had a promising employment offer to work as a truck driver.
24        When it was put to the plaintiff that he had told Dr Ingram that he had obtained a job, being due to start a few weeks after the accident, the plaintiff said he was referring to the interview.
25        The plaintiff agreed that he told Flexi Personnel earlier this year that he was due to commence work as a rigid truck driver when in fact he did not have a job offer and he did not know who the job was with. He expected to be told these details at the interview.
26        If the plaintiff had obtained that job, it would have been the first time he had full time work in Australia. His only income in Australia was from AAZ Transport.
27        When the plaintiff was earning on average $51 a week with AAZ, he was working casually for about six or seven hours a week. His health did not cause him problems working. The plaintiff’s haemorrhoids did not stop him working, because if he had pain in that regard he used a suppository or ointment and the pain went away and he could work.
28        Before the accident, the plaintiff’s son gave him financial support because he was working at that time. However, if the plaintiff was working and he had some money, then he gave his son some financial assistance.
29        The plaintiff saw Dr Youseff a couple of times in 2005. The plaintiff could not remember complaining to him during that time of severe headaches. The plaintiff could recall being assaulted by a gang of hooligans and being treated for concussion and a gash on his head.
30        The plaintiff agreed in 2005 to 2006 he had ongoing marital problems that lasted for many months before separation. As a normal man, he was upset by his wife having affairs. He denied he became impotent before the accident, stating that problem started about three years ago.
31        Prior to the accident, the plaintiff had been feeling upset and down because of his marital breakup. Dr Waluk had discussed sending him to a psychiatrist. Although he gave the plaintiff a referral, the plaintiff did not make an appointment as he felt with time, and obtaining some regular work, he would be all right.
32        The plaintiff could not recall, but he thought perhaps he attended his general practitioner, Dr Waluk, in February 2007 complaining of severe headaches. When asked about the note of that attendance of the plaintiff mentioning a reduced sexual life and problems, and counselling in relation thereto, the plaintiff said he went to see Dr Waluk “to have a talk”. It was not that the plaintiff had problems or issues at that particular time because he was living with a young lady and went on holidays with her and he wanted to experiment with Viagra.
33        The plaintiff denied having lost his driver’s licence before or after the said date. He agreed he had been convicted of theft from shops in both 2007 and 2010.
34        The plaintiff denied he had ever drunk too much and that it was common for him to binge drink to excess before the said date.

The Accident
35        On the said date, the plaintiff was driver of a vehicle travelling along Bambra Road when the driver of another vehicle, without indicating, suddenly made a U-turn out of a parking spot in front of his vehicle. The front of the plaintiff’s vehicle struck the driver’s side of the other driver’s vehicle (“the accident”).
36        In cross-examination, the plaintiff denied that it was it was a minor accident and said the entire front of his car was smashed and badly damaged. In re- examination, he estimated he was travelling at 50 to 55 kilometres per hour at the time of the accident.
37        The accident occurred close to the plaintiff’s home and although an ambulance attended the accident scene, the plaintiff decided to go home. He had bruising under his left eye and on his chest from the seatbelt, and he also had a sore left leg and knee.
38        Later that evening, the plaintiff became aware of pain in his spine, starting towards his neck and becoming worse in his lower back. The following day he saw Dr Waluk who organised an x-ray and CT scan, after which he told the plaintiff two discs in his back were affected.
39        In cross-examination, the plaintiff confirmed the development of pain over the night following the accident. He had severe pain, with his back and knee hurting a lot. The plaintiff agreed he did not complain of referred pain from his back into his leg until November 2007, but then said, it is a very long time ago since his legs were hurting. His legs, especially the left, hurt and Dr Waluk told him the pain was caused by his back.
40        The plaintiff was referred to a specialist, Mr Brazenor, whom he saw on 3 September 2007. Mr Brazenor told the plaintiff to do back exercises and walk each day and that he needed to avoid bending and lifting activities. In cross- examination, the plaintiff confirmed that when he saw Mr Brazenor a diagram was shown to him. Mr Brazenor did not tell him anything and simply wrote things down.

Present Treatment
41        Since the accident, the plaintiff has tried a number of medications for pain relief, including Tramal, Valium and sleeping pills. As he found he was becoming dependent on such medication, the plaintiff decided to cease relying on pills.
42        At the moment the plaintiff is not taking any medication. He has not taken Tramal or Valium for about a year and a half. He “felt no good” after taking Tramal and his doctor advised him not to take it any more.
43        The plaintiff is presently prescribed Lexapro and Zyprexa but only takes these tablets when he is very unwell and unable to sleep. He last took Lexapro about a month ago and Zyprexa about ten days ago. He does not take the medication that is prescribed “because his body does not take twenty tablets a day” and he feels even worse when he takes too many tablets.
44        The plaintiff has seen Dr Hokin, psychiatrist, monthly since April 2008. He also sees Dr Waluk in relation to his back and mental state about every two weeks. Dr Waluk tells the plaintiff his condition is not treatable and that he needs to walk to build up his muscles.
45        The plaintiff uses a TENS machine usually once or twice a week. For about twenty weeks of the year he uses it every day. His pain varies and when it is severe he uses the machine.
46        The plaintiff walks twice a day as recommended by Mr Brazenor when he can manage it. Some days he can walk but other days his pain levels are such that he has difficulty even standing straight and on those days he needs a cane to help him walk. The plaintiff was advised against physiotherapy or chiropractic treatment by Mr Brazenor.

Current Complaints
47        The plaintiff has constant lower back pain. On certain days the pain is severe and he has difficulty walking and he remains at home and rests if he can. The plaintiff has pain into his legs, particularly the left. He has numbness down to his knees and the left leg can be numb and sore to the foot.
48        If the plaintiff sits for too long, his leg numbness becomes worse. As a result, he often has difficulty walking long distances and finds it difficult to get out of the car after sitting in it for a period of time.
49        The plaintiff described having problems standing in court on the first day of the hearing. In particular, his left ankle was swollen. He explained, however, that he was better standing than sitting.
50        The plaintiff’s sleep is very broken. He wakes with pain from being in one position and then cannot find a comfortable position to help him get back to sleep and he is often awake for hours during the night.

Activities
51        Prior to the accident, the plaintiff used to love going fishing with friends. They went along the coast to Rosebud and as far as Sale and at times would hire a boat.
52        In the plaintiff’s divorce, he left his fishing rods behind at the matrimonial home and he did not continue to fish. However, as he was getting his life back together before the accident, he was hoping to resume this activity which he enjoyed.
53        Before the accident, the plaintiff also loved soccer and he played socially with the Armenian Club. On these weekend games, the losing team shouted the winners to a barbecue and vodka. Again, this activity was interrupted by the plaintiff’s divorce but he was intending to resume this social contact once he had some steady employment lined up. He had always followed soccer as a spectator, supporting the Russian competition, but has lost interest since the accident.
54        The plaintiff has been in a relationship since his divorce but he was not involved in one at the time of the accident. Since then he has had difficulty in forming and maintaining relationships. In part, he has great difficulty in engaging in sexual relations because of back pain and this has had a negative impact on his ability to form new relationships. Nothing is worse in life for the plaintiff than this problem.
55        Since the accident, the plaintiff has gained nearly fifteen kilograms in weight. Prior thereto he was very active and his inability to remain active has led to the weight gain. In re-examination, the plaintiff said he gained about seventeen kilograms since the accident because of lack of active sport, and that his lifestyle now only involved lying down on the couch and watching television.
56        The plaintiff has friends come to his home most days to help him and they often cook and leave meals prepared for him. They help him with cleaning and washing and on some days they even need to help him put on his shoes and socks. Often, if the plaintiff is on his own, he does not eat or cook for himself.
57        The plaintiff attributed his current unhappy lifestyle to his three chronic illnesses. His back is the primary issue. He has no possibility of having friends because he cannot go visiting and he cannot go to parties. When he goes out, all he wants to do is go home, and people think that he does not want to be with them.
58        The plaintiff has become irritable and easily irritated by small things and is very distrustful since the accident. He is now very disappointed in life and cannot see a future. He has lost motivation because he is tired of dealing with back pain all the time and everything seems so difficult for him.
59        The plaintiff thought his level of English was much better in 2006 when he thought he had reached such a level that he could perhaps obtain a job. He was then socialising and watching television. His present English is about twenty per cent of that level because of his memory problems and also because he has a reasonably lonely lifestyle.
60        The plaintiff would like to work as a truck driver as it is possible to earn good money. He has been advised by his doctors that because of long periods of sitting and the need to lift and bend when loading and unloading, this would no longer be suitable work for him.
61        The plaintiff does not have any plans and does not know what he will do when his case finishes.

Heart Condition
62        The plaintiff confirmed that he had heart surgery in April 2009 when a stent was inserted. He had not had chest pain before the accident. When the pain first came on in about 2008, he felt numb in the left hand side of his arm and he could not even think it would have been his heart. Since the stent surgery, the plaintiff still has chest pain but of a different character
63        The plaintiff is prescribed Metoprolol, Plavix Go and aspirin for his heart, and he also takes cholesterol medication. He takes these tablets when he remembers to. He has been advised that he should not drive or operate machinery whilst taking this medication.
64        In cross-examination, the plaintiff agreed his heart condition is distressing for him.

Haemorrhoids
65        The plaintiff confirmed he still has problems with haemorrhoids. The pain can be acute and at such times he cannot walk and he could not sit to drive a truck.
66        The plaintiff said “let’s be clear” that he has had this haemorrhoid problem for about twenty years. From 2008, he had an acute condition that continues to be so and is distressing for him.
67        Between the accident and the stent surgery in April 2010, the plaintiff’s haemorrhoids were greatly affecting his ability to work. He had acute pain, such that medication would not have enabled him to work.
68        After the haemorrhoid surgery there was no improvement in that condition whatsoever. The plaintiff takes medication and laxatives every day in relation thereto. If he misses this routine one day, then he has such severe pain it overwhelms him so much that it takes over any other pain.

Histories to doctors
69 The plaintiff agreed he had given an inaccurate history to Mr Kudelka in 2010 when he told him that he was living in a share house and that he was taking Tramal and attending language school. When the plaintiff said these things he “meant what was happening generally.”

70 The plaintiff has not gone to language school after the accident because of his problems sitting down to study.
71 The plaintiff explained he told Dr Weissman and Mr Kudelka an incorrect history about his living arrangements because of his memory lapses. There was no need for him to embellish his story, saying:
“Is the story more sad than mine? Is it not enough I’ve had three chronic terrible diseases and I suffered through that? Is there a worse story than my case?”

72        Dr Weissman was wrong in saying the plaintiff had not had a car for two years because the plaintiff had an accident in his own car in October 2010. He was also wrong when he recorded the plaintiff told him he had written off his car in the accident. The plaintiff did not tell Dr Weissman that he was “keen” sexually and that he had a Russian girlfriend.
73        The plaintiff was cross-examined about the histories given as to his family’s psychiatric history. He confirmed his great uncle had some problems, as did his grandmother.
74        When asked why he did not tell Dr Hokin about any family psychiatric history, the plaintiff said he remembered about his great-uncle at that time but he decided that relative was not close enough in the family to be relevant to the question.
75        The plaintiff said he did not tell Dr Hokin about his emotional upset with his separation because he forgot about it, and when he saw Dr Hokin, he had also stopped having the headaches he was experiencing at the time of the separation. The plaintiff did not see a psychiatrist before the accident as his headaches had disappeared and he was feeling more or less okay. He did, however, feel bad in 2006 when he was homeless.

Video Surveillance
76 There was eight minutes of film of the plaintiff taken on 6 December 2010. He was shown getting in and out of his car, standing at the beach leaning on a railing for about seven minutes, and then going for a short walk.
77 In cross-examination, the plaintiff agreed there were no signs of any pain or restriction on the film, but said the film did not fairly represent how he felt most days. He could not remember that particular day, but said he must have felt particularly well. He explained that there were so very few days of that type that happen to him during the year.

Lay Evidence
78        Tatiana Grosheva, a friend of the plaintiff, swore an affidavit on 20 May 2011. She is Russian and has lived in Australia since 2005.
79        Ms Grosheva first met the plaintiff in 2005 at the Russian Community Centre and she attended an English class with him in 2006.
80        During that time, she found out the plaintiff was a neighbour of her brother in Moscow. She now feels like the plaintiff is more like a relative as she does not have any family in Australia.
81        Ms Grosheva deposed that the plaintiff always worked as truck driver and after he finished his English course he was able to get a licence to drive larger trucks. He worked for a company that moved furniture but he was looking to work driving large trucks because that work was better paid. She knew the plaintiff had a lot of plans to get well paid work as a truck driver.
82        The plaintiff lived in Burwood with his wife and son before the accident. He was very optimistic and happy. He encouraged Ms Grosheva to start a new life in Australia. He also had a lot of friends and was involved in social activities with her.
83        The plaintiff had a good job and could support himself. He was very fit and healthy. Ms Grosheva saw him in restaurants and saw him dancing. He told her he loved to go fishing and he also had a group of friends who played soccer together.
84        Ms Grosheva continued with her English course for two years and the plaintiff studied for a year and then completed his truck licence course.
85        In 2006, the plaintiff and his wife separated and he moved to Glenhuntly. Ms Grosheva still kept in touch with him and saw him at Community Group activities. In June 2007, as she had not heard from the plaintiff, she called him and he told her he had been involved in a car accident and he was in a lot of pain and felt very bad and he had injured his back and legs.
86        Ms Grosheva visited the plaintiff at his house in Glenhuntly. The plaintiff was very worried about what would happen to him as he was not able to work and he did not have money to pay his rent. He was unable to look after himself so she started to help him by cooking for him and washing his clothes. She also had to help him shower and shave and helped him take the right medication.
87        Since then, the plaintiff has not socialised or attended the Community Group. He did not want to go anywhere and just stayed at home. Whilst initially calling in to see the plaintiff at home, his friends slowly dropped off seeing him. He did not want to tell them how much pain he was in and did not want to talk about how he was feeling and that everything was going wrong.
88        The plaintiff then had a problem with paying his rent and he was evicted but he did not have anywhere to move to. He received some help from an organisation who helped homeless people and he was able to move into a share house in Clayton.
89        Before the accident, the plaintiff was not unhappy but afterwards he started to get very down and sad and even wanted to kill himself. He lived in the share house until May 2009 when he suffered a heart attack. When the plaintiff got out of hospital, Ms Grosheva let him live in her house in Sandringham so she could look after him.
90        Sometimes at night she can hear the plaintiff crying in his sleep. He is depressed and still has a lot of back pain.
91        The plaintiff now spends his day on the couch or lying on the floor. He does not go out a lot. Sometimes, if he feels a bit better, he goes to the supermarket. She does all the cooking and cleaning. The plaintiff still has some of his things in the share accommodation.
92        The plaintiff is on a waiting list for a Housing Commission property. Ms Grosheva does not know how long he will stay with her. He needs care and will not be able to look after himself.
93        The plaintiff does not have any hobbies now and he does not see most of his old friends, save for one with whom he keeps in touch. The plaintiff does not go out anywhere since the accident. His son sees him regularly.
94        When the plaintiff’s back is very bad, Ms Grosheva uses the TENS machine on the plaintiff which does seem to help relieve his pain. The plaintiff also uses a walking stick when he is in a lot of pain. He can walk without it if he is having a good day. He is very depressed because he does not think he can work again and he had hoped to earn a good living as a truck driver. She noted that in Moscow, the plaintiff was an accountant and his company also owned a successful restaurant.
95        Ms Grosheva has noticed that since the accident, the plaintiff’s memory is poor. In the morning she puts out his medication which she tells him to take but sometimes he forgets to do so. He gets the wrong items when he goes shopping.
96        Ms Grosheva was cross-examined about her knowledge of the plaintiff’s work before the accident. She did not know the hours he worked or how often he worked, or whether he worked at all during that period. It was just what he told her.
97        During that period, Ms Grosheva was seeing the plaintiff monthly at social occasions like birthdays. He studied English in 2006 and in the first half of 2007, was studying for his truck licence. Ms Grosheva did not know it was a three day course or when the plaintiff obtained his truck licence. She knew at the end of 2006 that the plaintiff worked with Alex Transport, but she was not sure whether he worked with that company until the accident.
98        After the accident, the plaintiff told her he had been working at the time of the accident and was not able to now, and he was worse financially.
99        The plaintiff did not show her any feelings of upset on separation.
100       The plaintiff has lived with Ms Grosheva since May 2009. He did not do a major move of his furniture from the share accommodation when he moved into her house.
101       Ms Grosheva receives a carer’s allowance for looking after the plaintiff. She confirmed that she does cleaning and cooking and looks after him generally.
102       She thought the plaintiff had had two other car accidents: one in October 2010 “where nothing happened to him”.
103       The plaintiff previously took Tramal but he now takes Panadol, not having taken Tramal for maybe about a year and a half. He takes tablets for his mental state when he is very stressed and cannot sleep, but he does not take them regularly. He takes his heart tablets regularly.
104       Before the accident, the plaintiff was very talkative. Now, he does not talk much, and sometimes she hears him cry at night, and he becomes easily very angry. The plaintiff has complained to her about his heart condition being a real worry. She knows he has problems with haemorrhoids, about which he also complains to her.
105       In re-examination, Ms Grosheva confirmed she had a normal memory of the plaintiff’s pre-accident circumstances. She saw him on the furniture truck once during that time.
106       Ms Grosheva considers there is a lot of difference in the plaintiff before and after the accident. Before, he looked very happy and active and had lots of social activities, but now he does not go anywhere much, and his behaviour is very passive and his character has changed. She hears him crying every one to two months.
107       The plaintiff’s son, Edgar, aged twenty three, swore an affidavit on 22 May 2011.
108       Edgar deposed to a happy childhood in Armenia and the success of his father’s business at that time. It was very hard for him to move to Australia without his father but they kept in contact. The plaintiff was always a hard worker and supported him and his mother in Australia, sending presents and money.
109       When the plaintiff was able to live in Australia full time, the family got a house in Wheelers Hill. On arriving in Australia, everything was good and the plaintiff had lots of plans for the future. Edgar and the plaintiff had a dream to open their own business.
110       Edgar left school at Year 10 and he went straight into a hospitality course and obtained qualifications. He wanted to open a café with his parents.
111       Life was good between 2004 to 2005 when the family were living together. The plaintiff played soccer every Sunday at the Armenian Club and used to go fishing a lot with friends to Phillip Island or Sorrento. The plaintiff went straight into learning English and while doing so, a friend at the Russian Community Group told him about a job truck driving.
112       The plaintiff knew of a man, Alex, who owned AAZ Transport and the plaintiff started working for him on a casual basis and he also worked doing odd jobs for friends. The plaintiff then completed a heavy rigid licence course and continued to work for AAZ Transport.
113       At the end of 2006, Edgar’s parents separated and he started living with his mother. The plaintiff had a rental property in Glenhuntly and seemed to be happy there and he always had friends over. Edgar went out with the plaintiff for dinner and also went with him on a skiing trip. His parents were still getting along together at that time.
114       Before the accident, the plaintiff had always been very outgoing and positive. He was working hard, played hard and just loved life.
115       In June 2007, the plaintiff was involved in a car accident where he was very badly injured. The plaintiff has never recovered from his spine, neck and leg injuries and since the accident, he is a different person.
116       Since the accident, Edgar and the plaintiff have not done anything together at all. They tried fishing once but the plaintiff was in so much pain they had to go home. The plaintiff’s whole demeanour has changed and he is now very negative despite encouragement from Edgar.
117       Since the accident, the plaintiff has constantly been in pain, mainly in his back. Edgar has taken the plaintiff to the specialist to translate for him. The plaintiff has been more depressed since being told that surgery would not help him.
118       The plaintiff was kicked out of his rental property because he could not pay the rent and he ended up in share accommodation which was horrible.
119       After the accident, everybody helped the plaintiff with washing and cooking. It was an awful time for the plaintiff and had been the lowest point in his life, not being able to work or provide for his family, which was a really big thing for him. Before the accident, the plaintiff was always bringing the family groceries and helping his son, Edgar, pay his bills. The plaintiff just loved to help financially.
120       After the accident, “when it seemed everything bad had happened”, the plaintiff suffered a heart attack in 2009.
121       The plaintiff’s friend, Tatiana, helps him out a lot. She makes sure he has his medication and she cooks and cleans for him.
122       The plaintiff’s life is now very quiet and he still suffers from back pain and cannot do a lot during the day. He cannot bend over to pat Edgar’s dog or take the dog for a walk.
123       The plaintiff is never able to attend any of Edgar’s competitive sporting events. The plaintiff does not see his friends any more as he does not want them to see him sick.
124       The plaintiff is on a huge amount of medication and always talks about not having many years to live. He is very depressed because he may never work again. The plaintiff’s memory is starting to go. He is unable to drive on very long trips. He wanted to go back to Armenia to see his mother but he cannot even consider making the trip.
125       In examination-in-chief, Edgar corrected his affidavit, saying that in 1998 he and his mother came to Australia, and also it was incorrect that he visited his father in hospital after the accident. In cross-examination, Edgar said he made these changes, having thought of the case lying in bed the night before the hearing and he had not spoken to anyone about those matters.
126       Edgar was cross-examined about his knowledge of the family setup and his parents’ plans in Australia. He was then ten years old “so it was not time for him to get involved.”
127       There had been some discussion since the plaintiff came to Australia about setting up a business with Edgar, whose dream it was to do something in hospitality, as that was his training. There was also the possibility of Edgar and the plaintiff setting up a truck driving business.
128       Edgar did not have a clue about the plaintiff’s working arrangements before the accident. He saw him regularly, and the plaintiff would just say he had been at work.
129       Edgar agreed the plaintiff was clearly distressed by the separation from his wife. He had just got a divorce and separated from his wife, and “obviously was not happy, like any normal person really”.
130       There was a slight change in the plaintiff’s behaviour at that time, because he was not seeing people who were his mother’s friends. It was not a major change. Edgar did not stop seeing the plaintiff and the plaintiff was not stopped from doing things with him. He saw the plaintiff a couple of times a week, either at home, or he visited him. They played soccer on the weekends because Edgar was doing his course or doing part-time work. The plaintiff came over for dinner or they “got a bite to eat”. The plaintiff and Edgar’s mother were still friends.
131       Since the accident, Edgar and the plaintiff really have not gone out at all. The plaintiff simply comes to Edgar’s house for dinner.
132       Edgar confirmed that the plaintiff assisted him financially before the accident with groceries and a bit of money here and there. He denied supporting the plaintiff at that time.
133       When he deposed that the plaintiff lived eighty per cent of the time with Tatiana, Edgar meant the balance of time the plaintiff stayed with him. He knew the plaintiff had stayed with Tatiana quite a lot, but he did not think he lived with her.
134       Edgar explained the huge amount of tablets he referred to in his affidavit was a combination of back painkillers and heart problem medication. The plaintiff told Edgar he had some pain medication for his back, and when he felt really bad he had to take it. He had not told Edgar he had stopped taking prescription medication for a year and a half.
135       Edgar knew the plaintiff was depressed because of the plaintiff’s whole demeanour, his whole attitude towards life. He was no longer like the man who was his father.
136       On re-examination, Edgar confirmed he was not part of the decision making, but he was aware to some degree of his parents’ plans on the plaintiff coming to Australia.
137       Between the ages of sixteen to nineteen leading up to the accident, Edgar was studying and worked part-time. He had a lot of social interaction with the plaintiff before the accident, going to the country and lots of other places, fishing, and playing soccer. After the accident, everything pretty much changed. They tried going fishing about two years ago, but on attempting to do so the plaintiff could not continue after about five minutes.
138       The plaintiff now has negative rather than positive thoughts. He just does not want to do anything. Even when he regularly comes over for dinner, after only an hour he feels uncomfortable, and he needs to lie down or wants to go home. The plaintiff stays the night most times, because it is hard for him to drive home – a trip of forty five minutes to an hour.

Vocational Evidence
139       Ms Oliver from Flexi Personnel completed a vocational assessment on 14 April 2011. The plaintiff told her that at the time of the accident, he was due to commence work as a heavy rigid truck driver on 9 July 2007.
140       Essentially Ms Oliver was of the view, taking into account the plaintiff’s physical restrictions, medication dependence, headaches, lack of sleep and his limited English, that his work capacity was compromised. In her opinion as a recruiter, these factors presented a significant barrier to vocational training for alternative work.
141       Although the plaintiff’s computer knowledge and skills were quite sound, she noted he had a restricted capacity to sit, could not write in English and did not have any commercial administrative skills in Australia. Therefore, she considered the plaintiff’s injuries and consequential restrictions and symptoms had negatively affected his capacity to effectively perform suitable employment.
142       Ms Oliver thought the plaintiff had very limited saleable transferrable skills. In her view, if he did have a residual work capacity, she did not believe it would be at a level that would make him an attractive option for a new employer to hire him for full time or even part duties, as his disabilities and language barriers would be obvious to an employer.
143       Therefore, in her view, the plaintiff’s work capacity had been significantly negatively affected by his physical and associated psychological injuries. She would not refer him to any potential employer until she received a letter of clearance from his doctor stating the number of hours and type of duties he could safely perform on an unrestricted ongoing basis.

The Plaintiff’s Treaters
144 Dr Waluk, the plaintiff’s general practitioner, reported once on 24 August 2008. He treated the plaintiff from 29 November 2006 and, prior to the said date, did not treat him for any back problem.

145       Dr Waluk first saw the plaintiff after the accident on 26 June 2007. The plaintiff then told him his car was badly damaged and he suffered bruising to his left eyebrow, injuries to the left knee, a seatbelt injury to the chest and a low back injury.
146       On initial presentation, the plaintiff’s main problem was lower back pain and headache. He had a limited range of movement in the lumbar spine due to pain and sciatica. Investigations were arranged which revealed protrusions of the L3-4 and L5 discs centrally onto the thecal sac. The plaintiff was prescribed analgesics and given a certificate for total incapacity until 9 July 2007.
147       As the plaintiff’s condition did not seem to improve, he was referred to Mr Brazenor, neurosurgeon, who saw him on 3 September 2007.
148       The referral letter from Dr Waluk to Dr Brazenor dated 31 July 2007 set out:
“TAC accident - 25 June 2007. Prolapsed L3-4 and L4-5 with sciatica,
left knee, head injuries, needs specialist, assess treatment, follow up.”

149       Dr Waluk reported that Mr Brazenor confirmed the presence of L3-4 and L4-5 disc protrusions. He considered the L3-4 disc prolapse as being significant in producing the plaintiff’s symptoms and suggested conservative treatment with avoidance of aggravating factors. He also recommended back strengthening measures and a walking program. Mr Brazenor felt the plaintiff’s back would take at least five years to improve but he could not assure such improvement.
150       Dr Waluk noted in August 2008 that despite all the above measures and treatments, the plaintiff’s back continued to hurt and he required Tramadol, Valium and Temaze on an ongoing basis to decrease his back pain and be able to cope with the activities of daily living.
151       Dr Waluk reported the plaintiff’s pain usually radiated to his legs and frequently interfered with his sleep. The plaintiff felt pain most of the time which was aggravated by bending at the waist. The pain prevented the plaintiff from doing any physical work and as his command of English was poor, he could not seek any non physical work.
152       Considering the above, Dr Waluk believed that although the plaintiff’s condition had stabilised to a great degree, he had no capacity for any physical work and consequently he would remain unemployed with a rather bleak chance for any substantial recovery.
153       In examination-in-chief, Dr Waluk confirmed the plaintiff continued to suffer from his back injury. It took him about a year to stabilise, which was pretty average, and after that his condition has been generally stable with exacerbations caused by various reasons.
154       Treatment since August 2008 had been mainly in the form of Tramadol and also Digesic. The last reference to these drugs being prescribed was set out in the clinical notes on 21 June 2010, when “back pain ++” was noted, but Dr Waluk may have prescribed this medication at other times and not mentioned it in his notes.
155       Whenever the plaintiff complained about his back, Dr Waluk examined him briefly. The plaintiff’s back was usually in the same stable situation, with no neurological deficit.
156       Dr Waluk had a significant conversation with Mr Brazenor after receiving correspondence from him following the referral. He told Mr Brazenor that the accident was more severe then Mr Brazenor understood. He also told him of the onset of back pain the day after the accident.
157       Mr Brazenor had simply reported the plaintiff had a car accident where a parked car pulled out in front of his car. His car was drivable for a few streets, and it did not really sound like a high energy collision. Mr Brazenor also thought that a few days after the accident the plaintiff started to have some back pain and bilateral sciatica.
158       Dr Waluk told Mr Brazenor the plaintiff developed leg pain around the time of the referral. Dr Waluk vividly remembered the plaintiff developed pains mainly going to his buttocks and certainly to his legs. On the basis of the x-rays, Dr Waluk felt there was ample reason for a specialist referral.
159       On the basis of the revised history, Mr Brazenor said to Dr Waluk:
“Well, if it was such a significant accident as you described, I would say it is most likely to be the injury, not degeneration causing the plaintiff’s problems at that time.”

160 The first reference specifically to left leg pain in Dr Waluk’s clinical notes was on 22 November 2007, but Dr Waluk stated that the plaintiff had certainly complained about such pain earlier, at the time of the referral to Mr Brazenor.
161 On 26 June 2007, Dr Waluk provided a transport accident certificate because he decided the plaintiff’s injury should be handled under the Act.

162 Dr Waluk explained that he had been treating the plaintiff for the haemorrhoids since 23 December 2006. On that first presentation, the plaintiff then presented with an acute condition and was certainly incapacitated by it. Dr Waluk drained the thrombosed haemorrhoids and he then prescribed Proctosedyl suppositories and Agarol from time to time. He also referred the plaintiff for specialist treatment.
163       Dr Waluk described that when a patient had a chronic anal fissure, which was a very painful condition, and also proctalgia pain from it, the pain was sudden, as “if someone took a knife and put it up the anus”. The patient would sweat and go pale, stop breathing and not be able to do anything. Dr Waluk did not think anyone could work feeling such pain. These episodes usually lasted for minutes. They could happen many times, and were unpredictable.
164       On 28 November 2008, Dr Waluk referred the plaintiff to a specialist, Mr Farmer. Prior to that referral, Dr Waluk felt the plaintiff was suffering from an anal fissure, and he treated him conservatively.
165       Dr Waluk noted that once a patient had thrombosed piles, after drainage they either improve with subsequent healing and there is no problem, or with aggravating factors, “they go the other way”, and the patient has more problems and eventually ends up having surgery.
166       Dr Waluk thought the plaintiff had some predisposing problems since December 2006, but he believed this haemorrhoid condition was aggravated by constipation due to analgesic intake after the accident.
167       In an entry of 16 February 2009 Dr Waluk referred to a letter to the defendant in which he advised that the bill for prescriptions for anti-haemorrhoids medication was not related to the defendant.
168       Dr Waluk considered that condition of the thrombosed piles preceded the accident. The plaintiff had been getting treatment before the accident and Dr Waluk did not know what proportion of his condition was related to an aggravation by constipating analgesics.

169 The plaintiff was prescribed Viagra before the accident for erectile dysfunction. He saw Dr Waluk in relation to this issue on 18 December 2006 when he told Dr Waluk that he had a very young partner and sexual performance was important for him.
170       Dr Waluk confirmed an attendance in February 2007 when the plaintiff complained of severe headaches but Dr Waluk did not know of their duration. On that attendance it was also noted the plaintiff’s sexual problems lessened. Dr Waluk explained a frequent side-effect of Viagra was frequent headaches. That entry also set out a lessening of bowel problems.
171       Dr Waluk also recorded that the plaintiff was “unemployed +++”. Dr Waluk used “++” to indicate a high level of emotional feeling on the plaintiff’s part. Dr Waluk explained that it was very important for the plaintiff with his new relationship to be working. There were also “headaches ++”, which were disturbing the plaintiff.
172       On 16 June 2007, there were significant complaints of right knee pain to Dr Waluk for which Tramal and Voltaren were prescribed.
173       The plaintiff received counselling from Dr Waluk in November 2007 in relation to a number of life matters, social and family matters, law enforcement issues and also sexual counselling. Dr Waluk was not able to apportion what percentage of those matters were non accident related.
174       Dr Waluk became aware that the plaintiff suffered cardiac problems in 2009, shortly prior to the stent surgery. Prior to that, there were frequent attendances for heartburn, but these were not attributed by Dr Waluk to a heart condition until 20 April 2009 when he felt the plaintiff had ischaemic heart disease, and referred him for a thallium test.
175       Dr Waluk would say the plaintiff was depressed, having a lowered mood, before the accident about many other issues. Dr Waluk explained there was a big difference between a lowered mood and the plaintiff’s post accident major depressive illness for which he was referred to and treated by Dr Hokin. Dr Waluk did not know what the plaintiff’s present condition was in this regard as he left this mater to Dr Hokin.
176       Dr Waluk agreed the plaintiff’s health, including his cardiac problem, was certainly contributing to his depression. Dr Waluk felt it was a combination of all different diseases plus the plaintiff’s social problems and his inability to move on with his life which affected his depression.
177       Dr Waluk did not know the plaintiff had not been taking Tramal for eighteen months. He thought the last prescription was in June 2010, but he would often give the plaintiff a lot of repeats.
178       On examination on 14 October 2010, Dr Waluk recommended the plaintiff do something about his weight which was then eighty seven kilograms.
179       Dr Waluk explained that the plaintiff’s clinical notes that had been subpoenaed and had been in the Court’s possession since October, had been added to by him after that time.
180       Dr Waluk completed a Centrelink medical report for a disability pension on the plaintiff’s behalf on 27 October 2008. He diagnosed L3-4and L4-5 disc protrusion with chronic back pain. The date of onset was noted to be 25 June 2007 in a motorcar accident when the plaintiff injured his back, chest, left knee and head. The plaintiff was then taking Tramal and Temaze.
181       Dr Waluk certified the plaintiff had difficulty doing any physical work due to the constant back pain. He also diagnosed major depression with paranoid ideation, with an onset in May 2008.
182       In terms of past history, Dr Waluk set out:
“Depressive symptoms getting worse and cumulating in May 2008.”

183       He noted the plaintiff was referred to Dr Hokin. The plaintiff was then taking Avanza and Zyprexa. Dr Waluk also set out the plaintiff had poor English commands so he was unable to do clerical work.
184       Dr Hokin, psychiatrist, first saw the plaintiff on 15 April 2008 on referral from Dr Waluk.
185       Dr Hokin reported on 9 October 2008 that he had been seeing the plaintiff regularly. he plaintiff was then living alone in temporary emergency accommodation and was currently unemployed.
186       Dr Hokin reported the plaintiff presented with a problem of depression in the setting of chronic treatment resistant back pain following the accident. This problem was first noticed in approximately August to September 2007.
187       The plaintiff told Dr Hokin that prior to the accident occurring he had just finished a truck driver’s course and already had a promising employment offer to work in that field.
188       The plaintiff told Dr Hokin of the accident circumstances and his injuries and that he believed, since the accident, his life had taken a bad turn. Having developed chronic back pain, he believed he had lost any opportunity for further employment. His financial situation had become very gloomy and he scarcely had enough money for his basic needs.
189       The plaintiff claimed to have never had any mental health problems prior to the accident.
190       In terms of personal history, the plaintiff told Dr Hokin he had tried various manual jobs which included work as a tiler and a landscaper. Further, due to various reasons, including financial difficulties, his relationship with his wife broke down and they separated.
191       The plaintiff described his pre-morbid personality as being happy, easygoing, communicative, friendly and optimistic. However, he believed his life had changed dramatically since developing chronic pain and he had become a pessimistic, unhappy and isolative person.
192       Following mental state examination, Dr Hokin thought the plaintiff was suffering from an Adjustment Disorder, Chronic with Mixed Anxiety and Depressive Mood, which had developed as a response to unexpected, and what was perceived by him as unresolvable life difficulties, including the associated financial hardship and lack of employment prospects due to the back injury as a result of the accident.
193       Dr Hokin noted there was no indication of any psychological or psychiatric disability prior to the accident and, in his view, therefore, the symptoms the plaintiff had developed occurred either as a direct result or consequence of his involvement in the accident.
194       At that stage, Dr Hokin thought the plaintiff’s present and immediate future capacity for work was very limited. He considered that the plaintiff’s condition had not yet stabilised and there had only been some improvement in the reduction of his psychiatric distress without any significant improvement in his physical symptoms. However, he thought it would be fair to assume that to some extent the severity of the plaintiff’s pain, or low tolerance thereof, could be partly aggravated and perpetuated by his chronic depressive symptoms and vice versa.
195       In addition, Dr Hokin thought the symptoms of the plaintiff’s Adjustment Disorder were quite severe and poorly responsive to various pharmacological and psycho-therapeutical interventions, thereby making his prognosis quite guarded and probably poor, as his progress to date had been slow. He estimated then that the plaintiff would require continuing psychiatric treatment including anti-depressants, anxiolytics and psychotherapy for a considerable time.

Medico-Legal Evidence
196       Mr Kudelka, orthopaedic surgeon, examined the plaintiff for medico-legal purposes on behalf of his solicitors on 17 December 2010.
197       On examination, the plaintiff indicated the lower lumbar region was the site of his pain, and movements were limited by approximately half. Straight leg raising was seventy degrees on the right and forty degrees on the left. The plaintiff said the left leg ached generally. Reflex and muscle power to clinical testing were within normal limits.
198       Mr Kudelka thought the plaintiff had sustained a mechanical injury to the lumbar spine in the accident with resulting residual impairment.
199       Mr Kudelka considered the plaintiff was not able to work presently from the orthopaedic point of view because of back pain and stiffness and an inability to sit for more than ten minutes, bend, stoop or lift. Therefore, the plaintiff could not drive a truck, as was his previous occupation. He noted the plaintiff also appeared to have suffered a psychological reaction to the accident.
200       Mr Kudelka believed the plaintiff was not totally disabled. He thought the plaintiff could work in alternative employment in a partly sedentary capacity but he was not able to return to truck driving with long hours of sitting and often loading and unloading. The plaintiff also required further English skills.
201       Mr Kudelka thought the prognosis from the physical point of view was that there would always be some back pain and stiffness which he thought should not prevent the plaintiff returning to sedentary or semi-sedentary duties with restrictions in prolonged sitting, standing, bending, stooping and lifting, noting the plaintiff’s lack of experience and lack of English literacy would make alternative work difficult.
202       Having been forwarded a number of further medical reports, Mr Kudelka provided a supplementary report on 14 February 2011 in which he did not change his opinion.
203       Mr Kudelka was required for cross-examination.
204       Mr Kudelka was asked about Mr Brownbill’s report where he set out he had reviewed an MRI scan of 8 August 2007 which showed slight bulging of the lower three discs. At L-3-4 there was decreased signal and annular tear, and a slight decrease in height. There were no abnormal changes at other levels.
205       Mr Kudelka agreed that an examiner in 2007, with the benefit of that investigation, would be in a better position to say whether the disc condition was related to the accident or not.
206       Mr Kudelka thought it “was stretching it a bit far” to say there was a pre- existing tear which was asymptomatic and he would not support that view. He explained that “tears follow mechanical injury. Tears are not bulges, and are a different animal altogether”.
207       Mr Kudelka explained that radiology is not necessarily determinative of a condition. In his view, there could be abnormalities but no pain. He considered that an annular rupture always indicated symptoms and an injury.
208       Mr Kudelka explained that a torn disc does not cause pain forever as it could heal but it was not possible to predict this mathematically.
209       Mr Kudelka confirmed a number of matters of history provided by the plaintiff namely, that the plaintiff had two children, he was attending language school in 2010, at which time he was living in a boarding house and in terms of treatment, the plaintiff was having physiotherapy and taking Tramal.
210       Whilst Mr Kudelka initially said the fact a patient took Tramal indicated he had a high level of pain, he then said the fact the plaintiff stopped taking that medication did not mean the pain had resolved, as after a period of time, most people vary their medication, and some stop it irrespective of pain, as they fear the side effects.
211       Mr Kudelka agreed assessment of range of movement and pain was subjective, but he had no reason to think the plaintiff was misrepresenting his situation. He was reluctant to express a view as to non organic components, saying that matter was better left to a psychiatrist.
212       Mr Kudelka confirmed he thought the plaintiff was incapable of truck driving because of the importance of the left leg in driving a truck, the prolonged sitting required and the need to tarp, load and unload. Mr Kudelka agreed that people with degenerative discs did that type of work and did not suffer pain, but they were at risk and were likely to injure themselves.
213       Noting the plaintiff’s condition had not significantly altered in nearly four years, Mr Kudelka thought it would be very unlikely it would significantly change in the future.
214       Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on behalf of his solicitors on 19 January 2011.
215       The plaintiff told him that before the accident he worked as a casual local truck driver, not doing loading work, working various hours, up to thirty to forty a week, and that he was studying English at the same time.
216       The plaintiff told Mr Brownbill of the accident circumstances and that he had not returned to any work since that time. He stated he was not working for six to twelve months before the accident because there was no more casual work and he was looking for a full time job but he could not get one.
217       The plaintiff told Mr Brownbill of pain in the low back present all the time, fluctuating in severity and worsening with increased walking, prolonged standing or lying down for too long. There was leg pain more on the left which fluctuated. There was left leg numbness in the front of the thigh which came and went.

218 On examination, the plaintiff was cooperative without embellishment. Active thoracolumbar spinal movements were two thirds of full in flexion, three quarters of full in lateral rotation and in the other directions. There was slight generalised tenderness around the lumbar spine but no guarding. Examination of the lower limbs showed power to be full and equal in all muscle groups. The knee reflexes were present on reinforcement and were symmetrical. The right ankle jerk was present but the left ankle jerk was absent. Sensation was decreased globally throughout the left leg, more so about the thigh (not in specific or nerve root distribution).

219 Mr Brownbill concluded examination had shown mild restriction of

thoracolumbar spinal movements, which were freely performed. The left
ankle jerk was absent but there was no other neurological abnormality.

220       Mr Brownbill noted that radiological investigations had demonstrated minor disc bulging at several levels in the lumbar spine and a derangement of the L3-4 intervertebral disc. He agreed with Mr Shannon that the absent left ankle jerk on probability was unrelated to the L3-4 disc change.
221       Taking into account the absence of back pain pre accident, the onset thereafter with later radiation to both legs and the continuation thereof, and later demonstration of a centrally single level lumbar intervertebral disc derangement at L3-4, Mr Brownbill considered on probability in the accident the plaintiff suffered damage to the L3-4 lumbar intervertebral disc.
222       From a neurological point of view, he considered the plaintiff had suffered a derangement of the L3-4 lumbar intervertebral disc. Noting that he had described ongoing back and intermittent leg pain, his previous work activities having been of a physical nature with prolonged sitting and his poor grasp of English, Mr Brownbill considered that on probability the plaintiff did not have a current capacity for employment. He thought the plaintiff would not be able to return to truck driving and on probability he would not be able to perform any employment for which he was suited in any ongoing or reliable fashion. He anticipated the plaintiff’s pain would continue in a fluctuating manner indefinitely.
223       Dr Weissman, psychiatrist, examined the plaintiff on behalf of his solicitors on 10 January 2011.
224       The plaintiff told Dr Weissman he was not working at the time of the accident but he had been doing some casual work and just obtained his heavy rigid licence and was going to start work as a truck driver on 9 July 2007. The plaintiff told Dr Weissman he was driving a Holden Commodore that was written off in the accident.
225       The plaintiff told Dr Weissman that his pain had worsened over the last three and a half years. Most likely he had been depressed pre accident but the plaintiff did not feel it then.
226       The plaintiff told Dr Weissman that before the accident he still had casual work and was mixing with friends and had busy days. However, he now felt depressed.
227       The plaintiff told Dr Weissman that he drank alcohol infrequently. He told him he was mildly depressed after his wife “kicked him out” before the accident. He told Dr Weissman the major reason why he could not work was because of his health, namely everything altogether; the transport accident and his cardiac health.
228       On mental state examination, the quality of the plaintiff’s affect was sad, depressed, flattened and restricted in range. His thought stream was normal and there was no formal thought disorder. The content of his thinking revealed occasional thoughts, reminders, triggers and flashbacks of the accident itself, mild post-traumatic stress and anxiety symptoms and mild to moderate mixed reactive depressive and anxiety symptoms, themes and features, which were part accident related, with pain focus and preoccupation. There were no formal abnormalities of perception. The plaintiff had occasional bad dreams about the accident and there was some passenger/driver-related anxiety, nervousness and hypervigilance.
229       Dr Weissman did not formally test the plaintiff’s higher centre cognitive functioning but he noted there were subjective complaints regarding short term memory disturbance and forgetfulness. The plaintiff’s insight and judgment were characterised by a lowered self esteem and some elevated health concerns.
230       Dr Weissman thought it seemed fair, reasonable and appropriate to suggest the plaintiff had a small ongoing amount of pre-existing psychiatric impairment through his marriage breakup, with the accident, and his psychiatric impairment consequential to his heart attack.
231       In terms of the accident itself, Dr Weissman thought the plaintiff seemed to be suffering from mild to moderate mixed reactive depressive and anxiety symptoms, signs and features of the consequence of or secondary to his accident related pain, injuries and disabilities. He also considered the plaintiff was suffering from a small amount of primary direct or non secondary psychiatric impairment directly related to the circumstances of the accident. However, he thought the plaintiff did not have full blown Post-Traumatic Stress Disorder.
232       In overall terms, Dr Weissman thought the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity associated with mild symptoms and features of traumatisation. Overall, and by large, he agreed with Dr Ingram’s diagnosis.
233       Finally, in terms of the accident, it also seemed to Dr Weissman the plaintiff had developed some symptoms and features of a Chronic Pain Disorder associated with psychological factors and a general medical condition. He thought the psychiatric symptoms, conditions and impairment had essentially stabilised.
234       Dr Weissman thought it was difficult to comment on the plaintiff’s psychiatric capacity for work purely in terms of the accident related psychiatric injury. He thought the plaintiff was totally incapacitated for all work due to a combination of his accident related physical injury, his myocardial infarct and, to a certain extent his accident related reactive depression and anxiety, and to a larger extent his Chronic Pain Disorder.
235       On balance, he thought the plaintiff would be partially incapacitated for work but probably not totally incapacitated for all work in terms of purely the psychiatric repercussions of the accident.
236       Dr Weissman considered that the plaintiff should continue to see Dr Hokin and Dr Waluk for supportive care and that he warranted anti-depressive medication.
237       Dr Weissman concluded the plaintiff’s psychiatric prognosis was uncertain and guarded and was probably somewhat poor, unfavourable and negative. He thought the plaintiff would continue to experience moderate mixed depressive and anxiety symptoms and features with Chronic Pain Disorder symptoms and features for the foreseeable future. Taking into account the definition of “suitable employment”, he thought the plaintiff appeared to have a total loss of earnings for the foreseeable future.
238       Associate Professor Jelinek, cardiologist, examined the plaintiff on behalf of the defendant on 17 January 2011.
239       In terms of the plaintiff’s medical history, Dr Jelinek was advised that in December 2006, he had been treated for a urinary tract infection and haemorrhoids. The plaintiff was recognised as being depressed because of marital problems. He was also noted to have had pain in his right knee and foot, requiring Voltaren and Tramal.
240       Dr Jelinek noted that history contrasted somewhat sharply with the plaintiff’s statement that pre accident he was vigorous and active and engaged in sporting events.
241       Dr Jelinek also noted an ECG was carried out on 6 December 2006.
242       The plaintiff told Dr Jelinek of his persistent left sided chest pain following the accident and that there was a referral to cardiology which he declined. The plaintiff told him the pain from his left side deteriorated over a period of time and was also masked by treatment for more intense back and leg pain.
243       Further, the plaintiff also complained of burning central chest pain, which Dr Jelinek noted appeared to be aggravated by heavy alcohol intake and was attributed to oesophagitis or gastritis or reflux. Dr Jelinek noted that it was not clear that those pains ever changed significantly. There was a thallium scan on 29 April 2009, the referral for which set out a month’s history of chest pain which Dr Jelinek thought was certainly incorrect. There was also an ECG on 17 April 2009.
244       Dr Jelinek noted the inferior infarct pattern had occurred since the previous ECG in December 2006. There was relatively minor disease shown on a coronary angiogram performed on 1 May 2009. However, there was a total occlusion of the right coronary artery. That vessel was opened up and treated with a stent. Following the insertion of the stent, there had been no breathlessness but there were still episodes of chest and arm pain and the plaintiff had been on medication for secondary prevention of coronary heart disease.
245       Dr Jelinek noted the plaintiff had no respiratory symptoms. The plaintiff said he drank alcohol socially although it appeared he had been in fact an episodic heavy drinker in the past. Dr Jelinek thought the plaintiff was not fit to resume work at all because of his psychological status, some of which was preceding the accident, and his physical status in relation to his back and leg problems. He did not think an alternative employment was a realistic option as the plaintiff, despite his education and work history, was disabled by psychological and physical symptoms.
246       Dr Jelinek concluded the plaintiff had a normal ECG in December 2006 and an abnormal one in April 2009, evidence of an old infarction and peri-infarction ischaemia on the stress test in 2009 with subsequent coronary angiogram showing a total right coronary artery occlusion and a subsequent angioplasty to that vessel opening up making it widely patent.
247       In terms of diagnosis, Dr Jelinek concluded somewhere between the dates of the two ECGs, the findings changed from normal to that with evidence of an inferior myocardial infarction. He noted the plaintiff had chest pains ever since the accident which had been extremely difficult to evaluate. The plaintiff had a period of breathlessness for about two or three months before the discovery of coronary heart disease and effective angioplasty to his right coronary artery appeared to improve his effort tolerance.
248       Dr Jelinek concluded it was not clear when the plaintiff’s right coronary artery occlusion occurred. He noted that trauma to the chest could produce a total occlusion of the right coronary artery which runs initially anteriorally to the thorax. He thought the location of the plaintiff’s coronary occlusion was compatible with the trauma induced by his coronary artery occlusion which could have conceivably occurred at the time of the accident. Dr Jelinek thought there was no way of knowing when this vessel became occluded on the evidence provided from the plaintiff’s relatively poor history. He thought the plaintiff’s heart condition was not a relevant factor in considering his return to work with his capacity heavily influenced by his mental status and severe depression which pre-existed the accident in part and was aggravated by it. Further, in his view, the plaintiff’s symptoms related to his back problems and its affect on his legs.
249       Dr Jelinek thought it was quite possible that the plaintiff’s right coronary occlusion occurred as a result of the accident. He noted the plaintiff’s symptoms were relatively minor at that time and were obscured by the severity of the back problem. Dr Jelinek thought the plaintiff’s heart disease had been managed excellently well. In terms of prognosis, he considered there may be a reduction in life expectancy of some time. He thought the plaintiff’s ability to work was influenced by his back and psychological status, not by his heart, which did not interfere with his domestic or leisure activities.

Investigations
250       Dr Waluk organised an x-ray of the plaintiff’s lumbosacral spine on 28 June 2007. It was reported there were minimal spondylotic changes in the lumbar spine associated with a very slight scoliosis suggesting muscle spasm.
251       A CT scan of the lumbar spine was also performed on that date. It was reported there were mild protrusions at the L3-4 and L5 discs centrally on the thecal sac. No other abnormalities were noted.
252       An MRI scan of the lumbar spine was organised by Mr Brazenor on 8 August 2007. It was reported there was mild lumbar spondylosis and mild central disc protrusions at L3-4 and L4-5 and no canal stenosis.

The Defendant’s Medical Evidence
253       Mr Brazenor’s handwritten note of his first attendance with the plaintiff set out a diagnosis of mild disc bulges at L3-4 and L4-5 probably not due to the accident.
254       Mr Brazenor noted that he advised the plaintiff he needed a job where he did not need to bend at the waist. He suggested the plaintiff take two walks a day, gradually increasing the time until pain free. The plaintiff was told not to bend unless absolutely necessary and that he was not to undertake physiotherapy, chiropractic treatment, back exercises, gardening and home renovations. The plaintiff was to sleep flat as illustrated.
255       Mr Brazenor wrote to Dr Waluk on 3 September 2007, having seen the plaintiff.
256       Mr Brazenor noted that the accident occurred when a parked car pulled out in front of the plaintiff. His car was driveable to the few streets where he lived and it did not really sound like a high energy collision. Within a few days the plaintiff admitted to having some back pain and bilateral sciatica and worrying at times that his leg locked and he could not move it.
257       Mr Brazenor advised on examination there was no palpable spasm of the plaintiff’s erector spinae and he had a normal range of flexion and extension but both were alleged to cause low back pain. Straight leg raising was very mildly impaired bilaterally by ipsilateral hamstring pain. The plaintiff was neurologically intact.
258       Mr Brazenor noted that a CT scan of 28 June 2006 and an MRI scan of 8 August showed mild central disc protrusion at L3-4 and L4-5. In his view, on the CT scan the L3-4 prolapse was the larger, although diffuse, and was the only one which could possibly be significant.
259       Mr Brazenor explained to the plaintiff, through his son, that he had injury or degeneration at two levels in his lumbar spine. He told him it was his feeling that probably the accident did not cause this degeneration.
260       Mr Brazenor advised if the plaintiff followed conservative treatment he would become pain free. Mr Brazenor would not accept the necessity for surgery for those lesions under any circumstances.
261       Mr Shannon, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 27 July 2009.
262       On examination, thoracolumbar movements were limited by about two thirds and the plaintiff had some spasm on lateral flexion. Waddell’s signs of axial compression and pelvic rotation were equivocal. Straight leg raising was to thirty degrees improving to seventy degrees in the sitting position. The left ankle reflex was absent but there was no muscle wasting.
263       Mr Shannon had available to him the reports of the x-ray and CT scan of 28 June 2007.
264       Mr Shannon thought it was consistent that the accident jolted the plaintiff’s spine and aggravated pre-existing but apparently quite minor degenerative change. He noted the plaintiff’s investigations were somewhat limited but the degree of bulging on the CT scan would not in his view suggest a significant disc prolapse. Although he recorded an absent ankle reflex, Mr Shannon thought that was not consistent with the CT scan finding.
265       Therefore, on the information available, Mr Shannon thought it seemed unlikely that the plaintiff had a major disc prolapse, but noted it may well be that Mr Brazenor had done an MRI scan. In any event, Mr Shannon thought active intervention was not advised.
266       Mr Shannon noted superimposed on the plaintiff’s physical soft tissue injuries to his back had been the development of a significant psychological reaction and that also had resulted it would appear in some non organic features to the plaintiff’s presentation.
267       Mr Shannon noted however, the plaintiff appeared to have significant restriction of back movement and he recorded some spasm on lateral flexion. He thought the plaintiff had a genuine ongoing problem with his back, which would limit his capacity to work as a truck driver or other work involving a lot of bending and lifting. Sitting for extended periods would also be a barrier to such employment.
268       Mr Shannon noted the situation had been further complicated by a heart attack and that would further compromise the plaintiff’s work capacity.
269       At the time of examination, Mr Shannon thought the plaintiff was unfit for work due to a combination of his back injury and subsequent depression and his more recent heart attack.
270       Mr Shannon concluded the injuries sustained in the accident were essentially soft tissue with possibly some mild disc protrusion. The prognosis was poor but surgery was not indicated.
271       Mr Shannon thought the plaintiff’s back injury interfered with his capacity to perform physical work and noting that it was two years since the accident, he thought the chances of the plaintiff getting back to physical work were poor. In his view, the injuries had also restricted the plaintiff in more active physical tasks around the house.
272       In a supplementary report of 8 February 2010, Mr Shannon said he was not prepared to allow any impairment in terms of radiculopathy.
273       Mr Shannon reported on 6 July 2010 that he did not disagree with a recent psychiatric assessment that the plaintiff’s depression was largely secondary to his chronic pain syndrome.
274       Mr Shannon provided a further supplementary report dated 21 July 2010 after being given more information about the plaintiff’s work history.
275       Mr Shannon was told the plaintiff was employed for eight hours a week as a driver with a furniture removal company and to assist mainly with tying up furniture. Mr Shannon did not think the plaintiff was capable of that sort of work where inevitably he would have to do some lifting.
276       Mr Shannon also considered the plaintiff would have problems with courier work involving bending and lifting. In his view, in the ideal situation the plaintiff would probably be capable of driving and delivering for eight hours a week.
277       Having been told of the plaintiff’s university degree and work as an accountant and also in a wine exporting business, Mr Shannon thought he was capable of working eight hours a week in administrative work from the point of view of his back condition.
278       Dr Ingram, psychiatrist, examined the plaintiff for medico-legal purposes on behalf of the defendant on 14 July 2009.
279       The plaintiff told him of the accident circumstances and that he had not immediately been aware of any pain thereafter.
280       At the time of the accident, the plaintiff had not been working, having been unemployed for about a year, but previously he had been working as a truck driver. The plaintiff told Dr Ingram that during the period of time he had been off work, he had been receiving unemployment benefits and he had also been studying English and had done a heavy rigid driving course. The plaintiff said at the time of the accident he had obtained a job, being due to start work a few weeks later, though he was unable to remember the name of the organisation which was to employ him.

281       The plaintiff told Dr Ingram that since the accident he had been unable to work because of the severe pain in his back which prevented him from bending and made driving uncomfortable.
282       The plaintiff told Dr Ingram he had not had a sexual relationship for over a year and said that since the accident, he had problems with sex, both because of the pain and because of lack of interest. The plaintiff complained of an almost complete loss of libido.
283       In terms of his personal relationships, he told Dr Ingram his marriage had not worked well in Australia and his wife had kicked him out of the house in 2005 and he had been on his own apart from a few brief relationships prior to the accident.
284       The plaintiff had not smoked or drunk alcohol, although he had taken marijuana occasionally to help him sleep and on two occasions he had smoked heroin.
285       On mental state examination, the plaintiff’s affect was mildly depressed and he was tearful on one occasion. There was some decrease in reactivity, though he engaged well. There was a preoccupation with his pain and depressive themes, though there was no formal thought disorder or perceptual abnormality. The plaintiff’s memory, concentration and intelligence seemed normal.
286       Dr Ingram felt the plaintiff was mainly suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood. He thought the plaintiff also had mild residual symptoms of a Post Traumatic Stress Disorder.
287       Dr Ingram considered that the plaintiff’s depression at not being able to work and due to his pain was severe enough that it required treatment, and he felt the plaintiff should continue to see a psychiatrist for medication. He thought it might be appropriate for the plaintiff to try other anti-depressants as he had not responded so far to those he had been prescribed.
288       Dr Ingram noted that these minor Post Traumatic Stress Disorder symptoms did not seem to trouble the plaintiff particularly, and were only raised on direct questioning.
289       Dr Ingram felt in the long term, the prognosis for the plaintiff’s depression depended largely on what happened with his pain, though he did think there may be some response to anti-depressants and if his depression improved, he felt the plaintiff probably could cope with the pain better. He felt the plaintiff’s ability to work was mainly limited by his chronic pain and that his depression would only have a minor impact in that regard.

Centrelink Documentation
290 A Work for the Dole document dated 12 June 2007 set out the plaintiff had an appointment with the Australian Education Industry Centre on Monday, 2 July that year.

Overview
291       I am satisfied that as a result of the accident, the plaintiff suffered injury to his lower back. As counsel for the defendant conceded, it was pretty clear that the plaintiff developed symptoms in his back as a result of the accident.
292       Mr Brownbill, Mr Kudelka and, to a lesser extent, Mr Shannon, agreed that there was damage to the L3-4 intervertebral disc in the accident, relying on clinical examination and the radiological investigations namely, the June 2007 CT scan, the findings of which were confirmed on MRI in August 2007.
293       Mr Brazenor is alone in the view that such disc damage is not accident related. Whilst Dr Waluk gave viva voce evidence that in subsequent discussions with Mr Brazenor, when Dr Waluk gave him more details of the accident circumstances and the onset of back pain, Mr Brazenor changed his view, there is no further report from Mr Brazenor to this effect.
294       Despite the submission by defendant’s counsel that the first complaint of sciatica was in November 2007, I accept the plaintiff’s evidence that the onset of leg pain was at an early stage after the accident, with that condition being noted by Dr Waluk in his referral letter to Mr Brazenor in July 2007.
295       While the lumbar degenerative condition predated the accident, prior thereto the plaintiff was asymptomatic.
296       As both counsel agreed there is not “a great fight on the medicine” in this matter. However, it was submitted by counsel for the defendant that medical opinion supportive of the plaintiff was based on an acceptance of the plaintiff’s subjective complaints.
297       Although it was conceded this was not a case where the plaintiff’s behaviour on examination involved any exaggeration or inconsistencies, counsel for the defendant submitted that the plaintiff’s evidence should not be accepted because of inaccurate histories given by him and also that his credit was in issue given his convictions for dishonesty.
298       I am satisfied that the plaintiff’s back condition is organically based.
299       Although Mr Shannon found that there would appear to be some non organic features to the plaintiff’s presentation, he thought the plaintiff had genuine ongoing problems, having found the plaintiff appeared to have significant restriction of back movement and some spasm on lateral flexion.
300       Mr Kudelka thought the plaintiff appeared to have had some psychological reaction to the accident but he considered there was a mechanical injury to the plaintiff’s lumbar spine in the accident.
301       The question therefore is whether the organically based consequences of the plaintiff’s back impairment are serious and long term.
302       The weight to be attached to the plaintiff’s account of pain will, of course, depend upon an assessment of the plaintiff’s credibility: see Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69, at paragraph 12 per Maxwell P.
303       Much of the cross-examination in this case focussed on the plaintiff’s credit, particularly in relation to histories he gave doctors in relation to his pre- accident work history and his convictions for dishonesty
304       I do not accept that there is a significant amount of dishonesty in the plaintiff’s presentation as was submitted by counsel for the defendant.
305       In my view, the plaintiff gave candid, credible evidence. He volunteered information on a number of matters, including the severity of his haemorrhoid condition which was not apparent “on the papers”.
306       Clearly, some of the histories given by the plaintiff to medico-legal examiners were inaccurate.
307       Whilst the plaintiff deposed to having a job interview arranged for shortly after the said date, he agreed he told a number of examiners that he in fact had a job to start on 9 July and was unable to do so because of his accident injuries.
308       Clearly, this was not the case. Although the plaintiff said he was told by the job centre that they were ninety per cent sure he would get the job, he did not know the name or location of the potential employer or the type of work he was going to get, and would only know at the interview.
309       Further, the plaintiff told a number of examiners that he was living in substandard shared accommodation when he in fact was living with his carer Tatiana Grosheva.
310       The plaintiff also gave slightly different histories to examiners about his family’s psychiatric history which were not of particular concern from a credit viewpoint.
311       Whilst he was not a good historian, particularly as to his pre-accident work history, I thought the plaintiff generally gave his evidence in a truthful manner. I accept that in giving these histories and also his viva voce evidence, there were some language problems
312       The abovementioned inaccuracies of history were not such that they invalidate or significantly affect the opinion of the various medical examiners in this case.
313       Further, if anything, the short surveillance film of the plaintiff taken on 6 December 2010 showed a solitary man not moving particularly quickly, resting on the railing at the beach looking at the water.

The Plaintiff’s Pre-Accident Situation
314       Before the accident, the plaintiff’s employment in Australia was quite limited. He had only worked for two six month periods for AAZ Transport as a truck driver/furniture removalist earning on average $51 per week, working six or seven hours a week.
315       The plaintiff had obtained his heavy rigid licence in May 2006 but by the said date he had not obtained or applied for any employment in that field, save for a short period with AAZ.
316       The plaintiff’s separation from his wife in 2006 was obviously a very distressing time for him. He explained that in that time he was very stressed, had headaches, and he was not even able to care for matters of basic personal hygiene. His life reached a particularly low point when he moved into undesirable shared accommodation at Clayton.
317       During that time he had counselling from Dr Waluk in relation to a number of matters and a referral to a psychiatrist was suggested. However, as the plaintiff felt his condition gradually improved and he felt less stressed and the headaches ceased to trouble him, he did not follow up that referral.
318       Dr Waluk confirmed the note of an attendance in February 2007 where he recorded that the plaintiff was then hoping to get back to a driving job because he had a new girlfriend and it was important for him to be working.
319       The plaintiff did not actually see a psychiatrist until he saw Dr Hokin in 2008 when the plaintiff attributed all of his problems to the accident.
320       Taking these factors into account, I am not satisfied the plaintiff had ongoing psychological problems of any significance at the time of the accident.
321       The plaintiff did have a haemorrhoid problem of longstanding duration but he was still able to work and had obtained his heavy vehicle drivers licence before the accident.
322       Whilst the lay witnesses were uncertain of some historical matters, they both supported the plaintiff as to his pre accident condition and the problems experienced thereafter.

Consequences
323       The plaintiff has had pain in his lower back and left leg since the accident. He continues under the care of Dr Waluk, who referred him to orthopaedic surgeon, Mr Brazenor, who did not suggest any further treatment save for walking, advising against other treatment modalities.
324       The plaintiff continues to use a TENS machine on a relatively frequent basis.
325       The plaintiff took the Valium and Tramal which was prescribed at an earlier stage for his accident injury but has not done so for about eighteen months. Prolonged use of that medication affected the plaintiff’s significant bowel condition. The plaintiff does, however, take Lexapro and Zyprexa when he feels particularly unwell and cannot sleep
326       A major consequence of the plaintiff’s back impairment is its effect on his employment capacity, with the plaintiff being unable to work since the accident.
327       Mr Brownbill thought the plaintiff probably did not have a current capacity for employment. He thought the plaintiff’s prognosis was poor and expected that he would continue to suffer pain in a fluctuating manner indefinitely.
328       Mr Kudelka thought the plaintiff was unable to work from an orthopaedic point of view because of back pain and stiffness. Whilst he considered the plaintiff was able to do part time sedentary work, he noted the problems the plaintiff would have in this regard with sitting and the fact that he needed more English tuition.
329       Mr Shannon thought the plaintiff’s prognosis was poor and that his back condition would interfere with capacity for physical work. Further, he considered the plaintiff’s absence from the workplace made the chances of a return to work poor. He thought the plaintiff could cope with eight hours work a week in an administrative job but thought he was unfit for courier work or his old job as a truck driver.
330       I accept that the plaintiff is unable due to his back injury to drive a truck because of the matters described by Mr Kudelka namely, problems with prolonged sitting, bending and use of the left leg required to operate the clutch even on a light truck. More sedentary work would pose problems for the plaintiff in terms of prolonged sitting. Any manual work involving lifting or bending would be beyond the plaintiff’s capability.
331       I accept the plaintiff’s back and leg pain continues to cause him a problem with prolonged sitting and standing as evidenced by his difficulties in the witness box because of his pain. Because of his problems with mobility and his pain, the plaintiff’s previously active social life is no more. He has put on weight. He has less involvement with the community and his friends than before the accident. He is now a somewhat lonely man whose social life consists only of regular dinners at his son’s home where the plaintiff usually stays the night because of difficulties driving home.
332       As a result of his back pain, the plaintiff also has difficulty sleeping and he is often awake for hours during the night because he cannot get comfortable. He requires assistance in household tasks and matters of personal hygiene.
333       Whilst the plaintiff’s haemorrhoid problem since the accident is such that it would stop him working, I am satisfied that the plaintiff’s back condition in itself has this consequence and is a serious injury. This unrelated condition is relevant in the assessment of damages at trial.
334       Although the plaintiff has undergone stent surgery and continues to be worried by his heart condition and is taking medication in this regard, this condition does not impact on his ability to work in Dr Waluk’s opinion, a view shared by the only cardiologist in this case, Dr Jelinek.
335       When considering the seriousness of the plaintiff’s back impairment, I am also permitted to take into account the expected mental consequences of the plaintiff’s physical injury as Winneke P set out in Richards v Wylie (supra). In this case, the plaintiff’s frustration, irritability and upset about his pain and resultant restrictions on work capacity and enjoyment of everyday activities can be taken into account.
336       As the plaintiff has suffered pain and restriction in excess of four years without improvement in his condition, I am satisfied that his impairment is long term.
337       Taking into account all the evidence, I am satisfied that the plaintiff has a serious and long term impairment in relation to his lumbar spine.
338       Accordingly, leave is granted to the plaintiff to bring proceedings for damages in relation to the accident.

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[2011] VCC 955

17 June 2011