Antonopoulos v Transport Accident Commission
[2021] VCC 1939
•8 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03529
| CONSTANTINOS ANTONOPOULOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2021 | |
DATE OF JUDGMENT: | 8 December 2021 | |
CASE MAY BE CITED AS: | Antonopoulos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1939 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the spine
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Abbas v Transport Accident Commission [2015] VSCA 217
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC with Mr E Makowski | Henry Carus & Associates |
| For the Defendant | Mr P D Elliott QC with Mr S Pinkstone | Lander & Rogers |
HER HONOUR:
Introduction
1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 15 September 2017 (“the accident”).
2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” relied upon by the plaintiff is under s93(17)(a):
“Serious long-term impairment or loss of body function.”
4The body function relied upon by the plaintiff in this application is the spine only. The applications in relation to a left shoulder impairment and psychiatric impairment were withdrawn.[1]
[1] Transcript (“T”) 1
5The enquiry under ss(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.
6The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute, or be the producer of, the impairment of a body function.[2]
[2]Richards & Anor v Wylie (2000) 1 VR 79
7The plaintiff relied on four affidavits and gave viva voce evidence. He was cross-examined. He also relied on an affidavit sworn by his mother, Angela Catherine Michelin, on 7 April 2021, his partner, Lisa Matti, sworn the same day, and his friend, Dion Teuira, sworn 23 September 2021.
8In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9In summary, the defendant’s case was that there was a soft tissue injury that had resolved to a large degree and that any consequences thereof as at the date of the hearing are not “serious”.[3] It was submitted – “There might be some consequences in terms of work, sporting activities, treatment and other consequences, things might have happened, there might be bits and pieces here and there, but it does not get anywhere near serious.”[4]
[3]T79
[4]T84
The Plaintiff’s evidence
Pre-accident
10The plaintiff is twenty-seven, having been born in October 1994. He lives alone and is in a relationship with Lisa Matti. Having completed Year 10, he then did Year 11 at TAFE – a “ticket to a trade” to give him experience in multiple different trades.[5]
[5]T16
11After he completed school, he worked as a brickie’s labourer for about a year and then did concreting work. He completed about two years of a domestic plumbing apprenticeship and then continued the apprenticeship in commercial plumbing, but did not finish it. He wanted to work in trades, but he found plumbing did not interest him. He lost his interest in working as a plumber.[6]
[6]T17
12He was not really sure why he was not interested in plumbing. He just thought his interest in construction would be somewhere else and he would rather be doing something else.[7]
[7]T20
13When asked about then looking at another trade, he said he was in talks with friends along the way about if he was going down certain paths:
“But yeah. I have lots of different trades in family and trades with all different things – with all different kinds of trades. It’s just keeping my options open. I didn’t really have anything I was set on, but I knew it was construction and I think I would have figured it out.”[8]
[8]T41
14His grandfather is an electrician but he did not pursue that, and there was no particular reason why he did not. He discussed and thought about doing other work than being a builder’s labourer.[9]
[9]T21
15While working in domestic plumbing, he also worked for a while as a dockhand. He then worked as a security guard for Corsac Services Pty Ltd (“Corsac”) and later, Spotless Services Australia Pty Ltd (“Spotless”). He went out of his trade entirely in these jobs. At Corsac, he was doing patrols in a car. He worked at the docks at Spotless.[10]
[10]T18
16In about September 2016, he commenced work for Winslow Constructors Pty Ltd, (“the employer”) as a builder’s labourer. As at the said date, he was working forty hours a week, earning $28 an hour.[11]
[11] Claim Form dated 17 September 2017
17He progressed from CW1 to CW3. He assumed CW stood for construction worker. From memory, there were four levels. The foreman handed him the plans and he learned how to get measurements for certain areas where they were putting in pipes, and things like that, and how to read the plans. It was heavy labour.[12]
[12]T19
18The employer is a pretty big company, doing multiple big civil construction work sites about Melbourne- retirement villages, offices, lots of different things. Pipes and plumbing was one of the aspects of his work.[13] He was digging pipes “along with other things.”[14]
[13]T19
[14]T20
19While working for the employer, he did some weekend security work for National Protective Services, a job which involved changing over the meter boxes from parking meters.[15]
[15]T20
The accident
20On or about the said date, when working at the employer’s site in Campbellfield, he was standing in front of the bonnet of a pad roller, and in the process of opening the bonnet, he was pinned against the roller by a truck that reversed into him (“the accident”).
21He was conveyed by ambulance to the Royal Melbourne Hospital, where he stayed overnight, and had an MRI scan of his neck.
22He saw his general practitioner on 19 September 2017 at Moreland General Practice, whom he has continued to attend.
23On 21 September 2017, he had an MRI scan of his neck, and a couple of days later, attended Mr Cunningham, orthopaedic surgeon, who recommended gentle mobilisation and anti-inflammatories. On 10 October 2017, he started physiotherapy at WorkStrong Physiotherapy. In about February 2018, he was referred for psychological treatment to Dr Jamie Barnier, psychologist, whom he saw a number of times that year.
24Since the outset, the plaintiff has tried to manage his symptoms without medication, but every couple of weeks he has to take Panadol or Nurofen.
25As at July 2020,[16] he described pain in the area around the back of his neck and the back of his left shoulder, usually felt when he was physically active or had to move his head. It was worse in cold weather. He could lift his arm above his head and his range of motion was okay, but using it a lot tended to cause neck and left shoulder symptoms to flare. Looking down for more than a short period of time, he felt a pulling sensation on the back of his neck and left shoulder.
[16] First affidavit sworn 26 July 2020
26These symptoms continued as at April this year.
27He continues to suffer from neck pain every day. Some days, he has increased pain because of prolonged sitting. Keeping his neck in a fixed position for longer periods can cause increased pain, as can jolting movements, sudden or repetitive movements and heavy lifting, but he has a high tolerance, and tries his best to put up with it.
28Generally, he can manage his neck pain as he has become accustomed to it over so many years. He often has a stiff neck and some days, particularly colder ones, it is more stiff than on other days.
29He agreed that his pain levels are improving. He told Dr Jans in September this year that his pain was generally one out of ten, and on a hard day five, but his pain varied.[17] The last time he went for a jog, the pain got pretty severe. Again, it is hard to put a number on the pain, but it was around that. The last time he went for a jog was a while back. He did not recall the last time.[18] Physiotherapy had definitely helped.[19]
[17]T30
[18]T29
[19]T31
30It is hard to put a number on his pain. One day could not be as sore as the next. It is hard to fix it on a number. When asked what caused it to vary, he said “jogging definitely and that kind of movement like jolting is something that triggers it”. He notices it on a cold morning; it is stiff.[20]
[20]T65
Mental state
31He felt depressed and more anxious and stressed since the accident, particularly if there were reminders of it. He had become irritable and socialised less. His memory and concentration had been affected.[21]
[21] June 2020 affidavit
32He still feels depressed, despite emotional support from friends and family. Recently he had a nightmare about the accident and woke up sweating. He continues to be more irritable and has continuing issues with short-term memory.
33He still thinks about almost being killed on the day of the accident, but he did not get much benefit from the psychologist, so he did not continue counselling.
Work since the accident
34The plaintiff was off work for a period of time and then returned on reduced hours and alternative duties, but struggled because of his neck and left shoulder, and psychologically, with reminders of the accident. He had to stop working for the employer in about 2018.
35He thought he had six weeks off after the accident and then went back to light duties, cleaning the lunchroom. One of the construction duties he then did was holding the string while co-workers were digging trenches. He did not remember how long he did that for. It was not long.[22]
[22] T33
36When he went back to work, there was a lot of physical work to do, and it did affect him a little bit mentally. It was a big thing that happened and he “just thought getting into trucks would be better”.[23] Also, when he went back to the employer, he did some sweeping and triggered the pain in his neck.[24]
[23]T33
[24] T36
37He disagreed that he stopped work because he was struggling psychologically. He disagreed that he did not really do very much heavy work on his return. He denied that he was anxious, and that was what caused him to stop work. He then confirmed he had to stop work because he was both struggling psychologically and having physical difficulty. He was experiencing pain and “look, it was a bad experience”.[25]
[25]T33
38He agreed he told vocational assessor, Mary Oliver, that he was having bad dreams, shakes, sweats and anxiety around sites like what he was injured on. He agreed as she recorded that he left the employer because of both physical and mental problems.[26]
[26]T37
39He could not really remember telling Dr Jager in March 2018 that he had changed jobs because he was anxious about the work environment. At times, he felt anxious around fuel trucks.[27]
[27]T38
40He agreed that after the accident he was anxious at the worksite at times. He saw Dr Jamie Barnier, psychologist, about five times. The treatment assisted him, “yes and no”. He could not remember why he stopped this treatment, but he was pretty sure the psychologist said he did not really need to be coming back to see him. It was hard to say whether there was an improvement with this treatment.[28]
[28]T34
41He guessed he was less stressed out after he left the employer. It helped a little bit and the treatment showed him ways of processing his thoughts.[29]
[29]T35
42He really could not remember why he left the employer, but he always had another job available whenever he wanted with a friend at Speedy.[30]
[30]T36
43He then got a job at Speedy Waste as a truckdriver. This was much less physically demanding work and did not involve manual labour, just driving a truck and picking up skips. The truck had a hook which automatically attached to the bins and pulled them onto the back of the truck. He delivered the bins, and sometimes he picked up the loaded bins. The truck did all the work. The trucks he operated were a bit smaller than council rubbish trucks.[31]
[31]T42
44He worked alone in the cabin. He has had to climb in and out of various trucks over the past three years.[32] It was a good job at Speedy and he was able to do it. At some point, he was able to work over 50 hours a week, earning $85,000.[33] There was a lot of overtime.[34]
[32]T43
[33]T44
[34]T45
45He then worked at Atlas Waste and Recycling Management (“Atlas”), performing largely the same work for about four months until May 2020, when he was made redundant during COVID-19.
46There was “no real reason, to be honest,” why he left Speedy Waste. He could not remember. He knew the guy at Atlas – “kept my options open”. He thought it was more money but he could not really remember the difference. He liked the guy at Atlas. He liked the boss, and the boss wanted to take him on, so he thought “why not try something different?”[35]
[35]T46
47He was only off for a short time when he got a truck driver’s job at Victorian Metal Traders (“VMT”) in about June 2020. It is a very similar job to his previous job and a lot of time he was actually driving the exact same truck. He also started driving flatbed trucks which, instead of having a hook, had a flat tray onto which the forklift driver would load and unload. There were occasions he had to throw straps over the load to the other side and just wind up the metal reel to tighten them.[36]
[36] T47
48The job required minimal physical work. There are a couple of steps to get up into the cabin. He can reach the door handle, so it is not high. He starts at 7.00am and finishes about 4.00pm. He no longer does security work.[37]
[37]T47
49He lost his driver’s licence for six months when he reached excessive demerit points in December 2020 and could not work with a suspended licence. They took him back on when he got his licence back, and he continued working until a couple of weeks before the hearing.[38] Most of the day is taken up driving at work, occasionally into the country, from the depot at Campbellfield.[39]
[38]T48
[39]T52
50In late September 2021, he was told by Victoria Metal that they did not have work for him at the moment. He was not given a reason for this, apart from Victoria Metal mentioning something about him not completing his probationary period. Hopefully they will have work for him in the not too distant future.
51VMT said it would give him a call in a couple of weeks and take him back. He thought he would be able to get his job back because he got on well with the people there.[40]
[40]T48
52He disagreed his current job sounded a lot better than working all day doing heavy labouring on a construction site. He really enjoyed construction. He described his work with the employer as construction – “Yeah, being physical lifting things around (indistinct) work.” Civil construction, preparing everything for houses to get built – the different things – so everything underneath is pretty much what he used to do.[41] Pipes, concreting roads, guttering, a few different things, electrical conduits like that.[42]
[41]T48
[42]T49
53He wanted to work his way up in construction as Flexi Personnel reported:
“It would’ve been like going to the big high rises in the city big unions … There’s a range of things I could’ve gone into. I have got family in (indistinct) so I would’ve have liked to (indistinct) concreting side of things and carpentry work maybe even. Who knows it could be anything.”[43]
[43]T49
54He could have gone into an apprenticeship. He could have got extra tickets. He was not sure whether he could drive a crane now because he did not know what it entailed. He might be able to do so as its similar to truck driving.[44]
[44]T50
55While it was suggested that with construction work there would be gaps between jobs, his cousin, who works in construction at the moment, has told him that one jobs finishes and he goes to the next and finds another job.[45]
[45]T51
Work future
56The plaintiff did not think he could return to construction because it was too physically demanding for his neck. It was also stressful around the heavy machinery. He was upset that he had to give up work in construction, as that was a family career, and he could no longer physically or psychologically cope with it.[46]
[46]June 2020 affidavit
57He remains upset he has had to give up his career aspirations in construction. He still felt he missed construction. His employment options had been narrowed due to his inability to return to construction, and he believed he would suffer a financial loss in the future. Friends who are working on union sites are earning in excess of $40 an hour and that was his aspiration.[47]
[47] September 2021 affidavit
58When working for the employer, he moved quickly from a CW1 to CW3 and had always planned to work his way up into larger companies, and in civil constructions, and then onto union sites.
59His grandfather was an electrician. Three uncles are in construction, and one works as a contractor for John Holland. One uncle got him into his plumbing apprenticeship, but the plaintiff preferred construction.
60He has a financial imperative to keep working because he has a mortgage and he is worried if his pain increases, his chances of remaining in full-time work will decrease.
61He has not really looked to see whether there are lighter jobs in the construction industry. He was not sure whether, if he could find a lighter one, he would do it. At the moment, he intends to continue in trucks.[48]
[48]T21
62He did tell Professor Doherty, psychiatrist, that he rarely thought about the accident nowadays. His sleep was okay. He would not think there is any reason on anxiety or emotional grounds that he could not go back to construction sites, putting aside the pain in his neck.[49]
[49]T21
63He disagreed that his physical condition had improved enough for him to look at a job in construction. He did not see it happening even for a lighter type of job. He did not think he could cope well going back to construction work and things like that because movements would trigger his neck. He can lift the objects but has more neck pain afterwards.[50]
[50] T65
Current treatment
64He thought it sounded about right that he had not been to his general practitioner since 2018. He takes either Nurofen or Paracetamol. He has tried Tiger Balm.
65He is still having physiotherapy, funded by WorkCover.[51] The treatment has definitely assisted him. Mr Jans was correct in saying that when he first saw him in October for neck pain, and subsequent visits were for thoracic and low back pain.[52] He is still having massage for his back and using the David Spine System at the physiotherapist’s rooms. He does his own stretches.[53]
[51]T27
[52]T29
[53]T29
66He does not remember anyone suggesting pain management.[54]
Other consequences
[54]T21
Sport
67Pre-accident, he considered himself to be a strong, fit and very active person, enjoying a variety of sports and physical activities. He loved running, going for long runs a couple of times a week. Often, he ran for an hour to an hour and a half. Since his injury, he had found the bouncing when he ran quickly caused his neck and left shoulder symptoms to increase. The symptoms were bad enough that he had stopped going for runs. Even walking for more than a short period of time could cause his neck symptoms to increase, again because of the slight bouncing motion.[55]
[55] Affidavit sworn on 26 June 2021
68In March 2021, he tried going for a small run, but had to quickly stop as his neck and left shoulder symptoms flared up. He had to walk home.[56] His ability to walk had improved a bit, but walking for long distances still tended to cause his body to feel stiff and he felt like his body gets sore more quickly.
[56] Second affidavit sworn 7 April 2021
69He gave differing accounts about any running he had done after the accident.
70He noticed that running was probably the hardest thing; probably the most pain. He did not recall when he last jogged but it was a while ago. He used to do long distance running a lot of the time by himself and there was running involved in all the sports he played.[57]
[57]T24
71In January 2019, he told the Medical Panel that he stops running, rests for a short while, and then commences running again because his neck gets too painful.[58]
[58]T25
72It was also a long time ago when he would take medication after he had been for a run and he preferred Nurofen rather than Paracetamol. He tried to go for a run in 2019 and he did not continue from then. He tried a couple of times to get back into it but it just kept giving him pain. He is not really able or runs now – “No I don’t. I haven’t tried recently.”[59]
[59]T26
73In July 2021, Professor Doherty reported that the plaintiff told him that after running a kilometre he got a sharp pain which he quantified as nine out of ten. The plaintiff explained sometimes you get pain when you are running – it varies. It could be less.[60] He then said, “I’m not doing any running at the moment”. He was not doing any running when he saw Professor Doherty last year. He would have been talking about past experiences.[61]
[60]T40
[61]T41
Weights and gym
74Before the accident, he considered himself to be very strong and he could lift quite heavy items. He loved the gym and had been exercising there, regularly lifting heavy weights for years. Since the accident, he found that heavy lifting often increased his neck and left shoulder symptoms. He tried to go to the gym, but he found he could not lift the heavy weights as he did before, do as many repetitions or workout as hard because it caused pain in his neck and left shoulder. Stopping going to the gym had resulted in a loss of muscle mass.[62]
[62]July 2020 affidavit
75As of April 2021, he had made attempts to return to the gym and do weights exercises. However, lifting weights caused his neck and left shoulder symptoms to increase, particularly when he tried to do exercises that were based on his back and shoulder muscles. He suffered from increased pain and had to take painkillers and have a hot bath after trying to exercise. He did not do anything like the gym work he was doing pre accident, and did not enjoy the gym in the way he previously loved it.
76As well as the gym, he was involved in martial arts, having been involved in kickboxing and other forms of fighting techniques all his life. He was attending Powercore Fitness, and other gyms, at the time of the accident. He had tried to return to his previous level, but did not enjoy it the way he loved it before. He really missed it and would be doing activities involving fighting had he not been injured.[63]
[63] September 2021 affidavit
77He has not applied to WorkCover for them to pay for any gym programs suggested by his physiotherapist. He tried going back to the gym, but was then in a lot more pain, and it was just another thing he could not continue.[64]
[64]T53
78Before the accident, he thought he was a member at Powercore Fitness, although he was unsure. He used to pay casual and went three times plus a week. He did a lot of weight training.[65]
[65]T54
79He went with mates to different gyms. When he was twenty-one or twenty-two, he went to Powercore. He also went to Victory, Craigieburn Leisure Centre and Coburg Leisure Centre. He guessed he could do “other stuff” besides upper body work at the gym.[66]
[66]T55
80Craigieburn Leisure Centre is the last gym he went to about a year and a half to two and a half years ago. He tried to do the things he used to do in his training days – weightlifting, lots of different machines for weights or muscle mass. He was not competing; he was just going for fitness.[67]
[67]T56
81In the years leading up to the accident he was also going to the gym for fitness a minimum of three times a week and sometimes up to six, doing mainly weightlifting for his entire body, doing different sections of his body on different days.[68] He was casual and just paid $2 or so a visit.[69]
[68]T62
[69]T63
82He went jogging for enjoyment and also would go for a run, like around the Glenroy Golf Course, which was about a few kilometres. At the time of the accident, he was very fit. He had his own martial arts gear.
83He used to enjoy playing football with his friends regularly before the accident. For a while, he played with Sunbury Phoenix. He stopped playing when he started with the employer because training clashed with his work schedule, but he still played casually with friends. Post-accident, he stopped playing football as it was too painful for his neck and left shoulder, and he could not risk getting tackled or bumped. He misses being able to play.
84He found his job with the employer though Sunbury Phoenix. But for his physical injuries, in particular his neck injury, he would still be playing for the club.[70]
[70] September 2021 affidavit
85While he could not go to training with Sunbury Phoenix when he was working for the employer, he continued to regularly play casual football and soccer with his friends. It was wrong to say that if he continued with the employer, he would not have resumed footy. There are other clubs that trained after work hours.[71]
[71]T21
86Sunbury Phoenix trained during work hours and he was working 7.00am until about 5.30pm. He did not remember the exact time they trained, but he did go to training. He stopped once he started with the employer. He had been playing only for a few months. He had not played for the team in the 2014-2015 competition.[72]
[72]T23
87He is not still playing casual footy with his friends. He has tried but it leads to pain.
Soccer
88Prior to the accident, he enjoyed playing casual soccer with his friends regularly. Now, running around is too painful for his neck and left shoulder, and he misses being able to play. As of April 2021, he had tried to play some soccer with friends approximately a couple of times but had to quickly stop because the running around caused a flare up in his neck and left shoulder symptoms.
89Soccer was a social thing. Playing for multiple soccer teams in his younger days. He last played when he was about twenty or twenty-one.[73]
[73]T22
Martial Arts
90He enjoyed Mixed Martial Arts (“MMA”) as a hobby prior the accident. His training at the gym around the time of the accident mostly revolved around kickboxing. After the accident, he had stop his MMA training because punching and kicking is too physically demanding for his neck and left shoulder, and he cannot risk a bad hit when sparring. All his life, prior to the accident, he was involved in kickboxing and other types of fighting techniques.
91At some point in 2017, he last did martial arts. He was doing boxing and kickboxing with a friend at the friend’s uncle’s house. As a young bloke he did kickboxing at Glenroy.[74] He never got any belts or certificates in any martial arts. He did kickboxing and boxing and things like that at the gym. He trained at a martial arts place. Martial arts includes kickboxing or fighting.[75] He also did Muay Thai, another one like kickboxing. He had not tried to get back into any of these activities since the accident.[76]
[74]T57
[75]T58
[76]T59
92In re-examination, he explained that martial arts was a big part of his life before the accident and he was always interested since a young man and loved it from primary school. In the years leading up to the accident he was still training at gyms and doing martial arts.
93Two or three years before the accident he was doing martial arts maybe once or twice a week. At the time of the accident, he was doing it at Mint Martial Arts.
94He is now much less physically active than before the accident.[77] He had left his sports and that had left a big hole in his life.
[77] June 2020 affidavit
95There are still problems with running, walking, exercising at the gym and playing football and soccer, and he has not been able to return to martial arts. He was so physically active before, and it continues to be very hard to accept he cannot do the sport, and he feels like a completely different person.
96He has ongoing problems doing housework but is able to do some household tasks.[78]
[78]T52
97He agreed that his amount of socialising had increased.[79] He still has a girlfriend and friends to socialise with.[80]
Plaintiff’s taxable earnings
[79]T52
[80]T60
Financial Year Ended
Employer
Total Gross
Income
June 2014 TNT Australia $29,178 June 2015 Professional Plumbing Contractors
Allowances
$24,863
$6,000
Total: $30, 863
June 2016 Corsec Services Pty Ltd
Spotless Services Australia Ltd
$7,898
$9,509
Total: $17,407
June 2017 Winslow Constructions
Allowances
National Protective Services
$37,844
$4,475
$8,855
Total: $51,174
June 2018 S.W. Repairs Pty Ltd
Winslow Constructions
Allowances
$11,568
$49,2653
$4,694
Total: $65,522
June 2019 S.W. Repairs Pty Ltd $5,502 June 2020 S.W. Repairs Pty Ltd
Atlas Waste & Recycling Management
Victorian Metal Traders
Centrelink
$19,605
$27,367
$2,897
$5,500
Total: $55,881
30 June 2021 Victorian Metal Traders
Centrelink
$42,371
$6,168
Total: $48,539
Lay evidence
98The plaintiff’s mother, Angela Catherine Michielin, swore an affidavit on 7 April 2021. The plaintiff lived at home until 2020.
99Before the accident, the plaintiff was physically strong, active, played football, soccer and practised martial arts. Since then, he is much less physically active than he was before. She has not seen him return to these sports. She has asked him a number of times whether he wants to join a soccer club and he says, “it’s not me anymore”.
100The plaintiff avoids lifting heavy items since the accident and does not do physical tasks outside like chopping wood, anymore. His partner, Lisa, does a lot to support him at home.
101He tends to become more irritable, frustrated, and is not anywhere near as confident as before the accident.
102The plaintiff’s partner, Lisa Matti, swore an affidavit on 7 April 2021.
103Before the accident, the plaintiff was strong, physically competent, very active and very energetic. He was happy, confident, mentally focussed. Since then, there has been a massive reduction in physical activity, he looks exhausted, drained and depressed and is nowhere near as energetic as he was before.
104The plaintiff used to go to the gym regularly. After the accident, he does not go to the gym anymore as it hurts his neck and shoulder. He used to go for long runs around the neighbourhood before the accident. Now, he does not go for runs because of his neck and shoulder injury, and limits himself to walking. He used to play in a football team and played soccer with friends before the accident. He no longer plays football or soccer because of his neck and shoulder injuries. He practised mixed martial arts before the accident. He now no longer practises them because of his neck and shoulder injuries.
105The plaintiff looks like he is in pain every day. She helps him with housework, so that he does not put strain on his neck and shoulder.
106He had to give up his career in construction. This was a big deal for him, he liked construction and envisaged himself working in the industry long term, which has upset him.
107The plaintiff’s friend, Dion Teuira, who played football with him at Sunbury, swore an affidavit on 23 September 2021.
108The plaintiff played football predominantly in the Senior team at Sunbury and was very active before the accident. They were training partners at the gym, training at around six times a week before the accident. Since the accident, the plaintiff has not been able to return to the gym as he is in pain and they have not played football together since as he is fearful of being hit and worsening his condition. The plaintiff is not the same active person he was before the accident.
The Plaintiff’s medical evidence
Treaters
109Initial treatment was an overnight stay at the Royal Melbourne Hospital, where the plaintiff had an MRI scan of his neck. The injury to the left shoulder was observed. A soft tissue injury – levator scapulae tear, was noted.
Mark Jans, physiotherapist
110The plaintiff has been under the care of Mr Jans at WorkStrong Physiotherapy in Coburg, since 10 October 2017. The records indicate he has seen the plaintiff 237 times since the accident.
111When first seen after the accident, the plaintiff complained primarily of constant left neck pain and restricted cervical spine movement. On subsequent visits, he complained of thoracic and right low back pain.
112Mr Jans provisionally diagnosed a cervicothoracic dysfunction and a levator scapulae tear. As at September 2021, he considered the plaintiff’s condition has not yet stabilised and it is difficult to determine the prognosis.
113The plaintiff’s pain levels had improved. He advised his pain was generally one out of ten but after a long hard day it could get to five out of ten. Strength values for the neck were still below normal levels but the back had approached normal strength values.
114Physiotherapy treatment had reduced, and therapeutic treatment breaks had been trialled – pain levels increased if there was a four-week break in treatment.
115The plaintiff advised that he is still unable to run, play football, perform martial arts training and go to the regular gym and lift weights that he used to do as a result of his injuries.
116The plaintiff is making slow, steady progress. He has returned to work in a job that generally does not aggravate his condition. Due to the extent of his injuries and his young age it will take further time for him to fully rehabilitate to his fit and active pre-injury level. He would recommend the plaintiff do a twice weekly exercise program for twelve weeks using the David Spine Machines to see if he can get his cervical spine strength levels closer to normative values.
117He thought the plaintiff would not be able to return to heavy construction type work in the near future, but he has a current work capacity for full-time light duties. He will require ongoing physiotherapy and supervised exercise physiology to safely assist the return to his pre-injury functional level.
Dr Ian Bonwick, general practitioner, Moreland General Practice
118Dr Bonwick saw the plaintiff on 19 September 2017, four days after the accident. The plaintiff was then seeking follow up from his Royal Melbourne Hospital attendance and a referral to a specialist, Mr Cunningham and was sent for physiotherapy.
119On review on 19 October 2017, the plaintiff described no pain and was cleared for full-time duties. Neck pain returned in early November 2017 and he was given further time off work. On review on 24 November 2017, he had improved and was given a RTW certificate for 29 November 2017.
120When seen on 19 January 2018, the plaintiff was complaining of symptoms suggestive of post-traumatic stress disorder (“PTSD”) and was referred to psychologist, Claire Ahern.
121When seen again in March 2018, he had been having continuing problems and was doing alternative duties which were not really suitable. Dr Bonwick advised restrictions for the plaintiff to follow and issued a further certificate.
122The plaintiff resigned from his job and found a new position driving a delivery truck with no heavy lifting.
123The plaintiff was last seen on 18 June 2018, complaining of ongoing neck pain. He reported he was handling his new employment well.
124Dr Bonwick considered the plaintiff’s prognosis to be excellent, with continued physiotherapy and psychotherapy for a few months until the complete resolution of his symptoms.
Mr John Cunningham, orthopaedic surgeon
125The plaintiff was referred to Mr Cunningham, whom he saw once on 20 September 2017.
126The cervical CT scan was initially described as having a subtle C7 shift but it was found to be normal on subsequent MRI imaging.
127The plaintiff was quite concerned about his neck pain. Mr Cunningham considered that in the absence of any obvious traumatic injury to the chief structures of the neck, the injury would almost undoubtedly resolve over time. He thought the plaintiff’s prognosis was excellent. He would not expect him to require any future medical treatment on the neck, and he should undergo gentle mobilisation together with anti-inflammatories. He thought the plaintiff’s pain would resolve with time.
Medico-legal evidence
Mr Ash Chehata, shoulder surgeon
128Mr Chehata examined the plaintiff in May 2020.
129The plaintiff then complained of a posterior unusual sensation in the posterior aspect of the neck. He found he was unable to run more than five minutes as it got uncomfortable and stiff, especially in cold weather. Now when he woke up, he found that there was a significant pain in the posterior aspect of his neck, but had this prior to being crushed.
130On examination, the plaintiff had a full range of movement in the cervical spine.
131Mr Chehata diagnosed a soft tissue injury and muscle tear in the scapulae muscle and chronic pain in the cervical spine. He thought ongoing physiotherapy was important.
132Recreational pursuits, such as going to the gym and playing sports had obviously ceased, but the plaintiff’s personal and domestic activities had not been affected. His current capacity for employment was good, considering he was able to work as a truckdriver. Obviously, labouring was out of the question considering the ongoing pain.
Professor Richard Bittar, neurologist
133Professor Bittar examined the plaintiff in September 2020.
134The plaintiff then complained of left-sided neck pain, which was present, to some extent, all the time. It ranged from two to three out of ten with rest and recumbency, to seven to eight out of ten with prolonged inactivity and nine to ten out of ten with any jolting of his neck. His neck pain was generally sharp in character. It was exacerbated by sudden or repetitive neck movements, any significant pulling or heavy lifting. It improved with rest and frequent postural changes. His pain radiated to the back of his head and into his left trapezius.
135On examination, there was mild restriction of cervical spine flexion, with the remainder of his cervical spine movements being normal.
136Review of the September 2017 MRI suggested straightening of normal cervical lordosis, with very subtle desiccation affecting the C3-4 intervertebral disc. It was reasonable to classify his injury as a combination of soft tissue injury, as well as aggravation of cervical spondylosis.
137Professor Bittar diagnosed a cervical spine injury evidenced by the abnormalities seen on the MRI scan, taken several hours later. The plaintiff continued to experience neck pain as a result of that injury. It was reasonable to classify the injury as a combination of soft tissue injury, as well as aggravation of cervical spondylosis. The incident had been the sole contributing factor.
138He thought the plaintiff was permanently incapacitated for pre-injury work as a labourer, but had the capacity to work full time in a sedentary suitable role, and was currently employed in such a role as a truckdriver. The partial incapacity for work was permanent.
139The plaintiff was likely to continue to experience significant pain and disability into the future. He should continue with his current treatment regime and review by a pain specialist was reasonable. His ability to undertake his past social and recreational activities was significantly impacted, particularly the range of recreational activities.
140The plaintiff had the capacity to undertake modified work, but needed to avoid sudden or repetitive neck movements, repetitive upper limb movements, forceful pushing or pulling, lifting more than very light objects or subjecting his back to any jolting or vibrational force. He could work full time in a role that allowed him to adhere to these restrictions and was currently employed in such a role. His work flexibility would be most likely impacted as a result of his neck condition.
141There was nothing in Mr Speck’s report of 26 February 2021 that caused him to alter his opinion and he agreed with Dr Sullivan’s diagnosis.
Dr Richard Sullivan, pain management specialist
142Dr Sullivan examined the plaintiff in May 2021.
143The plaintiff presented with neck pain, predominately on the left side, but which was experienced bilaterally. The pain was reported as being five out of ten at rest with exacerbations on activity up to seven to eight out of ten on numerical scale rating and exacerbations up to nine out of ten with activities that cause jolting to his neck, for example driving over rough terrain or attempting to jog. His neck pain radiated into his left trapezius region and his neck pain radiated into his occipital region.
144On examination, the plaintiff demonstrated restrictions in cervical spine flexion and extension. Lateral rotation was the most problematic and he had mild-to-moderate restrictions in this regard. He had pain on palpation around the posterior cervical musculature and there was increased tone extending from the occiput through the posterior paraspinal muscles down to and including the bilateral trapezius muscles.
145The underlying diagnosis was aggravation of cervical spondylosis, predominating with soft tissue injury and development of a chronic pain condition, consequent to cervical soft tissue injury, presenting with hallmark features of central sensitisation (an organic process of abnormal pain signalling leading to chronic pain). Ongoing treatment was required in the form of a pain management program.
146Dr Sullivan noted the plaintiff’s driving capacity was limited due to his exacerbation of pain on neck movements. His total driving capacity depended on the day but averaged between 20 and 30 minutes. He had a lifting and carrying capacity of around 8 to 20 kilograms with increased loads aggravating his pain in a delayed fashion especially in his neck.
147He thought the plaintiff could not return to preinjury employment in construction. He had transferable job skills, side effects caused by sleep disturbance and persisting pain aggravated with fairly modest increases in activities or loading throughout his cervical spine. These would adversely affect his employability.
148Hypothetically, he could engage in purely sedentary work on a part-time basis however his prospects for finding such work were substantially adversely affected. His capacity for employment in a physical or active role had been permanently impaired.
149He thought, in the foreseeable future, the plaintiff would have chronic pain affecting his cervical region, with associated headache. He recommended referral for pain management.
Dr Peter Wilkins, occupational physician
150Dr Wilkins examined the plaintiff in September 2021.
151The plaintiff then complained of pain accompanying some activities as extending from the neck root towards his left shoulder. Most of the time he said this manifested as “stiffness”, but when he undertook activities such as lifting, pushing, pulling more than trivial weights, or (particularly jogging), the pain could be much sharper.
152On examination, the plaintiff exhibited a near to normal range of neck movement, with minor restriction for flexion and lateral flexion and rotation towards the left, only a few degrees less than towards the right in both cases. Range of movement for both shoulders appeared normal in both planes.
153He thought the plaintiff suffered a soft tissue injury in the cervical area with persistent symptoms of pain and limitation. The shoulder injury appeared to have resolved completely, as had any damage to the muscles. However, he had gone on to develop a chronic pain condition, which persists.
154Unsurprisingly, the plaintiff experienced significant psychological distress following the accident, but told Dr Wilkins he no longer experienced flashbacks or psychological symptoms, and no longer consulted a psychologist.
155Very occasionally he took Panadol or Nurofen and continued with regular massage.
156The plaintiff could perform all domestic tasks, although with some discomfort with heavier tasks. He had been unable to return to gym, football or martial arts. He tried, but even brief participation worsened the pain in his neck, and into his shoulder, and that was rapidly increased by jogging.
157The plaintiff was working as a truckdriver and had been advised by numerous examiners he should never return to the construction industry. He found that disappointing, as he had hoped to make a career in that field, in which many of his family members also worked.
158Given the chronicity of his pain four years after the injury, the plaintiff did not possess flexibility, such as would allow him to return to heavy physical construction work.
159In his supplementary report, Dr Wilkins agreed that the chronic pain condition was substantially organically based – most likely involving a significant neuropathic component.
Associate Professor (“AP”) Nick Paoletti, psychiatrist
160AP Paoletti examined the plaintiff in March 2020.
161The plaintiff then complained, among other things, of flashbacks when he saw trucks or worksites of that company, trouble sleeping, occasional nightmares, being upset that he was no longer in construction, being anxious generally, being irritable, socialising a lot less since the accident, missing MMA and football.
162On examination, the plaintiff presented as a pleasant and co-operative, tall young man of muscular frame, with light brown hair and trim beard, in casual work clothing. Eye contact was established. He was restless with anxiety and became uncomfortable with the recounting of the story. Affect was very anxious, and dysthymic and reactive, consistent with the reported pervasive mood state. He had depressive ideation, anxious/phobic ideation with some avoidance, and reported residual nightmares and bad dreams.
163AP Paoletti diagnosed a PTSD. Prognostic outlook is static for the foreseeable future.
Vocational evidence
164Ms Mary Oliver, human resources consultant, from Flexi Personnel, reported in August 2021.
165She thought that had the plaintiff not been injured, and had been able to continue to work in his pre-injury employment as a labourer – CW3, he would have been earning $78,579.92 gross per annum, inclusive of reasonable overtime. She considered that if he was to progress his career in the industry and was employed by a larger civil construction company, further allowances and penalties could significantly increase his remuneration.
166She concluded the plaintiff’s physical injuries, aggravated pain and restrictions, combined with psychological barriers, had a considerable negative impact on his unrestricted work capacity, particularly for performing his preinjury role as a skilled labourer in the civil construction industry and the opportunity to progress in the vocation. His current job did not require any physical labouring activity.
The Defendant’s evidence
Medico-legal evidence
Dr Majid Rahgozar, consultant occupational physician
167Dr Rahgozar examined the plaintiff in January 2018.
168The plaintiff told him he did not have any pain, however, upon twisting and bending of the neck, especially on cold days, he could experience neck pain radiating to left side of the neck and shoulder.
169On examination, there was mild tenderness over the lower cervical spinous processes of C7 and C6 and mild paraspinal tenderness on the left side and trapezius muscle. There was no tenderness on the spine of scapula, AC joint, anterior joint space or clavicle. The range of motion of the cervical spine revealed mildly restricted lateral flexion and flexion.
170He thought the initial injury to the neck and shoulder girdle was likely to have resolved. The plaintiff did not have significant pain, did not require analgesics and did not have a significant disability for various activities, noting he was hesitant to return to his sport.
171Not having seen any imaging, Dr Rahgozar thought the plaintiff did not have significant pathology in the left shoulder. He thought the plaintiff had symptoms suggestive of a concurrent mental condition, such as stress reaction.
172From a purely physical point of view, the plaintiff could gradually return to normal work without restrictions, and he did not benefit from hands on treatment.
173In subsequent reports later that year, Dr Rahgozar advised against ongoing treatment and confirmed his diagnosis of a likely musculoligamentous injury that had resolved.
Medical Panel
174The Medical Panel, comprising of Mr Elsner, specialist orthopaedic surgeon, Mr Chan, specialist neurosurgeon, and Ms Hynes, physiotherapist, assessed the plaintiff in early 2019.
175The Panel reported that the plaintiff continued to experience intermittent neck pain with some days being pain free. He had no problems with his neck driving his truck at work and felt his range of neck movement was generally good. He felt from a physical and mental point of view he would not be able to go back to his pre injury work duties.
176Current medication included Nurofen and or paracetamol but he usually took the medication only after having been for a run.
177The Panel thought the plaintiff suffered soft tissue injuries to the left shoulder and jaw, which had resolved. He had also suffered a soft tissue injury to his neck and cervical spine which had partially resolved, but currently had mild residuals relating to that injury, without radicular symptoms or signs.
178The Panel considered a further eight sessions with a physiotherapist over six months was appropriate.
Dr Graeme Doig, orthopaedic surgeon
179Dr Doig examined the plaintiff in April 2019.
180The plaintiff then complained of left-sided neck pain while performing physical tasks and first thing in the morning. He had difficulty training, including running, skipping and performing MMA.
181On examination, the plaintiff had some tightness on the left side of his neck over the trapezius muscle with slightly restricted lateral flexion and rotation to the right, and only 10 degrees of extension, exhibiting guarding and dysmetria. Forward flexion was retained and there was no neurological deficit of the upper limbs.
182Dr Doig thought the plaintiff continued to suffer from minimal restrictions at the neck and his shoulder condition had resolved. The diagnosis was soft tissue injuries to both areas. The prognosis was reasonably good, in that he had been able to return to full-time work; however, he had been unable to return to certain contact sports. He allowed 5 per cent for the neck under the AMA Guide.
Mr Gary Speck, orthopaedic surgeon
183Mr Speck examined the plaintiff in February 2021.
184The plaintiff then complained of pain in the left shoulder and neck region, confined to the base of the neck on the left-hand side extending upwards to the base of skull out outwards toward the shoulder. He described the pain as aching or stabbing but also mentioned a “numb sensation” which he said was a combination of dullness, stiffness and pins and needles around the left base of the neck. There was no radiation into the upper extremity.
185The plaintiff was cooperative on examination and there was some restriction of neck and shoulder movements.
186He thought the plaintiff had suffered soft tissue injury to the neck and shoulder region including a partial tear of the left levator scapulae muscle. These injuries had resolved. Avoidance behaviour and anxiety appeared to be dominant reasons for his restrictions. These non-physical aspects may affect his work capacity that was not related to physical injury arising from the transport accident.
187Mr Speck thought resolution of the physical injuries to the left neck and shoulder, and partial tear of the shoulder, were excellent. The soft tissue injuries had resolved and the alteration in domestic and leisure activities was related to psychological features, not ongoing physical injury.
188Mr Speck disagreed with the conclusions and diagnosis of Professor Bittar and Dr Sullivan. He was unable to give an explanation of Professor Bittar’s opinion that the plaintiff is “permanently incapacitated for his pre-injury work as a labourer”. Dr Sullivan diagnosed an “aggravation of cervical spondylosis predominating with soft tissue injury and development of a chronic pain condition”. Mr Speck disagreed with this, since the symptoms and physical findings were one of a chronic pain behaviour or somatic symptom disorder, rather than a structural abnormality arising from the transport accident.
Dr Alan Jager, psychiatrist
189Dr Jager examined the plaintiff on 12 April 2019.
190The plaintiff then complained of feeling anxious when he got flashbacks of the accident, which lasted some minutes. Fuel tankers triggered them. He did not have depression. He was able to enjoy things and his sleep was intact. He had no nightmares. Flashbacks occurred fortnightly. Energy, appetite, libido and concentration were all intact. He did not have suicidal thoughts.
191Dr Jager thought that at interview the plaintiff was undistressed and there were only vestigial symptoms of PTSD. His prognosis was overwhelmingly favourable.
Professor Peter Doherty, psychiatrist
192Professor Doherty examined the plaintiff on 9 June 2020.
193He reported the plaintiff complained that when he thought of the accident, it gave him a rush of energy and he could not fall to sleep. He said he rarely thought about it nowadays. He said that nightmares or dreams re-experiencing the accident had not been present now for a while.
194The plaintiff complained of pain located in the left side of his neck, going across to his left shoulder and also the back of his head. He said it went down his left shoulder area. He reported that anxiety had never really been present but after the accident he did feel very anxious, paranoid and he had difficulty with his concentration and focus. He then forgot things easily. He reported panic episodes when he went back to work with the employer.
195On examination, the plaintiff was alert, aware, orientated and in clear consciousness. Professor Doherty concluded there were no cognitive impairments and the plaintiff’s insight, and judgement were not impaired by any psychiatric cause.
196He thought there had been a PTSD condition in the past that had now remitted. There were no clinically significant symptoms present now. There was no distress or interference with social or occupational functioning due to features of traumatisation. The overall psychiatric outlook was positive, and the plaintiff did not require any psychological or psychiatric treatment. His psychiatric injuries did not in any way impact his ability to work.
Overview
197There is no dispute that the plaintiff suffered a compensable injury to his neck in the accident.
198However, the nature of that injury is in issue, with the medical opinion relied on by the plaintiff that he is suffering from an aggravation of spondylosis/degenerative change – a view shared by recent examiners, Professor Bittar and Dr Sullivan.[81]
[81]Dr Sullivan also diagnosed central sensitisation
199The defendant’s medico-legal examiners, Dr Doig, Mr Speck, Dr Wilkins and Mr Chehata, who saw the plaintiff at the request of his solicitors, diagnosed a soft tissue injury – the diagnosis also made on admission at the Royal Melbourne Hospital.[82]
[82]T72
200When treating orthopaedic surgeon, Mr Cunningham, saw the plaintiff in 2017, he thought the MRI was normal and did not diagnose spondylosis.
201For the purposes of this application, I am not required to find a precise diagnosis.[83] However, I do have some difficulty with the opinions of Professor Bittar and Dr Sullivan who, in my view, do not provide an adequate explanation for their current diagnosis of spondylosis on the radiology. Further, they did not take into account the plaintiff’s apparent early recovery reported by his treaters and lack of complaint and treatment post 2018 and his ability to work full time in relatively heavy work since that time.
[83]T90
202There is also a dispute on the medicine, with Mr Doig and Mr Speck of the view any soft tissue injury has resolved, and Professor Bittar and Dr Sullivan concluding the effects of the accident injury are ongoing.
203Overall, I accept the accident – which on the face of it was quite traumatic[84] – plays a role in the plaintiff’s current presentation, but a relatively minor one. His neck complaints are intermittent and his only treatment is ongoing physiotherapy and occasional over-the-counter medication.
[84]T10
204It appears from contemporaneous medical evidence that the plaintiff’s condition had largely resolved at an early stage.
205Recovery was noted by his original treaters and medico-legal examiners, including the occupational physician, Dr Rahgozar, in January 2018. The physiotherapist’s notes indicate ongoing improvement.[85]
[85]T11
206The plaintiff has not seen his GP for any spinal issues since June 2018. There is no up-to-date report from that practitioner who thought, at that time, the plaintiff’s prognosis was excellent, but that he may need to continue physiotherapy and psychotherapy for several months before he obtained complete resolution of his symptoms.
207Earlier, the plaintiff saw orthopaedic surgeon, Mr Cunningham, only once in 2017 when he found little wrong on examination and suggested conservative treatment. He thought the September 2017 MRI showed no discal ligamentous injury – making no mention of any spondylosis – and discharged the plaintiff from his care, commenting that the prognosis was excellent.[86]
[86]T71
208Occupational physician, Dr Rahgozar, thought the plaintiff had recovered as of January 2018 and could go back to full-time normal work and did not need physiotherapy.[87]
[87]T71
209In November 2019, the Medical Panel found a resolved shoulder and a partially resolved soft tissue injury of the neck and felt the plaintiff needed only a further eight sessions of physiotherapy, having been told by him that he continued to experience intermittent pain, with some days being pain free.[88]
[88]T73
210There has been little found on examination at both an early stage and more recently. In January 2018, Dr Rahgozar found mild cervical restriction and tenderness. The Medical Panel, in February 2019, found virtually full forward flexion and backward extension and up to 75 per cent of full range of other movements.
211In May 2020, Mr Chehata found a full range of neck movement. Professor Bittar found only mild restriction of cervical flexion in September 2020. In February 2021, Mr Speck found some restriction of neck movement. In May this year, Dr Sullivan found mild to moderate restriction in lateral rotation and restrictions in flexion and extension. Most recently in September this year, Dr Wilkins found a near to normal range of neck movement.
212There is no medical explanation as to why this initial positive prognosis changed in recent times when the plaintiff was examined for medico-legal purposes by Dr Sullivan and Professor Bittar and complained of more significant pain and restrictions.
213However, when examined in February 2021, Mr Speck found little on examination and thought the prospects for resolution were excellent.[89]
[89]T75
214Overall, I accept the plaintiff suffers some ongoing neck discomfort but not pain of a significant magnitude.
Credit
215Counsel for the plaintiff submitted that the plaintiff’s vagueness was not to be taken as him not being credible. The explanation could be that he does not have a great memory, or is not particularly articulate.[90]
[90]T84
216The Court ought to be satisfied that the plaintiff is a credible witness. He was a witness of truth. He was not evasive. He did not seek to argue with counsel for the defendant. He did not prevaricate before answering questions, and made concessions against his interests. It was submitted that he was “palpably frank and lacking in any guile or cunning”.[91]
[91]T85
217While counsel for the defendant did not specifically address the plaintiff’s credit, in my view, there were issues with his credibility and reliability. He gave conflicting, inconsistent answers about his level of running since the accident, deposing that he had not run since the accident while telling various examiners of problems running in recent times.
218His evidence about why he left various jobs was vague and unreliable. It was not just a memory issue, as these events were relatively recent, nor did I consider the plaintiff had any problem expressing himself.
Pain
219The plaintiff has described pain in the area around the back of his neck and left shoulder – usually felt when physically active, during cold weather or moving his head a certain way.[92] In his September 2021 affidavit, he deposed to neck pain every day varying with activity.
[92] June 2020 and April 2021 affidavits
220While the plaintiff reported relatively high levels of neck pain to recent medico-legal examiners – Professor Bittar in September 2020 and to Dr Sullivan in May this year – he agreed his pain levels are improving, having told Dr Jans in September this year that his pain was generally one out of ten, and on a hard day five out of ten, but his pain varied.[93]
[93]T30
221While he suffers from episodes of neck pain as noted by Dr Jans,[94] and will continue to do so, the plaintiff does not suffer a continuous substantial level of pain.[95]
[94]T89
[95] Stijepic One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48]
Treatment
222Mr Jans, physiotherapist, has seen the plaintiff since, over 200 times since October 2017, mainly for his neck.[96] The Medical Panel had however recommended in early 2019 that only a further 8 sessions were required. In 2018, Dr Rahgozar considered ongoing physiotherapy treatment was not required.
[96]T92
223However, save for this very large amount of physiotherapy treatment, which is ongoing and resulted in slow, steady improvement, the plaintiff has had very little other treatment.
224There was one specialist referral to orthopaedic surgeon, Mr Cunningham, in 2017, who then thought the prognosis was excellent. The plaintiff last saw his GP for his neck the following year, at which time he also thought the plaintiff’s prognosis was excellent.
225The plaintiff has required little in the way of painkilling medication. As at June 2020, he was taking Panadol or Nurofen every couple of weeks. More recently he has taken this medication a few times a week for both his neck and left shoulder.[97]
[97] April 2021 affidavit
Sport
226While counsel for the plaintiff conceded there was some uncertainty about the plaintiff’s post-accident running, it was submitted it was clear that that is something he can no longer do and is an aggravating activity.[98]
[98]T94
227It was submitted gym and martial arts were also lost to the plaintiff. He was a very strong and fit young man before the accident and these activities were really a big part of his life and he intended them to be for the rest of his life. He has tried to get back to the gym but cannot do very much in terms of weights.[99]
[99]T93
228While not as significant an activity for the plaintiff as his martial arts, he cannot realistically go back to football and soccer because he cannot run.[100]
[100]T95
229It seems MMA and gym are the major activities affected by the plaintiff’s neck injury. While I accept he has not resumed these activities, he was not a member of a gym before the accident, attending frequently on a casual basis. He did not compete in MMA and had not obtained any certificates or belts.[101]
[101]T80
230He was not playing club football at the time of the accident as his work program clashed with training at Sunbury. While he said he could have found another club where he could attend training, he had made no plans to do so that year.
231I do not accept the plaintiff has not been able to run since the accident, given his many accounts to examiners of his difficulties when trying to run post-accident – telling Mr Chehata last year that he was unable to run more than 5 minutes as it got stiff and uncomfortable and as recently as September 2021, telling Dr Wilkins with jogging in particular, there was “stiffness” and the pain could be much sharper.
Work
232Counsel for the plaintiff submitted the plaintiff always wanted to work in construction but could no longer do so as a result of his neck injury.[102] His neck has left him more vulnerable in terms of work flexibility. If he loses his job as a truck driver, his options are significantly narrowed by his neck condition.[103]
[102]T6; Abbas v Transport Accident Commission [2015] VSCA 217
[103]T86
233Counsel for the plaintiff submitted through the prism of this particular unsophisticated plaintiff with his youth – aged twenty-seven, work history, lack of aptitude for light jobs, lack of qualifications for light work and office work, the loss of flexibility for him arising from his neck injury is to be regarded as a very significant consequence indeed – “which, on its own, ought to catapult him over the threshold, because this is his situation for the rest of his life”.[104]
[104]T87
234The plaintiff has been knocked out of heavy work, whether it be labouring on a construction site or anything else that is physically strenuous such as landscape gardening.[105]
[105]T85
235Professor Bittar, Dr Wilkins and Mr Sullivan all confirmed that the plaintiff can no longer do heavy work.[106]
[106]T92
236However, this is not a case where the plaintiff has lost a trade as a result of his injury. His career path to the incident date had been varied. He initially did a plumbing apprenticeship for a few years but lost interest. He then worked in security for two years. He had been working for the employer for a year at the time of the incident.
237While the plaintiff stressed that his career aspirations were in “construction”, his evidence in this regard was very vague. At the time of his injury, his work largely involved pipes and preparing building sites for large constructions. He seemed unsure of the CW classifications applicable to his role.
238There was no supporting affidavit from a family member, many of whom are in the construction industry, corroborating the plaintiff’s career plans in this field. There was no evidence from anyone in that industry detailing what job opportunities would have been available had the plaintiff not been injured and any limitations on that future work because of his neck condition.
239It is also unclear why the plaintiff left his job with the employer. On his own evidence, it appears his mental response to the accident played a significant part in that decision as he told the Panel and others. He could not explain why he left this job only three years earlier. He did not say he was not coping with the employer. There was no restriction on his duties. He just found another job at Speedy which he knew was open to him when he wanted it.
240He was similarly vague about why he left Speedy for Atlas but did not say it as because he was no coping due to neck pain – he wanted to “keep (his) options open.”
241Further, he has made no attempt to look for a light job in construction – staying with his truck driving work.
242While there is evidence that the plaintiff has lost his ability to engage in unrestricted heavy physical work, he has been able to work full time as a truck driver since leaving the employer – hardly sedentary work as Dr Sullivan and Professor Bittar described.[107] Dr Sullivan also thought the plaintiff had a lifting capacity of 8 to 20 kilograms with increased loads aggravating his pain.
[107]T80
243The plaintiff was able to perform these duties full time – at Speedy working significant overtime – without the need for medial restrictions on his duties or treatment for any neck pain associated with the performance of them.
244Significantly, while Mr Jans thought the plaintiff was unfit for heavy construction type work in the near future, he envisaged it would take further time for him to fully rehabilitate to his fit and active pre-injury level and that further treatment would safely assist the return to his pre-injury functional level.
245I accept that the plaintiff, who is still a young man, now aged only twenty-seven,[108] has some ongoing neck pain requiring physiotherapy. That pain is not significant, continuous pain, and requires little in the way of painkilling medication. He is able to work full time in a relatively heavy job as a truck driver, although he would be limited in his ability to do unrestricted physical work.
[108] Stijepic v One Force Group Aust Pty Ltd (supra)
246He has not returned to a range of sports he enjoyed on a social basis before the incident. It is not clear why this is the case when his prognosis was excellent at an early stage and there has been no change in his circumstances or a deterioration in his neck condition since that time.
247Physiotherapist, Mr Jans, still contemplates the plaintiff being able to fully rehabilitate to his fit and active pre injury level but thought this would take further time.
248Further, in her affidavit, his partner, Lisa, attributed the plaintiff’s inability to return to sports to both his neck and shoulder, the latter no longer being part of this application. His friend, Dion, did not mention the plaintiff was not playing football in the 2017 season. He deposed that the plaintiff had not returned to sport because he was fearful of being hit and worsening his condition – not specifying which condition.
249The plaintiff had some degree of fear avoidance of further shoulder injury, noted as early as January 2018 by Dr Rahgozar. In February this year, Mr Speck thought restriction of activity was predominantly due to avoidance and anxiety. AP Paoletti, in March 2020, when diagnosing PTSD, also thought there was some avoidance behaviour.
250Taking all the evidence into account, I accept that there has been an impact on the plaintiff’s life as a result of his accident injury but, in my view, any pain and suffering consequences of his spinal impairment do not satisfy the “very considerable” test.
251Accordingly, the application is dismissed.
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