Athuai v TAC
[2022] VCC 1563
•20 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-03386
| DENG ATHUAI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2022 | |
DATE OF JUDGMENT: | 20 September 2022 | |
CASE MAY BE CITED AS: | Athuai v TAC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1563 | |
REASONS FOR JUDGMENT
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Subject:Transport accident
Catchwords: Serious injury; Spinal aggravation; Causation; Consequences
Legislation Cited: Transport Accident Act 1986 s 93
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Richards v Wylie [2000]
VSCA 50; (2000) 1 VR 79
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab SC with Mr S. Scully | Slater Gordon |
| For the Defendant | Mr S. Smith KC with Mr L. Howe | Wisewould Mahoney |
HIS HONOUR:
Introduction
1Deng Athuai is 51 years of age. He was the driver of a vehicle involved in an intersectional collision with another vehicle in Melton on 25 May 2015. He suffered injuries to his spine, and particularly his neck, in that collision and now seeks leave to recover damages at common law on the basis that he has suffered a serious injury.
2He relies upon paragraph (a) of the definition of serious injury set out in s 93(17) of the Transport Accident Act 1986 (“the Act”). Mr Macnab SC, who appeared on Mr Athuai’s behalf with Mr Scully, identified the spine as the body function relevantly lost or impaired.
3Mr Smith KC, who appeared with Mr Howe on behalf of the Transport Accident Commission, opposed the grant of leave on two bases. First, it was said that the consequences flowing from the spinal injury do not satisfy the threshold test for leave to be granted. Secondly, the question of causation was in issue with medical evidence obtained by the defendant supporting the proposition that the injury to Mr Athuai’s spine suffered in the 2015 transport accident was of limited duration.
4Mr Athuai was the only witness to give evidence at the hearing. The parties otherwise tendered material from their respective court books as evidence.
The lay evidence
5Mr Athuai swore three affidavits in support of his application, the first on 19 October 2020[1] a second on 23 December 2021,[2] and a further affidavit on 17 March 2022.[3]
[1]Exhibit B, pp 27 to 35
[2]Exhibit B, pp 20 to 26
[3]Exhibit C pp 1 to 5
6In his first affidavit Mr Athuai made reference to his general background, the transport accident occurring in May 2015 and the treatment received for injuries impacting on his neck and back.
7He described symptoms increasing in his neck and back in the weeks following that transport accident and the initial treatment from his general practitioner, Dr Oludare. He was referred for an MRI examination in late June 2015 and attended a neurosurgeon, Mr Gavin Davis, in late July 2015. Mr Davis did not recommend surgery and supported Mr Athuai continuing with his physiotherapy regime.
8The first affidavit refers to further investigations relating to his lower back, which were performed in September 2015 and January 2016. Mr Athuai continued with medication, but became frustrated with the lack of improvement and sought a further opinion from another neurosurgeon, Mr Aliashkevich, in March 2016. Once again the recommendation was for continued conservative treatment and referral to a pain specialist.
9Mr Athuai’s affidavit describes further MRI scans to his neck and back in April 2016. Shortly after that time he returned to South Sudan where he remained for 15 months spending time with his mother who still resides in that country. His affidavit refers to him undergoing regular massage therapy sessions and requiring painkillers whilst in Africa.
10After returning to Australia in September 2017 Mr Athuai obtained some casual work as a process worker with a recycling company. He continued in that role for the next couple of years despite the ongoing problems with his neck and back. His affidavit makes reference to the neck pain radiating into his right arm and hand and the back pain radiating into his right leg.
11Mr Athuai describes ongoing difficulties whilst performing his work and describes battling to stay on top of his pain during 2019. He was at that stage referred to a pain specialist, Dr Malcolm Ong. He underwent a pain management course which did little to improve his overall symptoms.
12At the time of swearing his first affidavit Mr Athuai had been laid off work and remained unemployed. He described struggling with chronic neck and back pain at that time. The affidavit described in some detail the level and frequency of symptoms and the impact on his activities of daily living. He remained under the care of his general practitioner, Dr Oludare, and was regularly consulting his pain specialist, Dr Ong, at the time of that first affidavit.
13In his more recent affidavit sworn some three months prior to the hearing Mr Athuai confirmed that there had been little change in the nature of his condition.
“… I continue to experience persistent neck and back pain each day. My pain levels do fluctuate from day to day, depending on my level of activity, but the more I try and do, the more my pain typically escalates. I also continue to struggle with both depression and anxiety.”[4]
[4]Exhibit B, p 20 [3]
14Mr Athuai described in his most recent affidavit a complex domestic situation stating that he had travelled to Egypt for approximately six months in late 2020 staying with his current partner, with whom he had two young children.
15Mr Athuai described taking Panadol, usually four tablets per day, and also an anti‑inflammatory medication, currently Meloxicam. He described ongoing pain principally from his neck and also regular headaches. His back had also remained problematic. He described the symptoms as follows:
“… I still suffer lower back pain most days. This is like a dull nagging ache that feels like I have a heavy weight tied to my back weighing me down. I also suffer more intense, stabbing bursts of pain with bending, lifting and twisting movements.”[5]
[5]Exhibit B, p 23 [17]
16Mr Athuai described poor sleep as a result of his ongoing neck and back pain and also remained restricted in his social, domestic and recreational activities.
17His second affidavit made reference to performing some volunteer work. He also described some difficulties with undertaking further studies to improve his prospects of future employment. At the time of swearing that affidavit he was receiving Job Seeker payments but stated:
“… As a result of my persisting neck and back pain, I currently have a job seeking exemption. I would dearly love to be able to find full time work and to be able to financially support myself and my family, but the constant pain and restrictions caused by my neck and back injuries mean that I have been unable to do so, and I remain severely limited in what I can do on a consistent and reliable basis.”[6]
[6]Exhibit B, p 26 [32]
18Mr Athuai’s third affidavit clarified some aspects of his medical history, noting relevantly that he had previously been involved in a transport accident in around September 2011. He stated in his most recent affidavit that this accident did not cause any ongoing issues.[7]
[7]Exhibit C, p 2 [4]
19The most recent affidavit described Mr Athuai taking Pregabalin from around February 2022. He described his symptoms and the resultant restrictions faced by him as remaining the same as he had stated previously. He described his back and neck pain as being the main issue for him, but additionally made reference to problems with his right elbow for which he had initially received treatment in mid-2021.[8] He further stated:
“I continue to suffer some ongoing ache and discomfort in my right elbow, but my back and neck pain are still the main issue for me. I believe that I would be able to return to some sort of employment if not for my back and neck pain.”[9]
[8]Exhibit C, p 3 [11]
[9]Exhibit C, p 4 [12]
20When cross-examined by Mr Smith KC I noted the following matters as relevant to my determination.
· Mr Athuai agreed there had been problems with his matrimonial situation pre‑dating the 2015 transport accident. He further agreed that he had travelled to Sudan in May 2016, formed a relationship with a new partner and fathered a child born in August 2017.[10]
[10]Transcript (“T”) 12, Line (“L”) 11 to 27
· Mr Athuai agreed that at the time of the transport accident he was in the process of separating from his wife.[11]
[11]T 16, L 12 to 18
· The right hand injury suffered in 2010 had not fully recovered until late 2014, or early 2015.[12]
· Mr Athuai agreed that his work at SKM Recycling between November 2017 and August 2019 would require him to stand for extensive periods, bending forward to retrieve items from a conveyor belt.[13]
· Mr Athuai agreed that whilst working in that employment he had perhaps attended his general practitioner 12 times in 21 months.[14] He did not report or complain that the recycling work was causing increased pain in his back.[15]
· Mr Athuai agreed that he was continuing to suffer back and neck pain when travelling to Sudan in 2016. The pain had commenced the same day as the transport accident.[16]
· He agreed that his employment with SKM Recycling had ceased due to a take‑over of the business and casual employees being let go.[17]
· When asked about a medical report from Dr Vivian addressed to UHG, an insurance company, Mr Athuai denied making any claim for a disability benefit.[18]
· Mr Athuai accepted that he was taking less medication than previously, but did not agree that his pain had improved since 2018.
“No, there is no change, still the same.”[19]
· He did agree that following the pain management course, he was now taking less medication than previously.[20]
· Mr Athuai accepted that on the occasions he had flown to Dubai his back and neck pain was worsened sitting in an economy seat for a lengthy period.[21] He maintained that he had received massage treatment and gym exercise to help with his pain whilst in Sudan and Egypt.[22]
[12]T 17, L 10 to T 18, L 2
[13]T 23, L 2 to T 25, L 10
[14]T 25, L 11 to 14
[15]T 25, L 26 to 31
[16]T 27, L 3 to 11
[17]T 27, L 21 to 23
[18]T 28, L 18 to T 29, L 12
[19]T 30, L 25 to 30
[20]T 31, L 6 to 15
[21]T 37, L 5 to 31
[22]T 38, L 1 to 6
21In re-examination Mr Athuai confirmed that his neck and back pain had been worsened when flying to Sudan. He described having massage on a daily basis and attending a gym four to five times per week.[23]
[23]T 38, L 10 to 20
22He gave evidence of pain waking him at night, preventing him from sleeping. He described this occurring once or twice every night at present.[24]
[24]T 38, L 27 to 31
23He was currently taking four Panadol Osteo per day and one tablet each of Pregabalin and Meloxicam.[25]
[25]T 39, L 7 to 28
24Mr Athuai agreed in re-examination that he had not played tenpin bowling after suffering his hand injury and prior to the transport accident. In the same period he had returned to playing social soccer. He agreed he had played only with his children and had never played soccer in Australia for a sporting team.[26]
[26]T 40, L 7 to 17
25Finally, in re-examination Mr Athuai explained that he obtained the recycling job after returning from Sudan and Egypt in 2017 as he had known a friend who was working there. He gave evidence that the work had impacted his neck and back pain, but he had taken the job for financial reasons.[27]
[27]T 41, L 14 to 25
26Further lay evidence in the form of an affidavit from Peter Deng Koj, sworn 16 March 2022 was tendered on behalf of the plaintiff.[28] Mr Koj describes knowing Mr Athuai since the early 1990s in Sudan. He arrived in Australia around 2005 and his affidavit refers to seeing Mr Athuai and his family most weekends at various community events.
[28]Exhibit C, pp 6 to 7
27Mr Koj’s affidavit makes reference to his knowledge of Mr Athuai’s hand injury in 2010 and the transport accident in May 2015. He also makes reference to conversations with Mr Athuai in 2017 when the plaintiff was working in recycling. Mr Koj describes the plaintiff as a good friend who he has known for a long time:
“I have seen a lot of changes to his mood. When I look at him, he is no longer happy, and I can see he is suffering in pain.”[29]
Mr Koj was not required for cross-examination.
[29]Exhibit C, p 7 [11] to [18]
The medical evidence
28Helpfully Mr Macnab SC tendered into evidence a medical treatment summary setting out the relevant attendances by Mr Athuai between 2015 and 2021.[30] The medical records and report from which this summary had been extracted was quite voluminous involving well in excess of 100 pages of medical reports.[31] Additionally extensive clinical notes dating back to 2010 had been referenced during cross‑examination, although only clinical records between 11 November 2017 and 4 March 2019 were actually tendered into evidence.[32]
[30]Exhibit A
[31]Exhibit B, pp 36 to 150 & Exhibit C, pp 8 to 28 & Exhibit D, pp 1 to 6
[32]Exhibit 2
29The medical treatment summary tendered on behalf of the plaintiff records extensive medical treatment provided to Mr Athuai following the transport accident in May 2015. There is a notable absence of treatment in 2017 when the plaintiff had returned to South Sudan. Mr Athuai had made reference in his first affidavit to undergoing regular massage therapy sessions and requiring pain killers during that period.[33]
[33]Exhibit A, pp 30 [22] to [23]
30The medical treatment summary records that Mr Athuai had attended his general practitioner on three or four occasions in each year since 2018. It also records that he had eight attendances during 2015 and six during 2016 before departing for South Sudan. The most recent report from his treating general practitioner, Dr Edward Oludare, is dated 16 March 2022.[34]
[34]Exhibit C, pp 8 to 10
31In that most recent report Dr Oludare diagnoses Mr Athuai as suffering from chronic lower back pain and chronic neck pain secondary to disc prolapses in both the cervical and lumbar regions of the spine. He describes the prognosis for both the neck and lower back conditions as poor, noting:
“Mr Athuai was seen by two different neurosurgeons and also underwent an extensive multidisciplinary pain management program with no improvement in his symptoms.”[35]
[35]Exhibit C, p 9
32Mr Athuai was also seen shortly after the transport accident by Professor Gavin Davis, neurosurgeon. His short report to Dr Oludare dated 28 July 2015 notes Mr Athuai was complaining of “mechanical neck pain.”
“There are no radicular nor myelopathic features demonstrated on history or examination. The MRI of the cervical spine demonstrates a mild right sided disc prolapse at C5-6 and a mild degree of disc bulge at C6-7.”[36]
[36]Exhibit C, p 22
33Professor Davis recommended physiotherapy and expected the symptoms to settle over a period of six to eight weeks. It would appear that Professor Davis’ prognosis was somewhat optimistic as Dr Oludare referred the plaintiff to a second neurosurgeon, Mr Aliashkevich on 22 March 2016.
34Mr Aliashkevich also noted chronic low back and neck pain and made reference to radiological abnormalities in the lower lumbar and lower cervical regions of Mr Athuai’s spine. He recommended conservative treatment and suggested a multidisciplinary pain management program.
35Mr Athuai participated in a multidisciplinary pain management program under the care of Dr Malcolm Ong between June and October 2019. The initial assessment and the discharge report were tendered in evidence.[37]
[37]Exhibit C, pp 11 to 19
36In the initial report dated 13 June 2019 it was noted:
“Mr Athuai had chronic post traumatic pain after a whiplash injury to the cervical spine, and a musculoskeletal injury to the lumbar spine. There are clinical features indicative of a possible right L5 facet joint pain and right L5 radiculopathy.
... Mr Athuai’s diagnosis is complex and needs further review. There are significant PTSD, depression, anxiety and general symptoms related to the circumstances of his injury and persistent pain condition. Some further clarification around his symptoms is required for diagnosis, but it does appear to be a key feature of his overall presentation.”[38]
[38]Exhibit C, p 17
37In the final report dated 21 October 2019 it was noted that both his back and neck pain had improved, together with his mental health conditions.
“He reported that he has benefited significantly from completing the pain management program, describing improvements in his pain levels and perceived ability to engage in tasks and activities. He stated that he now had a better understanding of his pain and knowledge of pain management principles, which has increased his ability to self‑manage his pain condition. ... Mr Athuai indicated that his mental health was better with the psychology sessions provided during the program. He stated that despite major stressors (e.g. losing his employment, financial pressures), he had been able to manage these by using adaptive coping strategies.”[39]
[39]Exhibit C, p 18
38The recommendation made by Dr Ong at the completion of that program was for Mr Athuai to commence a home exercise program and engage in exercise progression and management of medication in consultation with his general practitioner and Dr Ong.
39Having reviewed the opinions of the treating medical practitioners since 2015 it is reasonable to conclude that the circumstances of the May 2015 transport accident caused or contributed to a whiplash-type injury to the cervical and lumbar regions of the spine, complicated by the radiological changes observed in the lower cervical and lower lumbar regions of the spine.
40Further, the material provided from the multidisciplinary pain management clinic supports a conclusion that Mr Athuai has additionally suffered from a psychological disturbance or disorder involving depression, anxiety and features of post traumatic stress disorder which have, as a matter or probability, delayed or impaired his recovery.
41The opinion of the long-term general practitioner, Dr Oludare, must be given significant weight in assessing the nature and extent of Mr Athuai’s injuries and the likely prognosis.
42The recent medico legal opinions relied upon by the plaintiff are provided by Professor Richard Bittar, neurosurgeon. His three reports dated 4 November 2020,[40] 28 February 2022[41] and 16 March 2022[42] were tendered into evidence.
[40]Exhibit B, pp 137 to 140
[41]Exhibit B, pp 132 to 136
[42]Exhibit D
43In addition a further report from Dr David Vivian dated 23 June 2021 and addressed to an organisation described as “UHG” was also tendered on behalf of the plaintiff. Dr Vivian recorded a detailed history and described musculoskeletal injuries resulting from the motor vehicle accident as follows:
“Right upper neck strain: The right-sided neck pain with headaches and referred pain into the shoulder and arm are consistent with injuries to the upper cervical spine particularly with the C2/3 and C3/4 levels or thereabouts, and injuries could be facet joint in origin or intervertebral disc in origin, or related to other specific structures in that area.
Low back strain: The clinical examination of the lumbar spine is consistent with facet joint injury to the L4/5 and/or L5/S1 facet joints.[43]
[43]Exhibit B, p 147
44Dr Vivian went on to consider whether or not there were any pre-existing or unrelated conditions and stated:
“I consider these injuries relate to the transport accident. On two occasions, before 2015, there is mention of short-term back and neck pain, but these were of no consequence.”[44]
[44]Exhibit B, p 148
45Dr Vivian’s report notes a comprehensive history, including an extensive summary of the records from the pain management clinic and the clinical notes relating to Mr Athuai’s 2010 hand injury.
46Dr Vivian described the radiological findings as mostly age-related or genetically derived. He suggested further investigation with a view to potential active treatment, but described the prognosis for spontaneous recovery of the neck and back conditions as poor. He believed Mr Athuai was restricted in terms of his work capacity and activities of daily living.[45]
[45]Exhibit B, p 149
47Professor Bittar initially interviewed Mr Athuai via tele-health on 4 November 2020. He recorded a history and noted the current complaints and radiological findings. His diagnosis at that stage was aggravation of both cervical and lumbar spondylosis with pain noted in the neck, right arm, lower back and right leg. He regarded the transport accident of May 2015 as the dominant contributing factor and recommended further investigation, with a suggestion that Mr Athuai “may be a candidate for interventional pain management procedures, including radiofrequency denervations.”[46]
[46]Exhibit B, p 140
48Professor Bittar examined Mr Athuai on 28 February 2022 and confirmed his earlier diagnosis. He again recommended some further investigation potentially leading to further interventional pain management procedures. Professor Bittar described the prognosis as likely to involve significant pain and disability into the foreseeable future. He described Mr Athuai as being permanently incapacitated for work as a labourer or other work involving a significant physical or manual component.
49Professor Bittar provided a further supplementary report dated 16 March 2022. This report was largely directed towards commentary on the opinions expressed by Dr Joseph Slesenger and Dr Graeme Brazenor, who had provided opinions on behalf of the defendant. In essence Professor Bittar maintained his earlier opinions and set out reasons for disagreeing with the opinions expressed by the other two medical practitioners.
50Finally, Mr Macnab SC tendered into evidence a somewhat dated report from Mr John O’Brien, orthopaedic surgeon. This report was dated 19 June 2018, but is relevant to the issue of causation. At the time of Mr O’Brien’s examination of Mr Athuai on 19 June 2018 he had returned from Africa and was working at the recycling factory. Mr O’Brien diagnosed the condition suffered by Mr Athuai as:
“Chronic cervical and low back pain, which I would consider relates to aggravation of pre-existing cervical and lumbar spondylosis.
The plaintiff’s clinical condition is consistent with the stated cause (transport accident).
The clinical condition certainly is stable. The patient in fact reports no alteration in the nature, distribution or severity of neck and low back pain, in the three years since the accident.”[47]
[47]Exhibit C, p 27
51The medical evidence relied upon by the defendant was set out in reports prepared by Dr Joseph Slesenger, specialist occupational physician, dated 11 February 2022,[48] and Dr Graeme Brazenor, neurosurgeon, also dated 11 February 2022.[49] Dr Brazenor also provided a supplementary report commenting on the opinions expressed by Professor Bittar in February 2022.[50]
[48]Exhibit 1, pp 5 to 21
[49]Exhibit 1, pp 22 to 92
[50]Exhibit 1, pp 93 to 95
52For completeness I note that Mr Smith KC tendered into evidence clinical records between 11 November 2017 and 4 March 2019 which had been the subject of cross‑examination.[51]
[51]Exhibit 2
53Dr Slesenger examined Mr Athuai on a single occasion on 4 February 2022. His report dated 11 February 2022 sets out a thorough history and a summary of the earlier medical reports which had been provided to him. He diagnosed a soft tissue injury and aggravation of degenerative disease in the cervical spine with chronic neck pain. In relation to the lumbar spine his diagnosis was of soft tissue injury, but again producing chronic lower back pain. Dr Slesenger noted the psychological impairment but this was outside his area of expertise.
54Significantly in relation to the present application Dr Slesenger raised concerns about Mr Athuai’s employment in the recycling factory after returning to Australia in late 2017. He stated in his report the following:
“... I note that at this time (2018), he was working as a Labourer in a recycling factory. There is uncertainty as to whether he declared his injuries before commencing employment (it would be unusual for operators of recycling plants to employ workers with chronic cervical or neck pain).
In addition, I am also of the opinion that the job demands associated with this role, which would have required him to stand for prolonged periods and forward reach, would have been a potential irritant to both lower back pain and neck pain.
Taking the evidence as a whole, I am of the opinion that whilst it is probable that he suffered a soft tissue injury to his axial spine and developed chronic axial spine pain, I am of the opinion that the incident related impairment is now resolved.”[52]
[52]Exhibit 1, p 18
55Dr Slesenger suggested some further investigation concerning the type of work which had been performed by Mr Athuai. This does not appear to have occurred. He further commented that the residual cervical and lumbar spinal impairment would justify restrictions on heavy or repetitive activities.[53]
[53]Exhibit 1, p 20 [7] to [8]
56Dr Brazenor interviewed Mr Athuai via videolink on 11 February 2022. He provided a very detailed report of the same date to the defendant’s solicitors. That report contained a particularly detailed analysis of the radiological studies relating to Mr Athuai’s neck and back.
57Dr Brazenor expressed the view that apart from neck pain, and possibly right arm pain during the first one to two years post-accident:
“... the radiological record shows that Mr Athuai has other alleged symptoms and disability during the period could only have been due to non‑structural, recoverable aggravation of pre-existent degenerative changes in the C6/7 motion segment and the right L5/S1 facet joint.
... The degenerative changes at C6/7 in cervical spine, and the severe chronic degeneration of the right L5/S1 facet joint, antedated the motor vehicle accident of 26 May 2015 by several years at least. They may have been rendered temporarily symptomatic for a maximum of two years after the MVA.”[54]
[54]Exhibit 1, p 37
58Dr Brazenor commented that Mr Athuai may have been unable to work in any capacity during the first 12 to 24 months following the transport accident, but thereafter his symptoms in the neck and low back have been mild, but the degenerative changes would warrant him seeking lighter forms of employment.[55]
[55]Exhibit 1, p 39
59Given the opinions expressed by Professor Bittar in his most recent report the medico legal opinions are divided on the issue of whether the current symptoms experienced by Mr Athuai are still relevantly related to the transport accident in May 2015.
Analysis
60In order to succeed in the present application, Mr Athuai bears the onus of satisfying the test well established since Humphries v Poljak[56] that the consequences flowing from his spinal injury can fairly be described as at least very considerable and more than significant or marked. In applications seeking leave in respect of transport accidents an applicant is entitled to combine consequences of pain and suffering and pecuniary loss in satisfying the statutory threshold. Additionally, an applicant is permitted to rely upon certain non-organic consequences which are properly described as resulting from an established organic injury in accordance with the principles set down in Richards v Wylie.[57]
[56][1992] 2 VR 129
[57][2000] VSCA 50; (2000) 1 VR 79
61The issues identified by Mr Smith KC, being medical causation and the extent of consequences are by no means novel in this type of application.
62Insofar as the question of medical causation is concerned, there is a clear division of opinion between Mr Bittar and Dr Brazenor. Additionally, Dr Slesenger comments on the absence of medical treatment relating to the spine between late 2017 and March 2018, noting that Mr Athuai was working at the recycling factory at that time.[58] Dr Slesenger also concluded that the transport accident related impairment had resolved at the time of his report.
[58]Exhibit 2, p 18
63Fortunately, there is further evidence available which assists in the resolution of the causation issue. First, the support of Dr Oludare, his long-term treating general practitioner, provides support for the proposition that Mr Athuai has continued to complain of ongoing neck and lower back pain which Dr Oludare describes as stabilised. Dr Oludare makes reference to aggravation of the neck and lower back pain resulting from the work with SKM, but maintains his opinion in his most recent report that the injuries were causally related to the transport accident.[59]
[59]Exhibit C, p 8
64Secondly, Dr Ong, who reported on Mr Athuai’s progress during the multidisciplinary pain management program in 2019 described Mr Athuai’s injuries as “TAC related” in his report to the plaintiff’s solicitors dated 28 February 2022.[60] In that same report Dr Ong noted the employment with SKM Recycling stating:
“He reported that his work involves picking light plastic items off a conveyor belt. He reported that this can aggravate his neck and low back pain.
Pt stated that he has been mostly using Panadol and Nurofen for pain relief since his injury. He reported mild relief with these medications.”[61]
[60]Exhibit B, pp 50 to 70
[61]Exhibit B, p 56
65Thirdly, an earlier medico legal report obtained from Mr John O’Brien, orthopaedic surgeon, in June 2018 records a history of the employment with SKM Recycling and also notes Mr Athuai’s reports of:
“... constant pain in both the cervical and lumbar region, for which he has had moderate conservative treatment with no reported sustained benefit.”[62]
[62]Exhibit C, p 27
66Mr O’Brien diagnosed Mr Athuai at that stage as presenting with:
“... chronic cervical and low back pain which I would consider relates to aggravation the pre-existing cervical and lumbar spondylosis. The patient’s clinical condition is consistent with the stated cause.”[63]
[63]Exhibit C, p 27
67Finally, the medical treatment summary,[64] shows ongoing regular treatment. This, together with the evidence provided by Mr Athuai concerning the treatment received whilst in Sudan during 2017 and 2018, supports a conclusion that as a matter or probability the transport accident of 25 May 2015 caused soft tissue injuries in both the cervical and lumbar regions of the spine in the presence of existing degeneration have resulted in persistent and now stabilised pain in those regions of the spine. In those circumstances I find it more probable than not that the transport accident remains a cause of the ongoing symptomatology.
[64]Exhibit A
68The evaluation of the extent of consequences flowing from the transport accident related spinal injuries focuses largely upon the extent to which those ongoing consequences impair Mr Athuai’s capacity for unrestricted physical employment activities. Mr Athuai is presently 52 years of age and his lack of qualifications and language difficulties effectively limit him to physical labouring-type jobs for the foreseeable future. He has clearly demonstrated a capacity for light physical employment in performing work in the recycling factory for a period of approximately 18 months, ceasing in 2019 when he was retrenched.
69The medical opinions from those involved in his treatment, particularly Dr Oludare and Dr Ong, describe his capacity for unrestricted physical work as limited or restricted. I accept that assessment as an accurate one.
70The evidence discloses that Mr Athuai has not been able to find further suitable employment since that time, and I am satisfied that the loss of his ability to seek and maintain suitable employment is a very significant consequence resulting from the transport accident.
71Additionally, I accept Mr Athuai’s evidence, which is supported by his general practitioner and Dr Ong, that he continues to suffer from ongoing spinal pain and restrictions which require ongoing medication and impair various activities of daily living, including his sleep patterns. This ongoing pain has persisted for more than seven years and is likely, on the evidence, to continue indefinitely into the future. This disruption of his daily life, the requirement to take medication on a regular basis and the disruption of his sleep patterns are also consequences which I regard as at least very considerable.
72I do not accept that the evidence enables a finding that Mr Athuai’s marital difficulties were relevantly caused by the spinal injuries resulting from the transport accident. It became clear in cross-examination that these marital difficulties had pre-dated the transport accident by a number of years. There is simply insufficient evidence in this application to enable me to make such a finding.
73Additionally, I have noted the comments by various medical practitioners concerning non-organic or psychological consequences which were noted during examinations of Mr Athuai. It would not be uncommon for such conditions to develop in the setting of an established and long-term organic injury producing regular pain and interference with activities of daily living, including the ability to work.
74In the present case I am satisfied that the original organic injury resulting from the transport accident is the primary cause of the consequences impacting Mr Athuai’s ability to gain employment and his enjoyment of life.
75When the consequences to which I have referred are compared with a range of other possible consequences, I am satisfied that the consequences suffered by Mr Athuai can fairly be described as at least very considerable and more than serious or marked.
76I propose to grant leave to Mr Athuai to claim damages at common law in respect of injuries received in the transport accident occurring on or about 26 May 2015.
77I grant liberty to the parties to apply in respect of any dispute concerning the formal orders or the question of costs.
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