Baldacchino v Transport Accident Commission
[2015] VCC 608
•26 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-05942
| LOUIS CHARLES BALDACCHINO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 May 2015 | |
DATE OF JUDGMENT: | 26 May 2015 | |
CASE MAY BE CITED AS: | Baldacchino v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 608 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – impairment of the spine – two separate transport accidents – whether the consequences are “serious” to the plaintiff – failure to call evidence from supporting witnesses
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Jones v Dunkel (1959) 101 CLR 298; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: The application for serious injury in respect of the plaintiff’s spine arising from the transport accident on 9 September 2011 is granted. The application for serious injury to the plaintiff’s spine arising from the transport accident on 19 October 2011 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Worth | Verduci Lawyers |
| For the Defendant | Mr J Gorton QC with Mr P Gates | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 14 November 2013. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of two transport accidents which occurred on 9 September 2011 and 19 October 2011. At the commencement of the proceedings, Mr G A Worth, Counsel who appeared on behalf of the plaintiff, abandoned the application for serious injury pursuant to s93(17)(c) of the definition of “serious injury”; that is severe long-term mental or severe long-term behavioural disturbance or disorder.
2 Section 93(6) of the Act provides a court must not give leave under s93(4)(d) unless it is satisfied that the injury is a “serious injury”.
3 The definition of “serious injury” relied upon by the plaintiff is under s93(17):
“(a) serious long-term impairment or loss of a body function.”
4 In this application, the plaintiff brings two separate applications for serious injury. The two separate applications relate to two separate transport accidents which occurred on 9 September 2011 (“the first transport accident”) and 19 October 2011 (“the second transport accident”) respectively. In respect of both applications, the plaintiff seeks a serious injury certification by the Court for the loss of body function to the spine.
5 The enquiry under s93(17) of the Act 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.
6 The serious injury defined under s93(17)(a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of the body function.[1]
[1]Richards v Wylie (2000) 1 VR 79
7 In forming the judgment as to whether the consequences of the injury to the plaintiff’s spine are “serious”, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described “at least as ‘very considerable’” and certainly “more than ‘significant’ or ‘marked’”?[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129
8 The plaintiff swore and relied upon four affidavits dated 4 September 2013, 9 October 2013, 18 March 2015 and 4 May 2015. The plaintiff also gave evidence in part clarifying the contents of those affidavits. The plaintiff was extensively cross-examined.
9 In addition to the sworn affidavits and the evidence given by the plaintiff, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all of the tendered medical material and medical notes.
10 The tendered evidence in this proceeding was as follows:
· Exhibit P1 – the Plaintiff’s Court Book (“PCB”), pages 10-87 inclusive, page 96 and pages 123-132 inclusive
· Exhibit D1 – the Defendant’s Court Book (“DCB”), pages 1-19 inclusive
· Exhibit D2 – progress notes of Dr Hiluf Gebrehiwot dated 3 April 2012
· Exhibit D3 – progress notes of Dr Roshan Irani dated 10 July 2012, 30 September 2013, 17 April 2014 and 20 February 2015.
11 The issue in this application was identified by Mr J Gorton QC, Counsel who appeared on behalf of the defendant, at the commencement of the proceeding as being a “range case”. In the course of the application, the issues were expanded to include the credibility and reliability of the plaintiff as a witness and the effect of the two separate accidents on the physical condition and wellbeing of the plaintiff.
The Plaintiff’s background
12 The plaintiff was born in 1983. He is now thirty-one years of age.[3]
[3]PCB 10
13 The plaintiff was educated to Year 10 level at Keilor Downs High School.[4] Upon leaving school, the plaintiff initially commenced employment as a concreter and labourer, and worked in that role for approximately seven years.
[4]PCB 11
14 In 2007, the plaintiff commenced work with Melbourne Water operating a CCTV in stormwater drains.
15 In February or March of 2009, the plaintiff injured his lower back in the course of his employment with Thiess whilst working on the Melbourne Water contract and using the CCTV down stormwater drains. After having a month off work as a result of that injury, the plaintiff returned to work as a CCTV operator, and remained in that employment until 2014.
16 In 2014, the plaintiff changed his employment to RoadSafe Victoria. His job in that capacity is now that of a truck driver. The plaintiff currently works full time in his capacity as a truck driver and does overtime when it is available. He gave evidence that some weeks he works 50 to 60 hours.
17 At the time of giving evidence, the plaintiff stated that he was able to perform his current duties as a truck driver as his employer allowed him to have the necessary breaks to stretch his back. He stated that he had had little time off work since commencing with RoadSafe Victoria because of his low-back condition.
The first transport accident involving the Plaintiff on 9 September 2011
18 The plaintiff described the first transport accident which occurred on 9 September 2011 in his affidavit dated 4 September 2013 in the following terms:
“6.)On 9 September 2011 I was at a set of traffic lights at the Sunshine Avenue intersection, as you turn onto the Western Ring Road. I was stationary when a vehicle driving at a (sic) approximately 70km per hour drove into the back of my car.
In this accident I had sustained a fairly severe jarring injury. The boot of my car caved in and my car seat was dislocated and the steering wheel was damaged by the impact. I believe that the steering column had snapped and my vehicle was a total right (sic) off.
Prior to my injury in September 2011 my general health was good although I understand that I had a pre-existing back condition which was not giving me any problems.
7.)I was jolted forwards on impact however I managed to compose myself and drive to the side of the road to exchange details with the man who hit me, L.B. After the incident, I drove myself to my family doctor, Dr Chew in St Albans and he said I could have whip lash. By this time I was feeling an intense pain in my lower back and neck and he prescribed me Panadeine Forte.
8.)The pain continued to get worse and it was painful getting out of bed, going to the toilet and even sneezing.
9.)One week after the accident occurred I experienced numbness in my left leg only if I was seated for longer than 20 minutes or standing for a long period of time. I felt pain in my lower back and also at the top of my back and neck.”[5]
[5]PCB 11-12
19 The plaintiff, in his evidence, stated that immediately after the collision, he was able to drive his vehicle a short distance to see Dr Chew, his general practitioner. He then drove his car from Dr Chew’s surgery another short distance to his home. The car was considered a write-off. I accept, from the plaintiff’s evidence and the fact that his vehicle was severely damaged, that it establishes that the first transport accident on 9 September 2011 was a very significant impact.
The second transport accident involving the Plaintiff on 19 October 2011
20 The plaintiff described the second transport accident which occurred on 19 October 2011 in his affidavit dated 4 September 2013 in the following terms:
“14.)On 19 October 2011 at about 1pm, I was at the roundabout on Taylors Road, near Watergardens shopping Center (sic). My vehicle was stationary and another car drove up the rear of my vehicle.
15.)That same day I went back to Dr. Gebrehiwot and he examined me and advised that my whiplash had been aggravated. The doctor could not see any structural damage and advised me time will tell where the pain is coming from. I was advised to continue with my physiotherapy treatment.”[6]
[6]PCB 12
21 The plaintiff, in his second affidavit dated 9 October 2013, expanded the nature of the collision on 19 October 2011 as set out in the PCB at page 17. The plaintiff, in his evidence before the Court, stated that the matters deposed to in that affidavit were incorrect and related to the first transport accident which occurred on 9 September 2011.
22 The evidence of the plaintiff was that the second transport accident involved the vehicle belonging to his girlfriend at the time. There was not significant damage to her vehicle. I accept that the second transport accident was a relatively minor accident compared to the initial transport accident on 9 September 2011.
23 In the course of cross-examination of the plaintiff, Mr Gorton, in a determined and efficient manner, managed to elicit evidence from the plaintiff that the second transport accident had aggravated his condition and that the aggravation had remained since that date. The plaintiff conceded that that was different from his evidence.[7] I accept the evidence of the plaintiff that the first transport accident was the most significant accident in relation to the injuries and, in particular, relating to his back. A fair reading of the plaintiff’s evidence at Transcript pages 21 to 24 is that the plaintiff suffered pain and numbness down his leg after the first transport accident and that his condition was temporarily aggravated by the second transport accident.
[7]Transcript 22, Line 21
The Plaintiff’s impairment or loss of body function
24 In this application, the plaintiff is seeking a serious injury certificate in respect of loss of the body function to his spine. It is clear from the evidence in this case, that there is very little evidence relating to the plaintiff’s pain and or symptoms arising from his cervical spine. The focus of the plaintiff’s own evidence about his symptoms and difficulties is directed towards his lower back and the pain down his left leg. The medical opinions in this case also are directed to the plaintiff’s low-back injury and consequences arising from that injury. Based on the evidence in this case, the Reasons for Judgment will concentrate on the low-back injury which the plaintiff suffered in the first transport accident on 9 September 2011.
25 The starting point in making an assessment of the impairment to the plaintiff’s lower back is to examine the position he was in immediately prior to the first transport accident. The plaintiff, in his own evidence, had stated that he had suffered a prior low-back injury whilst working at Melbourne Water. This injury occurred in or about February or March of 2009. I accept the plaintiff’s evidence that he had approximately one month off work as a result of that injury.
26 The plaintiff attended upon Dr Christine Do at Main Road West Physiotherapy. Dr Do sought an x-ray of the plaintiff’s lumbar spine on 4 March 2009.[8] The x‑ray report prepared by the radiologist, Dr Andrew Dobrotwir, noted that the clinical notes stated:
“Paraesthesia over groin. Leg and lower back pain post bend, twist and heavy lifting.”[9]
[8]DCB 1
[9]DCB 1
27 The conclusion of that x-ray examination was as follows:
“1. L4/5 disc space narrowing - ? disc prolapse. If clinically indicated, this may be confirmed on CT or MRI of the lumbar spine.
2. Mild to moderate upper lumbar spondylosis and mild lower lumbar facet joint osteoarthritis.”[10]
[10]DCB 1
28 The result of the x-ray is not conclusive as to a frank injury to the plaintiff at that time. The plaintiff attended upon the physiotherapist, Dr Do, on some fourteen occasions from 1 March 2009 until 17 April 2009.[11] I accept that in March and April of 2009, the plaintiff underwent some intensive physiotherapy treatment for a low-back condition from Dr Do. In her notes of 10 March 2009, Dr Do noted that the plaintiff was complaining of some pain in his left thigh.[12] In his evidence, the plaintiff could not remember much about the level of treatment or the nature of the examination by Dr Do. I accept the plaintiff’s evidence that by the time he returned to work for Melbourne Water, his symptoms had settled, and that he continued to work effectively symptom free up until the first transport accident on 9 September 2011.
[11]PCB 123
[12]PCB 123
29 The plaintiff drove from the scene of the first transport accident on 9 September 2011 to his general practitioner, Dr Chew. Dr Chew examined the plaintiff and prescribed Panadeine Forte for pain relief. The plaintiff returned to Dr Chew on 12 February 2011 for further examination. Dr Chew recommended the plaintiff continue with pain relief, and told the plaintiff that he had whiplash. The plaintiff was not satisfied with this treatment and decided to change his general practitioner.
30 On 13 September 2011, the plaintiff attended upon Dr Hiluf Gebrehiwot, general practitioner. Dr Hiluf Gebrehiwot referred the plaintiff for CT examination of his cervical and lumbar spine, which was performed on 14 September 2011. The CT scan of the lumbar spine was reported as follows:
“”No disc protrusion is demonstrated throughout the lumbar region and there is no significant thecal or nerve root compression. Central canal appears at the lower limits of normal at the superior aspect of the L3 vertebral body.
No significant facet joint osteoarthritis is demonstrated.”[13]
[13]PCB 29
31 Dr Hiluf Gebrehiwot referred the plaintiff for physiotherapy treatment, which the plaintiff commenced on 19 September 2011.[14] The plaintiff had eight separate physiotherapy treatments prior to him being involved in the second transport accident on 19 October 2011.[15] During the course of that treatment, Dr Hiluf Gebrehiwot had prescribed Tramal and Valium for treatment of the plaintiff’s symptoms.
[14]PCB 123
[15]PCB 123-124
32 In his report dated 4 May 2012, Dr Hiluf Gebrehiwot clearly states that he thought that the plaintiff’s difficulties after the two accidents were predominantly psychological. Dr Hiluf Gebrehiwot noted the plaintiff being referred to an occupational therapist by the Transport Accident Commission. Dr Hiluf Gebrehiwot’s opinion set out in his report was that the plaintiff had the capacity to slowly build up from light duties to full-time working hours. It was clear from Dr Hiluf Gebrehiwot’s report dated 4 May 2012 that the plaintiff was indicating to Dr Hiluf Gebrehiwot that he was not keen to return to work due to the physical injury.[16]
[16]PCB 35
33 The plaintiff, in his evidence, stated that the reason he left Dr Hiluf Gebrehiwot was because he did not think he was being taken seriously in respect of his complaints and symptoms. The plaintiff stated that Dr Hiluf Gebrehiwot was only interested in prescribing him medication and then getting him out. He conceded that he thought that Dr Hiluf Gebrehiwot and the Transport Accident Commission officer named Simon were acting together in an attempt to get the plaintiff to go back to work. The plaintiff stated that he was not physically able or ready to go back to work due to the symptoms he was suffering, particularly the pain in his central low back and the referred pain and numbness down his left leg.
34 The plaintiff gave evidence that a friend of his advised that he should obtain a second opinion and, on the advice of his friend, the plaintiff attended upon Dr Roshan Irani, general practitioner. As I understood the plaintiff’s evidence, the plaintiff’s friend had been a long-term patient of Dr Irani. I accept the plaintiff’s evidence in this regard, that he was not satisfied with his treatment by Dr Hiluf Gebrehiwot and that he desperately wanted to obtain a further opinion about his condition and more appropriate treatment.
35 On 3 April 2012, the plaintiff transferred his treatment from Dr Hiluf Gebrehiwot to Dr Irani.[17]
[17]Exhibits D2 and D3
36 Dr Irani referred the plaintiff to Dr Alex Stockman, a rheumatologist.[18] Dr Irani also advised the plaintiff to continue with his physiotherapy treatment.
[18]PCB 36
37 On 9 May 2012, the plaintiff attended upon Dr Alex Stockman. Dr Stockman sought permission for an MRI examination of the plaintiff’s lower back from the defendant. The defendant refused that application.
38 By 10 July 2012, the plaintiff had resumed his full-time normal duties after completing the period of part-time work.[19] The plaintiff’s duties at Melbourne Water continued until April of 2014. The plaintiff stated in his evidence that he was able to continue the duties in relation to the CCTV work because his mates, who were workmates and schoolboy friends, covered for him. The plaintiff stated that his workmates did the heavier work and he was doing the CCTV work, which involved sitting down watching the film with a camera. I accept the plaintiff’s statement in his affidavit sworn 4 May 2015, as follows:
“… I would not have been able to cope with the role for as long as I did were it not for my mates helping me out and requiring me to do the heavier aspects of the job less frequently than I had been prior to the transport accidents.”[20]
[19]Exhibit D3
[20]PCB 28(b)
39 On 2 February 2013, the plaintiff underwent an MRI examination of his thoracolumbar spine. Relevantly, in respect of his lumbar spine, the report is as follows:
“At L5-S1, shallow left foraminal disc protrusion, abutting the exiting left L5 nerve root, may have potential for neural impingement.”[21]
[21]PCB 30
40 Mr Gorton QC, on behalf of the defendant, submitted that I could not be satisfied that the reported results of the MRI scan performed on 2 February 2013 are caused by the transport accidents or that they are an explanation for the symptoms complained of by the plaintiff.
41 Dr Irani’s opinion is that the MRI scan performed on 2 February 2013 showed a –
“… major abnormality at L5S[1] where there is shallow left foraminal disc protrusion abutting the existing [scil exiting] L5 nerve root, causing potential neural impingement’, cause of Louis’s backpain and left leg pain.”[22]
[22]PCB 40-41
42 Dr Stockman, in his report dated 29 August 2013, after examination of the MRI scan performed on 4 February 2013, stated:
“… The major abnormality is at L5 S1 where there is shallow left foraminal disc protrusion abutting the existing L5 nerve root, which may have the potential for neural impingement. This now confirms that Louis Baldacchino’s pain is due to pathology described above and is consistent with your client’s symptoms. … .”[23]
[23]PCB 62
43 In his final report dated 31 March 2015, Dr Stockman, after repeating the findings of the MRI report dated 2 February 2013, gave the following opinion:
“… His lumbar back pain with some radiation down the left leg is consistent with the MRI scan findings of disc degeneration at L4/5 and disc degeneration and disc protrusion at L5/S1. The protrusion is in the left neural foramen which would account for the pain [in] the left thigh and ankle.”[24]
[24]PCB 64
44 Mr M A Khan, orthopaedic surgeon, in his report dated 14 September 2013, noted the findings on the MRI examination. He stated:
“He has disc protrusion at L5/S1 level on the left hand side abutting the left L5 neve root but not causing radiculopathy. This is associated with persistent discogenic symptoms in relation to the prolapsed L5/S1 disc with left sciatica pain associated with numbness and pins and needles down the left lower limb.”[25]
[25]PCB 77
45 In his final report dated 27 March 2015, Mr Khan stated that he was unable to detect any signs of radiculopathy upon examination of the plaintiff’s lower limbs. He further stated:
“However, he has been left with significant residual after effects of the injuries affecting his lumbar spine and he has residual pain and discomfort from the whiplash injury to his cervical spine.
Hence, my diagnosis of his injury remains unaltered and he has been left with partial permanent residual after effects of the injury.”[26]
[26]PCB 84
46 The plaintiff was sent for medical examination and review by Mr Michael Dooley, orthopaedic surgeon. Mr Dooley prepared a report dated 27 March 2015. In that report, Mr Dooley noted that he did not have the radiological investigations available for review by himself. He noted what the reports had stated. Mr Dooley stated as follows:
“… The examination of the lumbar spine reveals moderate restriction of lumbar spine motion but again no evidence of objective neurological deficit affecting the lower limbs. Radiologically there is some evidence of naturally occurring degeneration involving the L4/5 and L5/S1 levels. MRI scanning in February of 2013 suggests a small left sided disc protrusion at the lumbosacral level. In relation to naturally occurring degenerative disc disease of the spine, small disc protrusions are occurring regularly. Most commonly they are asymptomatic. The MRI scan of February 2013 notes abutment of the disc protrusion against the L5 nerve root. There are no objective signs of L5 nerve root compression etc. Therefore, in essence the MRI scan findings are incidental.”[27]
[27]DCB 16
47 Based on the opinions of Dr Irani, Mr Stockman and Mr Khan, I do not accept Mr Dooley’s opinion that the MRI findings are incidental. The MRI findings of 2 February 2013 are radiological support for the complaints made by the plaintiff about his symptoms in his lower back, and his complaints of numbness down his left leg.
The medical opinions
Dr Roshan Irani
48 Dr Irani is the plaintiff’s general practitioner and has been so since April of 2012. Dr Irani prepared four reports dated 17 February 2012, 20 March 2013, 4 September 2013 and 25 February 2015 in respect to this application.
49 In her final report, Dr Irani’s opinion is that the plaintiff continues to experience back pains with sneezing, coughing, lying in bed in one position for long, and needs to take strong analgesics on and off. She stated that the plaintiff was suffering a discogenic back pain as a result of the two transport accidents.
50 Dr Irani noted that the plaintiff is very motivated and has found full-time employment but will continue to have difficulty with any heavy lifting and bending. The plaintiff would need to continue with analgesics “as needed”.[28]
[28]PCB 41
Dr Alex Stockman, Rheumatologist
51 Dr Stockman prepared three reports dated 6 August 2013, 29 August 2013 and 31 March 2015. The reports were prepared for medico-legal purposes. I note however that Dr Stockman initially treated the plaintiff for his low-back pain and symptoms in May of 2012.
52 In his final report, Dr Stockman has attributed the low-back symptoms and the left thigh and ankle pain equally between the two transport accidents. Dr Stockman stated that the severity of the symptoms would fluctuate and will be related to the degree of physical work that he is required to perform. In Dr Stockman’s opinion the plaintiff would be able to continue on simple analgesics and self-managed exercises which have been shown to him by the physiotherapist.
Mr M A Khan, Orthopaedic Surgeon
53 Mr Khan prepared three medical reports dated 29 May 2013, 14 September 2013 and 27 March 2015.
54 Mr Khan’s opinion is that the plaintiff has been left with significant residual after effects of the injuries affecting his lumbar spine.[29] Mr Khan noted that the plaintiff had returned to work that he could cope with. Mr Khan set out restrictions for the plaintiff’s work in his report, involving not lifting weights greater than 10 kilograms and not flexing his spine for long periods or in a bent position, and he could not sit or stand in one position for long periods of time.
[29]PCB 84
Mr Michael Dooley, Orthopaedic Surgeon
55 The plaintiff was examined on behalf of the defendants by Mr Dooley for medico-legal reporting. I have previously outlined Mr Dooley’s opinion that the plaintiff is suffering from a soft-tissue injury to his lower back as a result of the transport accidents. I do not accept that a soft-tissue injury to the plaintiff’s back in September or October of 2011 could manifest the symptoms that the plaintiff complains of and Mr Dooley accepts as late as 12 March 2015. I prefer the opinions of Dr Stockman and Mr Khan that there is radiological support for the complaints made by the plaintiff in this case.
Credit of the Plaintiff
56 Mr Gorton QC, on behalf of the defendant, challenged the credibility of the plaintiff. In particular, he relied on the following points:
(a) The attitude of the plaintiff and the manner in which he swore affidavits;
(b) The discrepancy between the time off work that the plaintiff had after his industrial accident in 2009;
(c) The plaintiff’s history to Mr Khan concerning whether or not he made a WorkCover claim for the industrial accident in 2009;
(d) The reason that the plaintiff changed from Dr Hiluf Gebrehiwot to Dr Irani;
(e) The conflict in the plaintiff’s evidence between the symptoms following the two separate transport accidents;
(f) The reason given by the plaintiff for leaving employment with Melbourne Water was due to his back pain, when the evidence was a combination of reasons which included back pain, more money and the fact that Thiess, the employer, had lost the contract with Melbourne Water;
(g) The plaintiff giving a history to Dr Kaplan, psychiatrist, about remaining on casual work so that he could obtain more pay rather than take a permanent job;
(h) The medication that the plaintiff claimed to be taking was unreliable;
(i) The consequence that the plaintiff stated about his inability to continue hunting because of his injury.
57 I have had the advantage of observing the plaintiff give evidence, and do so under very effective and concise cross-examination. I accept that there is a discrepancy between the affidavit material relied on by the plaintiff and his evidence in Court. The plaintiff himself acknowledged that that was the case. I accept however that the plaintiff is an honest and reliable witness. In the course of his evidence, he made several admissions which could be characterised as being admissions against interest. The plaintiff stated that he was working full time and doing overtime to the extent where he may work 50 to 60 hours per week. The plaintiff conceded that he tried not to take too many heavy analgesics because they interfered with his bowels. The plaintiff volunteered that he still attended the gymnasium on three to four occasions per week in order to do exercises for his lower back injury. These concessions made by the plaintiff are indicators that although the answers he has given may act against his interest to obtain a certificate for serious injury in this application, he volunteers that information.
58 In respect of the issue of the time taken from work after his industrial accident in 2009, I accept the plaintiff has consistently maintained that he was off work for approximately one month. In that regard, if an examination of the physiotherapy attendances is made at that time, it would be clear that the plaintiff was off work for approximately one month.[30] In any event, I do not find that the length of time that the plaintiff took off work, being between two and four weeks, is of any great significance some six years after the event. Quite clearly, the plaintiff, or any normal person, would be uncertain about the exact time that they had taken from work that long ago.
[30]PCB 123
59 In relation to the plaintiff’s history to Dr Khan that he had made a WorkCover claim and now denies it in his evidence, is of no moment in this case. I accept the plaintiff’s evidence that he never made a WorkCover claim in respect of his low-back injury in 2009. Further, I accept his evidence that he took some of the time off as sick leave and the rest of it as annual leave. He returned to work immediately after his symptoms had subsided. The fact that such a history appears in the medical report of Mr Khan does not mean that is an accurate statement of the history given by the plaintiff to the doctor. It is a matter of experience of the courts that on occasions, doctors can either misunderstand or not accurately obtain a history of minor details of past events.
60 In respect of the change of doctor between Dr Hiluf Gebrehiwot and Dr Irani, the plaintiff was challenged about his reason for doing so. Initially, I gained the impression that it was going to be put to the plaintiff that Dr Irani was suggested to him by his solicitors, Verduci Lawyers. That was clearly not the case and I accept the plaintiff’s evidence that a friend of his directed him to Dr Irani on the grounds that Dr Irani had been that friend’s long-term general practitioner. The plaintiff continues to see Dr Irani for his lower back complaints and all other medical issues to the present day. It is fair to say that the plaintiff does not regularly attend Dr Irani seeking medications on a regular basis. He obtains prescriptions for medication of Panadeine Forte and Voltaren as and when required.
61 I have previously dealt with the changes to the plaintiff’s evidence in respect of the symptomology resulting from the two individual transport accidents in this case. As I have previously stated, I accept that the plaintiff’s symptoms were temporarily aggravated in the second transport accident but the predominant and major cause of his ongoing symptomology is the first transport accident on 9 September 2011. The following passage from the Transcript sets this out clearly:
Q:“After that flare up, with the second accident, did your pain recover to how it was between the two accidents?---
A:I see what you’re saying. Yeah – well it sort of went – it sort of went back to the way it was from the first accident, you know. But it was all so close together. I couldn’t even really compare, like.”[31]
[31]Transcript 23 Lines 6-11
62 That response from the plaintiff is a clear indication of his lack of guile or any sense of dishonesty.
63 The plaintiff was challenged about his statements in his affidavits that he left employment with Melbourne Water for the reason of his back injury. I accept the plaintiff’s evidence in the application that he left employment with Melbourne Water for a combination of reasons. The combined features of an offer of a job with more money, together with Thiess losing the contract and the fact that the plaintiff had problems with his work because of his back, are a proper explanation as to why he changed from Melbourne Water to RoadSafe Victoria. I do not accept that the plaintiff was massaging or trying to enhance his chances of a successful application for serious injury because of the statements relating to leaving employment with Melbourne Water because of his back.
64 Dr Kaplan’s history that the plaintiff was remaining on casual employment so that he could obtain a higher pay is denied by the plaintiff.[32] Again, this issue of a history between the plaintiff’s medical practitioner on matters peripheral to the reasons for seeing that practitioner are difficult to assess when the practitioner is not cross-examined or given an opportunity to explain the basis for that history. The Court’s experience is that medical practitioners can make errors when either taking a history from the plaintiff or, alternatively, in misunderstanding what the plaintiff was saying.
[32]Transcript 57
65 The next area of contest for the plaintiff’s credibility was his evidence in relation to medication. I will deal with this more fully when dealing with the consequences arising from the low-back injury to the plaintiff.
66 In terms of the plaintiff’s credibility, I accept that he does take Panadol Rapid and Panadeine Forte when the pain is too severe. I also accept that the plaintiff limits the amount of Panadeine Forte he takes due to the constipation effects it has upon him. I accept that the plaintiff obtains some of his Panadeine Forte medication from his father, who is living next door to him. Each of the medical examiners have noted that the plaintiff does use Panadeine Forte. I also accept that the plaintiff takes Voltaren on an ‘as needs’ basis.
67 The final point concerning the plaintiff’s credibility put forward by Mr Gorton was that the plaintiff had stated that he could not go hunting anymore because he was unable to carry the guns and carry the pack. The hunting was done in the company and presence of his father. The plaintiff conceded that his father was now physically disabled, but able to walk around the block and could still go hunting. It is difficult to assess the plaintiff’s credibility based on the conflict between his father’s ability to really go hunting and the plaintiff’s complaint that he did not go hunting anymore because of his own personal inability to carry the guns and necessary equipment for the two of them to hunt. In any event, in the overall scheme of this case, the plaintiff’s inability to go hunting is a very minor issue.
Failing to call witnesses
68 Mr Gorton QC, on behalf of the defendant, submitted that the principles of Jones v Dunkel apply in this case.[33] The submission was that the plaintiff had not sought to lead any evidence by way of affidavit from his former girlfriends in respect to his erectile dysfunction or relationship difficulties. He submitted that the plaintiff had failed to obtain any affidavit material in support of his claim from family members; in particular, relating to the provision of Panadeine Forte from his father. He also submitted that the plaintiff failed to submit any affidavit material from his workmates at Melbourne Water setting out the circumstances of his work and leaving that place of work.
[33](1959) 101 CLR 298
69 The rule in Jones v Dunkel is that if a party has failed to call a witness that ordinarily would be expected to be called to give evidence, then an inference is drawn against that party that the evidence from the missing witness would not have assisted the case of the party that failed to call the evidence. The rule does not extend to draw an inference that a fact which is adverse to the interests of the party is proven.
70 I will decide this case on the evidence that has been led in the hearing.
Consequences
71 The plaintiff, in his four affidavits, has set out the consequences that have resulted from the injury to his spine as a result of the transport accidents. The plaintiff has maintained, in his affidavits and in his viva voce evidence, that the injuries which resulted from the first transport accident on 9 September 2011 were most significant and that the injuries received from the second transport accident on 19 October 2011 were only a temporary aggravation of the already existing symptoms and consequences.
Pain
72 The plaintiff has set out in his affidavit material and also in his viva voce evidence that he is constantly in pain to his lower back. The plaintiff gave evidence that the pain referred from his back goes down his left leg and to the extent where it becomes numb in the left thigh. The plaintiff’s evidence is that his pain is more severe after a long day at work, or depending on the amount of physical activity he is required to do at his work.
73 It was clear from the plaintiff’s evidence that he was trying to limit the amount of pain-relieving medication that he took.
74 I accept that the plaintiff is a person of stoic disposition who has been prepared to put up with pain and suffering and make the best of his situation. Because that is the case, I do not accept the he should be treated less favourably as a plaintiff compared to someone who is of less strength of character and simply resigns themselves to the consequences of the injury. I accept that the endurance of permanent daily pain requiring frequent medication in the form of Panadol Rapid and, on occasions, topped up with Panadol Forte, is an indicator of a very considerable consequence. In this case, I find that the daily experience of pain which is exacerbated to a level of severity by activity is a very considerable consequence for the plaintiff. The fact that the plaintiff is a young man, aged thirty-one, and is suffering this pain, then the length of time that he will continue to suffer this pain is a very considerable consequence.
75 The plaintiff is supported in this regard by his general practitioner, Dr Irani, who accepts that the plaintiff suffers from discogenic back pain, and that he will continue to require analgesics into the future as needed.[34]
[34]PCB 41
76 The other treating medical practitioner, Dr Stockman, also accepts that the plaintiff experiences numbness in his left leg, and low-back pain is present most of the time. The back pain is aggravated by prolonged sitting, standing and walking and is only somewhat relieved when he lies down.[35]
[35]PCB 60
Sleep
77 In his affidavits, the plaintiff deposes that his sleep is interrupted by the pain. He stated that he wakes up after a few hours of sleep because of the pain.[36] The plaintiff stated that, on average, he would get four hours’ sleep per night and considered five to six hours of sleep a good night. He stated the reason for this was he found it difficult to find a comfortable position and he was often woken due to pain.[37]
[36]PCB 14
[37]PCB 15
78 The plaintiff stated that his sleep was disturbed on a regular basis by reason of lower back pain.[38]
[38]PCB 27
79 In his most recent affidavit, the plaintiff deposed that he continues to have generally interrupted sleep every night due to pain.[39]
[39]PCB 28(f)
80 The plaintiff has been consistent in his complaints about his sleep being interrupted due to the pain from his lower back and into his leg. He stated to Dr Kaplan that the pain interferes with his sleep; the pain wakes him and then he has difficulty finding a comfortable position.[40]
[40]PCB 54
81 Dr Stockman has taken a history from the plaintiff, stating that the pain also wakes him every night on two or three occasions.[41]
[41]PCB 63
82 Mr Khan also took a history from the plaintiff that his sleep was disturbed due to pain, and that he wakes up every four to five hours.[42]
[42]PCB 82
83 I accept the plaintiff’s evidence that his sleep is interrupted due to pain, and on average, he obtains four to five hours’ sleep per night. The plaintiff has been consistent in his complaints to the medical practitioners that have been treating him and seen him for the purposes of this application.
84 I find that the inability of the plaintiff to get a full night’s rest in the form of uninterrupted sleep is a very considerable consequence for him. This is particularly a very serious consequence for the plaintiff given his occupation of being a truck driver. I accept that the plaintiff’s interruption to sleep is a very considerable consequence.
Medication
85 The plaintiff, in his affidavits, deposed that he took Panadeine Forte for the purposes of pain relief. In his evidence-in-chief, the plaintiff stated that he obtained some of his Panadeine Forte from his father because his father was a diabetic and could get the medication cheaper on the Pension.[43]
[43]Transcript 18
86 The plaintiff confirmed that he still took Voltaren for pain relief. His evidence was that he took Panadol Rapid on a daily basis. His evidence was he took at least two a day, sometimes four a day.[44]
[44]Transcript 19
87 The plaintiff was prescribed Panadeine Forte on 30 September 2013.[45] In his history to Mr Khan, the plaintiff stated that he took Panadeine Forte only if the pain flares up excessively, as he tries to do without it. The plaintiff also stated to Mr Dooley, in his examination of the plaintiff, that he takes Panadeine Forte for pain.[46] The plaintiff also gave a history to Mr Dooley that he had a lot of analgesic medication in the past but that he had “got over pain killers two years ago”.[47]
[45]Exhibit D3
[46]DCB 14
[47]DCB 15
88 In March of 2015, the plaintiff told Dr Stockman he took Panadol occasionally.[48]
[48]PCB 63
89 In his report dated 13 April 2013, Dr Kaplan took a history from the plaintiff that he took Panadeine Forte when he could no longer tolerate his pain.[49]
[49]PCB 53
90 I accept the plaintiff’s evidence that he continues to take Panadol Rapid, Panadeine Forte and Voltaren medications to ameliorate the effects of pain on him. The dosage and number of times he takes Panadeine Forte varies with the severity of his pain. I accept his evidence that he has attempted to limit the amount of heavy analgesic medication in the form of Panadeine Forte due to its constipatory effects on him.
91 I find that the necessity for the plaintiff to consistently take analgesic medication to deal with his pain symptoms is a very considerable consequence for him.
Work
92 The plaintiff continues to work full time. He stated in his evidence that he works 50 to 60 hours per week as a truck driver. I accept his evidence that the reason he can now work that length of time is that the work required of him is of a much lighter nature than the work he was previously doing at Melbourne Water. It is clear from the medical opinions that the plaintiff has physical restrictions as to the nature of his work and the flexibility he requires from his employer to be able to have sufficient rests and opportunities to stretch his back. The injury to the plaintiff’s back has reduced the range and type of work he can undertake.[50]
[50]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
93 In a situation where the plaintiff is a young man and has in the order of thirty-five years of full-time employment in front of him, the fact that the nature of his work is limited to, in effect, ‘light work’ is a very considerable consequence for him.
Hunting
94 The plaintiff maintained that he was unable to continue hunting because of his low-back injury. I do not accept that the injury to his low back is the main reason that his hunting expeditions with his father have ceased. His father’s health is of such a fragile nature that the enjoyment for either the plaintiff or his father in going hunting had dissipated. I do not accept that the plaintiff’s back injury is the cause of the cessation of the hunting expeditions with his father.
Erectile dysfunction
95 The plaintiff deposed in his affidavits that he has erectile dysfunction on an occasional basis. There was no medical evidence in this case to link the injury to his low back to the plaintiff’s erectile dysfunction. The plaintiff bears the onus of proving that the consequences of the back injury are related to the transport accident. I do not accept that this complaint or symptom suffered by the plaintiff is, or has been, proven to be related to the back injury.
96 Erectile dysfunction can have many causes and, in this case, none has been identified.
Psychological impact
97 The plaintiff originally was seeking a serious injury certificate for psychological and psychiatric disorder. That application was abandoned at the commencement of this proceeding. The plaintiff continues to rely upon the reports of Dr Kaplan as to his psychiatric and psychological condition. At its highest, the plaintiff could establish that he had an adjustment reaction. This arises from the reports of Dr Kaplan and Associate Professor Peter Doherty. I accept that there has been an adjustment reaction with some mood symptoms as a consequence of the transport accidents.[51] I do not accept that the mood consequences and adjustment reaction amount to a very considerable consequence in this case.
[51]DCB 9
Gymnasium and sporting activities
98 The plaintiff has deposed to his inability to run and engage in his previous sport of attending the gymnasium, of weightlifting and boxing and the like. The plaintiff gave evidence that he can no longer do these activities. I accept that for a young man such as the plaintiff to have his physical ability to engage in vigorous physical sporting activities such as running and or gymnasium work, is a very considerable consequence for him.
Conclusion
99 I find that the plaintiff has satisfied the test for “serious injury” and that the consequences as I have found them to be as a result of the transport accident on 9 September 2011 are very considerable and more than significant or marked. I find the consequences for the plaintiff will be for the foreseeable future.
100 The application for serious injury certification in respect to the physical injury to the plaintiff’s spine as a result of the first transport accident on 9 September 2011 is granted.
101 The application for serious injury certification in respect to the physical injury to the plaintiff’s spine as a result of the second transport accident on 19 October 2011 is dismissed.
102 I will hear the parties on costs.
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