Barreca v Transport Accident Commission
[2016] VCC 757
•9 June 2016
P
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02465
| BRUNO BARRECA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 May 2016 | |
DATE OF JUDGMENT: | 9 June 2016 | |
CASE MAY BE CITED AS: | Barreca v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 757 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the low back and right shoulder –causation – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Transport Accident Commission v Florrimell [2013] VSCA 247; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 3 March 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with Mr P V Bourke | Shine Lawyers Pty Ltd |
| For the Defendant | Mr G A Lewis QC with Ms J E Clark | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 3 March 2012 (“the transport accident”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“serious injury” means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body function relied upon in this application is the back and the right shoulder.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon two affidavits, which were sworn by the plaintiff on 16 April 2015 and 12 April 2016.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
8 Counsel for the defendant informed the Court that there were two issues. The first is causation, that is, that there was no causal link between the transport accident and the plaintiff’s injuries suffered as a result.[1] The second is, even if it is found that the accident was a cause of the low-back or right-shoulder injury, then the degree of impairment attributable to the transport accident alone, isolated from other causes and/or impairments, is not a “very considerable” addition to his impairment in accordance with the Act.[2]
[1]Transcript (“T”) 11
[2]T76
9 I accept that each body part must be considered separately to determine whether the plaintiff has suffered a “serious injury”. I shall consider whether the plaintiff has suffered a serious injury in respect to his lower back.
The credit of the Plaintiff
10 The plaintiff was a pleasant and co-operative witness who was able to fully articulate to the Court the limitations he now has as a result of the transport accident.
11 There were challenges to the plaintiff’s credit. First, counsel for the defendant tendered photographs from the plaintiff’s daughter’s Facebook page, which showed the plaintiff on holiday in Western Australia with his wife and daughter and, on other occasions, with family and friends.[3] However, my view is that the photographs did not undermine the plaintiff’s evidence and credibility.
[3]T47-51
12 Second, counsel for the defendant criticised the plaintiff for not providing truthful answers when completing his Transport Accident Commission (“TAC”) Claim Form (“the form”). Specifically, he omitted that he had suffered from a “shoulder condition or pain” before the transport accident in Question 23 of the form. The plaintiff conceded that he was incorrect.[4] He later said the shoulder pain was not ongoing. Counsel for the defendant questioned the plaintiff’s capacity as an accurate historian.[5] I reject that submission based on the plaintiff’s later evidence, which I discuss more fully in paragraph 32.
[4]T29-30
[5]T80-81
13 Third, counsel put to the plaintiff that he had failed to disclose his right trunk pain in his affidavit. The plaintiff said that he believed this information was relevant to his previous workers’ compensation claim but not to this current TAC claim.[6] I accept this is a satisfactory explanation for the omission. I note that the plaintiff did refer to other pre-accident conditions in his affidavit, including his back and shoulders, which are the body parts the subject of this claim.
[6]T26 L8-9, L17-18
14 Fourth, counsel raised the fact that the plaintiff had not informed Dr Yassa of lower back pain until around February 2013, despite frequent doctors’ visits following the transport accident.[7] As such, counsel for the defendant submitted that the absence of the back complaint was not significantly different from the pre-accident position. The plaintiff’s explanation was that he was getting relief from Ms Benes, osteopath, and that Dr Yassa did not believe in osteopathic treatment so there was no point in telling him.[8] I note that Ms Benes’ records indicate a complaint of back pain on 23 April 2012, which was soon after the transport accident. This was consistent with the plaintiff’s usual practise prior to the transport accident of receiving treatment for his back pain from his osteopath rather than Dr Yassa. In passing, the plaintiff mentioned his low-back pain to Dr Yassa in May 2012. The plaintiff specifically told Dr Yassa about his back pain in February 2013. I consider the plaintiff’s explanation of his omission to Dr Yassa as reasonable and do not believe this weighs against his credit.
[7]T37-38
[8]T37, T62
15 The plaintiff answered all questions in a clear and forthright manner. He gave his evidence in a believable and convincing way. At times, he made concessions. For example, he readily provided details about the tomato-sauce-making process[9] and goat shooting with friends after the transport accident,[10] which indicated that he was still able to undertake these activities despite his injuries. The evidence he gave in Court was consistent with what he reported to medical witnesses. Further, none of the medical witnesses made adverse comments on the plaintiff’s truthfulness.
[9]T48, L23 – T49, L24
[10]T52 L1 – T53, L19
16 I accept that the plaintiff was a witness of truth.
Pre-existing conditions
17 It was not in issue that the plaintiff had been engaged in heavy and repetitive manual work for decades, which included twenty-five years of employment as a storeman at Wattyl Paint. This involved frequent bending and twisting to lift paint tins weighing between 20 to 30 kilograms.[11] The plaintiff’s evidence was that if this work caused him physical problems and he resorted to osteopathic treatment from time to time.[12]
[11]T37 L21-23
[12]T61, L13
18 In respect to back pain, the plaintiff’s evidence was that, prior to the transport accident, he suffered intermittent episodes of back pain over thirty years, which occurred probably about twice a year. He said this usually resolved with osteopathic treatment from Ms Benes, which he reported to Dr Stockman, rheumatologist, in 2008.
19 The plaintiff’s evidence was that, in about 2008, his worst episode of back pain occurred after he lifted a heavy can of paint at work.[13] The work doctor referred him to Dr Stockman, who reviewed a CT scan of the lumbar spine, which revealed rudimentary L5-S1 disc associated with posterior osteophyte formation with mild bulging at L4-5 disc. There was widespread but mild facet joint arthritis. Dr Stockman was of the view that the plaintiff was making satisfactory progress and advised him that he could return to his pre-injury work duties. He recommended regular muscle-strengthening exercises. The plaintiff’s evidence was that he had periods off work but always returned to the heavy work, which he was performing at the time of the transport accident.
[13]Plaintiff’s Court Book (“PCB”) 9
20 In respect to shoulder pain, the plaintiff reported a previous episode of right shoulder pain several years prior to the transport accident but he could not recall receiving treatment for it. The problem resolved, which enabled him to keep working and attend karate classes.
21 Prior to the transport accident, the plaintiff submitted a number of WorkCover Claims for relatively minor injuries. The most recent claim was where he tripped over a pallet and injured his left shoulder and right knee in about September 2011. He received a cortisone injection in the shoulder and was on light duties at work for approximately one month before returning to normal duties.
22 Between September 2010 and June 2011, the plaintiff complained of right-sided trunk pain to his work doctor, Dr Wilkinson, as a result of a work injury on 7 September 2010 where he reached forward and pulled a 20-litre drum with his right hand. He was placed on modified duties, referred to a physiotherapist and prescribed Brufen. In May 2011, he was referred to Dr Jensen, who administered an injection in the right trunk region and the pain improved. By 30 June 2011, the plaintiff was reporting no right trunk pain to Dr Wilkinson, who certified him for normal duties.[14]
[14]T24
23 As aforementioned, the plaintiff was criticised for failing to mention the right-sided trunk pain in his affidavits. I accept the plaintiff’s explanation that he did not understand the possible relevance of this condition to the current Court proceedings.
The transport accident
24 The plaintiff’s evidence was that, as a result of the transport accident on 3 March 2012, he suffered pain in his heels and feet, which he reported to the Western Hospital.[15] On 13 March 2012, he reported pain over both heels and the left calf to his general practitioner, Dr Yassa. He said the pain in his heels and ankles was unbearable.[16] He sought treatment for this condition following the transport accident from his general practitioner, Dr Yassa. It was not in issue that the plaintiff suffered from heel and feet pain following the motor vehicle collision.
[15]PCB 8
[16]T60
25 On 23 April 2012, the plaintiff reported low-back pain to his osteopath, Ms Benes. The plaintiff’s evidence was that he was experiencing back pain and was treated by Ms Benes. He did not report his back pain and osteopathic treatment to Dr Yassa as Dr Yassa did not believe in osteopathic treatment.[17]
[17]T37, T62
26 In May 2012, he mentioned in passing to Dr Yassa that he suffered low-back pain as a result of the transport accident.[18]
[18]T38
27 The plaintiff was off work from the date of the transport accident until late June 2012. The evidence was that the plaintiff was certified fit for light duties prior to late June, however, his employer had no light duties for him to undertake. The plaintiff’s evidence was that “[his] heel (sic) and feet took the whole brunt of the shock”[19] of the impact. In cross-examination, he said, “All the pain was in the heel and the ankle which overrode all the other pain”.[20]
[19]PCB 7
[20]T32, L1-6, T60, L20-30
28 After the plaintiff returned to work, the pain in his low-back deteriorated and became constant. He continued treatment with his osteopath for his low back. By March 2013, he sought treatment from his general practitioner, who in turn referred him to Dr Stockman, whom the plaintiff had previously seen in 2008. The evidence is that he could not manage his work at Wattyl by mid-2013 and he was subsequently terminated at the end of 2013.
Causation
29 Counsel for the defendant submitted that causation was in issue, that is, whether the plaintiff suffered a low-back injury as a result of the transport accident.
30 First, between 8 March 2012 and February 2013, the medical records of Dr Yassa did not refer to low-back pain, apart from one passing reference in May 2012. The records of Ms Benes confirmed the plaintiff complained of back pain on 23 April 2012, which was his second visit after the transport accident and for which he received treatment. As aforementioned, I accept the plaintiff’s explanation for not reporting the back pain to Dr Yassa. The fact is that he was receiving treatment for his low-back pain from Ms Benes from April 2012.
31 Second, the Western Hospital examined the plaintiff for back injury at the time of the transport accident and found no symptoms. The plaintiff’s evidence was that at the time of the transport accident, his heels and feet took the brunt of the impact. He was unable to walk; he stayed at home and did nothing.[21] I accept that following the transport accident, the plaintiff was greatly restricted in normal activities because of his feet and heels, so that his back was not tested as to its ability to function.
[21]T61
32 Third, the form acknowledged pre-existing conditions including low-back pain but made no reference to pre-existing shoulder pain.[22] The evidence was that the plaintiff completed a musculoskeletal skeletal pain screening questionnaire for a physiotherapist in September 2010 where he indicated he had shoulder pain for one to two weeks but had not taken days off work. In re-examination, the plaintiff said the problem was not ongoing. In that situation, the plaintiff’s failure to record the shoulder pain is of no consequence.
[22]T29-30
33 A further issue relating to the form was that the plaintiff did not refer to his shoulder or back injuries when completing Question 17, which required him to list all injuries from the transport accident. The form[23] was completed by the plaintiff ten days after the transport accident on 13 March 2012. The plaintiff’s evidence is that he first felt shoulder pain at the end of March 2012 and back pain in April 2012.[24] In light of the plaintiff’s evidence that he was housebound and did nothing immediately following the accident,[25] it is reasonable that there was no reference to back and shoulder pain as he had not yet tested those functions.
[23]TAC Claim Form
[24]T32-33
[25]T61, L7-8
34 The medical evidence was divided on whether the low-back pain was aggravated by the transport accident. The plaintiff’s medical evidence supported the causal connection.
35 In April 2013, the plaintiff was referred by his general practitioner, Dr Yassa, to Dr Stockman regarding bilateral shoulders, heel and back pain. The plaintiff reported to Dr Stockman right lumbar back pain with radiation down both legs, especially the right leg all the way to the feet. He described the pain as constant and was aggravated by weight bearing. A CT scan was performed. Dr Stockman recommended an MRI scan if the pain in the right leg continued.
36 In June 2013, Eva Benes, osteopath, confirmed that on 3 April 2012, the plaintiff complained of right shoulder pain. On 23 April 2012, the plaintiff reported low-back pain, mainly around the right sacroiliac area. By July 2012, he was complaining of constant pain. In October 2012, Ms Benes diagnosed inflammation around the L4-L5 disc and overstrained right sacroiliac joint. He was advised to go on light duties at work and take anti-inflammatories. By February 2013, he was complaining of low-back pain, more on the right side, and right groin discomfort. In June 2013, she said the plaintiff’s low-back pain had been aggravated by the transport accident. Prior to the transport accident, the plaintiff had a history of sporadic low-back problems related to the degenerative changes in his lumbar spine but rarely had disc symptoms, which would settle after two to three osteopathic treatments. It was her view that the plaintiff’s low-back injury was aggravated by the transport accident.
37 In January 2014, Dr Stockman reported that, in August 2013, an MRI scan was performed, which showed multi-level disc degeneration, more severe at L4-5, where there was right paracentral disc protrusion distortion of the right L5 nerve root sheath in association with severe bilateral facet joint degeneration. Dr Stockman diagnosed lumbar disc degeneration prolapse, as seen on the MRI scan. It was his view that the plaintiff’s condition was pre-existing but had been significantly aggravated by the transport accident.
38 In October 2014, Dr Stockman was provided with reports from Dr Yassa dated 20 December 2015, Ms Benes’ report dated 20 June 2013 and Mr Kierce’s report dated 13 May 2014. Mr Kierce’s report expressed a contrary view, namely, that the low-back pain was unrelated to the transport accident. Dr Stockman said that the sacroiliac joint pain was reported soon after the accident and, in his opinion, it was probable the transport accident aggravated the pre-existing back condition.
39 Mr Mangos, general surgeon, examined the plaintiff on two occasions. In December 2015, Mr Mangos obtained a history from the plaintiff that he suffered recurrent back pain during his working life. It was Mr Mangos’ opinion that, as a consequence of the transport accident, the plaintiff suffered lumbar intervertebral disc damage, with injury, in particular, to L4-5 vertebrae. He said the plaintiff now suffered a severe aggravation of his back injuries with a ruptured disc and that the transport accident aggravated his lumbar spine. He said the plaintiff was totally incapacitated for work.
40 In January 2016, Mr John O’Brien, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. He obtained a past history that, prior to the transport accident, the plaintiff experienced intermittent episodes of back pain for which he received osteopathic treatment. However, the plaintiff was able to undertake his normal work as a storeman, which he did on a full-time basis. Mr O’Brien did not address the issue of causation.
41 The defendant‘s medical evidence was that there was no causal connection between the transport accident and the plaintiff’s low-back injury. In November 2013, Dr Elder, occupational physician, examined the plaintiff at the request of the defendant. Dr Elder reviewed medical records of Dr Yassa and noted that they did not record any symptom of back symptomatology or treatment until June 2013. He said the plaintiff’s osteopath provided a report dated 20 August 2013, and noted that she saw him on 3 April 2012. However, he did not complain of back pain at that time. Dr Elder said that about six weeks after the motor vehicle accident, the claimant complained of back pain. He concluded that there was no support in the medical evidence that the plaintiff did suffer a back injury during the transport accident. He concluded that the plaintiff’s back symptomatology could not be linked to the transport accident. He then said:
“If the claimant had suffered a back injury during this motor vehicle accident one would have expected symptoms and signs at the time of the injury. One would also expect them to be recorded throughout the course of the next year in the general practitioner’s notes. None of that is present and therefore I do not believe the claimant’s genuine condition can be related to this motor vehicle accident.”[26]
[26]Defendant’s Court Book (“DCB”) 18
42 Dr Elder appears to rely on the fact that it was six weeks after the transport accident that the plaintiff complained of back pain, without considering his other injuries, his extensive reliance on osteopathic treatment or the fact that he had not returned to work. Furthermore, Dr Elder relies heavily on the general practitioner’s notes but does not discuss the osteopath’s notes or the contents of her report dated 20 August 2013.
43 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff on two occasions at the request of the defendant. He accepted the plaintiff was suffering from lumbar spondylosis but otherwise concluded that the plaintiff did not suffer any significant injuries in the transport accident.
44 Mr Kierce reviewed the Western Hospital’ notes, Dr Yassa’s medical records and Ms Benes’ report dated 20 April 2013. He was aware there was no report of back pain to the hospital and he stated that by 19 April 2012, there had been no mention of back pain to his general practitioner. In regards to Ms Benes' notes, Mr Kierce noted that the plaintiff reported the transport accident on 3 April 2012 but did not complain of back pain. He found that there was no evidence that the plaintiff had injured his back in the accident as he had not complained of any recurrent back pain for a long time after the accident.[27] Mr Kierce did not take into account the plaintiff’s complaint of back pain on 23 April 2012, which the plaintiff reported to Ms Benes.
[27]DCB 33
45 In March 2016, Dr Kevin Fraser, rheumatologist, examined the plaintiff on one occasion at the request of the defendant. He was of the view that there was no ongoing transport accident-related injuries. He noted that the history provided by the plaintiff was vague, in that he told Dr Fraser the pain began some months after the transport accident. It is unclear what material was provided to Dr Fraser. Dr Fraser mentions the osteopath treatment only in the context of pre-accident treatment. I consider the report of Dr Fraser is of little assistance to me in my assessment.
46 Ultimately, I rely more heavily upon the reports of Ms Benes and Dr Stockman as both treated the plaintiff before and after the transport accident and their opinions are supported by Mr Mangos. Further, I accept that the defendant’s medical witnesses fail to address the opinions of Ms Benes and Dr Stockman. The defendant did not elect to cross-examine either Ms Benes or Dr Stockman, despite alleging the plaintiff failed to report back pain in a timely manner. Adopting a whole-of-evidence approach, as stated in the Court of Appeal’s decision in Davies v Nilsen & Transport Accident Commission,[28] I accept that the plaintiff’s low-back pain was aggravated by the transport accident.
[28][2014] VSCA 278
47 In their closing submissions, counsel for the plaintiff relied on the TAC’s acceptance of liability for treatment of the plaintiff’s lower back injury. In December 2013, the TAC denied liability for the plaintiff’s lower back injury based on the medical records and the report of Dr Elder dated 19 November 2013.[29] The plaintiff challenged the TAC’s denial at the Victorian Civil and Administrative Tribunal. By letter dated 31 October 2014, the defendant resolved to vary its determination to accept liability for the plaintiff’s lower back and shoulder injuries.[30] Counsel for the plaintiff submitted that the Court should view this as a “very significant” admission and distinguished the position as set out in Transport Accident Commission v Florrimell.[31]
[29]DCB 15
[30]PCB 99a
[31][2013] VSCA 247
48 Counsel for the defendant submitted that the payment of medical expenses as an admission against interest should be viewed in the context of the scheme the TAC is called on to administer. Further, that the promise to pay certain expenses was made in a commercial setting and should not be regarded as an outright admission of liability.
49 In Ansett Australia Ltd v Taylor,[32] Ashley JA said that in cases where liability in relation to a claim is accepted:
“… such an admission should ordinarily be regarded as very significant albeit not conclusive, because a defendant in a particular case, might be able to satisfactorily explain its conduct.”
[32][2006] VSCA 171 at paragraph [40]
50 In my view, counsel for the defendant has explained the defendant’s conduct satisfactorily. I accept that the promise to pay certain expenses was made in a commercial setting and should not be regarded as an admission of liability. Accordingly, I reject counsel for the plaintiff’s submission on this point.
51 The evidence is that the plaintiff suffered intermittent low-back pain prior to the transport accident.
52 Following the transport accident, the current medical evidence is that the plaintiff now suffers the following:
·aggravated spondylosis of the back;[33]
·chronic low-back pain relevant to significant aggravation of lumbar spondylosis which affects, predominantly, the L4-5 and L5-S1 level; and
·recurrent pain and lumbar movement in his back.[34]
[33]Mr Mangos
[34]Mr Kierce
Aggravation injury
53 In respect of an aggravation to a pre-existing condition, Southwell and Teague, JJ in Petkovski v Galletti,[35] said the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The court said:
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment … .” [36]
[35][1994] 1 VR 436
[36]Petkovski v Galletti (supra) at 443
54 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a serious long-term impairment or loss of a body function.
55 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the accident is serious and long-term.
Pre-accident state
56 In 2008, the plaintiff reported to Dr Stockman that he had a long history of low-back pain for which he had been having osteopathic treatment every six to twelve months. In May 2008, he lifted a can of paint at work and his low-back pain has been more constant since that time. The plaintiff was taking Brufen, one tablet twice a day; he reported constant pain, which was worse when bending, he was able to perform martial arts and gardening, there was no impulse pain and no pain radiating down his legs. Dr Stockman said the plaintiff was making some progress and he thought he would return to his previous duties provided he was sensible with lifting and sought assistance from co-workers when lifting more than 20 kilograms.
57 In February 2009, Dr Wyatt, occupational physician, said the plaintiff reported that from time to time, his back becomes particularly troublesome but settles with treatment from the osteopath.[37] The plaintiff reported to Dr Wyatt a further episode of back pain in July 2008 but told him that it had settled and he had no ongoing back pain. He returned to normal activities at home and was doing heavy lifting outside the workplace as needed. He had done some lifting of 20-litre tins to collect paint and lifted a 54-litre barrel of wine with his colleague as they made wine.[38] Dr Wyatt formed the opinion that the plaintiff could safely perform all of the tasks required at work. She noted he had performed his job for many years without having a work-related injury.[39]
[37]PCB 58a, 58b
[38]PCB 58b
[39]PCB 58c
58 In May 2010, Dr Graham Boothby, occupational physician, assessed the plaintiff for fitness for work as a result of some chest discomfort. Dr Boothby reported that the plaintiff was able to lift some weights without any difficulty and concluded he was fit for normal duties as a storeman and forklift driver.[40]
[40]PCB 58e
59 The plaintiff’s evidence was that, after 2008, he could not remember having any time off work due to back pain, nor could he recall taking any medication or having changes made to his job, which involved heavy duties.
60 Accordingly, I accept that the plaintiff suffered intermittent low-back pain, that he had six weeks off work in 2008 and that he returned to work performing heavy duties but, on occasions, attended his osteopath.
61 The current evidence is that the plaintiff has constant pain. He can no longer work and requires treatment on a regular basis and medication. He can no longer participate in his sporting activity of karate nor can he ride a bike. His recreational activities are limited by his back pain.
62 It is now necessary for me to consider whether the additional impairment resulting from the transport accident to his lower back is “serious”. I turn now to consider the consequences to this particular plaintiff.
Pain
63 The plaintiff’s evidence is that he has constant aching pain across his lower back which worsens with activities. He still gets pain down his right leg but this occurs less often since he ceased work. The back pain makes it difficult for him to stand or sit for any length of time. It is difficult to bend or lift anything heavy. He reported to Mr O’Brien that the severity of his pain is 8 out of 10 on the Visual Analogue Scale. The pain radiates into his legs. The plaintiff reported to Mr Kierce that walking for ten to fifteen minutes aggravates his back and leg pain. This has prevented him from taking blind people walking for half an hour, which he used to do on a voluntary basis. He reported to a number of doctors that sitting aggravates his back and causes him to suffer leg pain after thirty minutes.
64 I accept the level of pain the plaintiff now suffers is “constant” compared with prior to the transport accident, when he described it as “intermittent”. The pain is worse with activity and radiates into his leg. There was no suggestion that, prior to the transport accident, the plaintiff had this level of pain. I accept that the increase in level of pain the plaintiff now suffers is a consequence which I can take into account. I accept the difference in the level of pain the plaintiff now suffers is at the medium to higher end of the scale.
Restriction of bodily function
65 The plaintiff’s evidence is that it is difficult for him to stand or sit for any length of time, which he reported to Mr Kierce and Mr O’Brien. He said that sitting down aggravates his back and leg pain after thirty minutes. In addition, sneezing aggravates his low-back pain. He has difficulty bending or lifting anything heavy and wiping himself after going to the toilet due to problems turning either way. He can shower and dress himself with the aid of rails and a seat in the shower. The plaintiff’s evidence was that if he squats, he cannot get up afterwards. If he bends, he gets stuck in the position and requires assistance. The plaintiff reported to Mr Kierce that if he squats or kneels, he has great difficulty getting up from those positions and has to push himself up on some adjacent furniture. There was no evidence that the plaintiff suffered from any of these restrictions prior to the transport accident. I accept that these are consequences which I can take into account and are in the middle to higher end of the range.
Sleep
66 The plaintiff’s evidence is that his sleep is affected by his injuries. He used to sleep for hours non-stop but since the accident, he can only sleep on and off. He sometimes wakes with pain in his back and shoulders.[41] I accept that this is a consequence which I can take into account but at the lower end of the scale.
[41]PCB 10 and 16
Medication
67 The plaintiff’s evidence is that he takes two Panadol Osteo tablets at least three times a week but tries to restrict the medication he takes. He has reduced his intake of Endep, 25 milligrams, and only takes it when his pain is unbearable, which is probably once every five to six weeks. There was no suggestion that the plaintiff was taking any medication prior to the transport accident for his lower back pain. I accept that the level of medication the plaintiff is taking is at the low end of the scale and is a consequence that I can take into account.
Treatment
68 The plaintiff’s evidence is that he sees his general practitioner once every two months and continues to see his chiropractor monthly. He receives physiotherapy treatment every three weeks. He reported the treatment he receives to the medical witnesses. Mr O’Brien said that his treatment was appropriate and that there was no current indication for further investigation or invasive treatment. The plaintiff’s evidence was that, prior to the transport accident, he consulted his osteopath twice per year for his lower back. In 2006, he sought treatment for a short period. I accept that prior to the transport accident, the plaintiff’s level of treatment was intermittent. I accept that the level of treatment the plaintiff now receives is at the lower end of the scale and was brought about by the transport accident. However, I take into account the fact that no doctor suggests the treatment is inappropriate. Accordingly, this is a consequence I can take into account.
Domestic activities
69 The plaintiff’s evidence is that the plaintiff and his wife have their home and an additional residence at St Leonards. The plaintiff tries to share the household tasks, for example, his wife cooks and he does the dishes. The plaintiff’s evidence is that he is slow with the dishes and he suffers pins and needles. He said he goes shopping with his wife, and their daughter helps him too, especially with the laundry.
70 In the past, the plaintiff’s evidence was that he performed all gardening duties at both properties, including mowing, trimming and growing vegetables. Now, he pays someone to cut the grass. At home, he has four vegetable plots divided by bricks. Prior to the transport accident, the plaintiff was very taken with his garden and grew a range of vegetables, depending on the season. He would dig the whole garden area in maybe two hours.[42] It now takes him a whole day to dig a section, starting and stopping all the time, but he is determined to do something for himself.[43] He still tries to do basic household maintenance tasks but he is slow and generally, it causes his back pain to flare up. He told the Court that painting a door resulted in increased pain. Now, he pays for the gardening to be done at both houses.
[42]T71, L9-14
[43]PCB 11; T71
71 I accept that the plaintiff is limited in the domestic tasks he can undertake and in his gardening activities. I also accept that gardening was something that he enjoyed, particularly growing vegetables. I accept that this is a consequence of the transport accident which I can take into account and it is in the middle of the range.
Employment
72 The plaintiff’s evidence is that he was performing heavy manual work prior to the transport accident. If it had not been for the transport accident, he would have continued to work for Wattyl Paints. In his first affidavit, the plaintiff said that there was no retirement age at work, there were other workers older than him and that two co-workers had retired at age seventy five. He said the work was good and he enjoyed being there, as he had fun with his colleagues, manager and supervisor.[44]
[44]PCB 12
73 The plaintiff told the Court that he intended to keep working after the transport accident and that he had consulted with a TAC representative to discuss being retained to do other work.[45] Work was an important activity in his life and it distresses him that he is unable to continue working. It was his intention to continue working until he was aged seventy.
[45]T65
74 I accept the plaintiff conveyed to the Court the importance of work. I accept that the loss of his job at age sixty five and inability to continue working are consequences which I can take into account and is in the middle of the range.
Relationships
75 The plaintiff’s evidence is that his relationship with his wife has been greatly altered by the transport accident. He described their relationship as more like a brother and sister. I accept this is a consequence which I can take into account.
Recreational activities
76 The plaintiff’s evidence was that prior to the transport accident, his main sporting interest was karate, which he had pursued for at least fifteen years or more.[46] Karate kept him fit and healthy and enabled him to give something back by teaching juniors. He performed sit-ups, push-ups and squats. Since the accident, he has been no longer able to participate in karate. Before the accident, he rode his bike daily after work but now he cannot ride a bike anymore.[47] Currently, he is doing Tai Chi once a week at the Maidstone Community Centre, which is good for him because it is a slow pace activity.
[46]T66
[47]T64
77 The plaintiff has tried to ride a bike around the block every second day for about a week, but had to stop due to the pain in his back. He is no longer able to walk daily. He can walk short distances, but then feels pain in his back at different times, causing him to stop. As a result of the reduction in his recreational activities, he has put on weight in the region of 10 to 15 kilograms.
78 I accept that the plaintiff’s recreational activities have been affected by his lower back pain and this is a consequence which I can take into account. Given the way the plaintiff described his loss in regards to recreational activities, I accept that this is a consequence in the middle to high range.
Wine making
79 The plaintiff’s evidence was that he always made his own wine, which involved heavy manual work and was an activity that he enjoyed. Prior to the accident, he could lift the boxes and 50-litre stainless-steel barrels. The last time he made wine, after the transport accident, his friend and son helped. It took two of them to lift the barrels. He sat on a milk crate to wash the bottles and had to stand up every half hour because of the pain in his back.[48] He explained to the Court that winemaking was less enjoyable for him since the transport accident. I accept that this is a consequence of the transport accident that I can take into account.
[48]PCB 12
Sauce making
80 The plaintiff’s evidence is that he also enjoyed participating in tomato sauce making with his family once a year.[49] Prior to the transport accident, he would lift the boxes and put them in the container to boil. He was very involved in the heavy lifting.[50] However, since the transport accident, he relies on his cousin to do all the heavy lifting. Now, all he can do is help with the empty bottles and to put them in the machine to make the sauce.[51] I accept that this is a consequence of the transport accident that I can take into account.
[49]T49
[50]T70
[51]T70-71
Driving restrictions
81 The plaintiff’s evidence is that his driving activities have been restricted. Prior to the transport accident, he would go with his friends on a hunting trip to shoot goats in New South Wales. He was the nominated driver and would drive the nine hours because he was concerned his friend would get drowsy. Following the transport accident, he still drives but now has to stop every hour to get out of the car to walk around. When driving to St Leonards, he has to stop on two occasions because of the low-back pain.[52] I accept that he suffers driving restrictions as a consequence of the transport accident.
[52]PCB 11
Psychological
82 The plaintiff’s evidence is that he built his life around his work and family. Work and fitness through karate was a huge part of who he was. He has lost his employment because of the transport accident and is doing his best to find other ways to spend his time, but it distresses him that he has gone from being a fit and capable sixty-five-year-old man to someone who has difficulty going to the toilet.[53] He said the future looks bleak to him. He and his wife have joined the Italian Club in Altona and try to go to something together every two to three months. I accept that I can take these consequences into account.
[53]PCB 12
Stoicism
83 I accept the plaintiff was stoical. He told the Court that he had always been someone who had tried to make the most of his time. He now occupies himself with volunteer activities with St Vincent de Paul, Wesley Mission and Blind Sports Victoria.[54] The work with St Vincent de Paul requires him to visit those in need with food vouchers. The Wesley Mission and Blind Sports Victoria focus on visiting people who do not have anyone. The plaintiff also said he has undertaken a computer course, which he can work on under his own pace at home.
[54]PCB 17
84 It was my view that the plaintiff presented in Court as stoical, he was not prone to exaggeration and he gave his evidence in a most uncomplaining way. I took the view he was prepared to endure a fair amount of pain as he went about his everyday activities. I base my impression on the way he presented before me in the witness box. I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain.[55]
[55] Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Conclusion
85 I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I accept that the plaintiff was a physically active man. To all intents and purposes, he lives with his current situation and gets on with it. The plaintiff can no longer perform the heavy work that he was employed in for many years. It was a job he enjoyed and found rewarding.
86 I am satisfied the plaintiff was involved in a transport accident, which resulted in him experiencing symptoms of a physical nature. Taking into account all the evidence, namely his experience of constant pain, the level of the medication, the effect upon his work and recreational and domestic activities, the consequences of his low-back injuries have impacted upon his life as he knew it before the transport accident. He has suffered for four years and the medical evidence is that it will continue. I accept the plaintiff’s low-back injuries are long term.
87 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to him of his impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal but rather attributed appropriate weight to each consequence in light of the evidence.
88 I accept the low-back injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, can be described as “more than significant or marked” and can fairly be described as “at least very considerable” when judged by comparison with other cases in the range of possible impairments.
89 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to injury sustained in the transport accident.
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