Berbeo v Transport Accident Commission

[2016] VCC 1730

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-05352

JUAN BERBEO	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2016
DATE OF JUDGMENT:	22 November 2016
CASE MAY BE CITED AS:	Berbeo v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2016] VCC 1730

REASONS FOR JUDGMENT
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Subject:  TRANSPORT ACCIDENT

Catchwords:             Serious injury application – motorcycle collision – injury to the lumbar spine

Legislation Cited:     Transport Accident Act 1986

Cases Cited:             Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Culver v Sekulich (1959) 80 Wyo 437; Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; State of Victoria vGlover [1998] VSCA 93; Davidson v Transport Accident Commission [2015] VSCA 12

Judgment:                Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D J N Purcell with Mr J Angenent	Slater and Gordon Ltd
For the Defendant	Mr P Scanlon QC with Ms J Clark	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

1       Juan Berbeo seeks permission to start a proceeding for damages under the Transport Accident Act 1986 (“the Act”). He says he sustained a serious injury to his spine in a transport accident. I will deal with the legal requirements later.

Circumstances

2       Mr Berbeo is thirty.  He was born in Columbia.  In March 2006, he visited this country on a student’s visa wanting to study veterinary science.  Previously, he had studied veterinary science for a year in Columbia.  He enrolled in a two-year course at La Trobe University but stopped before finishing because he could not afford to continue.  He found work as a waiter and studied for a certificate in commercial cookery and hospitality at the Academia International College.  His interest was influenced by his family’s long involvement in a restaurant in Columbia.  Once completed, he obtained another kind of visa and worked in several restaurants as a chef.  He was working as a senior chef on a full-time basis when involved in a transport accident.[1]  A few days after the accident, Mr Berbeo was to start as a head chef at another restaurant but did not.[2] 

[1]The order of importance for chefs is the head chef, the sous chef and then the senior chef. 

[2]There are grades of chef from the lowly chef to senior chef to sous chef to head chef.  The last is in charge of the cooking side of the restaurant. 

3       On 20 October 2011, Mr Berbeo was riding his motorcycle in High Street, Kew when a car turned right and across his path.  There was a collision and Mr Berbeo was injured.  He lost consciousness and was taken to The Alfred hospital with fractures to parts of his face and wrists, assorted cuts and injuries to his right shoulder and spine.  He had a closed head injury and concussion.  He was an inpatient for five days and received outpatient treatment until 17 November. 

4       With only his brother to care for him, Mr Berbeo returned to Columbia in late November 2011 to be cared for by his family.  While in Columbia, his application for residency was refused.  However, he was granted a bridging visa until 29 May 2013.  He remained in Columbia resting and working until he found a new sponsor and returned to Australia in February 2012.  He started work as the head chef at a restaurant called Paco’s Tacos.  After ten months, he resigned from that job and went to Columbia for a month’s holiday.  He returned again in early 2013 and obtained work as a chef at a restaurant called Piqueros.  He worked there for a couple of months before resigning to take up a better job in a Sydney restaurant called El Loco.  Soon after, his application for a temporary visa was rejected and he returned to his family in Columbia for about eighteen months.  He worked in his family’s restaurant. 

5       In August 2014, Mr Berbeo returned to Australia.  The owners of Piqueros sponsored him and gave him work as a head chef.  By 19 September 2016, he stopped working for Piqueros and, after a short break, he started as a sous chef at a restaurant called Pastuso.  He works between 55 and 60 hours each week.    His employer will not allow him to work fewer hours.  He must retain full-time work because it is a condition of his visa.  Without full-time employment, his visa would be cancelled and he would leave the country. 

6       At the time of the accident, Mr Berbeo earned at the rate of about $14,000 a year as a chef.  His hours were limited because he held a student’s visa.  His hours are now unrestricted and he earns at the rate of about $60,000 a year.  He enjoys a strong reputation as a chef, especially dealing with South American food. 

At present

7       When Mr Berbeo swore his second affidavit on 19 August 2016, he was still at Piqueros as the head chef working about 40 hours each week.  By 19 September, he had recently stopped working at Piqueros.  By 18 October, he had become a sous chef at Pastuso, was in his fourth week, working 55 to 60 hours each week and earning annually $60,000.  On one view, Mr Berbeo has increased his hours dramatically since starting at Pastuso if he worked about 40 hours each week at Piqueros and is now working 55 to 60.    

8       In that affidavit, Mr Berbeo spoke of daily pain in his lower back, increasing in intensity during the day.  It starts at a mild to moderate level, becoming more painful as the day wears on.  He describes this pain as a “pinch”.  When he gets spasms, they are extremely painful. 

9       Before the accident, Mr Berbeo played competition soccer.  His long hours prevent him playing competition soccer.  Now he plays competition indoor soccer.  Although his side plays weekly, he plays when he can because of work. 

10      Mr Berbeo lives with three friends.  The cleaning of where they live is done by a hired cleaner.  It suits him because he wants to recover from his work in his spare time rather than clean.           

11      At present, the only treatment he receives is from his physiotherapist, who recommends Me Berbeo buy Ibuprofen, Panadeine or Panadol from his chemist for pain relief.  Presently, he receives physiotherapy about weekly.  This treatment relieves his spasms and pain.   

12      After gaining permanent residency or citizenship, Mr Berbeo would like to run his own business with him as an executive chef.  He would employ staff and work less as a chef.  Failing that, he could do other things less strenuous.  His visa requires full-time work.  He works as a chef and full-time work involves many hours each week. 

13      Mr Berbeo’s application is supported by the affidavits of three people who know him, including his brother. 

14      David Mills has known Mr Berbeo for about five years.  He is a friend.  He knew him before and after the accident.  They worked together at Movida: Mr Berbeo as a chef; and Mr Mills as a waiter.  In 2013, Mr Mills set up his own restaurant, Piqueros, and employed Mr Berbeo on a part-time basis because his injuries prevented full-time work then.  After Mr Berbeo returned to Columbia, Mr Mills sponsored his return and employed him full-time as a head chef. 

15      During the past eighteen months, Mr Mills has shared a house with Mr Berbeo.  He watched him at his work and at home.  At work, he complains little and then only when his back “gives way”.  Mr Mills allowed him to leave work early when his back gave way and also when he is in pain. 

16      At home, Mr Berbeo has Mondays and Tuesdays off work.  He is especially stiff and sore on the Mondays after a week’s work.  He visits his physiotherapist on Mondays.  He returns from those visits with “heat like packs glued to his back”.  These remain attached for the rest of the week.  Mr Mills once studied massage.  He has a massage table and occasionally massages Mr Berbeo’s back.  Each day Mr Berbeo does exercises recommended by his physiotherapist.               

17      Mr Berbeo’s older brother, Sebastian, lives nearby in the same street.  When the accident happened, they were living together in Balwyn.  They are close, seeing each other daily and speaking on the phone.  Mr Berbeo complains to his brother about the pain in his back and wrists.  They both love soccer and now play the indoor version.  His brother is less fit and agile.  He has seen him distressed during a game – “I have seen him pretty much crying with back pain during or after a game”.  His brother is always tired, more so after work than he was before the accident.  He walks more stiffly.  Sometimes he stays in bed all day.  He goes out less often.   

18      Sasa Durakovic is a friend and former workmate of Mr Berbeo.  She has known him before and since the accident.  She worked with him before the accident in 2011 and between 2014 and 2015 at Piqueros.  She noted he was not as active as a head chef should be; he avoided heavy lifting.  He needed help lifting large pieces of meat into position so he could cut it up.  Sometimes he hurts his back and needs to lie down for an hour or more.  The fellow workers and owners of Piqueros made allowances for Mr Berbeo, but Ms Durakovic wondered whether other, bigger and tougher kitchens and restaurants would.    

Medical evidence

19      While in Columbia in 2013 and 2014, Mr Berbeo saw a physiotherapist weekly and took pain-relieving medicines whenever he needed them. 

20      On 25 February 2013, Mr Berbeo saw a general practitioner, Dr Matthew Pattison, whom he had seen shortly after the accident.  Dr Pattison arranged CT scans of the lower back, prescribed an anti-inflammatory medicine, Mobic, and Panadeine Forte and referred him to a physiotherapist.  The scans showed the lumbar discs were normal except for L4-5, where:[3]

“There is a left paracentral disc protrusion measuring 6 x 24 mm in size.  The exiting left L4 nerve root is unimpeded.  There is displacement of the traversing left L5 nerve root.  The facet joints are satisfactory.  The canal and lateral recesses are preserved.” 

[3]Report of CT scan dated 28 February 2013

21      Mr Berbeo went to this and other physiotherapists in between 2013 and 2016. 

22      From October 2014, Mr Berbeo has received physiotherapy from two physiotherapists in the same practice and since April 2015 from Adrian Haughey alone.  For much of his time, Mr Haughey has seen him weekly, using a variety of treatments.  Putting aside complaints about other parts of his body, Mr Berbeo has presented with muscle spasms in his lower back.  While working at Piqueros, he needed to leave work early because of spasm on four or five times a year.  The spasms cause headaches.  Despite this, Mr Haughey noted a slight, but gradual improvement in the extent of his disability and the level of his pain between October 2014 and June 2016 using the Quebec Back Pain Disability Scale.  Ultimately, Mr Haughey seemed confident about him, saying:[4]

“With most back injuries and the nature of the spine further degeneration and problems in the future are likely but with management and improved exercise tolerance the effects could be minimalized as Juan responds well to hands on treatment.”  

[4]Report dated 3 August 2016 at page 2 

23      Recently, Mr Berbeo asked Mr Haughey to get “more formal imaging of his condition to detail the severity of the injury”.  Despite thinking it unnecessary, Mr Haughey arranged an MRI scan.  Performed on 15 October 2016, to Mr Haughey, it came up with the same results as the 2013 CT scan.  In Mr Haughey’s words:[5]

“… the desiccation of the L4/5 disc with shallow left postero-lateral disc bulge contacting the traversing L5 nerve root which is not frankly effaced.”   

[5]Report dated 17 October 2016

24      In the same report, Mr Haughey commented further on Mr Berbeo’s condition:

“Whilst the physiotherapy treatment undergone has been predominantly passive its purpose has been to maintain Juan’s function due to the difficult nature of his work and the stresses it poses his back.  Whilst 4 gym/swim programs have been approved, again the nature of his work, long hours and very little downtime, has not allowed these to be performed adequately or with sufficient effort with pain again being a limiting factor.

Juan is a successful chef who does not want a career change.  He has expressed that prior to the accident he did not suffer from back pain.  Currently treatment is allowing him to continue his full working hours and maintaining his function during and after albeit with some pain.” 

25      Mr Peter Moran is an orthopaedic surgeon.  He examined Mr Berbeo in 2014 and 2016 at the request of his solicitors.  Out of the various injuries, Mr Moran saw the lower back as the most significant.  He was aware of the CT scans in February 2013.  Based on Mr Berbeo’s description of the accident and the absence of back trouble before, Mr Moran felt the damage to the disc was due to the accident.  His examination of the lower back in 2016 revealed persistent stiffness with flexion at 80 degrees and extension at 25 degrees.  Left and right lateral flexion were 20 and 25 degrees respectively.  Since rotation in either direction was unrestricted in 2014 and Mr Moran does not mention it in 2016, I assume that movement remained unrestricted. 

26      Mr Moran noted the distortion of the L5 nerve root without causing sciatica at present.  He added:

“In his employment as a chef, this does place him at risk, as risk of accelerated degenerative change at L4/5.”

27      After his 2016 examination, Mr Moran said:[6]

“Of these injuries, it is the injury to his lower back which casts a cloud on his long term professional future, and whilst certain aspects of his physical rehabilitation are of concern, particularly repetitive grade V manipulative treatment of the spine, I believe that he will require a long term rehabilitation program with self managed exercise, core muscle  strengthening etc. 

I would again consider that his condition has stabilised, and that his prognosis, particularly in terms of maintaining employment, must remain guarded.”

[6]Report dated 5 September 2016 at page 4

28      Mr Gerard Powell is an orthopaedic surgeon.  On 5 August 2016, he examined Mr Berbeo at the request of the Transport Accident Commission’s solicitor.  Mr Berbeo complained of “some lower back pain”.  He noted weekly physiotherapy for his lower back.  His examination of Mr Berbeo’s lower back and his legs showed nothing abnormal.  To Dr Powell the lower back pain was due to musculoligamentous strain.  Unfortunately, Dr Powell was unaware of the February 2013 CT scans.  In part, this explains his prognosis:[7]

“The prognosis is for ongoing symptoms of lower back pain of a mild nature…The rationale for ongoing weekly physiotherapy is weak, given that this is a passive treatment and has been continued for 18 months without providing any long-term improvement in Mr Berbeo’s symptoms …”.    

[7]Report dated 12 August 2016 at page 7

29      Pausing there.  Unfortunately, this prognosis is valueless.  Dr Powell was unaware of the prolapse, which is a critical fact.  He did not have a “fair climate” of assumed fact to give those opinions.  In Paric v John Holland Constructions Pty Ltd,[8] Samuels JA adopted this passage from a Wyoming case:

“From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made.  Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words, but in general, furnished a fair climate for the consideration of the views of the expert witness.”[9]        

[8][1984] 2 NSWLR 505 at 509

[9]Culver v Sekulich (1959) 80 Wyo 437 at 458

Legal considerations

30      To receive leave, Mr Berbeo must establish:

(a)he suffered an “injury” as a result of a “transport accident”.  This was not in issue;

(b)the “injury” must be a “serious injury”, which is defined in s93(17) of the Act. Mr Berbeo relies on paragraph (a) – serious long-term impairment or loss of a body function;

(c)what is “serious” is explained in Humphries & Anor v Poljak:[10]

“… we think that the task of the judge confronted with the requirements to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs (17(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury.  To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term.  We think ‘long term’ is not an expression likely to give rise to difficulty.  To be ‘serious’ the consequences of the injury must be serious to the particular applicant.  These consequences will relate to pecuniary disadvantage and/or pain and suffering.  In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?” 

[10][1992] 2 VR 129 at 140 per Crockett and Southwell JJ

31      The defendant relied on this passage from the judgment of Ashley JA in Dwyer v Calco Timbers Pty Ltd (No 2):[11]

“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities.  It is true that impairment is concerned with what has been lost.  But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”

[11][2008] VSCA 260 at paragraph [27]

32      Although Mr Berbeo’s counsel referred me to State of Victoria v Glover,[12] I do not find the leading judgments useful in this case.   

[12][1998] VSCA 93

Discussion

33      It is now five years from the accident, and as near as I can tell from the evidence, the state of Mr Berbeo’s L4-5 disc remains the same: a shallow protrusion displacing or compressing the nerve root.  He has suffered a long-term impairment of his spine, specifically that disc.  The question is whether it is “serious”.  Mr Berbeo relies on pecuniary disadvantage and pain and suffering consequences with emphasis on the former.     

34      The thing which emerges clearly from the evidence is Mr Berbeo’s determination to stay in Australia by gaining permanent residency and then citizenship.  To do so, he must be employed full-time.  If not, he must leave the country.  He has one readily saleable skill.  This determination explains why he works the long hours required of him at Pastuso: he has no choice.  It also explains his plan, if granted permanent residency, to set up his own restaurant and delegate some of his chef’s duties to others.  This plan would take the pressure off his back.  He would not finish his veterinary science course because he would not be able to work with animals other than domestic pets. 

35      The picture painted by his and the other affidavits is persistent modest back pain, increasing in degree during the working day and week and ending with him resting on his days off and seeking physiotherapy treatment.  However, the evidence raised contrary matters.  First, his hours of work increased dramatically at Pasturos.  Second, at the end of his cross-examination, he was asked and said: 

Q: “Back to the affidavit we were on before, you lead a full active life in relation to work, sport, socialising, bull fighting and whatever else is going on, is that fair to say?---

A:       Yes.”    

36      As to the first, it is explained by his determination to gain permanency.  But one wonders how long he can continue working such hours.  If working about 40 hours each week with a sympathetic employer still caused four or five episodes of muscle spasms in a year, then working 55 to 60 hours with a less sympathetic employer must lead to more frequent episodes.  These spasms are very painful and require treatment and rest. 

37      As to the second, the answer contrasts with much of the earlier and other evidence.  I daresay from Mr Berbeo’s perspective, it came at the end of a lengthy cross-examination.  I do not accept his answer was a considered response to the propositions contained in the question. 

38      There is another example.  Mr Berbeo has had his current job since about September.  His hours are long: 55 to 60 hours each week.  In his second affidavit, he said he worked about 40 hours each week as a head chef at Piqueros.  However, during cross-examination, he gave these answers:

Q: “For an increase in salary beyond the $56,500 for the year ended 2017, what sort of hours do you need to commit to this restaurant?---

A:       At least 55. 

Q: Is that the sort of hours that you had been doing at Movida and other restaurants in the past?---

A:       Yes.” 

39      On one view the last answer contradicts his affidavit but I would not say so.  The reference to “Movida and other restaurants in the past” is all encompassing and may have been misunderstood.  What the evidence then shows is that Mr Berbeo reached the position of head chef at Piqueros and was working about 40 hours each week.  Unexpectedly, he lost that job.  After a short break, he gained the position of sous chef at Pasturos.  He now works 15 to 20 hours more each week. 

40      Mr Berbeo loves soccer.  He played competitively in Columbia.  Here he plays indoor soccer with friends in a five-a-side competition.  The field is smaller than a normal soccer field and the ball bounces less.  With high rotations of players, more than five play in a game.  The competition is weekly but he plays when his work allows it.  His back injury does not stop him playing. 

41      Mr Berbeo does not go to bars or hotels because these have stools and it is hard for him to sit on them.  The defendant found photographs from Mr Berbeo’s Facebook.  Some showed him engaged in a form of bullfighting in 2013: it was with a cow, not a bull; the cow weighed about 150 kilograms, not 500.  Nevertheless, it was an active sport requiring some agility.

42      Mr Haughey, the physiotherapist, has treated him almost weekly since 7 March 2016.  Between October 2014 and June 2016, there has been a small, gradual improvement in his levels of pain.  Mr Berbeo responds well to the physiotherapy treatment.  It allows him to work long hours doing his job properly.  At Piqueros, he suffered muscle spasms four or five times in a year.  He would leave work, go home, rest and seek treatment from his physiotherapist.  The physiotherapy allows him to function outside of work to a significant extent.  He is not without pain.  On the advice of his physiotherapist, he takes a non-prescription pain-relieving medicine.  He often depends on the state of his back.  These are not strong pain-relieving medicines.  He does not take them regularly.       

43      Returning to the question posed by Crockett and Southwell JJ in Humphries & Anor v Poljak:[13]

“… can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”

[13]Supra

44      For the purposes of this application, the accident caused the disc prolapse.  The pain comes from the disc.  Although the prolapse affects a nerve root, there are presently no symptoms other than back pain.  The pain does not stop him working long hours at a job requiring bending and much standing.  He needs regular physiotherapy to enable him to work in this job.  It relieves his pain and treats his irregular spasms.  It has slightly reduced the level of his pain over time until, at least, June 2016.  If he is to continue doing the type of work he does, he needs physiotherapy.  Notwithstanding the physiotherapy, he runs the real risk of further degeneration of the disc through the acceleration of the damage already caused.  If he becomes a permanent resident, he might set up his own restaurant, hire others and reduce the pressure on his back.  Given his determination, I daresay he will gain permanency.  Given his particular skills in South American cuisine, he could set up his own restaurant and hire others.  Since his family has run a restaurant in Columbia for generations, this may be the natural thing for him.  But his ability to work as an employed chef of whatever level is doubtful in the future. 

45      What I do know is that Mr Berbeo is a young man.  He is very determined to stay in Australia.  He has many working years ahead of him.  He has experienced moderate levels of pain in his lower back for years.  At times, it is greater when he has muscle spasms.  I expect both moderate and greater levels of pain to continue.  He is working harder now than even a few months before.  This is part and parcel of his need to remain working.  He lost a job where his employer was sympathetic to one where the employer is not or, at least, not yet.  He works long hours standing and bending.  He persists in these jobs because he must and with the help of almost weekly physiotherapy.  He needs a long-term rehabilitation programme involving professional help and private exercises.  Notwithstanding this, the prognosis is guarded or uncertain. 

46      Is the prospect of pecuniary disadvantage greater than speculative?  Mr Scanlon QC, for the defendant, submitted:[14]

“It’s not an assertion of a loss, it’s the guarded nature of his employment that Mr Moran is considering. So the claim, if it’s assessed as it were under the Accident Compensation Act as a separate head, but looked at as it is under the Transport Accident Act as an overall loss, the pecuniary loss to date is none and the chances of pecuniary loss in the future are speculative and could not be relied upon.”

(my emphasis)

[14]Transcript 62 

47      I believe the reference to “speculative” is an implicit reference to Davidson v Transport Accident Commission.[15] 

[15][2015] VSCA 12

48      If he remains an employed chef, the future condition of his disc is uncertain.  He is doing a job involving much standing and bending.  For this damaged disc, that is a poor environment to work.  On the evidence, Mr Berbeo must undertake regular physiotherapy and exercises on a long-term basis.  It is unpleasant prospect.  He is driven to it.  Even so, his future as a hands-on chef is reasonably clear.  He would stop when he is able to do so.  Whether setting up his own restaurant and hiring others is feasible, only time will tell.  The first hurdle is permanency.  If permanent, he has the culinary skills to do so.  Ceasing the job of a hands-on chef because of injury is a distinct possibility in the foreseeable future.  Setting up a business and hiring someone to share the duties of a chef sounds like a good idea but depends on the business affording two where one might have done.

49      There has been some change in his social life due to the back injury.  However, Mr Berbeo retains a moderate social life. 

50      I have looked at the pecuniary disadvantage and pain and suffering consequences.  In my opinion, they are the result of a “serious injury”.    

Conclusion

51      I will give Mr Berbeo permission to bring an action for damages and hear the parties on the question of costs.

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