Bierwirth v Transport Accident Commission
[2016] VCC 488
•29 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05414
| DAVID BIERWIRTH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 April 2016 | |
DATE OF JUDGMENT: | 29 April 2016 | |
CASE MAY BE CITED AS: | Bierwirth v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 488 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious Injury – post concussion syndrome – persistent headaches – functioning of the head – pre-existing medical conditions – disentangling – headaches and vision impairment – nausea – sensitivity to light
Legislation Cited: Transport Accident Act 1986
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 97; Haden Engineering v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Application successful
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Magee QC with Ms A Wood | Henry Carus & Associates |
| For the Defendant | Mr G A Lewis QC with Mr P Bourke | Solicitor to the Transport Accident Commission |
HER HONOUR:
Preliminary
1 The plaintiff alleges he suffered injury to his head in a transport accident which occurred on 24 May 2009. It was early on a Sunday morning and he was on his way to golf. The plaintiff was driving through an intersection when he was struck by another car which had gone through a red light. The collision caused the plaintiff’s car to run into a pole (‘the transport accident”). He claims to have suffered headaches since that time.
2 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”).
3 Ms A Magee QC appeared with Ms A Wood for the plaintiff and Mr G Lewis QC appeared with Mr P Bourke for the defendant.
4 The plaintiff claims he has suffered post-concussion syndrome with persistent headaches, and neck pain. The body function said to be lost or impaired is the functioning of the head.
5 The application is brought pursuant to sub-section (a) of the definition of “serious injury” contained in s93(17) of the Act. Only the plaintiff was called to give evidence and he was cross-examined. In addition, affidavits were tendered from his wife and nephew, together with numerous medical reports and other documents. I have read these tendered documents, together with the transcript of the proceedings.
6 The plaintiff suffers a multitude of unrelated medical conditions. Some existed before the transport accident and some arose after it. In considering if the plaintiff suffers a serious injury as a consequence of this transport accident, it is necessary for me to separate out the unrelated medical conditions and consequences. I must then consider only the consequences arising from this transport accident and decide whether such consequences meet the statutory threshold.
7 I accept that the plaintiff has suffered headaches almost every day since the transport accident. Notwithstanding his other health problems, and having done the requisite disentangling, I accept that these constant and intense headaches have had an overwhelming impact on his ability to enjoy his life. I am therefore satisfied he meets the “very considerable”[1] test for the reasons I will detail below.
[1]Humphries v Poljak [1992] 2 VR 129 at 140-141
Relevant background
8 The plaintiff is 63 years of age. He is married and lives with his wife at their home in Rowville. They also have a holiday house in Rye. The plaintiff has three adult children, but none of them live at home.
9 The plaintiff completed school to Year 11. Over the years he obtained numerous executive roles in sales and management. From 1987 to 2001, he worked for Toshiba as a regional manager, and received an annual salary package of around $200,000. After that he obtained employment with The Leadership and Performance Group Pty Ltd, where he worked for three years. He then left that employment and took a break of six to eight months, during which time he was not employed, but concentrated on buying and selling shares.
10 In 2004, he commenced employment with Gregory Australia Ltd, as a general manager for its subsidiary firm Pluto Furniture. He stayed in that role for nine months. Thereafter he worked for Enterprise Data Corporation as the Victorian sales manager. He travelled regularly in this job. He then commenced employment with Epsilon as a sales director. He helped set up the Melbourne office for this business and, as part of this role, travelled to Sydney on a frequent basis. He resigned from this employment in March 2009, as he did not enjoy working with his manager. He decided to take another short break from work.
11 Whilst on that break, the plaintiff was offered a position as a branch manager with his nephew’s business, Fry’s Self Storage (“Fry’s”). He considered it would be easy work, and intended to do it for a few months whilst looking for another permanent executive position.[2] The plaintiff was due to commence at Fry’s the day after the transport accident.
[2]Plaintiff’s Court Book (“PCB”) 9
Pre-accident unrelated medical conditions
12 The plaintiff has a number of health complaints unrelated to the claimed injury.
13 The plaintiff initially injured his lower back when playing football at 15 years of age.[3]
[3]PCB 10
14 On 20 March 2009, the plaintiff attended his general practitioner, Dr Gary Korbl, complaining of lower back pain with radiation into the left leg.[4] Dr Korbl prescribed Panadeine Forte and arranged for a CT scan of the lumbar spine. This CT scan demonstrated nerve involvement at three levels.[5]
[4]Defendant’s Material Folder (“DMF”) 25
[5]DMF 15-16
15 The plaintiff again consulted Dr Korbl for lower back pain on 27 October 2010. A further script for Panadeine Forte was given, together with Mobic.[6] Another CT scan was performed on 26 October 2010, which showed degenerative change with compromise of the left neural exit foramen at L5-S1 due to bony osteophytes.[7]
[6]DMF 22
[7]DMF 17-18
16 The plaintiff said that on these occasions he suffered sciatic pain, and that it was quite painful.[8] Nonetheless, he was able to continue working.
[8]Transcript (“T”) 43, Line (“L”) 12-13
17 The plaintiff said that his lower back condition does not currently impact on his activities of daily living, nor his capacity to work[9] or perform tasks around the home.[10] The only medication he currently takes for his lower back condition is Arthrexin, which he takes before playing golf.
[9]T60, L18-31
[10]T38, L16-25
18 The plaintiff also suffered arthritis in his hands for years.[11] He did not complain about this condition and said it was “fine”.[12] He said it sometimes meant his fingers were stiff holding a golf club. It does not interfere with his activities of daily living or his capacity to work. The Arthrexin medication he takes before playing golf, is also for his hand pain.[13]
[11]T35, L16-17
[12]T 61, L 25-31
[13]T 61, L 25-31
19 Prior to the transport accident, the plaintiff had difficulties with sleep and, in particular, snoring. In December 2010 he was referred to a sleep clinic. He recalled undergoing a sleep study, after which he was diagnosed with sleep apnoea.[14]
[14]DMF 27
20 Dr Korbl’s records contain a letter from a sleep physician, Dr Michael Clarence, dated 9 December 2010.[15] It stated that the plaintiff was a heavy snorer. He noted that the plaintiff complained of “nocturia, wakes through the night, has night sweats, and despite around seven hours sleep, wakes with a dry mouth, with a headache or hangover feeling and is very unrefreshed…” There is no mention of the transport accident or the frequent headaches in the letter.
[15]DMF 27
21 The plaintiff was asked in cross-examination about his consultation with Dr Clarence. The plaintiff said that he was never examined by Dr Clarence,[16] and that he only completed a questionnaire. That questionnaire was not produced, and it is unknown whether the plaintiff referred to the transport accident, or to his frequent headaches when it was completed.
[16]T46, L 2-3
22 When the plaintiff lost weight following a diagnosis of diabetes in December 2010 his snoring improved.[17]
[17]PCB 19
23 Except for the pre-existing conditions referred to above, the plaintiff was otherwise in reasonable health prior to the transport accident. He played golf weekly and was a member of the Long Island Golf Club in Frankston.[18] He had a tennis court in his backyard and enjoyed playing tennis with his family. He also enjoyed gardening. He and his wife also enjoyed travelling together.[19]
[18]PCB 14
[19]PCB 14 and 24
Post-accident unrelated medical conditions
24 The plaintiff injured his left knee at work on 2 April 2013 when he stepped into a drain. He lodged a WorkCover claim for this injury. He had an arthroscopy performed on his left knee by Mr Eden Raleigh, orthopaedic surgeon, on 28 May 2013. Following this injury, he had a brief period of time off work, and was then on light duties for a few weeks.[20] Thereafter he returned to normal duties.
[20]Exhibits A and B
25 In cross-examination it was put to the plaintiff that he had told neurologist, Associate Professor Richard Stark, that the left knee injury was a factor in him ceasing work. The plaintiff could not recall saying this to Associate Professor Stark,[21] and in cross-examination denied the left knee injury played a role in him ceasing his employment in October 2013.[22]
[21]T26, L21-22
[22]T27, L4-5
26 The plaintiff returned to see Mr Raleigh in April 2014 for ongoing left knee pain.[23] An MRI scan was recommended, but never performed. The plaintiff could not recall returning to Mr Raleigh at this time, but accepted the record that he had.
[23]DMF 14
27 In February 2015, the plaintiff consulted a new general practitioner, Dr Mary Abbe Gonsalvez, as she was closer to his home. On 24 July 2015 he complained to her of very painful knees.[24] It was recorded that he was due for knee replacements, “but he would like to wait for another few years if he can pull through.”[25]
[24]DMF 35
[25]Ibid
28 The plaintiff conceded that the left knee pain continues to trouble him.[26] However, he denied the left knee injury impacts on his activities of daily living or his capacity to work.[27] Further, he does not take any medication for his knee injury, save for Arthrexin before he plays golf.[28]
[26]T35, L4
[27]T60, L13-17
[28]T60, L15-21
29 The plaintiff was diagnosed with Type 2 Diabetes in December 2010. He has managed this condition with diet and medication.
30 The plaintiff was also diagnosed with prostate cancer in October 2012. He received treatment and is now in remission. He has regular blood tests to monitor his condition. This does not impact on his activities of daily living or his capacity to work.
31 Since the accident, and separate to the arthritis in his hands, the plaintiff has complained of loss of control and shaking in his left hand from time to time. He has experienced these tremors a few times,[29] or perhaps six times.[30] When the hand tremor occurs, it can last up to two hours,[31] and it affects his ability to write, but not to use a computer.[32] He could not recall the last time he suffered a tremor, but said that they were not affecting him at the present time.[33]
[29]T35, L25-27
[30]PCB 52
[31]T37, L7-9
[32]T36, L15-17
[33]T62, L7
The injury and its consequences
32 The transport accident occurred soon after 7.00am on 24 May 2009. The plaintiff was driving through a green light, when a car travelling in the opposite direction went through a red light, and hit the driver’s side of his car. After the initial impact, the plaintiff’s car kept travelling forwards and the front of his car collided with a power pole. The plaintiff can recall the collision and the air bag going off in the car. He was able to get out of his car.
33 The plaintiff was taken by ambulance to Dandenong Hospital, where pieces of glass from the windscreen were removed from his head.[34] He was then discharged home.
[34]PCB 11
34 The Ambulance Victoria records indicate that at the time of attendance, the plaintiff complained of, amongst other things, “headache; lightheaded; dizzy”.[35]
[35]PCB 30
35 The plaintiff was due to commence his new position with Fry’s the following day but delayed it for one day, and commenced on 26 May 2009.
36 The plaintiff first attended his local general practitioner, Dr Korbl, in Forest Hill on 18 June 2009. He gave a history that he had been involved in a motor vehicle accident three weeks earlier, and that he was suffering headaches with occasional dizziness and a lightheaded feeling.[36]
[36]DMF 24
37 The plaintiff returned to Dr Korbl on 19 August 2009 complaining of “constant headache. Lack of focus. When really bad feels nauseated. Some relief wif (sic) analgesic”.[37] He was then referred for a CT scan. The CT scan was performed on 21 August 2009 and was reported as normal.[38]
[37]DMF 24
[38]PCB 45-46
38 As the plaintiff’s headaches continued, Dr Korbl referred him to neurologist, Dr Ronnie Freilich. He first saw Dr Freilich on 8 December 2009. Dr Freilich recorded :
“He has had headaches since that time that are becoming more frequent. There is no past history of headache. They can occur several times a day and last three or four hours at a time. There are no obvious precipitants. They are located inside his head, particularly posteriorly. They are a constant pressure, with associated slight nausea and photophobia. He tried Tegretol which did not help. He has had some neck pain. He tends to fall asleep easily in the morning. He has had brief episodes of memory loss or concentration difficulty. He has episodes where he has a lack of control of his hands in that they shake when he tries to write. He feels unsure of himself.”[39]
[39]PCB 33
39 Dr Freilich considered that the plaintiff’s headaches were consistent with post-traumatic headaches and that there was likely to be both a migraine component and a cervicogenic component.[40] He arranged for the plaintiff to have an MRI scan performed.
[40]Ibid
40 The MRI scan of the brain was performed on 13 January 2010 and was reported as normal.[41]
[41]PCB 47
41 Dr Freilich initially recommended physiotherapy. The plaintiff attended such physiotherapy intermittently, but felt that it did not change the situation in relation to his headaches.[42]
[42]PCB 17
42 The plaintiff resigned his employment with Fry’s in October 2013. He said his headaches and vision impairment were the reason for his resignation.[43] Since that time he has attempted to obtain some work as a TV extra. To date, he has only obtained four such jobs and each job lasted no more than a day.
[43]PCB 15
43 The plaintiff next saw Dr Korbl regarding headaches on 25 June 2014, at which time he was referred back to Dr Freilich with the note the plaintiff was “still troubled with headaches, as well as periodic episodes of “zone outs’!”[44]
[44]PCB 42
44 The plaintiff next re-attended Dr Korbl on 6 October 2014, with the note recording “slight headaches”.[45]
[45]DMF 20
45 On 20 October 2014 an MRI scan of the brain was performed and it was reported as normal, apart from sinus disease.
46 The plaintiff saw Dr Freilich on 21 October 2014. On this occasion Dr Freilich recorded:
“There are two problems. The first is ongoing headaches. These occur daily. It is a constant pain but it is sometimes a bit throbbing. It is like an internal tightness in his head. There is slight nausea and photophobia. He has neck pain and restriction of neck movements, which is not helped by physiotherapy. Most days he will take Nurofen Plus which is beneficial. The second problem is episodic visual loss in the last two or three weeks, affecting the left eye on three occasions, and possibly but not definitely the right eye on the first occasion. The lower half of the vision in the eye goes grey for a couple of minutes. There is no shimmering. There is no pain in the eye. He can feel dizzy when the visual loss occurs. There are no other neurological symptoms.”[46]
[46]PCB 35
47 At that time the plaintiff was prescribed Amitriptyline for the headaches. He was also referred to ophthalmologist, Dr Heather Mack.
48 On 22 October 2014, the plaintiff was examined by Dr Mack. He consulted her in relation to several episodes of vision loss he had recently experienced. She found no features of macular degeneration and could not find a cause for the temporary vision loss.[47]
[47]PCB 43
49 The plaintiff stopped taking the Amitriptyline as it caused side-effects. In a subsequent consultation with Dr Freilich on 1 December 2014, he changed the medication to Isoptin. Dr Freilich noted at that stage the headaches were worse.[48]
[48]PCB 36
50 The plaintiff next saw Dr Freilich on 2 March 2015. At that time the plaintiff reported that the Isoptin had not been beneficial for his headaches, and he discontinued it. Dr Freilich discussed treatment options with the plaintiff, including trying a different medication or re-attempting physiotherapy again. The plaintiff elected to try physiotherapy. Dr Freilich invited the plaintiff to return for review if the headaches did not improve, as it was possible that other medications may help. However, the plaintiff has not returned to Dr Freilich.
51 During the period from January 2010 until June 2014, the plaintiff did not consult any doctors in relation to the ongoing headaches. He explained this long gap in medical treatment on the basis that he had understood that his symptoms would improve and so, for a long time, he simply put up with his headaches.[49] During that period he saw Dr Korbl for other medical conditions, including, amongst other things, lower back pain, left knee pain, sleeping difficulties and prostate cancer. The plaintiff did not offer an explanation as to why he did not mention the headaches during this period. However, he was not challenged on his evidence that such headaches continued throughout that entire period.
[49]PCB 12
52 The plaintiff’s evidence is that he suffers severe and debilitating headaches almost every day. The headaches usually last from three to four hours, but can last up to 12 hours.[50]
[50]PCB 51
53 When suffering headaches, the plaintiff also suffers from nausea, sensitivity to light, and blurred vision. He said that when he gets a headache, where possible, he stops whatever he is doing and tries to lie down in a darkened room.
54 When the plaintiff swore his affidavit on 22 March 2016, he said that his headaches had increased in intensity since swearing his initial affidavit in October 2014. However, he still suffered the same number of headaches, and they persisted for the same duration.[51] The plaintiff takes Nurofen Plus to help relieve the pain from the headaches. He said he takes up to six Nurofen Plus a day. He said when he takes the Nurofen the pain dissipates, but it does not go completely ‒ sometimes it does, and sometimes it does not.[52]
[51]PCB 17
[52]T41, L9–11
55 The medication causes him to suffer constipation.[53]
[53]PCB 17
Medical evidence
56 The doctors were largely in agreement as to the plaintiff’s injury and its consequences. Given the similarity in medical opinions, I need only briefly summarise them here:
57 Dr Freilich, the treating neurologist, diagnosed post-traumatic headaches, with the headaches occurring daily and being “bothersome”.[54] He considered that the headaches may affect his ability to engage in employment.[55]
[54]PCB 37
[55]PCB 38
58 Dr Robert Hjorth, medico‑legal neurologist, examined the plaintiff on 11 October 2010. He agreed with Dr Freilich’s diagnosis of post-traumatic headaches. He said that although such headaches often commonly ease after a period of two to five years, they sometimes persist indefinitely.[56]
[56]PCB 53
59 Dr Judith Frayne, medico‑legal neurologist, examined the plaintiff on 25 February 2016. She diagnosed a post-concussion syndrome with persistent headaches and neck pain. She accepted that such pain impacted upon the plaintiff’s concentration and attention. She considered that he would have difficulties in pre-injury duties as a senior company manager. She recommended long-term management including medication, with intermittent use of physiotherapy.[57]
[57]PCB 90
60 Associate Professor Stark, medico‑legal neurologist, examined the plaintiff for the defendant on 13 October 2014 and 22 March 2016. He, too, accepted the plaintiff as suffering post-traumatic headaches. He accepted that the headaches would reduce the plaintiff’s efficiency in his pre-accident employment, although he was not convinced that it would necessarily prevent him from engaging in managerial level employment.[58]
[58]Defendant’s Court Book (“DCB”) 4
61 The plaintiff claims post-concussion syndrome resulting in headaches and neck pain. The neck pain did not feature in much of the medical material and the plaintiff was not cross-examined or re-examined on it. In his affidavit, the plaintiff refers to neck pain. While I accept that he suffers from some neck pain, it is to such a minor or modest degree that I am unable to identify any consequences arising from it.
62 The plaintiff also claims that since the transport accident he has noticed memory problems and difficulty focussing. He states that he forgets things in the short term. He can get halfway through a sentence and forget what he was going to say.[59]
[59]PCB 13
63 The plaintiff conceded in cross-examination that his memory loss is a significant impairment,[60] and that it interferes with his working ability.[61] He reported these short-term memory problems to Dr Freilich,[62] Dr Hjorth,[63] Dr Slesenger,[64] Dr Frayne[65] and Associate Professor Stark.[66]
[60]T38, L26
[61]T39, L18-20
[62]PCB 33
[63]PCB 52
[64]PCB 82
[65]PCB 88
[66]DCB 2
64 The plaintiff’s solicitor arranged for him to be examined by clinical neuropsychologist, Dr Andrew Gibbs.[67] Dr Gibbs obtained a history from the plaintiff that he suffered headaches for up to 12 hours a day. He noted short-term memory loss where he could forget things three minutes after a conversation, however, his long-term memory he considered to be fine.[68] After performing the neuropsychological assessment, Dr Gibbs concluded that the plaintiff’s overall test scores appeared excellent with some minor areas of lapse.[69] He found that the plaintiff performed adequately on tasks of memory, although there was some unexpected erratically lowered test scores.[70]
[67]The report is not clear on when the assessment was performed, but does, however, make reference to a referral letter from the plaintiff’s solicitors dated 11 October 2011. As such, the assessment must have occurred at some stage after that date.
[68]DCB 26
[69]DCB 27
[70]DCB 29
65 Dr Gibbs concluded that the plaintiff:
“… appears to be functioning at a level lower than the management levels he has been employed in during the past, though from a neuropsychological perspective, he would appear capable of this at a cognitive and behavioural level, albeit that he might be prone to attention lapse, headache and irritability.”
66 Dr Gibbs then suggested that a neurological opinion should be obtained regarding the post-concussion syndrome.
67 There is no organic brain injury to explain the memory loss. There is no doctor who is of the opinion the memory loss is related to the post-concussion syndrome. In such circumstances, I find that the plaintiff’s memory loss is unrelated to the transport accident and I will not consider any consequences arising from it.
68 Further, the plaintiff claimed he has suffered shaking of his hands since the transport accident. He has not suffered these for several years.[71] There is no organic injury to explain the hand shaking. There is no medical evidence relating it to the post-concussion syndrome and so, in assessing the plaintiff’s application, I will not consider any of the consequences arising from this condition either.
[71]T57, L14-17
Long term
69 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and long term. The authorities have defined the latter to mean “for the foreseeable future”.
70 Dr Hjorth offered the opinion that post-traumatic headaches commonly ease after a period of two to five years, but sometimes they persist indefinitely.[72] It has now been almost seven years since the accident occurred and the plaintiff has described almost daily headaches since then. He tried physiotherapy, but that did not stop the headaches. He takes medication that reduces the pain, but it has not eliminated the headaches. I am therefore satisfied that the plaintiff’s headaches and the consequences which flow from them are long term.
[72]PCB 53
The plaintiff’s credibility
71 In general, I found the plaintiff to be an honest witness. He did not overstate things and made concessions where appropriate. He is stoic, in that despite painful headaches which affected him on an almost daily basis, he continued to work for more than three years after the accident. He has continued to play golf and travel extensively, despite suffering from these headaches. He said wherever he is, whether Rowville, Rye or someplace overseas, his headaches are present.[73]
[73]PCB 18
72 The plaintiff was largely unchallenged by Mr Lewis and, in particular, he was unchallenged as to the following consequences:
·the intensity and frequency of his headaches;
·the need for medication almost every day;
·that he suffers pain whilst playing golf;
·that he suffers blurred vision whilst playing golf;
·that he suffers increased pain when travelling and, if flying overseas, he arrives a day earlier to recover;
·that his headaches limit and restrict him in his garden;
·that he no longer plays tennis, having previously enjoyed playing tennis with his family on the tennis court at his home.
Are the consequences “very considerable”?
73 I must now consider whether the consequences for the plaintiff meet the test of “very considerable.”
74 I am required to disentangle the consequences of the transport accident from his other health ailments, and can only consider those consequences arising from the transport accident.[74] It is for the plaintiff to satisfy me that those consequences are serious.
[74]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 97 at [2]
75 In Haden Engineering Pty Ltd v McKinnon,[75] Maxwell P said at paragraph 9:
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)”
[75](2010) 31 VR 1
76 In relation to his “experience of pain”, I accept that the plaintiff suffers headaches almost every day. They are often associated with nausea, sensitivity to light and blurred vision. If possible, he goes to a darkened room and lies down. I accept that he takes medication almost daily, and that the longest he has ever gone without medication is a few days.[76] The medication may make the headache go away, or sometimes it only dissipates it. The headaches usually last three to four hours. The medication constipates him.
[76]T57, L29‒T58, L3
77 The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[77] As stated above, I accept the plaintiff as an honest witness and accept his evidence as to his complaints of pain. I further note that doctors accept him as genuine, and there is no suggestion by any doctor that he is exaggerating or overstating his symptoms.
[77]Haden Engineering v McKinnon (2010) 31 VR 1 at para [9]
78 In addition, I must also observe the “disabling effects of pain” for the plaintiff. In doing so, I must consider what has been lost, as well as what has been retained.[78]
[78]Ibid, at [14]
79 The plaintiff and his wife love to travel, and notwithstanding his various unrelated medical conditions, they still travel extensively, with overseas trips once or twice a year since the accident. However I accept the plaintiff’s evidence that, no matter where he is, he suffers the headaches. This clearly impacts upon his enjoyment of these holidays.
80 The plaintiff also loves golf. Despite his various unrelated medical conditions, he still plays, but takes medication before each game. He says that as walking exacerbates his headaches, he now uses a golf cart instead of walking around the course.[79] If he has a headache whilst playing, it is not as enjoyable. If he suffers blurred vision, it affects his game. Although he still plays, the headaches adversely impact on his enjoyment of the game.
[79]PCB 14
81 I also accept the following consequences arise from his headaches, and not his other unrelated medical conditions:
·Interference with sleep. Separate to any snoring problems (which have now improved), he regularly wakes in the middle of the night with a headache and cannot get back to sleep.[80]
·He frequently experiences pain and blurred vision when playing golf.
·He no longer plays tennis.[81]
·His capacity for driving remains restricted.[82]
·He feels irritable and frustrated from the headaches.[83]
·His physical relationship with his wife has been affected.[84]
[80]PCB 19 and 23
[81]PCB 18 and 23
[82]PCB 18
[83]PCB 17 and 23
[84]PCB 18 and 24
82 Another factor for me to consider, in assessing the disabling effects of pain, is the impact the injury has had upon his capacity for work. I accept the plaintiff’s headaches cause at least a partial incapacity. I consider that headaches associated with nausea, sensitivity to light and blurred vision would make it difficult for the plaintiff to work in full-time executive, management and/or sales roles, including his post-injury employment with Fry’s. Such headaches and associated symptoms would make it hard for him to be a reliable and high performing employee. He persisted at Fry’s for over three years, but ultimately it became too much for him.
83 In his pre-injury employment in executive sales positions, he was often required to travel interstate, and I accept that such travel would now be difficult as he suffers the onset of headaches when he flies.[85]
[85]PCB 13
84 I accept that the plaintiff’s knee injury was not the reason for him stopping work in October 2013. After the arthroscopy performed on 28 May 2013, he had done light duties for a brief period, but was on normal duties by the end of June 2013. The only mention of the left knee injury being a factor in him stopping work was in the report of Associate Professor Stark. However, the plaintiff could not recall telling him this, and I accept the plaintiff’s denial that the left knee injury was a reason for him stopping work.[86]
[86]T27, L4-5
85 I accept that the left knee and lower back injuries would not currently prevent him working in his pre-injury or post-injury roles. Nor would his diabetes or prostate condition. I accept the temporary loss of vision is not a current problem.
86 However, I do consider that his short-term memory loss problems would most likely restrict him in employment. His pre-injury and post-injury employment positions would require a worker to have “high levels of managerial competency.”[87] It is unrealistic to expect he could perform such roles with short-term memory problems. The plaintiff did not raise this as a factor in him stopping work, but given his concessions in cross-examination regarding its interference with his working ability, I consider it was most likely a contributing factor.
[87]PCB 110
87 The task before me now is to assess the consequences arising from the post-concussion syndrome. The memory loss problems, which I find are unrelated, may impact upon an assessment of loss of earning capacity in a claim for damages, but that is not a matter for me to consider now.[88]
[88]Acir v Frosster Pty Ltd [2009] VSC 454 Forrest, J at [172]
88 When looking at the plaintiff’s experience of pain, and the disabling effects of pain, when judged by comparison with other cases in the range of possible impairments or losses, I am satisfied that the consequences for the plaintiff are very considerable.
Orders
89 The plaintiff’s application for leave to commence a claim for common law damages for succeeds. I shall make consequent orders.
- - -
0
4
0