Biggins v Transport Accident Commission
[2019] VCC 2182
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00005
| JAMES BIGGINS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 24 July 2019 | |
DATE OF JUDGMENT: | 19 December 2019 | |
CASE MAY BE CITED AS: | Biggins v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2182 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury– whether injuries caused by transport accident – credit of plaintiff – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Demmler v Transport Accident Commission [2018] VSCA 284; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Haden Engineering v McKinnon (2010) 31 VR 1
Judgment: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Robinson Gill Lawyers |
| For the Defendant | Mr P Jens QC with Ms K Manning | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a motor vehicle accident on 9 February 2016 (“the accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s93(17) of the Act is, relevantly, as follows:
“‘Serious injury’ means –
(a) serious long-term impairment or loss of a body function … .”
… .”
4 The application was brought pursuant to s.(a) only of the definition of “serious injury”.
5 The plaintiff’s case is that by reason of the motor vehicle accident, he suffered injury to his spine, both cervical and lumbar. In forming a judgment as to whether the consequences of an injury are “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, fairly be described at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[2]
[1]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57]
6 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s93(17), the relevant injury must also be long-term.
7 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
8 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[3] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[4] The task of assessing the pain and suffering consequences of an injury has been held largely to be a question of impression and value judgment.[5]
[3]See s93(6) of the Act, which states that leave must not be given by a Court unless the Court “is satisfied that the injury is a serious injury”. I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act
[4]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission (ibid) at [52]
[5]see Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67]
9 In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
10 It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[7]
[7]PetkovskivGalletti (ibid)
11 Applying the principles set out in Petkovski v Galletti,[8] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury or the consequences of the additional injury, which must be assessed. To undertake this task, the application must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[9] If I am satisfied that the additional impairment is “serious” and long-term, then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[10]
[8]supra at 443
[9]supra, at 444
[10]supra
12 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
13 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[11] The defendant did not require any of the plaintiff’s treating medical practitioners or medico-legal experts to attend for cross-examination.
[11]The plaintiff’s Court Book was marked as Ex P1; the defendant’s Court Book was marked as Ex D1
14 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
The Plaintiff’s background and medical history
15 The plaintiff was born in January 1977 and is forty-two years old.[12] He was born in Traralgon and grew up in the Morwell region. He completed Year 12 and moved to Melbourne, where he commenced an Arts degree at Latrobe University. He deposed to the fact that he has always struggled academically and was unable to complete the degree.[13] The plaintiff later commenced other courses, which he did not complete due to his struggles with studying. These courses included a Diploma in Financial Markets at the then Securities Institute in 1998, a Certificate IV in Occupational Health and Safety with the CFMEU in around 2014 and a Certificate IV in Book-Keeping, through Open University in around 2016. He has formal qualifications as a dogman and mobile crane operator.[14]
[12]Ex P1, p1
[13]Ex P1, p1
[14]Ex P1, p1
16 After leaving university, the plaintiff worked in a variety of manual jobs, including machine operator, orderly, drill rig operator, dogman, crane operator and stevedore. His greatest work experience has been as a dogman and crane operator.[15]
[15]Ex P1, p2
17 The plaintiff deposed to the following pre-existing health conditions:
(a)on 12 February 2014, he suffered a left shoulder injury in the course of his employment as a stevedore. At the time of the transport accident, he was recovering from left shoulder surgery that he had undergone in July 2015;[16]
(b)since January 2016, he has experienced gastric problems due to long-term use of anti-inflammatory medication;[17]
(a)he has a history of Depression, which has fluctuated in severity and has required anti-depressant medication since 2012;[18]
(b)at the time of the transport accident, he did not suffer from any significant condition of the lower back or neck.[19]
[16]Ex P1, p2
[17]Ex P1, p2
[18]Ex P1, p2
[19]Ex P1, p2
The accident
18 The Plaintiff described the accident in the following terms:
“… I was driving along St Kilda Street in North Brighton [on 9 February 2016]. I came to a stop at a set of traffic lights. A taxi rear-ended my car. It was a forceful collision and I hit my head on the steering wheel. I believe that I temporarily lost consciousness. When I regained my senses I realised that I was experiencing neck and lower back pain. I was taken by ambulance to the Alfred Hospital. I underwent scans and was told that I had not suffered any fractures. I was discharged home.
I attended Dr Kuriata at St Kilda Medical Group on 12 February 2016. I was suffering right-sided neck pain and lower back pain. I had physiotherapy treatment with Dr Hunter at Epworth Brighton who was also treating me for my work-related shoulder condition. I suffered ongoing right-sided neck pain and left sided lower back pain radiating into my left leg.
I ceased treatment at Epworth Brighton in November 2016. I then commenced treatment with John Leggett, myotherapist and continued hydrotherapy at MSAC. I ceased the hydrotherapy due to my gastrointestinal issues. John Leggett treated me for my neck, lower back and left shoulder condition. I have also sought osteopathic treatment for my neck and lower back pain. I was self-funding the myotherapy and osteopathy treatment but TAC have partially funded this treatment. I am currently self-funding treatment at Fluid Health (deep tissue sauna, hyperbaric chamber and exercise physiology).
On 29 January 2017 I underwent an MRI of the lumbar spine which I believe revealed damage to my L5/S1 disc.”[20]
[20]Ex P1, pp2-3
Evidence of the Plaintiff
19 As referred to above, the plaintiff swore two affidavits. He was cross-examined and also re-examined.
20 The relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the transport accident, is as follows:
Experience of pain and treatment
(a)he suffers from constant pain in his lower back. It varies from a dull ache to a sharp, intense pain.[21] When the pain is at its worst, it severely limits what he is able to do;[22]
[21]Ex P1, p3
[22]Ex P1, p8
(b)being in one position for too long (whether sitting or standing) causes the pain to worsen. The pain radiates into his left buttock and the back of his left thigh. His back is stiff most of the time. The pain worsens when he coughs.[23] He is unable to walk for too long. He changes his position regularly to try and manage the pain;[24]
[23]Ex P1, p3
[24]Ex P1, p8
(c)he suffers from ongoing pain in the right side of his neck. The pain runs into the top of his right shoulder;[25]
[25]Ex P1, p3
(d)early in 2019, the plaintiff saw a surgeon called Gary Speck. He was referred to Mr Speck by his general practitioner. It was for an opinion about his back problems. Mr Speck told the plaintiff that he does not believe that surgery is required for the plaintiff’s back problems;[26]
[26]Ex P1, p7
(e)the pain in his neck has improved significantly, although it has not completely resolved. He has not had right-sided neck pain for a while. He has also not had much in the way of left-sided neck pain.[27] He used to experience migraines but they have improved;[28]
[27]Note, this pain is referable to the left shoulder injury – see below
[28]Ex P1, p8
(f)he has an extensive exercise and rehabilitation program. He sees his exercise physiologist three times a week and an osteopath twice a week. He does a wide range of exercises and rehabilitation every day. Doing this takes a large amount of the day;[29]
[29]Ex P1, p7-8
Medication
(g)he attends his general practitioner, Dr Kuriata, at St Kilda Medical Group. He presently takes six to eight Panadol Osteo per day;[30]
[30]Ex P1, pp 4 and 7
(h)as a result of all the medication that he takes, he experiences significant gastric problems. For a long time, he had unpredictable and uncontrollable bowel movements. This was a problem when he was out and far from a toilet. In recent times, this has improved. He has been trying to avoid codeine-based medication if possible, and has been using hemp oil. He had also been meditating in the three months, prior to swearing his second affidavit in June 2019. Those treatments seemed to have helped the bowel problems;[31]
[31]Ex P1, p8
Sleep
(i)his sleep was already impacted by his left shoulder injury prior to the accident and he would wake up every hour or so because of that. His sleep is now even worse due to the back pain;[32]
[32]Ex P1, pp 4 and 9
Activities of daily living
(j)if he drives for more than half an hour, he suffers from severe lower back pain and stiffness;[33]
[33]Ex P1, p3
(k)he has difficulty putting on shoes and socks because of his lower back pain (in combination with his left shoulder restrictions). He often wears thongs, which he can just slip on;[34]
[34]Ex P1, p3
(l)he lives on his own. His friends assist him with daily chores around the house, such as stripping and making his bed, large shopping trips and vacuuming and cleaning the flat. His friends also occasionally help him walk his dog, which he finds difficult to do due to back pain. Prior to the transport accident, he was limited in what household chores he could perform due to his left shoulder injury. His lower back and neck condition have further limited him;[35]
[35]Ex P1, pp3-4
(m)his ability to exercise has been impacted. He has put on a significant amount of weight (approximately 10 to 15 kilograms). It was already difficult to do some exercises due to his left shoulder injury, and it is now even more difficult to exercise to lose the weight due to his back and neck pain;[36]
[36]Ex P1, p4
(n)shopping for large amounts of groceries at the supermarket is difficult, so he tries to limit himself to small loads. He generally gets larger quantities of heavy items delivered, so he can avoid having to carry it over long distances. He can carry smaller quantities of large items;[37]
[37]Ex P1, p8
(o)he is able to cook, but finds that it aggravates the pain;[38]
[38]Ex P1, p9
(p)he feels as if his memory and concentration has been impacted since the accident. He forgets people’s names, forgets where he has left things, or sometimes walks into a room and forgets why he has left the other room. His doctors have not confirmed whether this is due to knocking his head during the accident, but these symptoms have only arisen since the transport accident;[39]
[39]Ex P1, p4
(q)a friend of the plaintiff owns a bike shop. He goes there once a week and “cleans a bike or two” to help his friend out. Their dogs play together and they have coffee. This is of benefit to the plaintiff, because it helps him to get out of the house;[40]
[40]Ex P1, p5
Pecuniary disadvantage
(r)if his back condition does not improve, the plaintiff does not believe that he will be able to perform any sort of paid employment in a reliable manner. He has no training or skills to work in an office;[41]
[41]Ex P1, p4
(s)although he finished school, he did poorly in Year 12. He did not get through university. His education is limited. Additionally, he does not believe that he would be able to cope with office work. He would struggle to sit at a desk for long periods of time, as he believes it would aggravate his back pain. He has never been able to concentrate on academic pursuits. He does not believe that he has the capacity to complete any sort of course or retraining requiring high levels of concentration; [42]
[42]Ex P1, p4
(t)he is currently doing a course through Van Tharp Institute (based in the USA). In 2018, he attended a three-day workshop in Sydney called “Peak Performance 101”. He hopes to learn skills about investment in the future, but at the moment his focus is on psychological well-being and recovery. He has travelled to attend workshops. The plaintiff attended a three-day workshop in 2019 called “Peak Performance 203”. This workshop was aimed at avoiding self-sabotage. It was held in Sydney. This is a self-managed study program and there are no deadlines or exams.[43] Neither of these workshops were about learning how to trade or invest but rather, were aimed at making the attendees become more aware of their thinking and beliefs, and how that impacts their interpretation of a situation. The idea is that this way of thinking is beneficial to all areas of life. The plaintiff deposed to the fact that he is not doing any share trading and has not done any since his accident;[44]
[43]Ex P1, pp4 and10
[44]Ex P1, p10
(u)the plaintiff deposed to the fact that during both workshops, there was a lot of sitting around in conference rooms. He found this very painful and needed to take pain medication to help him to cope. The conference facilitators were accommodating of his injury and he was able to walk around and lie on the floor to relieve his back pain during the workshop;[45]
[45]Ex P1, p10
(v)he has not worked since swearing his previous affidavit in April 2018. He remains in receipt of Centrelink benefits. Centrelink wanted him to apply for work. At some point, he sought a medical exemption. That was granted. In about November 2018, he had to apply for another exemption. As far as he is aware, that has also been granted;[46]
[46]Ex P1, p9
(w)he does not believe that he would be able to do his old job because of his lower back problems. It is too physically demanding and the back pain would be too significant to cope with. He believes that this would be the case, even if he had never had the left shoulder problems. He does not know what other sort of work he would be able to do. He believes his back injury means that he is not fit to do any sort of manual or physical work;[47]
(x)he does not believe that he would be a reliable employee for an employer. His pain levels are quite “unpredictable”. He would not be able to predict when he would need to take a rest because of pain. He does not know how he would manage to reliably perform a job and manage to continue his rehabilitation program. The exercises occupy a large amount of each day. He believes that his back problems would significantly worsen if he was not able to adhere to the exercise regime;[48]
Other relevant injuries
(y)since 16 April 2018, his left shoulder condition has gradually improved. He has been doing extensive rehabilitation exercises over a long period of time. He continues to have weakness in the left arm, but is now able to lift his arm above his head and experiences minimal pain nowadays. Last year, he settled a claim for his left shoulder injury for a lump sum for pain and suffering;[49]
(z)in about mid-2018, he began to experience left foot drop. His general practitioner arranged for him to have an MRI scan of his lower back. He had that in late October. Gradually, the symptoms of foot drop seemed to improve;[50]
(aa)early in 2019, he had some cosmetic surgery performed;[51]
(bb)the plaintiff continues to feel depressed, but feels as if that has improved “a bit over time”.[52]
[47]Ex P1, p9
[48]Ex P1, p10
[49]Ex P1, p7
[50]Ex P1, p7
[51]Ex P1, p7
[52]Ex P1, p11
The Plaintiff’s evidence as to pre-accident presentation
21 As the case proceeded, it became apparent that the plaintiff had sworn an affidavit in a proceeding in the County Court of Victoria which he brought against his former employer, Qube Ports Pty Ltd (“Qube”).[53] That affidavit was sworn on 16 April 2018, being the same date on which the plaintiff swore his first affidavit in this matter.
[53]The affidavit was tendered into evidence and marked as Ex D3
22 In that affidavit, after deposing to the same matters of background as have been set out above, the plaintiff deposed to the following matters relevant to a left shoulder injury which he suffered in a workplace accident during his employment with Qube:
Work at Qube
(a)he commenced work with Qube in 2010. He was employed as a stevedore. He was initially employed as a casual and then moved into guaranteed hours. At the time of the accident (“the left shoulder accident”), he was guaranteed a minimum of twenty-six hours per fortnight but in practice, he regularly exceeded those hours. He believes that he was on the cusp of moving to the “next level”, which guaranteed a further increase in hours;[54]
[54]paragraph 4, Ex D3
(b)his job with Qube involved loading, unloading, lashing and unlashing cargo. Most of the cargo he handled was heavy, including motor vehicles, heavy machinery and bundles of steel;[55]
[55]paragraph 5, Ex D3
Prior medical history
(c)prior to the left shoulder accident, the plaintiff suffered from a history of depression and had taken anti-depressant medication since 2012. He had some treatment with a psychologist in 2013. His psychological condition fluctuated, depending on his circumstances, but was well controlled at the time of the left shoulder accident;[56]
[56]paragraph 6, Ex D3
(d)in August 2012, he suffered a hernia while performing lashing work for Qube. He had surgery to repair the hernia in September 2012 and returned to normal duties;[57]
[57]paragraph 7, Ex D3
Physical state at time of the left shoulder accident
(e)at the time of the left shoulder accident, he was very fit and strong. He was an active mountain bike rider and rode 250 kilometres per week. He also went to the gym regularly. He enjoyed hiking, swimming, activities on the farm and a general outdoor lifestyle;[58]
[58]paragraph 8, Ex D3
Circumstances of the left shoulder accident
(f)he described an injury which took place during his employment at Qube in the following terms:
“On 12 February 2014 I was working at South Wharf at Lorimer Street in Port Melbourne. The shift was from 7am to 7pm. I was working with a foreman and another labourer. I worked in the hatch which was 30 metres deep. We were unloading bundles of steel. The steel was closely packed together. I was required to use a crowbar to open the gap between each pack of steel so that lifting chains with steel hooks could be used to secure the steel, for removal from the hatch.
I believe that each bundle of steel weighed up to 4 tonne. The packs of steel were stored close together and I had to work on my knees levering the steel apart with the crowbar. I held the crowbar vertically and moved it around in all directions to try to separate the steel. The crow bar was approximately two metres long. I was also required to secure the load with lifting chains which involved throwing a hook attached to the large diameter lifting chains underneath the steel to another labourer. The lifting chain was attached to a spreader. It was very heavy to lift and throw. Sometimes I had to throw it with my left (non dominant hand) depending on the confines of the work space. In order to get the chains in we had to rip out dunnage (heavy timber) from underneath the packs of steel whilst bending over on our knees. This was very strenuous heavy work.
On the morning of 12 February 2014 I did this steel work for two and a half hours when I felt a sharp pain in my left shoulder joint. The work had been particularly strenuous that morning because the steel was packed very tightly together. I had to work quickly in order to get the load ready.
We had a smoko shortly after I experienced the shoulder pain. I reported the pain to David Ayres, Qube shift manager. I told him that I had felt something in my shoulder but thought that it might be only temporary. I continued working for a further three hours performing the crowbar task but by lunchtime my shoulder pain had worsened. I came up from the hatch and told David what had happened. He told me to sit on the wharf for the next run. I sat on the wharf for an hour or so but my left shoulder froze up. I attended the Epworth Hospital. I had an x-ray of the shoulder which revealed there was no fracture. I was prescribed Panadeine Forte and discharged…”[59]
[59]paragraphs 9-12, Ex D3
Medical treatment for the left shoulder injury
(g)as to the medical treatment he received following the left shoulder accident, the plaintiff deposed to the following matters:
“I attended Dr Presswell in St Kilda on 15 February 2014. I was suffering significant left shoulder pain and restricted shoulder movement. Dr Presswell prescribed Panadeine Forte tablets. I had approximately three weeks off work and then returned to work on light duties. Before I returned to work I had to stop taking Panadeine Forte (my employer would not permit me to return while taking this medication) so I switched to anti-inflammatory medication. I had difficulty performing some of the light tasks due to ongoing shoulder pain.
I underwent physiotherapy treatment which relieved my pain and restriction of movement temporarily and I was able to be more active for short periods but this relief was not sustained.
On 11 March 2014 I had x-ray and ultrasound of my left shoulder which I believe revealed damage to the tendons.
I attended Dr Down, sports physician, who arranged for me to undergo cortisone injections into the shoulder. I also underwent hydrodilatation. I was diagnosed with a frozen shoulder. I was prescribed Lyrica which made me drowsy.
In October 2014 I attended Associate Professor Barry Rawicki on referral from my GP. He recommended that I participate in a pain management program at the Epworth Hospital in Brighton.
On 22 December 2014 I attended Mr Andrew McQueen, orthopaedic surgeon. He recommended that I undergo surgery to my left shoulder.
In late 2014 I commenced a pain management program at Epworth Brighton. It did not improve the condition or my left shoulder.
On 23 April 2015 I attended Mr Eugene Ek, orthopaedic surgeon. He confirmed that I required surgery to my shoulder.
I underwent surgery to my left shoulder on 13 July 2015, performed by Mr Ek. I wore a sling from some weeks after surgery. After I stopped wearing the sling at home I commenced physiotherapy treatment at Epworth Brighton. I then carried on with hydrotherapy at MSAC which was abandoned due to gastric issues…”[60]
[60]paragraphs 13-21, Ex D3
Return to work after the left shoulder injury
(h)the plaintiff did not go back to work for Qube after the July 2015 surgery;[61]
[61]paragraph 22, Ex D3
(i)the plaintiff’s employment with Qube was terminated in April 2016;[62]
[62]paragraph 26, Ex D3
Pain and suffering arising from the left shoulder injury
(j)his left shoulder condition continued to cause him pain and restrictions. He also got headaches, which he was told by doctors were due to muscle tension in his left shoulder. As at April 2018, he did not get these as frequently or with the same severity because myotherapy treatment relieved the headaches; [63]
[63]paragraph 23, Ex D3
(k)following the transport accident which occurred on 9 February 2016, he continued to experience left shoulder pain and restricted movement. He was worried about losing his job. He was reviewed by Mr Ek on 19 April 2016. Mr Ek told the plaintiff that he had a frozen shoulder and recommended further surgery;[64]
[64]paragraph 25, Ex D3
(l)in May 2016, the plaintiff underwent a second surgery to his left shoulder in the form of a left arthroscopic capsular release. This procedure improved his range of movement somewhat. He underwent regular physiotherapy at Epworth Brighton until November 2016;[65]
[65]paragraph 27, Ex D3
(m)in November 2016, he commenced treatment with John Leggett, myotherapist. The plaintiff was continuing to experience significant left shoulder pain and restriction of movement. Mr Leggett also treated his transport accident related neck and back injuries. He consulted another myotherapist, Jimmy Wilson, in around 2017;[66]
[66]paragraph 28, Ex D3
(n)in January 2016, the plaintiff developed abdominal symptoms, including diarrhoea, abdominal pains and bleeding. He attended Dr Rohan Marks, gastroenterologist, in February 2017. Dr Marks told the plaintiff that his irritable bowel was likely a result of prolonged use of anti-inflammatory medication for his shoulder condition;[67]
[67]paragraph 29, Ex D3
Sleep
(o)his sleep was interrupted due to his shoulder pain and he woke frequently throughout the night. He required regular pain-relief medication, including Panadeine Forte, in respect of the left shoulder injury;[68]
[68]paragraph 23, Ex D3
Consequences of the left shoulder injury which persisted as at April 2018
(p)the plaintiff deposed to the following consequences of his left shoulder injury, which persisted as at April 2018:
Experience of pain and treatment
(i)he suffers left shoulder pain with any movement of his left arm. His range of movement is restricted. It is very painful for him to reach his arm behind his back and to lift his left arm above 90 degrees;[69]
[69]paragraph 30, Ex D3
Sleep
(ii)his sleep continues to be affected by left shoulder pain. He has trouble getting to sleep and wakes up frequently throughout the night. He does shoulder exercises in the middle of the night to try and relieve the pain;[70]
[70]paragraph 31, Ex D3
Medication
(iii)he takes Panadol Osteo for the shoulder pain. He tries to limit them to two to four per day. He takes pain-relief medication for both his lower back and neck, as well as for his left shoulder;[71]
[71]paragraph 32, Ex D3
(iv)his bowel problems impact his life significantly. He has to be near a toilet in the mornings in case he has an “accident”. He has soiled himself on numerous occasions in public;[72]
[72]paragraph 33, Ex D3
Activities of daily living
(v)he has no choice but to shop and cook for himself. He tends to rely more on his right arm;[73]
(vi)he can no longer go mountain-bike riding because he cannot hold onto the handle bar with his left arm due to shoulder pain;[74]
(vii)his ex-partner helps him with heavy housework, such as vacuuming and making the bed, which he cannot do properly due to his shoulder condition. He does as much cooking and cleaning as he can for himself, but his left shoulder condition limits him. He lives on his own;[75]
(viii)a friend of his owns a bike shop. He goes there once a week to “clean a bike or two” and help him out. Their dogs play together and they have coffee. This is of benefit to the plaintiff because it helps him “to get out of the house”;[76]
Loss of relationship
(ix)at the time of his injury while working at Qube, he was in a long-term relationship. He is now separated. He believes that the consequences of his shoulder injury was a big factor in the relationship breakdown; [77]
[73]paragraph 34, Ex D3
[74]paragraph 35, Ex D3
[75]paragraph 36, Ex D3
[76]paragraph 40, Ex D3
[77]paragraph 36, Ex D3
Pecuniary disadvantage
(x)his left shoulder condition prevents him from performing heavy manual work of the type required to be a stevedore. At the time of his left shoulder injury in February 2014, he had the capacity to work as a full-time stevedore. He believes that if he had not been injured, his guaranteed hours would have been increased. Prior to his injury, he worked whatever hours he was allocated. His aim, when starting at Qube, was to broaden his experience in crane operations. Had he not been successful with this opportunity, his plan was to return to mobile crane operation.[78]
[78]paragraph 37, Ex D3
23 Under cross-examination, the plaintiff gave the following evidence:
(a)despite deposing to the fact that he struggled “academically,” in fact, he had completed first year at university. In the second year, he suffered from various illnesses, including mumps and measles and also injured his right index finger in an accident. He was unable to recall whether or not he finished any subjects in his second year. He agreed that he passed all of his subjects in the first year of university.[79] He said that he went back to his third year of university “under the duress of my parents”;[80]
[79]Transcript (“T”) 24-25
[80]T26, L27-28
(b)he maintained that his inability to complete his university course “goes back to my academic ability, not my medical conditions”;[81]
[81]T27, L18-19
(c)he said that the longest job he has ever had was as a stevedore for Qube Ports Melbourne. He started there in 2010 and finished in 2017.[82] He agreed that at Qube Ports he had suffered an injury to his left shoulder in 2014, and had also suffered a hernia, which required surgical repair.[83] He agreed that during this time he had also suffered from psychological issues requiring the prescription of anti-depressants. In relation to his depression, he said that “I think that's probably more of a life thing than relating to Qube as such”;[84]
[82]T28, L6-8
[83]T28, L15-26
[84]T28, L29-30
(d)he said that when he made his affidavit in April 2018 in relation to this serious injury application, he conferred, prior to swearing the affidavit with a barrister. He agreed that he had to instruct someone about all of the information that was in that document so that it could be typed up and then sworn;[85]
[85]T32, L2-23
(e)he agreed that in terms of preparation of the various affidavits, he had been asked for a detailed summary of how his injuries had affected him. He agreed that this was in relation to either the left shoulder or the spinal injuries. He agreed that he had done his best to give details of every way that each of those injuries had affected him. He agreed that he was given a second chance to give an accurate account of the consequences of his spinal injuries when he swore a further affidavit this year;[86]
[86]T78, L9-26
(f)he agreed that on 16 April 2018, he had sworn two affidavits, one to do with his left shoulder and one to do with his spinal injuries.[87] He acknowledged that the opening paragraph of the affidavit he had sworn in respect of his left shoulder injury was identical to the affidavit he had sworn in this proceeding.[88] He agreed that the injury at work had nothing to do with the transport accident. He agreed that when he swore the affidavit in this matter on 16 April 2018, he understood the purpose of swearing that affidavit, namely to allow the Court to determine whether or not he had a “serious injury.”[89] He agreed that he was aware that in relation to the claim for his left shoulder injury, the Court may have had to determine whether or not he had a “serious injury” in relation to that injury.[90] He agreed that in April 2018, when he swore the affidavit in relation to the workplace injury in the claim against Qube Ports, he had a very serious problem with his left shoulder;[91]
[87]T34, L12-15
[88]T32-34
[89]T34, L18-29
[90]T35, L3-7
[91]T35, L3-13
(g)he confirmed that prior to the transport accident, he had not suffered from any significant condition of the lower back or neck. He said that in order for him to seek some medical assistance for a back condition it “would have to be pretty bad”;[92]
[92]T36, L21-22
(h)it was put to the plaintiff that he had in fact sought attention at The Alfred Hospital for lower back pain in 2007 and 2009. He said that he was unable to recall those attendances;[93]
[93]T37, L4-5
(i)he said that he did not think that the pain that he experienced in his neck and lower back following the transport accident was “an immediate effect,” but “I think very shortly after the accident I noticed that I had pain in my neck and my back”;[94]
[94]T37, L18-19
(j)he said that when the ambulance attended, he was “put in a neck brace, put on a stretcher and put in the back of the ambulance and taken to hospital…”;[95]
[95]T37, L24-26
(k)it was suggested to the plaintiff that in a rear-end collision, rather than being thrown forward into the steering wheel he would have been thrown back in his seat. The plaintiff maintained that he lost consciousness as a result of the accident;[96]
[96]T38, L9-15
(l)it was put to the plaintiff that The Alfred Hospital had recorded in their notes that the plaintiff had been hit by a “very slow-moving vehicle”. It was put to the plaintiff that The Alfred had obtained that information from the plaintiff when he attended at the hospital. To this proposition, the plaintiff replied: “Well, I don't think it was a very slow-moving car”;[97]
[97]T39, L2-3
(m)when the plaintiff was asked how much damage was done to his vehicle, he replied “It wrote my vehicle off. It damaged the rear of the vehicle … The boot lid wouldn't close and it had pushed in the bar which has the latch on it. So I think that's what was the main basis for it to be written off”;[98]
[98]T39, L4-9
(n)the plaintiff was shown a photograph of the damage to his vehicle[99] following the motor vehicle accident. He agreed that the photo showing a minimally impacted rear bumper bar, accurately depicted the damage to his vehicle.[100] He agreed that a further photograph depicted the damage to the taxi[101] that had collided with the back of his car. He did not agree that the photograph demonstrated the full extent of the damage to the taxi, “I don't mean to be pedantic, but I don't know what other damage was done to the front of the taxi. From this photo obviously it demonstrates the damage to the number plate”;[102]
[99]Ex D2
[100]T39, L10-25
[101]Ex D2
[102]T40, L14-17
(o)the plaintiff was shown the record of The Alfred Hospital, which recorded that:
“‘[t]he patient was a seatbelted driver of a stationary car when hit from behind at low speed by another car … Other car driver reported was approximately half a car length behind the patient's [car] also stationary when foot came off the brake and moved forward at slow speed striking plaintiff's car in the rear.’”[103]
[103]T40, L27 – T41, L2
In response to this version of events, the plaintiff said that this was “Mr Benson's[104] version of the accident, which I find comical…”.[105]
[104]Mr Benson was the driver of the taxi which hit the plaintiff’s car
[105]T41, L3-4
(p)he agreed that myotherapist, Mr John Leggett, had also treated him for his left shoulder workplace injury;[106]
[106]T42, L16-25
(q)in terms of treatment for his spine, he agreed that his appointment with Mr Paul D’Urso, neurosurgeon, was a medico-legal appointment and that he had not seen Mr D’Urso before 18 March 2019. He also agreed that he had not seen Mr Gary Speck, orthopaedic surgeon, until April 2019;[107]
[107]T43-44
(r)he agreed that he had made a claim for total and permanent disability (“TPD”) under the insurance aspects of his maritime superannuation policy in respect of his left shoulder injury. It was suggested to him that when he made that claim, he was of the view that he was totally and permanently disabled for employment because of the left shoulder injury. His response to that proposition was “the policy relates to the unlikely event that I will return to the previous employment.” He said that he did not have lawyers acting for him in relation to that claim, but had the “assistance of a friend”;[108]
[108]T46, L7-30
(s) he said that the TPD claim has been resolved and that he received a lump sum payment in respect of it “a couple of years ago”. He said that this was separate to the worker’s compensation claim he had also brought in relation to that injury. He said that he believed the figure that he was paid out was “in the vicinity of $150,000, including the balance of my superannuation”;[109]
[109]T47, L11-12
(t)he agreed the claim for TPD was in relation only to his shoulder and not in relation to his back;[110]
[110]T49, L4-7
(u)he agreed that he had also participated in a workshop run through the Van Tharp Institute, in London in 2017;[111]
[111]T50-51
(v)he said that this lifestyle “crashed” because of the injury to his left shoulder;[112]
[112]T56, L18-19
(w)he agreed that as a result of his injury to his left shoulder he was put on a “return-to-work program,” but that he did not go back to any work with Qube after the operation on his left shoulder in July 2015;[113]
[113]T57, L6-13
(x)he agreed that in addition to the pain and restrictions caused by his left shoulder condition, he also got headaches due to muscle tension in his left shoulder. Those headaches, which he described as “migraines”, were relieved somewhat by the myotherapy treatment. He said that the migraine headaches he experienced, were:
“… focused over my left eye and my left brow, and it was pretty debilitating at the time … I found it difficult to see light. A lot of, you know, bright lights, I found the most comfortable place was to try to lie down and rest and have my eyes covered and take medication. It certainly limited my mobility and ability to do most things.”[114]
[114]T86, L15-21
When asked how long the migraines would last for, he replied: “They would last for the vast majority of a day, Your Honour.”[115] He agreed that the migraines were not caused by the transport accident;[116]
[115]T86, L22-23
[116]T57, L24-30
(y)he said that his sleep was interrupted due to his left shoulder pain and he woke frequently throughout the night. He said that he required regular pain-relief medication as a result of the injury to his left shoulder, including Panadeine Forte;[117]
[117]T57, L14-23
(z)it was put to the plaintiff that when he was being treated at the Epworth Brighton in 2016, it was for his left shoulder injury rather than for any injury sustained in the transport accident. The plaintiff disagreed with this proposition and said “I received treatment for … all injuries relating to both accidents”;[118]
[118]T58-59
(aa)he confirmed that he had developed abdominal symptoms, partly as a result of the prolonged use of anti-inflammatory medication. He agreed that this anti-inflammatory medication was for his left shoulder condition;[119]
[119]T59, L14-15
(bb)he confirmed that all of the restrictions and consequences to which he had deposed in the affidavit which was sworn in support of the claim against Qube Ports, were accurate at that time;[120]
[120]T60, L2-14
(cc)he agreed that the medication he was taking in 2018 was for both his left shoulder and spinal injuries;[121]
[121]T60-61
(dd)he agreed that in his affidavit supporting the claim against Qube, he had sworn to the fact that his left shoulder condition prevented him from performing heavy manual work of the type required of a stevedore.[122] He agreed that in the same affidavit, he had deposed to the fact that he did not believe he had the skills to work in an office environment, that he is not suited to “indoor work.” He agreed that whether or not he could sit for long periods, it was his shoulder that was stopping him from doing his usual work. He also acknowledged that he is not suited to office work in any event, because of his inability to concentrate and his academic inability;[123]
[122]T61-62
[123]T62, L9-19
(ee)he said that he is still taking Escitalopram for his depression and remains on Panadol Osteo to this day;[124]
[124]T62, L28-31
(ff)he acknowledged that in the affidavit supporting his claim against Qube, he had included a paragraph which was identical to one in the affidavit in support of this claim, stating that he goes to his friend’s bike shop once a week to “clean a bike or two” and help him out. He agreed that he had included that paragraph in the affidavit supporting his claim against Qube, as it was an account of the consequences of his left shoulder injury;[125]
[125]T64, L13-14
(gg)when asked when he had settled the case in relation to his left shoulder injury, he replied “With worker's compensation? In December 2018.”[126] The plaintiff said that evidence of the improvement in his shoulder condition since April 2018 would be included in the notes of his treating general practitioner, Dr Greg Kuriata;[127]
[126]T65, L27-28
[127]T65, L25-26
(hh)the plaintiff agreed that he had now had two payouts in relation to his left shoulder injury. He said that the payout in respect of the common law claim was about $100,000;[128]
[128]T67, L11-26
(ii)he agreed that up until the settlement of the common law claim in relation to his left shoulder injury, his “shoulder problems were continuing unabated as described in [his] affidavit of April 2018”;[129]
[129]T67-68
(jj)he agreed that all of the activities he had enjoyed participating in, such as mountain bike riding, swimming, hiking, driving, activities on the farm and a general outdoor lifestyle, came to an end because of his shoulder injury: “Yes”;[130]
[130]T69, L25-31; T70-71
(kk)he agreed that even as at today, some of the medication he takes can be referable to his left shoulder, such as when he has a “heavy osteo session [and] the shoulder may flare up, in which case I take medication for that. At other times my back needs it”;[131]
[131]T69, L8-11
(ll)he said that the improvement in his shoulder condition between December 2018 and April 2019 did not come as a surprise “I was more relieved”;[132]
[132]T71, L22
(mm)under close questioning about the course of improvement of his left shoulder injury, he said that he had started seeing an improvement since the second surgery, which was in May 2016.[133] He agreed that in the affidavit which he swore in the case against Qube, there was “not a hint” that his shoulder was getting better in April last year. He agreed that the affidavit was:
[133]T73, 23
“… a tale of woe … you have got … some bowel bleeding etcetera from medication, you can't sleep … You can't do this; you had to go down and spend a little bit of time once a week with your friend at the bike shop because of your shoulder; woken up during the night time after time; you have to get up and do some exercise to ease your shoulder pain. There's nothing about improvement?” – “No”.[134]
[134]T74, L8-27
When asked why that had not been included in this affidavit, the plaintiff replied: “No reason. No reason for the lack of acknowledgement”;[135]
[135]T74, L28-29
(nn)he agreed that the consequences of his left shoulder injury were a “major contributor to the breakdown of the relationship with [his former partner]”;[136]
[136]T77, L9-10
(oo)he was asked, having regard to the consequences of his left shoulder injury to now tell the Court what consequences were actually related to his spinal injury, he replied:
“General things such as going to the movies … I find extremely difficult because I can't sit in a seat for the length of a film. I find it difficult to go out and have dinners. I used to watch a lot of live music in St Kilda … That's very difficult to do because of that necessity to sit and stand and being in constant pain as a result of the back injury, which is separate from the shoulder.”[137]
[137]T77-78
He agreed that none of those matters had been deposed to in any of his affidavits;[138]
[138]T78, L9-26
(pp)the plaintiff was taken to a note made by Dr Robyn Hunter, who had treated the plaintiff for his left shoulder. It was put to him that the note indicated that he had told her “‘He had a motor vehicle accident on 9 February '16. He was stopped at a traffic light and was rear-ended by a taxi on his way home from rehabilitation at Epworth Brighton. There was no head strike or loss of consciousness.” He was asked, in relation to this entry, whether he had any idea where Dr Hunter would have gotten that information from. To this he replied “[n]o, I do not”;[139]
[139]T84, L10-17
(qq)it was put to him that Dr Hunter had also recorded “‘[h]e was seen at the Alfred Hospital … and had an MRI of the neck and lumbar spine, which was NAD.’” When this note was put to him and he was asked if it was correct, his answer was “If that’s the opinion of the Alfred, yes.”[140] He agreed that the fact of the matter was that he attended The Alfred after the motor vehicle accident and was sent home on the same day. He agreed that he was given the simple advice that if he had any further troubles, to see his local general practitioner;[141]
[140]T84-85
[141]T85, L13-26
(rr)he said that in relation to the injuries suffered in the transport accident, the only surgeon he has been referred to was Mr Speck, orthopaedic surgeon;[142]
[142]T87, L16-27
(ss)the plaintiff agreed that WorkCover is still paying his medical expenses in respect of his left shoulder;[143]
[143]T90, L24-26
(tt)when asked about the difference in the pain on each side of his neck, the plaintiff gave the following answer:
“The right side of my neck the discomfort has improved or decreased … whereas the pain associated with my left neck was a sharp shooting, stabbing pain ranging down to a dull pain, and it was a constant that went for a number of years …”;[144]
The plaintiff confirmed that the pain in the left side of his neck was related to his left shoulder injury;[145]
(uu)the plaintiff agreed that he was able to drive his car away from the scene of the accident.[146] He agreed that following the accident the car drove “perfectly.” He agreed that all of the lights at the rear, and the indicators and other safety features on the car still worked;[147]
(vv)he said that he took the car to three panel beaters “In fairly quick succession because I couldn't close the boot … I couldn't drive it on the road… The boot wouldn't close.”[148] When it was put to the plaintiff that the boot did not “pop open” in the accident, the plaintiff agreed that this was true. Contrary to his earlier evidence, he went on to say “[s]o it would occasionally pop open … I thought it was too dangerous to drive … So I didn't drive it”;[149]
(ww)the plaintiff gave varying accounts of what happened to his vehicle following the accident. He agreed that the taxi company had asked him to obtain three quotes, which he did. He said that they were “running him around…not answering phone calls, not answering emails … I was unable to get a definitive answer.”[150] He said that the panel beaters had told him that the car was “not worth fixing,” so he just accepted $100 for the car. He was unable to explain why he did not press the taxi company to repair his vehicle;[151]
(xx)the plaintiff agreed that when he went to see his general practitioner in November 2018, the results of a repeat MRI scan of his lumbosacral spine which had been performed in October 2018, failed to show any evidence of compression of his L5 nerve root. It was also noted by his general practitioner at that time that his “foot drop” had improved since June of that year and was “only subtle” at that point in time. It was noted by the general practitioner that this condition was not affecting the plaintiff’s gait. The plaintiff agreed that all of these matters were accurately reported by Dr Kuriata at that time.[152]
[144]T92, L24-30
[145]T92, L31
[146]T94, L24-26
[147]T99, L1-18
[148]T94, L28 – T95, L3
[149]T95, L4-9
[150]T98, L2-7
[151]T95-98
[152]T95-101
Medical evidence
24 There were numerous medical reports contained in the tendered material.
25 Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
Pre-accident presentation
26 In a report dated 10 March 2016, Dr Robyn Hunter, Rehabilitation Physician noted in relation to the plaintiff’s left shoulder injury:
“… He had a left shoulder AC joint excision in July 2015…He has persistent restriction of left shoulder range of movement with flexion to 80 [degrees], abduction to 60 [degrees] and external rotation to 20 [degrees] … .”[153]
[153]Ex P1, p32
27 In an undated report,[154], Mr Jimmy Watson, myotherapist, commented in relation to the plaintiff’s left shoulder injury:
“(B) Shoulder pain, which occurs with excess movement is sharp and throbbing. Occurring consistently with varying levels of discomfort. He finds it extremely hard to sleep which increases his sensitivity to pain and state of mind…
(C)When James started [he] was in considerable pain and unable to…move his shoulder without pain. His range of motion both passive and active were poor…[Treatment has] given some mild and temporary relief. His muscles are now contracted and the intensity of pain has been [reduced], however, simple movements can illicit severe and debilitating pain. He has had to on many occasions see his GP for some very strong medication for pain, this has impacted his digestive system and [he] often complains about toilet issues…”[155]
[154]which was said by the counsel for the plaintiff to be dated 29 March 2017
[155]Ex P1, p35
28 In a report dated 5 February 2018, the plaintiff’s GP, Dr Kuriata, provided the following opinion in relation to the plaintiffs’ left shoulder injury:
“The abovenamed has suffered a L shoulder injury at work in February 2014. This has been treated with subacromial decompression surgery. In July 2015 and again [in] 2016 by Eugene Ek and musculoskeletal physician Stuart Down. He underwent rehabilitation at Epworth Brighton with Dr Robyn Hunter. He unfortunately continues to have ongoing pain in his L shoulder which limits his L arm movements considerably.
He has treatment comprising myotherapy and hydrotherapy and dry needling and home based exercises using exercise bands and floor work.
He still has pain and disability which limits his employment potential…”[156]
[156]Ex P1, p39
29 Mr John Leggett, Myotherapist, commented in a report which was undated:[157]
“…He had presented with minimal movement and pain of his Left shoulder in all ranges, Headaches on all cervical movement, rotation, extension and flexion in particular, I’m led to believe that his shoulder had been operated on multiple times…In Mr Biggins previous field of employment, I believe that he would currently not be able to take on employment due to the heavy nature of labour that he’d previously undertaken. Current pain levels and bowel functionality may also be preventing [him] from doing so due to not being able to be in the one place without needing constant trips to the toilet…”[158]
[157]but was said by counsel to be 7 June 2017
[158]Ex P1, p41
30 In a report dated 15 October 2018, Mr Nicholas McEniry, osteopath, opined:
“…I believe James will always have issues surrounding his shoulder as a result [of] his injury and subsequent surgeries to the area. As to the full extent of his shoulder disability I would say it was unlikely that he will return to his previous line of work…James as he currently is, is incapable [of returning] to his former work as he does not have the appropriate range of motion or strength in his left shoulder to allow a return to work in his previous capacity. This injury also prevents him from wearing the appropriate footwear necessary to conduct his previous employment…”[159]
[159]Ex P1, p43
31 Associate Professor Eugene Ek, orthopaedic hand and upper limb surgeon, said of his treatment of the plaintiff’s left should problems:
“… The last time I reviewed Mr Biggins was in July 2016, and he was progressing along reasonably well and his range of motion was improving. At that time he had not yet returned to work and was not in a position to do so…Mr Biggins prognosis is good as long as his shoulder capsulitis resolves. His shoulder is structurally sound…”[160]
[160]Ex P1, p256
Current presentation
The Plaintiff’s medical evidence
32 The plaintiff was also seen by Dr Hunter in relation to the injuries sustained in the transport accident. In a report dated 10 March 2016, Dr Hunter made the following observation:
“… He was stopped at a traffic light and was rear-ended by a taxi on his way home from Epworth Brighton. There was no head strike or loss of consciousness. He had mild concussive symptoms for 2 weeks with reduced short-term memory, planning, headaches and dizziness. These have resolved. He was taken to The Alfred hospital and had an MRI of neck and lumbar spine.
He has right neck pain over his trapezius. The pain is worse on movement, particularly lateral flexion and flexion. He premorbidly had left neck pain secondary to his shoulder surgery but this localised to the right. He has also developed left-sided low back pain radiating down his left leg with marked restriction of forward flexion.
Prior to the motor vehicle accident, he was walking up to 40 minutes a day but he is now only walking 10 minutes twice a day. He is currently taking Panadeine Forte 2-4 a day…”[161]
[161]Ex P1, p32
33 Mr Wilson also commented on the consequences of the transport accident, viz:
“… Back pain from car accident 9th Feb 2016 is also aggravated by excessive load [bearing exercise]. Atrophy is present in lower lumber [area] and gluteal area. He is able to…do Hydro therapy , which he finds gives him temporary relief…
Back injury prevents him from extending through [lumbar] area and thus [he] had become weak and unable at this point to safely and comfortably move around day to day. His muscles consistently contract to protect which cause pain in the sacral area of the lower back . This also prevents James from sleeping and although consistently trying to move his body in hydro therapy, the results are short lived and pain returns…”[162]
(sic)
[162]Ex P1, p35
34 Three reports which address the consequences of the transport accident were provided by the plaintiff’s treating GP, Dr Kuriata. In his second report dated 5 February 2018, Dr Kuriata makes the following observations in relation to the consequences of the motor vehicle accident:
“… he suffered a motor vehicle accident on 9th February 2016. This resulted in a low back injury. He was evaluated by Dr Santamaria at the Alfred ED at the time. [CT] scans at the time were performed which did not show significant injury. [MRI] performed one year later showed a small L5 S1 disc protrusion with foraminal narrowing which is in keeping with his pain. He has had treatment at Epworth Brighton for his low back in concert with his workcover injury.
He continues to suffer low back pain which limits his ability to work and also impacts his ability to walk …
His injuries have reached a plateau where only gradual recovery over years is to be expected.”[163]
(sic)
[163]Ex P1, p39
35 Mr Leggett said in relation to the plaintiff’s spine injury:
“… [he] also presented with a sore and stiff lower back which had developed after an incident where he had a car drive into his own from behind and exacerbated his already debilitating situation that he was suffering from…[he was suffering from] lumbar back pain which referred into his lower limbs … .”[164]
[164]Ex P1, p41
36 Mr McEniry said in relation to the plaintiff’s back injury:
“… His lower back I feel shows more likelihood of returning to normal activity. This is limited at the moment due to James inability to wear proper footwear as he is unable to put normal shoes on with his shoulder injury. This [results] in increased pronation in James feet and more load into his low back … .”[165]
[165]Ex P1, p42
37 Mr Gary Speck, an orthopaedic surgeon specialising in spinal disorders, expressed the following opinion in relation to the plaintiff’s spinal injury in a report dated 16 May 2019:
“The initial soft tissue injury to his back and neck has resolved in the regions other than his low back. It is likely that he had a small discoligamentous injury in his lumbar spine at the time of the transport accident.
His current situation is one where he has predominantly a chronic pain syndrome with no evidence of radiculopathy or nerve compression or irritation on physical examination or on his most recent imaging … .”[166]
[166]Ex P1, p54
38 In a report dated 21 November 2017, Mr Rodney Simm, orthopaedic surgeon, thought that the plaintiff was suffering from “painful cervical spine dysfunction with non-uniform restriction of movement, but without radiculopathy. The cervical symptoms are less problematic than the lumbar symptoms … His persistent lumbar back pain and referred left buttock and thigh pain may relate to an unresolved aggravation of the [earlier] L5/S1 lumber disc degeneration with left-sided paracentral/foraminal disc protrusion … .”[167]
[167]Ex P1, p64
39 Mr Paul D’Urso, neurosurgeon, saw the plaintiff for medico-legal purposes and produced a report dated 22 March 2019. In that report, Mr D’Urso stated:
“It would appear a motor vehicle accident in which James was involved on 9th February 2016 aggravated an underlying lytic spondylolisthesis of the lumbosacral junction with a degree of left L5 nerve root impingement. It is likely that the lytic spondylolisthesis was a pre-existing condition [prior] to the motor vehicle accident…The condition is likely to deteriorate with time, given there is mechanical instability in the lumbosacral junction with evidence of disc and osteophyte complex causing L5 nerve root impingement on the left … .”[168]
[168]Ex P1, p88
40 Mr D’Urso confirmed this opinion in a further report dated 17 July 2019.
The Defendant’s medical reports
41 The defendants relied upon one medico-legal report from Dr John Owen, Orthopaedic surgeon dated 22 May 2019. In that report, Dr Owen expressed the following opinion:
“Mr Biggins has essentially recovered from any sequelae from his head injury or neck injury. He has ongoing problems with his lumbar spine. There are inconsistencies in his presentation…I suspect that these…are illness behaviour signs…I am sure the persistence of pain in his back is not related to any mechanical problem in his lumbar spine but more to the development of a chronic pain state…”[169]
[169]Ex D1, p9
The issues
The Plaintiff’s credit
42 The plaintiff’s credit was tested thoroughly during the hearing of this matter.
43 As set out above, questions were put to the plaintiff during cross examination that suggested that he had been less than open and honest with the Court in relation to his current presentation and the severity of the consequences of his pre-existing left shoulder injury, especially as that related to restrictions on his activities of daily living, ability to sleep, experience of pain and work capacity.
44 Further, the plaintiff was pressed about numerous issues to do with his account of the severity of the transport accident and the nature of the injuries that he suffered as a result. He was cross examined on the content of what he had told various treating doctors about the circumstances of the accident, including whether it was a forceful accident and whether he actually suffered a closed head injury. In addition, the plaintiff was cross examined about the nature of the courses that he had undertaken with the Van Tharp Institute.
45 A startling example of the plaintiff’s willingness to mislead the Court in relation to the consequences of the injuries he sustained in the transport accident, lies in the content of the affidavit marked as Exhibit D3 in this matter.
46 As referred to above, this affidavit was sworn on the same date as the first affidavit in this case, but concerns the consequences of the workplace injury to his left shoulder.[170] When pressed under cross examination about the content of Exhibit D3 versus the content of his affidavit in relation to the consequences of the transport accident, the plaintiff acknowledged that nearly every consequence which he had sworn on his oath was referable to the transport accident, was in fact a consequence of the left shoulder accident. Further, the evidence is clear that the plaintiff has had two payouts in respect of his left shoulder injury: the first was a payment for Total and Permanent Disablement under his superannuation policy and the second was a payout in respect of the common law action which he brought against Qube, in which matter the Victorian Workcover Authority accepted the plaintiff’s claim that by reason of his left shoulder injury, he had suffered a “serious injury” which was “permanent” for the purposes of the Accident Compensation Act 1985.
[170]Ex D3
47 Further, the plaintiff gave detailed evidence before this Court about his difficulties with retraining, his practical inability to undertake “office work” and reiterated more than once that his participation in the various workshops and courses run by the Van Tharp institute were not concerned with financial trading. However, it transpires that the plaintiff told Dr Nick Paoletti, Psychiatrist, who recorded in his report dated 3 November 2017, that “he had done courses in private institutions for financial markets, and he is still doing some. He has also just done three workshops in London relating to currency trading…”[171] Dr Paoletti continued: “…When asked questions on his emotional state, Mr Biggins reported … I am okay at the moment, because I have the focus of that course.”[172] Dr Paoletti concluded: “he has been doing courses, hoping to find work in the financial sector …”.[173]
[171]Ex P1, p74
[172]Ex P1, p77
[173]Ex P1, p83
48 In addition to these matters, it is clear from the evidence that while the plaintiff now claims that he suffered from a loss of consciousness in the transport accident. However, it is equally clear that immediately following the transport accident and later, in consultation with his treaters, he gave an account of the accident in which he suffered no head strike at all. He claimed not to know where these medical professionals had obtained this information from. There could only be one source, and that was the plaintiff himself.
49 Finally, the plaintiff sought to maintain throughout this hearing that the transport accident was a “forceful” collision in which his car was “written off.” It transpires from the history taken by police and at the hospital immediately following the accident, that the circumstances of the accident involved the driver of the taxi, having been stationary, accidentally letting his foot slip off the brake and rolling into the back of the plaintiff’s car. While the plaintiff continued to deny this account of events, labelling them “comical,” there was no getting away from the photographic evidence of the damage to each vehicle, which showed only minor damage to the rear bumper of the plaintiff’s car and to the front number plate of the taxi.
50 The plaintiff took issue with whether the photo of the taxi accurately depicted the damage that it sustained in the collision, however I note that in the police report of the incident, the damage to the taxi is reported to be “minor.”[174] The plaintiff conceded during cross examination that his car drove “perfectly” after the accident. He said that it sustained damage to the mechanism which secures the boot of the car. He was unable to explain why he did not follow up on having the taxi company repair this damage. It transpires that his characterisation of the vehicle being “written off,” arises because he voluntarily accepted the sum of $100 for the vehicle to be towed away.
[174]Ex P1, p21
51 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an unreliable witness who gave unsatisfactory and inconsistent evidence, carefully designed to advance his case. It became clear during the course of the hearing, that the plaintiff was only prepared to make concessions about factual matters adverse to his case, if confronted with documents which recorded what he had said previously about those matters. On some occasions, even when confronted with these documents, he was not prepared to make a concession. The authors of these documents were not required to attend for cross examination. Where the plaintiff’s version of events differs from that recorded by the police and various medical professionals following the transport accident, I prefer the evidence contained in those documents
52 On this basis, I formed the view that I would not be prepared to accept the plaintiff’s account of events, unless a particular matter was corroborated by documentary evidence or an account of a third party.
Compensable injury
53 The details and occurrence of the accident are not in dispute.
54 Having considered all of the medical evidence from both treating professional and medico-legal experts from both sides, the weight of the evidence satisfies me that as a result of the transport accident, the plaintiff presently suffers from an injury to his lumbar spine, which is substantially organic in nature.
Is the compensable injury permanent for the purposes of the Act?
55 Having considered the relevant reports, in particular from Dr Kuriata,[175] Mr Speck,[176] Mr Simm,[177] and Mr D’Urso,[178] I find that the plaintiff is likely to continue to suffer from the consequences of this injury for the foreseeable future. Given this, I find that the injury to the lumbar spine is permanent for the purposes of the Act.
[175]Ex P1, p 45-46
[176]Ex P1, p 55
[177]Ex P1, p 65
[178]Ex P1, p 88
Are the consequences to the plaintiff of the transport accident “serious”?
56 Having had regard to all of the relevant evidence, I find that prior to the transport accident, the plaintiff suffered from the following consequences of a left shoulder injury which he sustained when he worked with Qube:
(a) constant left shoulder pain and difficulty moving his left arm behind his back and above his shoulder;
(b) interrupted sleep;
(c) the need to perform shoulder exercise during the night to relieve his left shoulder pain;
(d) the need to take frequent strong analgesic medication. As at April 2018, he was “trying” to limit the number of tablets he took to 2-4 per day;
(e) the onset of serious gastrointestinal issues as a result of prolonged use of medication. This issue was so problematic that it has been cited by several doctors and as being a reason why a return to work would be difficult for the plaintiff;
(f) difficulties with all aspects of his activities of daily living, including shopping, housework, cooking and cleaning;
(g) the inability to engage in outdoor pursuits that he used to love, such as mountain bike riding, swimming, hiking, driving, activities on the farm and his general outdoor lifestyle;
(h) the onset of migraine headaches, which had improved as a result of treatment he was receiving;
(i) the breakdown of his relationship with his partner;
(j) an inability to return to his previous job as a stevedore or to work in that industry in any capacity.
57 I am also satisfied on the basis of the medical evidence, that the plaintiff suffered from a psychiatric illness in the form of longstanding depression which required treatment with anti-depressants.
58 I have excluded the consequences set out above from my assessment of the consequences which the plaintiff experiences as a result of the injury to his lumbar spine in the transport accident.
Consequences of the injury to the lumbar spine
59 Having considered all of the evidence, I find that as a result of the injury to his lumbar spine alone, the plaintiff suffers from the following consequences:
(a) the need to take some medication from time to time;
(b) some interrupted sleep, although I am unable to be satisfied as to how often this occurs or what impact it has on the plaintiff;
(c) some limitation in participating in social activities that involve prolonged sitting or standing, such as going to the movies, going out for dinner, or going to see a live band;
(d) the probability of some pain in his lumbar spine, though I am unable to be satisfied as to the degree of such pain. I note that to the extent that the plaintiff’s treaters comment on this matter, they are wholly reliant on the plaintiff’s account of his symptoms. I also note that the most recent report in this matter, provided in May 2019 by Dr John Owen, observed that he found inconsistent findings on physical examination of the plaintiff’s lumbar spine restrictions. Dr Owen also raised the possibility that the plaintiff was engaging in “illness behaviour” and may not have been demonstrating his full physical capacity on that occasion.
60 In Haden Engineering Pty Ltd v McKinnon,[179] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[180] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement.
[179](2010) 31 VR 1
[180]Supra at paragraph [9]
61 The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[181]
[181]Supra at paragraph [12]
62 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was not a reliable witness.
63 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life were already severely adversely affected by the consequences of the injury to his left shoulder, which he suffered in the workplace accident at Qube. The plaintiff now asserts that the consequences of the left shoulder injury have abated and the operative cause of his current restrictions is the injury he sustained in the transport accident. I am unable to be satisfied of the truth of this evidence.
64 Taking into account all of the evidence, and on the basis of the findings I have made as to the restrictions from which the plaintiff presently suffers as a result of the lumbar spine injury alone, I am unable to be satisfied to the requisite standard that the pain and suffering consequences of this injury alone, are “very considerable” or more than “significant” or “marked.” Therefore, I am not persuaded that the plaintiff has satisfied the relevant test for “serious injury” as set out in the Act.
Conclusion
65 The application is refused.
66 I will hear the parties on the question of costs.
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