Broom v Transport Accident Commission
[2023] VCC 1117
•10 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04134
| SHELDON BROOM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2023 | |
DATE OF JUDGMENT: | 10 August 2023 | |
CASE MAY BE CITED AS: | Broom v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1117 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraphs (a) of the definition of “serious injury” – function of the spine
Legislation Cited: Transport Accident Act 1986 (Vic), s93(4)(d)
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Petkovski v Galletti [1994] 1 VR 436; Mobilio v Balliotis & Anor [1998] 3 VR 833; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission & Anor v Dennis [1998] 1 VR 702; Sutton v Laminex Group Pty Limited [2011] VSCA 52; Abbas v Transport Accident Commission [2015] VSCA 217; Hooley v Transport Accident Commission [2019] VSCA 263; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring a proceeding at common law under subparagraph (a)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick with Ms A Smietanka | Gordon Legal |
| For the Defendant | Mr A Moulds KC with Ms A Bannon | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1The plaintiff, Sheldon Broom, was in a transport accident on 5 March 2019 when a stationary truck he was a passenger in, was hit from behind by a truck travelling on the Westgate freeway.
2He claims he has a serious injury and makes an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (Vic) (“the Act”).
3The serious injury he claims relates to sub-paragraph (a), a serious long-term impairment or loss of a body function, namely the function of the spine, being the neck and low back, and loss of pecuniary advantage. The injuries were summarised as an aggravation of degenerative changes or soft tissue injuries in the neck.[1]
[1] Transcript (‘T”) 1
4The onus of proof is on the plaintiff and the test is on the balance of probabilities. In Humphries and Anor v Poljak,[2] the question whether an injury is a serious injury, considers, when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as at least “very considerable” and certainly more than “significant” or “marked”?
[2][1992] 2 VR 129 at 140
5In addition to pain and suffering consequences, the plaintiff’s pecuniary disadvantage claim is that his full-time employment as an electrician is now restricted in terms of the types of work he can do, and further, his injury has diminished his ability to work in his own business.
6Counsel for the defendant submitted the plaintiff does not have an identified injury and further, the injury does not meet the serious injury threshold for sub-paragraph (a).
7The plaintiff gave evidence and was cross-examined. He provided two affidavits in support of his application, dated 3 June 2022 (first affidavit) and 22 May 2023 (second affidavit). His wife, son, daughter and work colleague and friend also swore affidavits. I take into account all the tendered material, the evidence on oath and the submissions.
8The plaintiff is fifty-five years old, he is married, and lives with his wife and their 28-year-old daughter.
The accident and treatment
9On 5 March 2019 the plaintiff was a passenger in a truck driven by his son, Marc. At 6.30am whilst stationary on the freeway, they were hit from behind by another truck estimated to be travelling at approximately 80 kilometres per hour and pushed into the car in front.[3]
[3] Plaintiff’s Court Book (“PCB”) 47
10In his first affidavit, the plaintiff stated he had a very bad headache and soreness in his lower back and neck.[4]
[4]PCB 5
11The plaintiff was taken to the Alfred Hospital where it was noted:
“…back of head hit the cabin. Felt sharp in the lower back. Pt also states neck pain afterwards”.[5]
[5] PCB 46
12The Alfred Hospital reported the plaintiff’s CT scans taken that day showed no abnormality and noted:
“The patient’s principal diagnosis was back pain. He was kept for a period of observation. This being satisfactory he was discharged home. He was to remain off work for a period of time. He was advised to receive physiotherapy.”[6]
[6] PCB 48
13On 11 March 2019, the plaintiff attended his general practitioner, Dr Saini at Gladstone Park Super Clinic. Dr Saini diagnosed the plaintiff with whiplash.[7] The plaintiff had a week off work following the transport accident.
[7] PCB 6
Is there an injury?
Radiology
14The MRI of the cervical spine dated 18 January 2020 reported, “Degenerative changes seen with nerve root impingement throughout as described, but worse on the right.”[8] The impingements noted were: narrowing impingement of both C4 nerve roots, mildly impinging right C5 nerve root deforming left, definite impingement of right C6 nerve root and contact on left, mildly impinging right C7 nerve root, annular bulging of C7/T1, and deformation of the exiting C8 nerve root.
[8] PCB 43
15The second MRI of the cervical spine report dated 7 February 2022 reported:
“Mild cervical spondylosis with disc disease at a few levels, as described above. The canal narrowing is most prominent at C5/6 level where there is a mild cord indentation without any obvious myelomalacia or cord oedema. Mild narrowing of bilateral C3/4 foramina is seen. There is a low possibility of impingement of bilateral exiting C4 nerve roots.”[9]
[9] PCB 44
16The defendant’s counsel relied on the radiology reports, submitting the second MRI report demonstrates some improvement from the first MRI report, as well as Dr Terence Saxby’s report to submit the plaintiff’s injury was a temporary exacerbation of normal degeneration.
17The plaintiff’s counsel submitted Mr Garry Grossbard and Dr Ales Aliashkevich are to be preferred, in that there has been an aggravation and it is still a cause of the plaintiff’s neck and lower back condition.
Medical reports
Joint medico-legal report
18In orthopaedic surgeon, Mr Grossbard’s report prepared for both parties dated 18 October 2021, he clinically examined the plaintiff and viewed the MRI scan from 18 January 2020. In his opinion,
“Mr Broom suffered multiple soft tissue injuries particularly to the cervical and lumbar spines as a result of the motor vehicle incident on 5 March 2019. He has persistent neck symptoms with associated dysmetria but no evidence of radiculopathy. His lumbar spine symptoms have also persisted but are less troublesome unless he undertakes bending and lifting activity which he has managed to avoid to some extent, thus minimising the acute exacerbations of pain.”[10]
[10] PCB 60
19Mr Grossbard prepared a second report dated 21 February 2023 for the plaintiff. His opinion was unchanged. In his opinion the plaintiff “has suffered soft tissue injuries to his cervical and lumbar spines because of the motor vehicle incident of 5 March 2019. The major ongoing issue relates to the cervical spine where there is restricted motion and dysmetria.”[11]
[11] PCB 63
Plaintiff’s medico-legal report
20Dr Aliashkevich, neurosurgeon and spine surgeon, prepared a report for the plaintiff dated 29 July 2022. He diagnosed the plaintiff with chronic neck and right dominant shoulder pain, chronic lower back pain, intermittent right dominant leg pain, intermittent hand tingling, protracted whiplash associated disorder, aggravated multilevel spondylosis, C5/6 spinal canal stenosis, bilateral C3/4 foraminal narrowing, chronic L4/5 facet arthropathy and history of a motor vehicle accident on 5 March 2019.[12] Dr Aliashkevich considered the traffic incident materially contributed factors to the exacerbation of pre-existing degenerative cervical and lumbosacral spine conditions to a greater degree than minimal. He also agreed with Mr Grossbard’s opinion in his 18 October 2021 report, quoted above.[13]
[12]PCB 81
[13]PCB 82
Defendant’s medico-legal report
21Dr Saxby, orthopaedic surgeon, prepared a report dated 24 January 2023 for the defendant. Dr Saxby examined the plaintiff and whilst he had access to documentation, it does not appear he had access to the second MRI scan. In his opinion he stated:
“An MRI scan of his cervical spine performed on 17 January 2020 confirmed widespread degenerative change rather than traumatic injury which is more consistent with cervical spondylosis or degenerative change in the spine rather than any traumatic injury.”[14]
[14] Defendant’s Court Book (“DCB”) 9
22In respect of diagnosis, Dr Saxby concluded, “In my opinion, it is more probable than not that Mr Broom’s current conditions, that being his cervical spondylosis and his lumbar spondylosis, are attributable to the natural progression of underlying degenerative conditions.”[15] He further opined that “the history of injury on 5 March 2019 appeared to be one that would have caused a temporary aggravation of these underlying conditions and it would have materially contributed at the time of the injury but over time in my opinion this transport accident contribution would have resolved…”.[16]
[15]DCB 10
[16] DCB 10
Submissions
23The defendant’s counsel criticised Mr Grossbard’s report as he did not review the second MRI scan. He also questioned Dr Aliashkevich for reviewing the first and second MRI scans but not offering an opinion about the radiology. Defence counsel queried the substance of the nerve root impingement when there are multiple soft tissue injuries with no radiculopathy.
24The plaintiff’s case is that the injuries concern an aggravation of degenerative changes or soft tissue injuries in the neck. Plaintiff’s counsel noted Dr Saxby does not refer to the speed of impact namely that the truck was travelling at 80 kilometres per hour. He criticised Dr Saxby’s opinion the transport accident caused a temporary aggravation, and it would have materially contributed at the time of the injury “but over time in my opinion this transport accident contribution would have resolved,”[17] stating this fails to account for the fact the plaintiff had no significant problems in his neck or low back prior to the transport accident.
[17] DCB 10
25I take into account the force of the impact on the plaintiff’s vehicle by a truck travelling 80 kilometres per hour and the plaintiff’s evidence that he hit the back of his head.[18] It appears Mr Grossbard had access to the plaintiff’s first MRI scan, but not the second. In his report Dr Aliashkevich refers to both the first and the second MRI, and his diagnoses includes chronic neck and chronic lower back pain as well as aggravated multi-level spondylosis. I do not accept defendant’s counsel submission, from the bar table, that the second MRI showed an improvement in the plaintiff’s condition in the absence of a medical opinion to that effect. Dr Saxby does not refer to viewing the second MRI, nor does he note the speed of the truck which hit the plaintiff’s vehicle. I note the first MRI scan refers to multiple points of varying degrees of nerve root impingement. The circumstances are such that the plaintiff’s onset of neck pain and to a lesser extent his back pain coincided with the high-speed transport accident and have not subsided since. I prefer the opinions of Mr Grossbard and Dr Aliashkevich, and together with the evidence of the circumstances of the transport accident, that the plaintiff has an organic injury to his neck and lumbar spine, namely multiple soft tissue injuries or an aggravation of degenerative changes injuries to the spine, being the neck and lower back.
[18] PCB 5
Prior medical issues
26In his first affidavit, the plaintiff acknowledged, as his work as an electrician can be physical, he has had lower back pain in the past.[19]
[19] PCB 5
27He noted he had some lower back issues at times, not major, but enough to attend the general practitioner on a couple of occasions. He also attended an osteopath at times before the transport accident. He accepts his general practitioner records note low back pain in 2013 and 2014.[20]
[20] PCB 6
28He stated that he never had any significant issues with his neck at all.[21] In his second affidavit, he referred to clinical notes from Moonee Ponds Osteopathic regarding treatment of his neck on a few occasions prior to the transport accident. He accepted those notes were accurate.[22]
[21] PCB 7
[22] PCB 16
29In cross-examination, the plaintiff was asked about two pages of notes from Glenroy Chiropractic Clinic from 2015. He agreed the notes referred to mid back, neck and neck stiffness as ‘insidious’, and agreed that he has had things “from time to time” noting he had a very labour-intensive job, so it happened from time to time.[23] He agreed he had six attendances between 23 April 2015 to 7 October 2015.
[23] T 9
30He was also referred to five pages of records from the Moonee Ponds Osteopathic Clinic. He agreed he had some treatment in November 2015 including for shoulder problems which had resolved.[24] On 25 June 2018 he again attended the osteopath for tennis elbow. He agreed he also had some treatment to his neck and thoracic spine stating, “That’s right. Just tightness. I had tightness which he loosens up the muscles.”[25] He agreed on 3 December 2018 he had some treatment on his mid thoracic and C6 cervical spine.[26]
[24] T 10
[25] T 12
[26] T 12
31The defendant’s counsel disputed the plaintiff’s pre-transport accident osteopathic treatment as “just for little niggly things”, as the plaintiff’s evidence was, he only sees the osteopath when things get bad.
32With respect to the plaintiff’s pre-accident osteopathic and chiropractic treatment, plaintiff’s counsel submitted over the years he has had a physical job and had aches and pains, and nothing turns on the fact he had treatment prior to the transport accident, likening it to maintenance. The plaintiff’s evidence is that he never had any significant neck injury before the transport accident.
33I note his treatment at the osteopath prior to the transport accident is sporadic and there is no evidence the plaintiff was not able to complete his employment duties. The plaintiff’s history of the pain started with the transport accident and has never gone away.
34There was no disentanglement submission raised by the defendant’s counsel. There is no pre-accident diagnosis or prognosis and no evidence of pre-existing injury or condition other than the plaintiff’s intermittent attendances at an osteopath and chiropractor. I accept the plaintiff had some grumbling aches and pains and the treatment he had was maintenance only, supported by the plaintiff’s evidence the treatment helped relax his muscles.
Credit
35I accept the plaintiff was a credible witness. His credit was not in issue. He was straightforward in his evidence and did not seek to embellish.
Evidence of the consequences of injury
36I take into account the methodology in Haden Engineering Pty Ltd v McKinnon[27] for evaluating the “pain and suffering” consequences and turn to consider the plaintiff’s experience of the pain and the disabling effects of the pain.
Experience of pain
[27][2010] VSCA 69
Plaintiff’s report
37The plaintiff relied on his affidavits and was cross-examined, and the affidavits by his wife, son, daughter and work colleague and friend, Charlie Caruana.
38In his first affidavit, the plaintiff described his neck as his major problem:
“I have neck pain every single day. There is always some level of aching at least. Lack of movement is an issue. When I turned my head up and down and side to side to the end range it is very painful. Sometimes I have to do it.”[28]
[28] PCB 7
39In his first affidavit, the plaintiff noted since the transport accident in general he feels sore and less active after a normal day’s work, which is something that never use to affect him.[29]
[29]PCB 9
40The plaintiff noted he has better days and bad days, some are shockers.[30]
[30] PCB 10
41In his evidence he stated, “I’ve been struggling at work, it just causes a lot of pain.”[31] He described himself as “pretty spent” after a day at work and his neck as usually “pretty sore”.[32]
[31] T 50
[32]T 50
42The plaintiff considered his neck remains his major problem and his symptoms and consequences had remained much the same since his first affidavit.[33]
[33] PCB 12
43In his wife, Susan Broom’s affidavit, she stated the plaintiff has been easily grumpy and irritable since the transport accident and although the plaintiff isn’t a big talker, he does say his behaviour is because of neck pain or that he is not feeling good.[34]
[34] PCB 22
Medical evidence about pain
44In his report dated 26 March 2023, the plaintiff’s treating osteopath, Mr Paul Langley noted in his prognosis and opinion, the plaintiff “continues to suffer from neck and back pain of varying degrees with fluctuations in intensity.” Further, “He often has very painful episodes which include restriction of movement and there is no particular pattern for when this occurs.”[35]
[35] PCB 52
45Craig Harrison, Accredited Exercise Physiologist prepared a report dated 5 June 2023. From 1 October 2020 the plaintiff attended seven sessions. Mr Harrison noted the plaintiff complained of difficulty in completing overhead tasks at work, was no longer riding his motorbike due to pain, his work tasks were aggravated by his condition, he has poor quality sleep and would often wake with pain, numbness and pins and needles.[36]
[36] PCB 54
46In Mr Grossbard‘s first report dated 18 October 2021, he states the plaintiff describes “pain at the base of his neck. This is intermittent but present most of the time. He describes it as a dull pain, worse with movement but particularly when looking up and elevating his arms.”[37] He also has the pain when he rotates his neck to its extremes in either direction. The first report states the plaintiff described the low back pain as ongoing and intermittent. The second report notes the pain is at the back of the plaintiff’s neck and at the base of his neck posteriorly. It is worse looking up or looking to the right. He finds extremes of motion in each direction painful. He has occasional hand paraesthesia in the mornings which resolves within about five minutes.[38] The second report states there is constant mild low back pain.[39]
[37] PCB 59
[38]PCB 62
[39]PCB 63
47In his report dated 29 July 2022, Dr Aliashkevich stated the plaintiff complained about pain in his neck, shoulders, right worse than left, lower back and legs to knee level, right worse than left intermittent.[40] He noted “Sheldon scores pain intensity as 5 – 6/10 on a good day and 8 – 9/10 on a bad day which he felt in his neck. The neck pain is worse at excessive or above shoulder movements. It is better when taking hot showers, resting and having osteopathy. Sheldon takes no pain or anti-inflammatory medication.”[41] The plaintiff also noted pins and needles in his arms and hands. He noted plaintiff’s prognosis was guarded as he has suffered from chronic neck and back pain over many years.
[40]PCB 73
[41] PCB 74
48In his report, Dr Saxby noted the plaintiff’s main complaint is ongoing pain and stiffness in his cervical spine and has difficulty performing overhead activities. His neck pain causes sleep disturbance. He has trouble with work that requires overhead lifting and moving objects. The plaintiff also complained of paraesthesia in his left hand which is intermittent. The plaintiff has intermittent back pain and stiffness in his lumbar spine.[42]
[42] DCB 7
Treatment
49In his first affidavit, the plaintiff noted osteopathy can help when the pain is really bad.[43] He sees the osteopath when he really needs it, and his general practitioner has given him a care plan.[44]
[43]PCB 7
[44]PCB 10
50He noted at the end of each working day, he can’t wait to have a hot shower to help his neck.[45]
[45]PCB 10
51The plaintiff stated he doesn’t like taking painkilling medication, he would only have had six Panadol in his life, as he would rather put up with the pain.[46]
[46]PCB 10
52The plaintiff noted he treated his back with the utmost care and the same applies to his neck.[47]
[47]PCB 11
53In his second affidavit, that plaintiff noted he continues to see his general practitioner and osteopath when his pain is really bad.[48]
[48]PCB 12
54In cross-examination, the plaintiff stated he did not like taking Panadol,[49] he had tried exercise physiology which he found aggravated his injury and he “found that the osteo would relieve like the muscles and that that was causing problems.”[50]
[49]T 12
[50] T 13
55In cross-examination, the plaintiff agreed he had seen the osteopath five times in 2019 after the transport accident.[51] In 2020, he saw the osteopath six times from January to November. In 2021 he saw the osteopath twice in April and July and three times in 2022. In 2023 he attended on 16 February, twice in May and once in early June.[52]
The disabling effect of pain
[51]T 13
[52] T 14
Work
56The plaintiff is an A grade electrician currently employed with Anova Electrical where he has worked for the past 10 years. In his first affidavit the plaintiff noted that as a result of his neck and lower back problems since the transport accident he has changed a lot of his tasks at work, now doing “switchboard fit offs”. However, before the accident he did a lot of underground works and overhead cable pulling.[53] He now finds the overhead work the hardest and does not do much of this due to his neck.[54]
[53]PCB 6
[54]PCB 6
57The plaintiff stated he has always enjoyed his work as an electrician however a lot of the work is now too physical for him. He stated he has kept working because his wages are “what my wife and I rely on to live, and because I have a set up where I can ask apprentices for help.”[55] He stated, “I’m worried I won’t last as long in the industry as I would have unless I can get a different job. I’ve never done anything different, so I am anxious about the prospect of that.”[56]
[55] PCB 14
[56]PCB 11
58In his second affidavit, the plaintiff noted whilst he has continued to work, he has struggled. He confirmed this in his evidence. At work, he self manages his restrictions and speaks to the foreman or supervisor each shift and asks apprentices to do the more physical tasks. The plaintiff noted he has a set up where he can ask apprentices for help, “I would not be so lucky in the open workforce. It would be difficult for me to get a job.”[57]
[57] PCB 14
59The plaintiff does not believe he has the ability to work unrestricted as an electrician because of the transport accident.
60In cross-examination, he stated he worked full-time and worked one Saturday a month on overtime rates.[58] He did shift work during 2021, but has not done this since.
[58]T 17-18
61The plaintiff noted that prior to the transport accident, he intended to work until the legal retirement age however now is considering taking a redundancy in the future if it is offered.[59]
[59] PCB 14
62In cross-examination, the plaintiff stated soon after his transport accident an email was sent to all staff at Anova Electrical for expressions of interest in redundancies. He was not interested at the time.[60]
[60] T 27
63The plaintiff’s son Marc Broom, who also works at Anova Electrical stated since the transport accident the plaintiff has struggled with work physically. He noted he struggled with certain tasks and work because of his neck and that he generally has the apprentices help him do certain work such as jobs involving heavy lifting or overhead work.[61]
[61] PCB 18
64In addition to his employment with Anova Electrical, the plaintiff also has his own electrical company, Sheldon Electrics which has a few customers. In his first affidavit he stated, “I really don’t do much through it anymore.”[62]
[62] PCB 6
65In his second affidavit, the plaintiff noted whilst working at Anova Electrical he did jobs on the side for his company Sheldon Electrics. He noted that whilst he hadn’t personally drawn income for a number of years as after expenses the company operated at a loss, he did earn income and he kept the company open with the intention of having the ability to earn income additional to his wages. He also stated “Since the transport accident I have had reduced ability to do jobs on the side and the company’s income has continued to reduce.”[63]
[63] PCB 15
66In cross-examination, the plaintiff stated he charged $85 per hour when he worked for Sheldon Electrics.[64] He also has subcontractors.
[64] T 21
67Marc Broom’s evidence was that since the transport accident the plaintiff has not been able to do much work with Sheldon Electrics.[65] Work colleague and friend, Charlie Caruana’s evidence was, prior to the transport accident the plaintiff did about 12 hours of work for him a week, however since the transport accident the hours he has worked have significantly reduced and the work he does is restricted.[66]
[65] PCB 19
[66] PCB 28
Motorbike riding
68The plaintiff stated that his major passion is motorcycle riding. He started riding as an eight-year-old, loves motorbikes and loves working on them too.
69The plaintiff has three road bikes and a dirt bike.
70Since the transport accident he has been limited in his ability to ride a sports bike because the posture requires him to lean forward and tilt his head back which increases his pain. He rarely rides his sports bike and is now selling it. He used to ride the sports bike to work every day if he was working in Melbourne as it was easier for parking in the city. Sometimes he still does ride his motorbike to work although it is uncomfortable, it is very convenient.[67]
[67] PCB 8-9
71The plaintiff has an adventure bike, which he has not ridden much either.
72In the past, the plaintiff stated he used to do 500 km to 600 km rides in a day up to the high country. If the weather was nice, he would go with a group of friends. It was his main hobby. Now, he doesn’t take long trips on his bike on the weekend due to his neck. He doesn’t ride more than 100 kms.[68]
[68] PCB 9
73The plaintiff states he is no longer able to do the work on his bikes and takes them to the shop to be fixed.
74In his second affidavit, the plaintiff noted he still owns his sports bike but is limited in his ability to ride it because of his neck pain. He has now purchased another bike which allows him to ride in a more upright position and he rides this bike to job sites in the CBD.[69]
[69] PCB 13
75He still has not been able to get back to long trips on the bike or off-road motorcycle riding. He misses the feeling of being out and about on the road and the freedom of it.
Fishing and shooting
76The plaintiff used to enjoy taking his boat out and went fishing on a regular basis. In his first affidavit he noted since this transport accident he has only been out in his boat two or three times, as he finds it hard to take it out on his own and sitting for long periods.[70]
[70] PCB 9
77The plaintiff and his son used to enjoy shooting. They would take a trip up to central New South Wales each year and hunt vermin. He stated he would not be able to tolerate the lengthy car trip because of his neck pain.[71] Whilst his first affidavit states he has not tried shooting his gun, but that, “I don’t know how that would go, probably okay”,[72] he corrected this in cross-examination that it was incorrect and said he would not be able to tolerate the jolt from the gun’s calibre.[73]
[71] PCB 9
[72] PCB 9-10
[73] T 40-41
78In his second affidavit, the plaintiff confirmed he has not been able to get back to hunting.
79In his second affidavit, he noted he had attended an annual family trip to the Murray River for a fishing competition. Although he had won the competition previously, he was unsuccessful this year. He noted although he used to take his boat up throughout the year, he has not returned to fishing in the bay.
Road trips
80In his first affidavit, the plaintiff noted he and his wife loved to get away for a weekend and would take a road trip.[74] In his second affidavit, he noted he and his wife drove to Beechworth over Christmas but had to stop because of his neck. Pre-accident, he would do the drive in one go.[75]
[74] PCB 10
[75] PCB 13
Gardening
81In his first affidavit, the plaintiff stated he still does some gardening and gets some enjoyment out of that.[76] Susan Broom notes the plaintiff gardens less than he used to and says it is harder for him to do things particularly over a longer period.[77] Courtney Broom noted her father was a keen gardener before the transport accident. He still does some gardening, but not as frequently and as a result the front yard is not as tidy as it once was.[78]
[76] PCB 10
[77] PCB 23
[78] PCB 26
Personal
82The plaintiff states his sex life has been significantly impacted which he finds very difficult to cope with.[79]
[79] PCB 9
83The plaintiff describes his sleeping in his first affidavit as “shocking”. He states he gets no more than four hours sleep a night because of the discomfort in his neck and gets pins and needles in his left arm.[80] Susan Broom noted he used to be a good sleeper before the transport accident, but now notices he is restless and wakes up and says it is from neck pain.[81]
[80] PCB 10
[81] PCB 22
84In his second affidavit, the plaintiff noted his injury has impacted on his ability to be the active grandfather that he hoped to be. He is less active with his six-year-old grandson because of the injury sustained in the transport accident.[82] Susan Broom noted he is less active and patient than he used to be with his grandson.[83]
[82] PCB 13
[83] PCB 22
85In his second affidavit, the plaintiff also notes he is regularly grumpy and irritable as well as being frustrated easily.[84] This is also confirmed by Susan Broom,[85] and the plaintiff’s daughter Courtney Broom.[86]
[84] PCB 13
[85] PCB 22
[86] PCB 25
86The plaintiff stated he puts all his energy into working so he is “pretty spent” by the evening and spends a lot of time watching TV after work. He used to be more active but now he doesn’t have the energy.[87] Susan Broom notes before the accident the plaintiff was active after work. Now, he regularly comes home from work and naps or lies down.[88]
[87] PCB 14
[88] PCB 22
Evidence about long-term nature of consequences
87Mr Grossbard in his first report dated 18 October 2021, stated he regarded the plaintiff’s present situation as stable and unlikely to change significantly in the foreseeable future. He did not believe surgical intervention was appropriate and suggested the plaintiff persist with ongoing conservative treatment. He also opined “clearly this man’s ability to undertake full activities as an electrician will be compromised”.[89] In his second report dated 21 February 2023, Mr Grossbard maintained his opinion, but further noted he anticipates “episodes of increased neck or back pain intermittently in the years to come”.[90]
[89]PCB 61
[90]PCB 63
88Dr Aliashkevich, in his report dated 29 July 2022, explained the plaintiff’s prognosis as guarded, noting the plaintiff has suffered from chronic neck and back pain over many years and has only experienced partial relief from previous treatment. Further, he stated, “I am uncertain whether he will achieve full functional recovery in the reasonably foreseeable future” and went on to say:
“With the chronic character of your client's symptoms, his reduced tolerance of exercises and overweight, he is likely to further decondition his muscles, spine, and joints. It may lead to a deterioration of his condition with the progression of degenerative spinal change. It may also have a deteriorating impact on his working, social, domestic, and recreational life...”.[91]
[91]PCB 82
Are the pain and suffering consequences ‘very considerable’?
89The loss of body function relied upon in this application is the spine, being predominantly the neck and also low back, summarised as an aggravation of degenerative changes or soft tissue injuries in the neck.[92] The aggravation injury itself must meet the serious injury test.[93] The neck was essentially asymptomatic prior to the transport accident and the plaintiff had chiropractic and osteopathic treatment for his low back for muscle tightness.
[92] T 1
[93] Petkovski v Galletti [1994] 1 VR 436
90Whether the plaintiff’s injury is “serious” depends upon the consequences of the injury in respect of pain and suffering, in combination with pecuniary disadvantage and whether the consequences are at least “very considerable” and certainly more than “significant” or “marked”.
91The consequences of the injury must be serious to the particular plaintiff, and the question to be asked is: “Can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[94]
[94]See Humphries and Anor v Poljak [1992] 2 VR 129 at 140. Also see Mobilio v Balliotis & Anor [1998] 3 VR 833
Defendant’s submissions
92The defendant’s counsel submitted the consequences for the plaintiff workwise has been limited. He is able to continue his lifelong occupation and earn the same money he was earning before the transport accident. The loss of work opportunity with the private company, Sheldon Electrics, is not established, as the business activity is very similar since the transport accident as it was before. The evidence in respect of the plaintiff taking a redundancy is also minimal and the plaintiff has not demonstrated anything other than a speculative pecuniary disadvantage for the purposes of assessing the consequences of his injury.
93The defendant’s counsel noted the plaintiff does not take any painkilling medication, which is relevant to assessing his pain and suffering.
94The defendant’s counsel referred to Sabo v George Weston Foods [2009] VSCA 242 (“Sabo”). In that case, the Court of Appeal accepted the pain and suffering consequences for the appellant were significant. Counsel also quoted Justice Calloway in Transport Accident Commission & Anor v Dennis [1998] 1 VR 702 that “many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable”.[95] Defendant’s counsel noted permanent consequences do not equal ‘very considerable’ simply because they are permanent. He further noted the Court in Sabo states, the fact that plaintiff is able to keep working does not affect or gainsay the proposition that he can still have a pain and suffering serious consequence.[96]
[95]Transport Accident Commission & Anor v Dennis [1998] 1 VR 702 at 703
[96] T 75
95The defendant’s counsel also referred to the Court of Appeal’s decision in Sutton v Laminex Group Pty Limited,[97] and the reference at paragraph [50] to President Maxwell who stated:
“Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s: sleep; mobility; cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication); capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life; and enjoyment of life. Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[98]
[97][2011] VSCA 52
[98]Sutton v Laminex Group Pty Limited [2011] VSCA 52 citing Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [16].
96In this case counsel for the defendant submitted, putting aside capacity for work and what he says about sleep, the plaintiff’s mobility and cognitive function were unaffected, as his capacity for self-care and self-management whilst there is some evidence of difficulties performing household and family duties, it is submitted these are not significant difficulties. Although recreational activities are affected, the defendant submitted they were partly affected as the plaintiff is still able to ride motorbikes in a more comfortable position, is able to attend camping activities every quarter or thereabouts, he goes to the river every year and undertakes a fishing competition and although he has not been able to continue fishing, he still uses his boat on the river. There is no evidence of restricted social activities, and he states his sexual life is affected but his wife does not depose to it.
97The defendant submitted the plaintiff is having intermittent osteopathic treatment and is taking no medication. He is able to work earning $150,000 per year. He also submitted stoicism is one thing, but that this plaintiff in terms of functionality is able to do those things which constitute essentially a working life, with his employment and his business, and a recreational life which is entirely satisfactory. He is able to do this without medication and not much treatment. Whilst significant, the consequences do not meet the test of being ‘very considerable’.
Plaintiff’s submissions
98The plaintiff’s counsel submitted the pain and suffering consequences and pecuniary loss are both relevant to the one question. In terms of the plaintiff’s pain and restriction, the plaintiff’s affidavit was supported by his wife, son and daughter’s affidavits with respect to the plaintiff’s description of pain in his neck and lower back.
99In terms of pecuniary disadvantage, the plaintiff’s evidence is also supported by the evidence of his son, Marc, in terms of work he struggles with parts of the work as an electrician. In addition, Mr Grossbard noted:
“I believe the situation is stable and unlikely to change significantly in the foreseeable future. I would anticipate episodes of increased neck or back pain intermittently in the years to come. I believe the situation should be managed conservatively.
This man who is now 55 years of age will be able to continue working providing he can continue allocating the heavier tasks. There may be episodes of increased discomfort in which Mr Broom may need to cease work for short periods of time.
Whilst Mr Broom can remain at work the situation is moderately precarious with respect to the expectation of recurrences of back pain, particularly after increased activity or further injury.”[99]
[99] PCB 64
100Counsel for the plaintiff submitted the plaintiff is vulnerable, should there be a change in circumstances of his employer. He has lost the flexibility to perform what would be expected of a person of his role in the open market. There are questions over his longevity, sustainability and flexibility should he lose his job.
101Further, the plaintiff has given evidence he is not doing the same amount of work for his company Sheldon Electrics since he has been injured. Although it is not easy to quantify, the plaintiff’s evidence is he was using his rostered days off to do the work and he is doing significantly less of it. The affidavit of Mr Caruana supported the plaintiff’s evidence.
102In support, Counsel for the plaintiff referred to the Court of Appeal case of Abbas v Transport Accident Commission [2015] VSCA 217 at paragraph [37]
“…a pecuniary disadvantage is not to be overlooked, in applications of this kind, merely because what would be assessable as the loss of earning capacity over the applicant’s life, is not presently productive of actual loss of income at the time of the application. The fact that there may be no actual pecuniary loss to the time of the application does not mean that a loss that may occur in the future, by reason of the relevant injury limiting an applicant’s capacity for certain jobs, should not be properly considered as a relevant pecuniary disadvantage. To dismiss the issue of pecuniary disadvantage by reference to the fact that the applicant’s income has increased in each year between 2010 and 2012, was to disregard the totality of the applicant circumstances…”.
103The Court of Appeal also found that injuries that have caused a loss of flexibility in the workforce satisfies the description ‘pecuniary disadvantage’.[100]
[100] Abbas v Transport Accident Commission [2015] VSCA 217 at paragraph [36]
104The plaintiff’s counsel also referred to the Court of Appeal case of Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [49] which noted that the applicant’s return to work and pre-accident interests, and his commitment to getting on with his life, told against him on the issue of seriousness. The Court of Appeal quoted Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[101] that:
“…it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[101] [2008] VSCA 260 [3].
105In terms of medication, plaintiff’s counsel submitted the plaintiff was clear in his evidence, which was not challenged, for his whole life he has not taken medication. This is his choice, and this should not disentitle him to a serious injury certificate.
Analysis
106The plaintiff’s credit was not in issue. I accept his evidence with respect to the pain and suffering consequences and the impact on his employment and company, Sheldon Electrics.
107There are two points in respect of the plaintiff’s pecuniary disadvantage. Firstly, although the plaintiff still works full-time as an electrician, it is in a restricted capacity, whereby his supervisor or foreman is aware of his limitations, so he is assigned non-overhead work and the apprentices take the heavier roles. Although he has been employed at the same employer for the past 10 years, I accept he now has reduced flexibility in terms of future employment because although he has current restrictions which are accommodated by his current employer, this may not always be the case. His evidence about his restrictions at work is supported by his evidence, and the evidence of his son, Marc who works for the same employer. The plaintiff’s evidence was he struggles at work each day and would consider taking a redundancy if one were on offer.
108Secondly, I accept the evidence supports the plaintiff is doing less work for his company Sheldon Electrics than he was prior to transport accident.
109I take the principles from Abbas v Transport Accident Commission [2015] VSCA 217 into account and note whilst the plaintiff has no actual loss in terms of his wages, and the reduced income from Sheldon Electrics appears to be minimal, this does not mean there is no loss of earning capacity or pecuniary loss over his lifetime.
110I take into account the plaintiff has to work to support himself and his wife, and he has restrictions in his employment to accommodate his pain symptoms. I note he continues to experience constant but variable pain in his neck. This is relevant evidence, and the defendant cannot rely on the plaintiff returning to work in a modified sense as evidence against a conclusion the pain and suffering consequences are serious.[102]
[102]See Sutton v Laminex Group Pty Limited [2011] VSCA 52 at paragraph [79]
111The plaintiff’s pecuniary disadvantage comprises loss of future security for employment in the open market given his current workplace restrictions, and a reduced capacity to do work for his own company by working on his rostered days off at Sheldon Electrics, thus reducing his potential future income.
112I accept the plaintiff’s evidence he has neck pain every single day. He describes some level of aching at least and lack of movement as an issue. When he turns his head up and down and side to side the end range, it is very painful.[103] This means he cannot do overhead work that involves looking up or having his arms above his head. Consistent with this, Mr Grossbard notes the plaintiff has dull pain in his neck, worse with movement, particularly when looking up and elevating his arms.[104] Dr Aliashkevich notes the plaintiff’s pain intensity score for his neck as 5 to 6/10 on a good day, 8 to 9/10 on a bad day. He also notes the neck pain is worse at excessive or above shoulder movements.[105]
[103] PCB 7
[104] PCB 59
[105] PCB 74
113The plaintiff’s treatment for his neck pain is minimal; he sees his general practitioner and he has intermittent osteopathy therapy when the pain is really bad, although I note he takes a hot shower at the end of every working day to help his neck. He does not take painkilling medication as he prefers not to take medication. Dr Aliashkevich and Mr Grossbard agree that surgical intervention is not appropriate, and the plaintiff should persist with ongoing conservative treatment.
114The plaintiff has a reduced capacity to indulge in his passion for motorbike riding. While he cannot ride a sports bike because of the posture, he has purchased another bike that allows him to ride in a more upright position which he rides to the CBD. In evidence, he stated he can take a longer ride every couple of months which is a loop around Tullamarine airport which is under 100 km.[106] Although the plaintiff is not able to go motorbike riding in the way he used to, he is still able to ride his bike.
[106] T 34
115The plaintiff has not been able to go shooting since the transport accident and he does not go fishing as regularly as he used to. However, he attends an annual fishing trip to the Murray River for a fishing competition and has taken his boat out two or three times. Although he is not able to go fishing to the extent that he used to, in the bay, he is still able to engage in this pastime. He has not been able to go shooting with his son at all since the transport accident.
116He previously loved going on road trips and has not been able to do so, however he did go to Beechworth with his wife over Christmas although he had to take a break in the driving. The plaintiff has been able to take a road trip albeit he now has to break up the driving.
117The plaintiff can still ride his motorbike, he can still go fishing, he can still take a road trip albeit all of these activities are more restricted or limited than they were prior to the transport accident.
118The plaintiff’s sleep has been affected, he states he gets no more than four hours sleep a night and his wife notices he is restless and wakes up from the neck pain.
119Although the plaintiff states his sex life has been significantly impacted which he states is very difficult for him, this loss has not prompted him to take medication for his neck or back pain.
120The plaintiff is no longer as active as he was around the house, for example he can only do a bit of gardening, and he is not as active with his grandchild as he hoped to be. His demeanour is grumpy and irritable, he is easily frustrated and his energy is spent from work. After work he frequently takes a nap or lies down. It is unknown whether any of these consequences, including his disrupted sleep, would be ameliorated to any degree if the plaintiff was taking medication for the pain. These consequences are significant.
121In assessing the extent to which the plaintiff’s pain interferes with his ordinary activities of life, his sleep is disrupted, his performance of household and family duties is curtailed, some recreational activities such as motor bike riding, fishing and car trips are affected to a degree and he is not able to go shooting, as well as that his sexual life and his enjoyment of life have been affected. In addition, the plaintiff is in constant pain from his neck, pain which ranges in intensity from 5 to 6/10 on a good day and 8 to 9/10 on a bad day. Pain is exacerbated when the plaintiff moves his head up and down or side to side.
122Dr Grossbard is of the opinion his present situation is stable and unlikely to change significantly in the foreseeable future. I accept his injury is long term.
123I take into account the pain and suffering consequences and pecuniary disadvantage for the plaintiff under sub-paragraph (a). The pain and suffering consequences are more than significant and have impacted the plaintiff in a very considerable way, and the evidence supports that they are likely to remain so at least for the foreseeable future. When combined with his pecuniary disadvantage, detailed above, (although working full-time, his restricted employment is significant in terms of his future prospects for retaining employment, as well as his ability to earn money from his own company), I am satisfied from the whole of the evidence, the combined consequences of the injury are serious to the applicant when judged by comparison with other cases in the range of possible impairments and losses, and are at least “very considerable” and certainly more than “significant” or “marked”.
124The onus of proof is on the plaintiff and the plaintiff discharges his burden on the balance of probabilities.
125Leave is granted to the plaintiff to commence common law proceedings under sub-paragraph (a) for injuries suffered in the transport accident on 5 March 2019.
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