Caldarera v Transport Accident Commission
[2013] VCC 1888
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01995
| GIANNI CALDARERA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 15, 18 and 19 November 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
CASE MAY BE CITED AS: | Caldarera v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1888 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Transport accident – serious injury – consequences of injury – physical injuries to neck and shoulder – Chronic Pain Syndrome – depressive illness – whether the consequences of the plaintiff’s injury were, when compared with other cases in the range of possible impairments or losses, fairly described as “at least very considerable”.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79
Judgment: Leave to the plaintiff pursuant to s93(4)(d) of the Transport Accident Act 1986, to bring a proceeding to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 4 February 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr J Philbrick SC with Ms R Boyce | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 On or about 4 February 2008, Gianni Caldarera was the driver of a motor vehicle which was struck by another at an intersection in Nunawading (“the collision”). He alleges that as a consequence of the collision, he has suffered injuries to his neck and right shoulder together with a psychiatric or psychological disorder.
2 He seeks the leave of the Court to issue a proceeding to recover damages in respect of injuries suffered by him in the collision.
3 His right to do so is governed by the provisions of s93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Caldarera must satisfy the Court that he has suffered a “serious injury”.[1]
[1]Section 93(6) of the Act
4 The term “serious injury” is defined in s93(17) of the Act, insofar as is relevant to this application, as:
(a)serious long-term impairment or loss of a body function; or…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder.
5 For the purposes of part (a) of the definition, the body functions the subject of this application are that of the neck and right shoulder.
6 In order to succeed in his application, Mr Caldarera must satisfy the Court that the consequences of his physical injury and/or non-physical injury are “serious”. In order that an injury be considered to be “serious”:
(a)the consequences of the injury must be serious to the particular applicant;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering;
(c)the question to be asked is whether the injury, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as very considerable and more than merely significant or marked.[2]
[2] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
7 Mr Caldarera alleges that the consequences of his physical and non-physical injuries satisfy the threshold test as being “at least very considerable”.
8 In relation to the physical injuries alleged by Mr Caldarera, the defendant concedes that the plaintiff did suffer soft-tissue injuries in the collision but denies that the consequences of them are at least very considerable.
9 In relation to the non-physical injuries, the defendant concedes that Mr Caldarera is currently suffering from a mental condition which would satisfy part (c) of the definition of “serious injury” in s93(17) of the Act. However, it submits that Mr Caldarera suffered from such a condition before the collision and that any exacerbation of that condition resulting from the collision is relatively minor and does not satisfy the threshold test.
Background
10 Mr Caldarera is aged fifty-six. He was born in Italy and came to Australia in 1979 when aged 22.
11 In Italy, he had completed a diploma as a draughtsman. After coming to Australia, he qualified as a chef, and for more than twenty years worked in that occupation.
12 He married soon after arriving in Australia. He has two adult children.
13 Because of the nature of the submissions made by the parties, it is necessary for me to go into some detail concerning events in Mr Caldarera’s life prior to the collision.
14 In about 1991, Mr Caldarera experienced problems with impotence and saw a psychiatrist, Dr John Douglas, who identified depressive symptoms and prescribed anti-depressant medication.[3] He did not see Mr Caldarera after 1991.
[3]Defendant’s Court Book (“DCB”) 132-5
15 In about 2001, Mr Caldarera’s son, then aged eighteen, was the driver of a motor vehicle involved in a car accident in which two persons suffered fatal injuries. His son was subsequently charged with two counts of culpable driving. Court proceedings relating to those offences were drawn out. In early 2003, his son pleaded guilty to those two counts and was initially sentenced to a term of imprisonment of four years. The Director of Public Prosecutions appealed, submitting that the sentences were inappropriately lenient. In September 2003, the Court of Appeal upheld that appeal and increased the sentence to a term of imprisonment of seven years, with a minimum term of three years and eight months. In 2006, his son was released from prison but was required to undergo a further period of six months’ home imprisonment. At this time, Mr Caldarera’s son returned to live in the family home.
16 These events concerning his son were distressing for Mr Caldarera. Relations with his wife became strained. At the time of the offences, it appears that Mr Caldarera had been spending considerable time travelling away from home. He stated, and I accept, that to a degree both he and his wife blamed each other for the problems that their son encountered.
17 Although the evidence is not clear, it appears that Mr Caldarera had some treatment for depression during the early 2000s and had been prescribed Prozac (an anti-depressant). I think it is likely that such treatment related to the stress associated with his son’s legal proceedings. There was no evidence from any medical practitioner who treated him around that time.
18 In 2005, Mr Caldarera underwent surgery for removal of a kidney. This would no doubt have been distressing for him at that time, although there was no evidence pointing to any continuing problems in that regard.
19 Mr Caldarera had worked in a number of restaurants in Melbourne for many years after his arrival in Australia. He also operated his own restaurants.
20 By 2007 (and probably for some time before), Mr Caldarera had been involved in a project developing a type of mobile video camera for use in the security industry. In that context, he was employed by Safecam Pty Ltd (“Safecam”) as technology manager.
21 Mr Caldarera’s evidence was that he had been involved with Safecam for some time, travelling extensively overseas, but receiving no payment from the company until the 2008 financial year.
22 The precise nature of Mr Caldarera’s work with Safecam was not fully explored. As I understood his evidence, he had developed a concept whereby film taken by security cameras at various premises would be instantly transmitted and stored off site. He had entered into an arrangement with Bob Jones, a person involved in the security industry in Victoria, to develop the project. It would seem that the idea for the product was that of Mr Caldarera and that Mr Jones and others were investors in the project.
23 An ASIC search of Safecam indicated that the company was one in which Mr Jones had been involved for some years, and which had changed to its current name in February 2004. At that time, Mr Caldarera’s wife became a director of the company, as did Mr Jones.[4]
[4]DCB 70
24 In addition to his involvement with Safecam, Mr Caldarera continued working as a chef at times until some way through the 2007 financial year. His taxation returns confirmed he was employed as a chef by the Veneto Club in the 2006 financial year and by Leisure Management Pty Ltd in the 2007 financial year.
25 Mr Caldarera travelled overseas frequently in the years leading up to and including 2007 for meetings concerning the project.
26 Entries in his current passport indicated that he had left Australia for China in July 2007 and returned in November of that year. His daughter Vanessa deposed that she had visited him in China for a few weeks in that year whilst he was there on business. She understood he was conducting business meetings with accountants and draughtsmen.[5]
[5]Plaintiff’s Court Book (“PCB”) 10-12
27 I accept that Mr Caldarera was involved, through Safecam, in the development of the project in 2007, and for some years before. It is clear that, by the date of the collision in February 2008, the project had not reached a point where anything had been produced, let alone sold. Although Safecam had paid Mr Caldarera wages for at least some part of the 2008 financial year, there was no evidence that the company had earned income or was trading. Whether the business would have, in time, succeeded and proved profitable, is speculative.
28 In various histories given by him to doctors, Mr Caldarera has suggested that his marriage broke down after the collision and as a consequence of it. I do not accept that this is so. In cross-examination, he conceded that the marriage had been the subject of difficulties for some years before the collision and had finally broken down in November 2007, on his return from China. He conceded that at the time of the collision, he was living at his brother’s home in Rosanna whilst his wife was living in Doncaster. He conceded that they had physically separated about a month before the collision.
29 Mr Caldarera’s evidence was that it had been his decision to leave his wife, and that he had wanted to do so. The history obtained by Mr George Foenander, his treating psychologist, in the months and years that followed the collision, painted a different picture, and I shall return to this later in these reasons.
30 From November 2007, when Mr Caldarera returned from China until the date of the collision his evidence was that he had been working on a full-time basis for Safecam. The company employed or engaged an engineer, Mr Peng, a Malaysian man living in Melbourne. He worked with Mr Caldarera on the project. What duties or tasks Mr Caldarera was actually performing in Melbourne in the months leading up to the collision is not clear. It was accepted by the Victorian WorkCover Authority and by the defendant that, at the time of the collision, he was driving in the course of that employment.
31 Although there was evidence of some depression at times prior to the collision, I am satisfied such depression was relatively minor and intermittent. I am satisfied that he had a capacity to work as a chef had he wished to do so and to perform work associated with the mobile camera project. Insofar as he had any psychiatric or psychological disorder, it was minor.
Aftermath of the collision
32 Following the collision, Mr Caldarera was taken by a friend to the Casualty Department of the Austin Hospital. The hospital notes record a history that Mr Caldarera had hit his head and right shoulder on the driver’s side window when the collision occurred.[6]
[6]PCB 144
33 An x‑ray of the cervical spine and right shoulder was performed that day. No abnormality was found in the right shoulder. Degenerative disc disease was found in the cervical spine predominantly at the C3-4, C4-5 and C5-6 levels but with no evidence of fracture or dislocation.[7]
[7]PCB 90
34 Mr Caldarera visited his general practitioner, Dr Sharma, on 12 and 18 February 2008. The doctor’s clinical notes contain no reference to any problems with his neck or right shoulder, or to the collision or any injuries relating to it or. Those visits related to a cough and bronchitis.[8]
[8]PCB 134
35 On 25 February 2008, Mr Caldarera attended again upon Dr Sharma and on this occasion informed him of neck pain and an injury to his right shoulder which Mr Caldarera attributed to a motor vehicle accident on 4 February 2008. On none of those early visits did Dr Sharma record any symptoms of depression.
36 In the weeks that followed, Mr Caldarera attended at the Austin Hospital for physiotherapy treatment. He ceased this within a few weeks, telling Dr Sharma on 25 March 2008 that the treatment had caused a lump on the back of his head.
37 When seen on 4 April 2008, Dr Sharma took a history that Mr Caldarera had been depressed for about eight weeks. Such period would correspond almost exactly with the date of the accident. Dr Sharma prescribed Lexapro (antidepressant medication). He referred him to Mr George Foenander, a clinical psychologist.
38 Throughout the period from April 2008 to the present time, Mr Caldarera has regularly attended upon Dr Sharma complaining of chronic neck pain and headaches.
39 Attendances upon Mr Foenander have been frequent although there have been gaps. Mr Foenander initially saw Mr Caldarera on some seven occasions between 5 April 2008 and 6 May 2008. Counsel for the defendant submitted that the history taken by Mr Foenander on the first occasion on which he saw Mr Caldarera was important in relation to the onset and cause of his depression. In summary, that history was that:
(a) He had had depression since December 2007 and that it had become worse;
(b) There had been a marital breakdown in November 2007 after thirty years together;
(c) His wife had had an affair when he was overseas recently. She had denied this. Mr Foenander specifically recorded Mr Caldarera as saying – “This caused my breakdown. Only found out last week.”[9]
[9]DCB 98
(d) In the last two years he had been overseas for work involving his own electronic product which was waiting to start production;
(e) He had experienced other tragedies. These included his son being imprisoned;
(d) He had lost money, and was moody according to his wife;
(e) He was currently on worker’s compensation relating to neck, head and shoulder pains from the collision. His pain was slowly decreasing and that the claim had been accepted;
(f) He would like to be back with his wife but she did not want this;
(g) That previously, going back to the time when his son was in trouble, he had taken Prozac but this had made him worse and more aggressive; and
(h) He had plans for an overseas trip to China in June 2008. [10]
[10]DCB 98-9
40 Mr Foenander’s clinical notes for the visits that followed up to and including May 2008 contained numerous references to Mr Caldarera’s relationship with his wife.[11] The essence of that history is that he was having difficulty in discussing things with his wife, that she would not give him time, that she had had a party and not invited him, he was ruminating and worrying all the time and that he was getting no support from his children and no support from anybody else.
[11]PCB 100 – 105
41 I consider it likely that Mr Foenander’s notes accurately record the gist of what Mr Caldarera told him. I consider it likely that he was genuinely upset that his wife had left him and that this was a cause of sadness and some depression for which he was treated.
42 On 28 April 2008, Mr Caldarera told Mr Foenander that he was waiting on a Chinese trip and that he might be away for three months. He also told him that he was sleeping poorly, that using marijuana helped, and that he had a history of back pain.
43 The clinical notes relating to the attendances on 14, 19, 22, 28 April and 5 May 2008 contain no reference to the collision. Mr Foenander appears to have concentrated on the problems that Mr Caldarera was having following the breakdown of his marriage.
44 At some stage later in 2008, Mr Caldarera formed a relationship with a woman named Heather Anderson. It lasted about eight months.[12] Despite splitting, he has remained good friends with her. He described her as his “best friend” now.[13]
[12]Transcript (“T”) 267
[13]T267
45 Some 18 months after the collision Mr Caldarera met and formed a relationship with Amanda Toth, probably around the second half of 2009.[14] The relationship was successful for a time but deteriorated in early 2010.
[14]T254
46 Following 5 May 2008, Mr Caldarera did not consult Mr Foenander again until 23 March 2010, nearly two years later. On that occasion, the history taken was that he had had a new partner (Ms Toth) since December 2008 and the relationship was not going well. He had developed anxiety because he might lose her. He was depressed. The history taken by Mr Foenander included that, for the previous two years, he had been on a self destructive course involving drugs, fighting with people, and attempted overdoses with tablets. He said he had been seeing Dr Sharma during the period but had not told him about his depression because he had good days and bad days. Mr Foenander recorded Mr Caldarera as stating that “This accident has destroyed my life”.[15]
[15]DCB 108
47 On the same date, Mr Caldarera advised Mr Foenander of pending police charges against him relating to possession of drugs and a pistol. Mr Caldarera explained that police had intercepted a car Mr Caldarera was driving and found amphetamines in it. In his evidence, Mr Caldarera denied that the amphetamines were his and suggested that he had been set up.
48 In relation to the pistol, he initially told Mr Foenander that he had found it. He later acknowledged that this was untrue and that he bought it to use to kill himself.[16] In his oral evidence, he said that he had purchased the pistol for $4,500 in order to protect himself.[17] He said he was later advised by police that the pistol was in fact a replica of a Colt 45 and not capable of firing at all.
[16]DCB 113
[17]T263
49 In early 2010, Ms Toth accompanied Mr Caldarera to see a doctor at a clinic in Frankston. He said that he had also seen a psychologist at the same clinic. Neither the doctor nor the psychologist were identified.
50 By July 2010, the relationship problems with Ms Toth continued. Mr Foenander recorded that Mr Caldarera had told him that Ms Toth had complained that he had been aggressive and verbally violent to people. Mr Caldarera conceded that he had smashed a picture frame and punched a door and this was possibly because he had been very angry at Ms Toth’s behaviour. The history given to Mr Foenander was that Ms Toth had complained about him stalking her and he had conceded that he did so one night. In evidence, Mr Caldarera denied that he had ever stalked her or that she had made such a complaint. Notwithstanding, it is clear that in July 2010, Ms Toth obtained an intervention order against Mr Caldarera in respect of his behaviour towards her.[18]
[18]DCB 110
51 In relation to his use of recreational drugs, he told Mr Foenander that he had taken these because of pain and depression.
52 Mr Caldarera was involved in a number of different court proceedings connected with charges of possession of the pistol, trafficking amphetamines, and being in breach of intervention orders taken out against him by Ms Toth.
53 Mr Foenander provided reports for court use in relation to charges against Mr Caldarera in July 2010,[19] November 2010 and again in February 2013.[20] The latter report was prepared in response to charges laid against Mr Caldarera after his separation from Ms Toth and court proceedings relating to an intervention order that she had taken out against him. He had also been charged with driving a motor vehicle whilst his licence was suspended.
[19]DCB 130
[20]DCB 127
54 On 16 November 2010, Mr Foenander obtained and noted a history that:
“Depression caused/causing probs – start from son’s arrest, loss of kidney 7 year, developed tumour, after that went to China. Had two businesses, … lived, worked from China for five to six years after son’s problems, then got hit by a truck.”[21]
[21]DCB 113
55 The reference to being hit by a truck is, I consider, a reference to the collision.
56 Mr Caldarera alleged that in 2011 he made suicide attempts – two by way of overdoses of tablets and one by gassing himself in his car. Surprisingly, none of these alleged attempts were accompanied by an attendance at a hospital or on a doctor.
57 Mr Caldarera did not see Mr Foenander at all in 2011. He resumed seeing him in November 2012, and continues to see him regularly.
58 He resumed his relationship with Ms Toth in about mid-2012. It did not last. In mid-2013, Ms Toth went to the police and took out a further intervention order against Mr Caldarera, alleging verbal abuse by him.[22] In October 2013, Mr Caldarera was arrested for breaching that order.[23] He remained in custody for three weeks before being granted bail. He was upset by this. He is presently still on bail. Those charges are to be heard in the New Year.
[22]T268
[23]T268
59 More recently, Mr Caldarera said that his son had been back in jail for a couple of months and was due to be released the week after the hearing.[24] The evidence did not disclose the reason for his being in custody.
[24]T278
60 At the present time, it appears that Mr Caldarera is prescribed Pristiq (an antidepressant medication), and Panadeine Forte (analgesia) for pain.
61 Plainly, the matters set out above do not reflect each and every incident in Mr Caldarera’s life over the relevant period or periods. They are merely a summary of matters that one or other counsel submitted were relevant.
62 Following the collision, Mr Caldarera did not return to work, save for one brief attempt when, due to headaches and lack of concentration, he was unable to remain at work for longer than 45 minutes. He stated that, as a consequence, the project went no further and the company failed.
Diagnosis of injuries
63 Between 2008 and the current time, Mr Caldarera has seen Dr Sharma and Mr Foenander on numerous occasions.
64 It is of some relevance that, notwithstanding knowledge on the part of both Dr Sharma and Mr Foenander that Mr Caldarera had been involved in a motor vehicle accident in the course of his employment and that his WorkCover claim had been accepted, neither arranged for invoices in respect of their treatment of him since 2008 to be sent to WorkCover, the claims agent, or the Transport Accident Commission. Both Dr Sharma and Mr Foenander would have been well aware of the system involving payment by one or other of those entities for medical and like treatment in respect of injuries caused by an accident such as that involving Mr Caldarera. Rather, it appears that each arranged for their invoices to be paid through the Medicare system. Mr Caldarera was “bulk billed”. Counsel for the defendant submitted that, in doing so, Dr Sharma and Mr Foenander were, in effect, acknowledging that they did not believe that the physical or psychological problems for which they were treating Mr Caldarera were caused in or as a result of the collision. Mr Foenander denied this. He said that he had not invoiced TAC because Mr Caldarera had not been referred to him by a GP indicating that his condition related to a car accident.[25] He said it was often a battle to get the TAC to acknowledge and approve treatment. Dr Sharma was not cross-examined on the issue. In his reports, he stated that Mr Caldaria’s physical injuries were caused by the collision and that his depression, although pre-existing, had been exacerbated by the collision and resulting chronic pain.
[25]T 121-2
65 Although their decision to bulkbill is puzzling at first glance, I accept that those decisions may be explained by a belief that it was easier to simply bulk bill rather than deal with WorkCover or the Transport Accident Commission.
The Claim
66 Mr Caldarera claims that he has suffered two separate “serious injuries”:
(a)The first is an injury to his neck and right shoulder, associated with discogenic headaches; and
(b)The second is a psychiatric injury which, it was submitted, could be looked at in two separate ways –
(i)the general depression and collapse into which Mr Caldarera’s life has fallen; and
(ii)a psychiatric injury that impacts on his perception of his neck and associated symptoms.[26]
[26]Refer to the written outline of submissions on behalf of the plaintiff
Physical injuries
67 I shall deal firstly with the diagnosis of the plaintiff’s alleged physical injury or injuries.
68 Insofar as there might be separate injuries to Mr Caldarera’s neck and right shoulder, I do not consider that I am able to aggregate them in determining whether he has a serious injury. It would be different if there was evidence that right shoulder symptoms were a consequence of a neck injury. The medical evidence did not suggest this.
69 Dr Sharma has been Mr Caldarera’s general practitioner since mid-2005. There is no suggestion of pre-collision symptoms relating to his neck or right shoulder and no prior history of headaches.
70 Dr Sharma saw Mr Caldarera on 25 February 2008, about three weeks after the collision. At that time, he noted non-specific tenderness of the neck and shoulder muscles, restricted neck movements (especially rotation), normal hand grip strength and normal sensory examination and restricted abduction of the shoulder.[27] Initially, he expected the long-term prognosis to be good, with an eventual return to regular employment.
[27]PCB 13
71 By March 2010, about two years after the collision, Dr Sharma considered that Mr Caldarera had suffered from chronic soft-tissue injuries and pain to his neck and had developed chronic daily headaches which he considered were cervicogenic in nature. He thought that suspected sleep apnoea and major depression were contributing to his symptoms and delaying his recovery.[28]
[28]PCB 17 – 18
72 By November 2012, nearly five years after the collision, Dr Sharma’s diagnosis had not changed save that he considered that Mr Caldarera had developed a Chronic Pain Syndrome.[29]
[29]PCB 21
73 In his most recent report of April 2013, Dr Sharma opined that the diagnosis was that of a soft-tissue injury of the neck with cervicogenic headaches. At that time, Dr Sharma made no mention of any specific diagnosis of injury to the right shoulder.
74 Mr Nando Giovannucci, physiotherapist, treated Mr Caldarera from June 2008. Initially, the complaint to him was of spinal pain and stiffness, frequent headaches, bilateral shin pain, and right shoulder pain and dysfunction. He noted reduced cervical spine movements. There was tenderness over the whole of the cervical spine and the upper thoracic spine. Right shoulder movements were restricted.
75 In his report of August 2010, Mr Giovannucci considered that Mr Caldarera had sustained an acute injury to his spine and right shoulder in the collision, which had become chronic. He thought the prognosis was poor and that he had a permanent impairment affecting both body functions. In a report of July 2013, Mr Giovannucci expressed the view that the injuries to the cervical spine and right shoulder were, in each case, a musculo-ligamentous strain with exacerbation of pre-existing degenerative changes.[30]
[30]PCB 39
76 In late April 2009 (a little over a year after the collision), Mr Peter Battlay, general surgeon, examined Mr Caldarera at the request of a WorkCover claims agent. He considered he had suffered a soft-tissue strain to the right shoulder which had resolved and a soft-tissue strain to the neck which had not resolved. His report is nearly five years old. I note the only radiological material with which he had been provided were x-rays taken in July 2008.[31]
[31]DCB 9 – 10
77 Shortly after, Mr Caldarera was examined by Associate Professor Owen White, neurologist, at the request of the same agent. He recorded complaints of neck pain, and also of right shoulder pain which appeared to be resolving. He considered that headaches and neck pain were the major organic issues and that, in the collision, Mr Caldarera had aggravated pre-existing cervical spondylosis. He believed that his functional status had been complicated by the development of a significant depression and considered that he should have both neuropsychological and psychiatric evaluation.[32]
[32]DCB 14 – 15
78 In December 2009, Dr John Lange, occupational physician, noted neck pain, headaches and right shoulder pain. He was unable to identify a pathological cause or diagnosis that would explain Mr Caldarera’s symptoms.[33]
[33]DCB 36
79 Mr Geoffrey Klug, neurosurgeon, examined Mr Caldarera at the request of his solicitors in February 2013. He noted restriction of cervical spine movements of approximately 50 per cent. He found no evidence of radiculopathy or other impairment of peripheral nerve function.[34] He concluded that it was probable that Mr Caldarera suffered a soft-tissue injury to the cervical region of the spine and that it appeared that this disorder had not fully resolved. He suggested further investigations by way of an MRI scan. He did not consider that Mr Caldarera’s neck complaints had been investigated in detail. He did not comment on the alleged shoulder injury.
[34]PCB 65
80 In April 2013, Mr Stanley Schofield, orthopaedic surgeon, examined Mr Caldarera at the request of his solicitors. He obtained a history of daily occipital headaches and pain in the right shoulder with tingling down the right arm to all the fingers of the right hand. The latter symptoms caused him to wake at night. He complained of weakness in the right hand and arm, causing him to drop things. He complained of neck pain, present most of the time but aggravated when looking upwards and to the right. He had a range of movement which was reduced in all directions to about half the normal range.
81 Mr Schofield concluded that the collision had affected one or more of the discs in Mr Caldarera’s neck, causing neck pain with radiculopathy, post occipital headaches and that there was a further injury to the right shoulder. He thought there was a possibility there was a disc prolapse in the neck and arranged MRI scans of both neck and shoulder.
82 MRI scans were carried out in July 2013.[35] These are important. Other doctors whose reports were tendered had not had the opportunity of sighting or commenting upon these scans. Mr Schofield had seen the scans and the radiologist’s report concerning them.
[35]PCB 58 – 59
83 The MRI scans were reported as showing chronic disc space degenerate changes from C3 to C7 also encroaching disc/osteophyte complexes resulting in moderate foraminal narrowing of the right C3-4 and bilateral C4-5 neural exit foramina:
“… which may serve to irritate or impinge the existing right C4 and bilateral C5 nerve roots.”
84 In relation to the right shoulder, the radiologist reported:
“1 AC joint degenerate arthropathy of moderate to severe grade.
2 Bursal oedema typical for subacromial/subdeltoid bursitis.
3 Tendonosis of the supraspinatus tendon indicative of chronic subacromial impingement.”[36]
[36]PCB 59
85 Mr Schofield’s diagnosis was that, in the collision, Mr Caldaria had suffered a disc prolapse to the cervical spine and a rotator cuff injury to the right shoulder.[37]
[37]PCB 56
86 Additionally, Mr Schofield arranged nerve conduction tests of the right arm which showed the development of right ulnar neuritis and right carpal tunnel syndrome. These last mentioned conditions are not the subject of this application.
87 Most recently, in October 2013, Mr Rodney Simm, orthopaedic surgeon, examined Mr Caldarera at the request of the defendant. On formal examination, there was very little movement of the neck in any direction but Mr Simm considered the range of movement was better with distraction. He considered that there were no clinical signs of radiculopathy. His diagnosis was that there had been a non-specific soft-tissue injury to the cervical spine and right shoulder and that these physical injuries had acted as a trigger for the development of a “deeply entrenched Chronic Pain Syndrome”.[38] He thought that the established pattern of chronic pain in association with emotional disturbance would persist indefinitely and that he would prove resistant to treatment. Surgery was contraindicated. He considered that non-organic and/or psychological factors were then the cause of the ongoing condition. I interpret that comment as meaning that the Chronic Pain Syndrome was the primary cause of ongoing symptoms.
[38]DCB 52
88 I note that Mr Simm was not provided with any radiological material. In particular, he had not seen the MRI scans of the neck and right shoulder taken three months earlier in July 2013. Accordingly, he was at something of a disadvantage compared with Mr Schofield. Further, Mr Simm had not been provided with either of the reports of Mr Schofield. No explanation was proffered for these omissions.
89 Taking into account the evidence of Mr Caldarera and each of the medical practitioners referred to above, I am of the view that the opinion of Mr Schofield is most persuasive. He enjoyed an advantage over each of the other doctors who examined Mr Caldarera, in that he had seen the MRI scans performed in mid-2013 and the radiologists’ reports associated with them. I note the findings by Mr Klug (February 2013) and Mr Simm (October 2013) that there was no clinical evidence of radiculopathy. In April 2013, Mr Schofield had come to the opposite conclusion. It seems likely to me that the MRI scan of Mr Caldarera’s neck and the likely irritation or impingement of the existing right C4 and bilateral C5 nerve roots provide a logical explanation for Mr Schofield’s findings of radiculopathy.
90 I accept that there were multi-level, pre-existing but asymptomatic degenerative changes to his cervical spine. I accept that these were causing Mr Caldarera no problems before the collision.
91 I am satisfied that Mr Caldarera has suffered substantial aggravation of those pre-existing degenerative changes involving a disc prolapse of the cervical spine which had not been properly diagnosed until recent times.
92 With respect to the right shoulder, the MRI scan of July 2013 was reported by Dr O’Shea as showing tendonosis of the supraspinatus tendon in keeping with bursal surface “scuffing” indicative of chronic subacromial impingement, notwithstanding that a discrete rotator cuff tear was not identified. I accept Mr Schofield’s diagnosis that there has been a rotator cuff injury to the shoulder.
93 There was no evidence that Mr Caldarera had suffered symptoms of pain or discomfort to his neck or right shoulder prior to the collision. Since that time, there has been a consistent complaint of symptoms over nearly six years until the present time. I consider that Mr Schofield’s findings, based upon the recent MRI scans, provide a logical and persuasive explanation for those symptoms.
Non-physical injuries
94 In this regard, I must assess the nature of any long-term mental or long-term behavioural disturbance or disorder caused by the collision.
95 In this context, counsel for the defendant submitted that it was clear that Mr Caldarera had suffered depression and had been treated with antidepressant medication at times prior to the collision. He submitted that the onus lies on Mr Caldarera to establish what disturbance or disorder was caused by the collision, and the extent of it. I am satisfied that any depression suffered by Mr Caldarera prior to the collision was minor.
96 Dr Sharma has seen Mr Caldarera on numerous occasions since 2005. Although he has no specialist qualifications in psychiatry, he is an experienced general practitioner and I found his evidence helpful. An inspection of Dr Sharma’s clinical notes indicates references to panic attacks in March 2007, which occurred soon after nasal surgery and are probably of little relevance. Dr Sharma had noted no other symptoms of any mental or behavioural disorder prior to the collision. On 4 April 2008, two months after the collision, Dr Sharma noted that Mr Caldarera had been depressed for about eight weeks.
97 On 2 July 2008, Dr Sharma prescribed antidepressant medication for Mr Caldarera. Despite numerous attendances between July 2008 and January 2009, Dr Sharma’s notes contain no references to depression. It is likely that his depression improved. On 22 January 2009, Dr Sharma specifically noted that Mr Caldarera denied symptoms of depression and that he had declined to see a psychologist. On 23 February 2009, about a month later, Dr Sharma prescribed Lexapro, an antidepressant. For the next year, through numerous attendances, the notes contain no reference to depression or like condition. On 3 March 2010, Mr Caldarera was again seen for depression. This would coincide with the time that Mr Caldarera was seen by a medical practitioner in Frankston with his then partner, Ms Toth. In March 2011, there was a history taken of low moods, flashbacks, poor sleep, depression, PTSD (Post Traumatic Stress Disorder), anxiety and Adjustment Disorder. In August 2011, Mr Caldarera was first prescribed the antidepressant, Pristiq. He has continued with this medication until the current time.
98 In his report dated 15 March 2010, Dr Sharma stated that Mr Caldarera had major depression which was indirectly related to his injuries, and chronic pain. He indicated that other factors, including his personal situation, may also be a contributing factor.[39]
[39]PCB 18
99 In his report of 7 November 2012 (nearly four years after the collision), Dr Sharma opined that Mr Caldarera had developed a Chronic Pain Syndrome. In his most recent report of 16 April 2013, Dr Sharma stated that, at that time, Mr Caldarera had ongoing issues with pain and depression and was unable to return to any occupation. He was of the view that his ongoing symptoms and the usual course of chronic pain from soft-tissue injuries to the neck had been complicated by depressive symptoms. He thought his chronic pain would be likely to improve after a few years, depending on whether there had been any disc degeneration.
100 In his oral evidence, Dr Sharma conceded that he had never taken a full history of Mr Caldarera’s pre-collision problems and that Mr Foenander had been the major treater in respect of his depression. He considered that other stressors for Mr Caldarera had been the loss of his employment and business plans, relationship difficulties (and by this I assume he is referring to the breakdown of his marriage and difficulties that he had had with later partners), and chronic pain.
101 Mr Foenander has seen Mr Caldarera for psychological counselling on numerous occasions between April 2008 and the current time. On 23 March 2010, Mr Foenander reported that Mr Caldarera was then suffering from a Chronic Pain Disorder with Mixed Anxiety and Depression.[40]
[40]DCB 94
102 In November 2010 Mr Foenander reported that he had suffered from chronic pain, recurrent depression, and intermittent behaviour problems subsequent to injuries sustained in the collision.[41] He reported:
“Other factors which have contributed to his depression have included the imprisonment of his son in 2001 at the age of eighteen years for his involvement in a motor vehicle accident when two passengers were killed. In 2002 he stated that he went to work in China and was involved in running a restaurant and an import business. He lived and worked in China for periods of six months from 2001 to 2008, until the time of his motor vehicle accident in February 2008. The aftermath of all this was the subsequent loss of his business due to financial difficulties and worries about his son; his ill health resulting in the loss of a kidney; and the breakdown of his family life.”[42]
[41]DCB 127
[42]DCB 128
103 At that time, Mr Foenander expressed a provisional diagnosis that Mr Caldarera was suffering from:
“… a Major Depressive Illness – recurrent with passive suicidal ideation and some intent. His symptoms have included sleep disturbance, instability of mood, difficulties in maintaining concentration and attention, forgetfulness and difficulty in remembering to keep appointments and other important domestic duties, bouts of irritability, impulsivity with difficulties in organisation and planning, and instances of aggressive behaviour of his past relationship as alleged by his former girlfriend, and marked instability of mood.”[43]
[43]DCB 128
104 Mr Foenander also provided a “Differential Diagnosis”. He stated that some of the abovementioned symptoms were also suggestive of difficulties with higher-order cognitive functioning characteristic of frontal lobe compromise, but were likely to arise from the whiplash injury he sustained in his motor vehicle accident and the over-use of illicit substances. The symptoms were also suggestive of Borderline Personality features that may arise from a personality change possibly as a consequence of the traumas claimed to have been suffered in his accident. Mr Foenander considered that a further opinion should be sought from a neuropsychologist or neuropsychiatrist. I note that such opinions were never obtained. In addition, Mr Foenander considered that Mr Caldarera suffered from a Chronic Pain Disorder. He noted that during the course of his illnesses, he had attempted at times to obtain symptomatic relief from depression and pain through use of illicit substances such as marijuana and stimulants.[44]
[44]DCB 128
105 Mr Foenander expressed the view at that time that the prognosis remained guarded “unless he also seeks regular future treatment with a forensic psychiatrist or forensic psychologist for management of his behavioral problems and illicit substance overuse”.[45] It would appear that such treatment was never obtained.
[45]DCD 129
106 In his report of 26 November 2012, Mr Foenander noted Mr Caldarera’s reported symptoms of depressed mood which included disturbed sleep, loss of libido, anhedonia, irritability, fatigue, constant worry and ruminations about his illness, and sadness.
107 In respect of disturbed sleep, I note the comments previously referred to concerning suspected sleep apnea and Mr Caldarera’s declining to have tests for that condition. In respect of loss of libido, I note that Mr Caldarera had complained on numerous occasions prior to the collision of impotence. I am not satisfied that either of these conditions relate to the collision, directly or indirectly.
108 Mr Foenander gave oral evidence and was cross-examined.
109 In oral evidence, Mr Foenander stated that initially, he did attribute Mr Caldarera’s distress to his marital and other family background issues but that later, having seen him on a number of occasions, his view was that there were other contributing factors, including the collision. From the earliest of his reports, Mr Foenander had recorded his view that Mr Caldarera’s depression was secondary to Chronic Pain Disorder which emanated from injuries sustained in the collision.[46]
[46]DCB 93-4; 130; 127
110 Mr Caldarera has not been referred for treatment to any psychiatrist. He has been seen by four psychiatrists on a medico-legal basis. Doctors Duke, Jackson and Stern saw him at the request of the defendant. Dr Weissman saw him at the request of his own solicitors. I shall deal with them chronologically.
111 Dr Michael Duke examined Mr Caldarera in April 2009. His views were expressed in reports of that month and later in June of 2009, by which time he had been provided with additional reports from Dr Sharma, Mr Battlay and Dr White. His views are more than four years old and of little assistance in determining Mr Caldarera’s current condition. He did not provide any helpful comments about Mr Caldarera’s psychiatric diagnosis.[47] I do not consider his supplementary report assisted.[48]
[47]DCB 21
[48]DCB 23
112 Dr Ian Jackson saw Mr Caldarera on one occasion in December 2009. He considered that Mr Caldarera was impossible to assess, although it did appear that he was driven to consciously present himself with some sort of mental deficits secondary to head and neck pain. On the basis of his examination and on the information available to him, Dr Jackson could not diagnose any psychiatric illness. Depression was not evident during his examination. He thought that, whatever the basis was for Mr Caldarera’s extraordinary psychological presentation and his declared symptoms, it was not that of Major Depression or of any other psychiatric condition. He thought that he had mild grandiose hypomania, a documented side-effect of Lyrica, which he had then been prescribed. Dr Jackson had taken a history that there was no post-accident psychiatric history involved.
113 Dr Stephen Stern, consultant psychiatrist, examined Mr Caldarera in June 2012. The history taken by him was that Mr Caldarera had been depressed since the collision because of chronic pain. Dr Stern had obtained a history of an overdose of tablets in 2010, and an attempt to asphyxiate himself with car exhaust fumes in mid 2011. There had been no medical treatment or hospitalisation in relation to these.
114 Based on there being no pre-existing or unrelated psychiatric disorder, Dr Stern was of the view that, as a result of the collision and injuries, Mr Caldarera had developed a Post-Traumatic Stress Disorder and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[49] He thought that psychiatric state was related to the collision.[50] He thought he had no current work capacity.
[49]DCB 41.5
[50]DCB 41.6
115 Dr Timothy Entwisle, psychiatrist, examined Mr Caldarera in September 2013 at the request of the defendant. Dr Entwisle took a history concerning his impotence in about 1991. He noted that Mr Caldarera had become depressed as a result at that time. The work history taken by Dr Entwisle included:
“He owned 12 restaurants and was both chef and proprietor … he was very successful. He then decided to do something else so he imported food from Italy for a period and began that enterprise six months prior to his son’s accident in early 2008 [this date is plainly incorrect]. He became preoccupied. He could not do anything. His son was putting him through hell. He spent a lot of time looking after his son. It was very stressful. He had also been involved in setting up a camera which had extremely good prospects. He travelled to China to have it manufactured and had the finance arranged. He had been travelling to the USA to do that. His marriage suffered. The prototype was all ready to go. Everything was just beginning to improve. Then the accident occurred. That was the final straw. After that he could not think anymore. He was feeling sorry for himself. The migraines started. He was given Lyrica and was taking that in large doses. He could not drive his car. He was tired. Finally the camera deal fell apart. ‘I couldn’t do it anymore’.”[51]
[51]DCB 44 – 45
116 Dr Entwisle came to the conclusion that the diagnosis was one of:
(a)Adjustment Disorder with Depressed Mood;
(b)Narcissistic personality style;
(c)Pre-existing history of depression.
117 Dr Entwisle considered that the collision had represented the final straw. In that sense his condition was a direct consequence of the collision and the consequences of his physical injury. He thought his Post-Traumatic Stress Disorder symptoms were minor.
118 Dr David Weissman, psychiatrist, examined Mr Caldarera in November 2011 and again in April 2013. On the earlier occasion, he had obtained a reasonably full history from Mr Caldarera, including details of problems relating to his son’s accident and imprisonment, and the earlier breakdown of his marriage. He did not appear to be in possession of details of the 1991 bout of depression and treatment for impotence. However, I do not consider that era of great importance in the overall context of the causation of Mr Caldarera’s psychiatric state. Dr Weissman, in 2011, was of the view that it was possible that some of those pre-existing factors contributed to a degree to his psychiatric state, although he considered that the collision was the significant contributing factor to the bulk of it. He thought that he had moderate primary or direct post-traumatic stress and anxiety symptoms directly due to the collision. In addition, he had at least moderately severe, mixed, depressive and anxiety symptoms, signs and features as a consequence of his accident-related pain, injuries, disabilities, limitations, restrictions, changes and losses to his lifestyle and functioning since the collision. He told Dr Weissman “I’ve got no life anymore”.[52]
[52]PCB 77
119 Dr Weissman agreed with Mr Foenander’s diagnosis of a major depressive illness and considered that he was suffering a moderately severe Chronic Major Depression. He thought the prognosis was very uncertain at that time.
120 In April 2013, Dr Weissman expressed the view that there had been no improvement in Mr Caldarera’s psychiatric or physical state since the earlier examination. He expressed the same views regarding the possibility that there may have been a small amount of pre-existing psychiatric impairment but that before the collision, it appeared that Mr Caldarera had a reasonably good quality of life, level of function, level of activity and occupational capacity.[53] His understanding was that prior to the collision, Mr Caldarera was not receiving any psychiatric, psychological or psychotropic treatment or intervention. His diagnosis had not changed.
[53]PCB 87
121 His prognosis was similar – namely, very uncertain, guarded and most likely poor, negative and unfavourable.[54]
[54]PCB 88 – 89
122 Counsel for the defendant placed importance on the history taken by Mr Foenander on 5 April 2008, the first occasion on which he saw him following the collision. The history relied upon was:
“History of depression since Dec 2007, and has got worse.”[55]
[55]DCB 98
123 Mr Caldarera denied that he had suffered from depression as early as that, although he did concede that he had returned from China in November 2007 and shortly thereafter his marriage broke down and he separated from his wife. This was consistent with the further history taken by Mr Foenander on that day that he had only recently found out that his wife had had an affair whilst he was in China before November 2007. I accept that that is what he told Mr Foenander on that occasion.
124 I accept that following the breakup of his marriage and his belief that his wife had been unfaithful, Mr Caldarera did suffer from depression and sadness and that this would not have been connected with injuries suffered in the collision.
125 Further, I accept that from about mid-2008 through till early-2010, Mr Foenander was not involved in treating him at all. Mr Caldarera denied symptoms of depression to Dr Sharma in January 2009 and in February, his Lexapro anti-depressant medication was ceased. Depression was noted by Dr Sharma in March of 2010 at about the time that he sought treatment elsewhere at a Frankston Clinic with Ms Toth. There was no evidence from any medical practitioner involved there. However, it appears that he was prescribed Lexapro from that clinic before seeing Dr Sharma again.[56] He was changed to the anti-depressant, Pristiq, from March 2011. This has continued to the present time.
[56]PCB 140 – 141
126 Counsel for the defendant stressed that the evidence pointed to the existence of depression before the accident and an improvement in that condition in the months and years that followed. I accept that Mr Caldarera was probably vulnerable to depressive illness following problems with his son over several years. I am satisfied he did suffer depression relating to the breakdown of his marriage in late 2007 and the early part of 2008 and that symptoms of that condition improved in the months and years that followed.
127 I consider it likely that his ongoing symptoms of pain and headaches accompanied by an inability to work have, over time, lead to the development of a chronic pain syndrome and are a substantial contributor to the depressive illness from which he suffers.
128 I consider that some delay between the collision and the diagnosis of depression is not and ought not be surprising. Such depression, following ongoing and persistent pain and discomfort over a number of years, together with his inability to work is, in my opinion, readily understandable. I accept that the ongoing physical symptoms resulting from the injuries suffered in the collision have led to a Chronic Pain Syndrome and major depressive disorder.
129 Insofar as Mr Caldarera’s condition has been diagnosed as one of Post-Traumatic Stress Disorder, I do not accept such diagnosis. Firstly, there is no evidence of a fear of death or of serious injury at the time of or soon after the collision. A perusal of Dr Sharma’s notes indicates that the first mention by Mr Caldarera of flashbacks, nightmares or symptoms likely to relate to Post-Traumatic Stress Disorder was not until March 2011.[57] A perusal of Mr Foenander’s clinical notes indicates that he took no such history at any of the many occasions upon which Mr Caldarera consulted with him. Mr Foenander has not suggested that there is a Post-Traumatic Stress Disorder present.
[57]PCB 141
130 In summary, I accept that Mr Calderera has suffered and still suffers from a Major Depressive Disorder and a Chronic Pain Syndrome.
131 There may well be a contribution to his Depressive Disorder from earlier incidents such as that involving his son, the breakdown of his marriage and also later incidents such as the problems with his girlfriends, intervention orders and police prosecutions. However, there are often multiple causes of psychiatric conditions and the fact that the collision may not have been the sole cause of Mr Caldarera’s condition is not to the point.
Consequences of Injury
132 Counsel for the defendant submitted that, since the collision, Dr Sharma has advised Mr Caldarera concerning a number of further possible investigations and referrals that could be made regarding his various symptoms. Mr Caldarera appears not to have followed much of that advice. Examples were:
(a)Soon after the collision, Dr Sharma referred Mr Caldarera for an ultrasound of his right shoulder to rule out any injury to the rotator cuff. This was not followed up;[58]
(b)At about the same time, it appears that Dr Sharma referred Mr Caldarera to a neurologist. This again was not followed up;[59]
(c)Dr Sharma stated that Mr Caldarera had been referred several times to a sleep specialist to investigate his suspected sleep apnoea. He missed those appointments and that suspect condition has remained untreated;[60]
(d)Dr Sharma referred Mr Caldarera to Dr Ian Katz, a psychiatrist, but he did not attend, saying that he felt more comfortable seeing his clinical psychologist, Mr Foenander;[61]
(e)Dr Sharma stated that Mr Caldarera was unable to attend for physiotherapy treatment due to monetary issues.[62] There was no evidence that Mr Caldarera had ever made application to either the Victorian WorkCover Authority or the Transport Accident Commission for funding of any physiotherapy treatment. His evidence was that he had ceased physiotherapy soon after the collision as he considered that the physiotherapist at the Austin Hospital had further injured him.[63] In any event, I note that in April 2013, he stated that his then current treatment was massage, and physiotherapy which was of little or no benefit;[64]
(f)Dr Sharma, in his report of April 2013, stated that he had recently referred Mr Caldarera to a spinal surgeon and that an appointment was pending. There was no evidence that he had attended such an appointment and no evidence from any such spinal surgeon.
[58]PCB 14; 135
[59]PCB 14
[60]PCB 18; PCB 138; T39
[61]T39 – 40
[62]PCB 22
[63]T177
[64]PCB 48
133 Counsel submitted that those matters indicated a persistent lack of motivation to pursue treatment and that this was inconsistent with those symptoms being of any real significance. Put another way, the submission was that, if Mr Caldarera’s symptoms were as bad as he had maintained, he was likely to have exhausted all treatment and investigations offered to him. The fact that he has not done so indicated that those symptoms were not as significant as he would have the Court believe.
134 Had the case been one where there was no identifiable pathology that could explain symptoms of pain, those submissions were likely to have been persuasive. However, for the reasons set out above, I have formed the view that the findings on the recent MRI scans do provide an explanation for Mr Caldarera’s symptoms. On balance, I consider that the apparent lack of motivation to follow up Dr Sharma’s advice on the various occasions referred to is more likely to be related to his depressive condition.
135 The evidence concerning Mr Caldarera’s use of marijuana and amphetamines may also, to an extent, explain his lack of motivation for suggested treatment. The evidence as to the level of such drug use was inconclusive. Mr Caldarera admitted that he had used marijuana on occasions to assist with pain. There was no evidence of recent use. I consider that if use of illicit drugs had been a problem of any significance over a period of time, then Dr Sharma would likely have been aware of the problem. He did not consider that drugs were an important matter here. Taking all of the evidence relating to recreational drugs into account, I have come to the conclusion that, although he may have occasionally used amphetamines and cannabis, the drugs issue is not of any real consequence in this matter.
136 Counsel for the defendant submitted that the views of the psychiatrists were unreliable because they had not been given the full history of events and stressors leading up to the collision and a correct history of some of the events postdating the collision.
137 For example, he submitted that the histories given to the psychiatrists regarding Mr Caldarera’s driving of motor vehicles was incorrect and deliberately misleading. For example, in June 2012, Dr Stern took a history from Mr Caldarera that he had driven a few times initially after the accident but had stopped because of his anxiety, and had not driven since.[65]
[65]DCB 41.2. See also histories given to Dr Jackson at DCB 27 and 29; Dr Entwisle at DCB 45; Dr Weissmann at PCB 72.
138 In contrast to such histories, the defendant tendered a summary of driving offences committed by Mr Caldarera over the relevant period.[66] This summary went back to December 1989. The summary indicated that in most years between 1989 and 2007, Mr Caldarera had been booked a number of times for exceeding the speed limit when driving a car. In the main, there were two or three speeding offences in each of those years. The picture from the calendar year 2008 paints a vastly different driving record. Between April and July 2008, there were seven speeding offences; from February 2009 until December 2009, there were 21 speeding offences; and from January to October 2010, there were 60 speeding offences.
[66]Exhibit 3
139 In addition, Mr Caldarera had been convicted of driving whilst his driving licence was suspended on a number of occasions.
140 Exhibit 3 was agreed by Mr Caldarera to reflect an accurate summary of those offences in respect of the subject years. I accept that it indicates that Mr Caldarera drove regularly over the relevant period and in particular, during the 2010 calendar year. In particular, the exhibit demonstrates that the history given to the doctors and referred to above (especially the history given to Dr Stern) is patently misleading.
141 Insofar as it might have been submitted that the collision, either directly or indirectly, led to Mr Caldarera driving less, I do not accept that submission.
142 Nevertheless, notwithstanding that some of the psychiatrists referred to may not have obtained a full and complete history of pre-accident events that may have contributed to his psychiatric condition, I do not consider that such incompleteness, in the circumstances of this case, renders those opinions worthless.
143 Further, notwithstanding that I have rejected parts of Mr Caldarera’s evidence I accept that he has suffered debilitating neck and shoulder pain for many years and is continuing to suffer. Save for the exceptions referred to in these reasons, I considered that he was an honest witness.
144 Taking all the medical evidence and the evidence of Mr Caldarera into account, I accept that from the time of the collision and at the current time he has experienced and is experiencing:
(a) Continuing pain from an organic injury to his neck, together with regular and persisting discogenic headaches.
(b) Continuing symptoms of pain which are likely to have further led to the development of Chronic Pain Syndrome and depressive illness.
(b) An inability to engage in physical, heavy work or in any form of work requiring consistent concentration and memory.
145 I consider it likely that those consequences flow from the injury to Mr Caldarera’s neck rather than from the injury to his shoulder.
146 These are, in my opinion, consequences which are more than merely marked or significant and which are at least very considerable.
147 In this matter, counsel for the defendant conceded that the consequences of Mr Caldarera’s present mental state qualified as being “at least very considerable”. The defendant’s position was that his condition was not linked causally to the collision. For the reasons expressed above, I have found otherwise.
Summary of consequences
148 I am satisfied that the consequences of the organic neck injury described by Mr Schofield are, in themselves, at least very considerable.
149 I accept that Mr Caldarera has experienced debilitating neck pain and headaches for nearly six years. As a consequence, he is required to take significant medication. I accept that he has been unable to return to work as a consequence of neck pain, headaches and inability to concentrate. No medical practitioner has forecast any likely improvement in his condition in the foreseeable future. In that sense, I am satisfied that his impairment is long term.
150 In a case such as this, there is bound to be an overlap between some of the consequences of physical and non-physical injuries. A physical injury, fitting within paragraph (a) of the definition can have its seriousness measured, in part, by a mental response to a physical impairment – see Richards v Wylie.[67] Nevertheless, in Richards, Chernov JA was of the view that the first task was to decide whether the dominant cause of a plaintiff’s condition falls to be determined by reference to the criteria in paragraph (a) or paragraph (c). In this case, I favour the views expressed by Mr Schofield that the predominant cause of Mr Caldarera’s continuing neck pain and headaches is the organic injury to his neck, which I have found to have been caused or at least substantially contributed to by the collision. In that sense, I am of the view that Mr Caldarera has suffered a “serious injury” within the meaning of part (a) of the definition of that term.
[67]Richards v Wylie (2000) 1 VR 79 at [17] per Winneke P; at [24] per Buchanan JA; at [28] per Chernov JA
151 If the contrary view was taken, that Mr Caldarera did not have a serious physical injury, I would nevertheless accept the evidence of Mr Simm that such injuries had acted as a trigger for the development of a deeply entrenched Chronic Pain Syndrome in association with an emotional disturbance.[68] I would accept that syndrome and disturbance as a non-physical but genuine psychological disorder,
[68]DCB 52
152 Further, I find that Mr Caldarera has suffered a Major Depressive Disorder which I consider was caused or contributed to by the physical injuries suffered in the collision. He has required anti-depressant medication for some years and I find that this is likely to continue in the foreseeable future.
153 I am satisfied that the consequences of Mr Caldarera’s chronic pain syndrome and major depression are long-term and severe within the meaning of paragraph (c) of the definition of “Serious Injury”.
154 Further, whether or not the mobile camera project would have got off the ground or whether Mr Caldarera would have, but for the collision, returned to his previous occupation as a restaurant proprietor and chef is of no great significance. It is my view that he had a capacity for full-time employment prior to the collision as a chef or in some other business capacity and that this capacity has been lost as a consequence of injuries received in the collision. This amounts to a very considerable loss of earning capacity for him.
155 Finally, counsel for the defendant submitted that it was of significance that a number of persons who would appropriately be described as “in the camp” of Mr Caldarera were not called to give evidence. These were his former wife, former girlfriends, persons associated with Safecam, and his son. Counsel submitted I should draw an inference that, if called, their evidence would not have advanced his case. Taking all of the circumstances into account, I do not consider that I should draw such inferences.
156 In relation to his former wife and Amanda Toth, I do not regard either as being “in his camp”. Ms Toth recently obtained an intervention order against him. He and his wife appear to have had a relatively unhappy marriage for several years before the collision and have lived apart since.
157 As regards Heather Anderson, she had a relationship with Mr Caldarera for about eight months from late 2008. It was not successful although he did describe her as his best friend currently. There was no evidence that she knew him before the collision. I assume that she would only have been able to speak of his health (physical and mental) since late 2008. The defendant concedes that his current state was sufficient to satisfy the threshold to establish a serious injury under part (c) of the definition of “serious Injury”. The issue in relation to the part (c) aspect of the claim was one of causation. I would not have expected Ms Anderson to have been able to assist in relation to that issue.
158 As regards the Safecam personnel, they would have known Mr Caldarera and had work dealings with him for some years before the collision. The business appears to have faltered relatively soon after the collision and there is no evidence of any continuing relationships since. It might be that they would have been able to confirm his good health (mental and physical) before the collision but it is unlikely that they would have been able to cast light on what changes there had been to him since the collision.
159 As regards his son, I accept that upon his release from prison in 2006 he would have spent some six months living with his parents in 2006. The evidence was unclear as to how much time he had spent with his father since then.
160 Mr Caldarera’s daughter, Vanessa, swore an affidavit in support of her father’s application. She had read her father’s first affidavit and agreed with its contents. She had spent time with him in China in 2007 and referred to his activities there, noting that he was on the ball, alert, and physically well. She contrasted that condition with his condition since the collision.
161 Vanessa Caldarera was not required for cross-examination and I see no reason to doubt her veracity. Her evidence concerning her father’s state of health in China in 2007 leads me to conclude that, in all of he circumstances of the case, the failure to call the additional witnesses was not unreasonable. I do not draw the inferences suggested by counsel. I do not speculate as to what the evidence of other witnesses might have been.
Conclusion
162 For the reasons set out above, I am satisfied that Mr Caldarera has suffered a “serious injury” in the collision as that term is defined in s93(17) of the Act.
163 Accordingly, pursuant to s93(4)(d) of the Act, there is leave for him to bring a proceeding to recover damages in respect of injuries suffered by him in a transport accident which occurred on or about 4 February 2008.
164 I shall hear the parties in relation to any consequential orders sought.
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