Caran, Bozo v Transport Accident Commission
[2009] VCC 1457
•24 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03067
| BOZO CARAN | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 August 2009 |
| DATE OF JUDGMENT: | 24 August 2009 |
| CASE MAY BE CITED AS: | Caran, Bozo v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1457 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment of the cervical spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC and | Vincent Verduci & Associates |
| Mr A Ingram | ||
| For the Defendant | Mr D Curtain QC and | Solicitor to the Transport |
| Ms A Ryan | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 9 June 2004 (“said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a):
“Serious long term impairment or loss of a body function.”
4 The body function relied upon by the plaintiff in this case is the cervical spine.
5 The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR, at 140-1.
8 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied upon an affidavit of his wife, Ruza Caran, sworn on 29 July 2009, and his son, Jack Caran, sworn 21 January 2009. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
9 The plaintiff is presently aged sixty three, having been born on 20 April 1946 in Bosnia. He completed schooling only to the age of eleven and afterwards worked on a farm and completed two years of army service.
10 In October 1968, the plaintiff immigrated to Australia and was thereafter employed as a factory worker, at Tullamarine Airport and on the Dartmouth Dam project. Whilst working at Dartmouth in 1974-5, he had some back pain and was off work for two or three months but then had no further problems.
11 Between 1977 and 1987, the plaintiff worked with Australian Tube Mills in North Sunshine as a labourer then as a crane/forklift driver. During this time the plaintiff had some ongoing symptoms in his spine but he did not require any time off work.
12 In 1987, the plaintiff commenced his own business as a plasterer. He deposed he continued this work until the accident although for about twelve months before the said date he was helping his son build his house free of charge.
13 The plaintiff also deposed at the time of the accident he was finishing off plaster works at a house in Maribyrnong with a partner.
14 On the said date, the plaintiff was involved in a collision with another car which made a right hand turn in front of his vehicle (“the accident”). The impact of collision caused in excess of $8,000 damage to the plaintiff’s vehicle.
15 After the accident, the plaintiff was in severe shock and disorientated. His son arrived a short time later at the accident scene and took the plaintiff to see Dr Horvat, his general practitioner.
16 The plaintiff had tenderness in his right shoulder from the seatbelt and had tenderness at the back of his neck between his shoulder blades and abrasions to his wrists from the airbag. His forehead was tender. He did not lose concentration but he was stressed.
17 The plaintiff understood Dr Horvat also found some lumbar muscle spasm and he prescribed Mersyndol Forte and Mobic. Dr Horvat advised the plaintiff to rest for a couple of weeks.
18 These medications were beneficial to a certain extent in reducing the plaintiff’s level of pain and he believed he had suffered a muscular injury which would settle down with the passage of time.
19 In his affidavits the plaintiff detailed his medical treatment after the accident.
20 The plaintiff deposed that since the accident he has continued to be treated by Dr Horvat who referred him for x-rays and also referred him to neurosurgeon, Mr D’Urso, who advised surgery.
21 The plaintiff later deposed that he decided to return to Dr Horvat in May 2005 and subsequently continued to attend the same clinic when Dr Sulava began working there.
22 Dr Sulava referred the plaintiff for x-rays of his cervical spine on 8 September 2006 because of persisting symptoms. In February 2007, the plaintiff was referred for a CT scan of his cervical spine.
23 The plaintiff was referred to neurosurgeon, Mr D’Urso, on 6 September 2006. Mr D’Urso recommended the plaintiff undergo an MRI scan which was performed on 4 June 2007. When the plaintiff returned to Mr D’Urso he recalled Mr D’Urso discussed with him the need for surgery, however the plaintiff has decided not to have an operation until it becomes absolutely necessary as he feared the outcome and was not prepared to take the risk.
24 In evidence in chief the plaintiff confirmed he would only have surgery if it became absolutely necessary. The plaintiff continues under the care of Dr Sulava who prescribes medication. The plaintiff presently takes Panamax daily and when he gets severe pain, he takes Tramadol.
25 In evidence in chief, the plaintiff confirmed he had been on a disability pension since March 2009 and was dependent prior to that time on his wife’s earnings.
26 In cross examination, the plaintiff could not recall having seen Dr Horvat before the said date. He could not recall complaining of abdominal problems in March 2004 nor could he recall discussing with Dr Horvat his level of alcohol consumption in April 2004. The plaintiff recalled blood tests may have been ordered but not that such tests related to his liver.
27 When cross examined about his medical treatment following the accident, the plaintiff agreed that Dr Horvat told him on the said date to come back if things did not improve.
28 The plaintiff agreed that he did not go back to the doctor for over nine months. When he next saw Dr Horvat on 16 March 2005, the plaintiff agreed it might have been because he was having sleeping difficulties. Further, he could not remember having blood tests after the accident.
29 The plaintiff said he told Dr Horvat he had shoulder pain and something had to be done. Dr Horvat gave him painkillers and after a couple of weeks the plaintiff saw him again and asked for an x ray. The plaintiff said that he had to fight with Dr Horvat to be sent for an x-ray.
30 The plaintiff’s evidence in this regard was unclear but he seemed to say that Dr Horvat finally organised an x-ray and that he was ultimately sent to Mr D’Urso. The plaintiff denied it was Dr Sulava who sent him for an x-ray.
31 The plaintiff was asked about an attendance with Dr Horvat on 22 March 2005 where Dr Horvat noted the plaintiff complained of an elbow problem and was given an injection. The plaintiff could not recall having an injection. He could probably recall there having been discussion with Dr Horvat about his alcohol consumption.
32 The next consultation was on 26 April 2005. When it was suggested to the plaintiff that he had not complained to Dr Horvat of neck pain on that occasion, the plaintiff said he could not recall.
33 When asked about an examination on 10 May 2005, the plaintiff said there could have been a discussion about him reducing his alcohol consumption.
34 When asked again whether he mentioned his neck condition to Dr Horvat at these four examinations, the plaintiff said on the last of the four visits he thought he mentioned it. He later said that he did mention his neck when he saw Dr Horvat on those four occasions.
35 The plaintiff was asked about the next attendance at the clinic on 23 August 2006 where it was noted he complained of tingling from the neck. The plaintiff said he made such a complaint and that Dr Horvat then referred him for x- rays. The plaintiff denied that this was the first time he had mentioned his neck to Dr Horvat since the accident.
36 In cross examination, the plaintiff said he had problems with his neck between June 2004 and August 2006. Those problems “slowed him down a lot”. He denied he went to Centrelink to get disability payments for his hand which was operated on in June 2006. He said he only went to Centrelink in March 2009 and told Centrelink he could not work because of his car accident injuries.
37 The plaintiff was cross examined about a questionnaire completed by him on admission to the Western General Hospital for the hand surgery. In the questionnaire he was asked whether he had any severe back or neck problems, to which “no” was answered. He said someone assisted him filling out the form and that all he could remember being asked at that time was whether he was allergic to anything.
38 The plaintiff said his neck gradually increased in pain in the two years after the accident. He now has more pain than he had two years ago. He had severe pain in 2006 and that was the reason why he approached the Transport Accident Commission to consent to an operation or medication.
39 The plaintiff deposed that he had two weeks off after the accident because he was unable to work after one or two days due to pain because he was required to lift material and often work above head level.
40 The plaintiff further deposed as a result of his accident injuries he was off work until early 2006 when he tried to return to do plaster work on two houses with his partner. The plaintiff worked for about two weeks in March and May 2006 but could not continue work as his duties aggravated his injuries and he has not worked since.
41 The plaintiff later deposed that although he continued to have ongoing pains, particularly affecting his neck and right shoulder, he tried to return to plastering a few weeks after the accident but could not cope with heavy lifting and had to give up most of his plastering work and go back to continue helping his son with very light supervisory duties. Despite the fact he was not placing as much strain on his neck and right shoulder, he continued to have ongoing problems.
42 The plaintiff deposed he had been engaged in unpaid activities when he helped his builder son, and he acted as a supervisor on the site without being involved in physical work. He did this work to keep busy and have something to do. The plaintiff usually stayed at that job for two or three days a week for two or three hours a day, but he could not do it fulltime and did not consider it work. He deposed that he helped his son prior to the accident but then he did plasterwork fulltime whereas now he is not really doing any physical work.
43 When cross examined, the plaintiff said that he stayed in the partnership with Nick Visovic until 2005 and 2006. The plaintiff “sometimes tried his best” and he got back to work two or three days, a couple of hours a day, as much as he could and he never gave up. The plaintiff later said that the last time he worked with his partner was last year.
44 The plaintiff confirmed that after the accident sometimes he worked with Nick trying to work “a couple of days a week – or a couple of weeks depends- three or four days on, that was all”. The plaintiff said that on a couple of days he tried to work two or three weeks after the accident but he could not work any longer and his partner said, “Okay, off you go”.
45 In cross examination, the plaintiff agreed that in the year prior to the accident he did no work at all as a plasterer unless involved in his son’s business. He made no income from plastering.
46 The plaintiff also agreed that in the financial year 2002-2003 he had not been working much. He was not working full time as a plasterer because he was helping his son doing some supervising. The plaintiff disagreed that because he was working with his son it stopped him from working fulltime elsewhere.
Details of the Plaintiff’s Earnings
Financial Year Gross Income 2001-2002 $44,635.00 2002-2003 $16,903.00 2003-2004 $ NIL 2004-2005 $8,049.00 2005-2006 $1,687.00
Lay Evidence
47 The plaintiff’s son, Jack Caran, swore an affidavit on 21 January 2009. Since 1991, he has been engaged in the construction of unit development and houses generally, building two or three homes a year.
48 He deposed that at the time of the accident the plaintiff was engaged in fulltime work as a plasterer and worked for a number of builders.
49 Since the accident, the plaintiff has complained of neck and back pain, together with headaches and restriction of movement and numbness to his shoulders and arms.
50 Since the accident, the plaintiff has been unable to return to work as a plasterer with other builders. The plaintiff has attended Jack’s places of work where he performed supervisory duties.
51 Prior to the accident, the plaintiff used to do most of the work involved in the construction up to completion stage, including all plastering, some carpentry work and working as a labourer, and engaged in most heavy manual work. Since the accident, the plaintiff has been unable to do any of that work. The plaintiff was not paid for the work he did for Jack and he helped him out to build up Jack’s financial position.
52 The plaintiff’s wife, Ruza Caran, swore an affidavit on 29 July 2009. Mrs Caran has been married to the plaintiff for forty one years and immigrated to Australia with him in 1968.
53 Mrs Caran deposed that she attended the accident scene and saw the plaintiff’s car which was extensively damaged. The plaintiff was in a state of shock, holding the front part of his right shoulder and neck. She drove the plaintiff home and he was in too much pain for her to touch him and she suggested he go to the doctor.
54 Since the accident, the plaintiff has always been complaining of neck pain but at first he thought it was going to get better slowly. He at first ignored the pain because he thought it was muscle pain and would slowly improve but in fact his complaints have been gradually getting worse.
55 Prior to the accident, the plaintiff had always been in fulltime employment working as a plasterer and for more than a year prior to the accident he had been engaged in doing supervisory work in the construction of a house for their son in Strathmore which was completed during 2008, and also doing some of the work on the house.
56 Before the accident, the plaintiff was very active around the house, doing gardening, repairs and assisting with the housework, but he has not been able to do so since.
57 As a result of the injuries in the accident, the plaintiff has been unable to assist their son with any physical work on his house and he has only done supervisory work. The plaintiff tries to do some gardening work at the house although sometimes he has to stop because of pain.
58 The plaintiff has trouble sleeping because of neck pain and sometimes she has to get up and go and sleep in another room. The plaintiff becomes easily irritable, upset and gets bored at home.
Investigations
59 An x ray of the cervical spine carried out on 8 September 2006 revealed mild degenerative spondylosis at C4-5 with mild osteophytic foraminal encroachment at C4-5.
60 A CT scan of the cervical spine was carried out on 2 February 2007. It showed moderately severe C4-5 cervical canal stenosis secondary to a central C4-5 disc prolapse underlying cord or nerve root impingement. An MRI scan of the cervical spine was recommended. There was mild C3-4 and C5-6 cervical canal stenosis secondary to a central disc prolapse at both levels underlying cord or nerve root impingement. There was mild to moderate bilateral C4 osteophytic foraminal stenosis.
61 An MRI scan of the cervical spine was carried out on 4 June 2007. There were disc protrusions and endplate osteophyte formations at C4-5 and C5-6 resulting in right sided C5 and C6 foraminal narrowing and compression of the exiting nerves. The extent of foraminal narrowing appeared most marked at C4-5.
Medical Evidence
62 Dr Horvat, the plaintiff’s general practitioner, first saw the plaintiff following the accident on 9 June 2004. Dr Horvat noted examination revealed tenderness to the right shoulder and clavicular region and the plaintiff was tender to his posterior, cervical and shoulder blade region. There were abrasions to both wrists and the plaintiff was tender to the right parietal region and temple region. There was no loss of consciousness and no clinical features of fracture. There was some right para lumbar muscle spasm evident. Dr Horvat prescribed Mersyndol Forte and Mobic.
63 Dr Horvat noted the plaintiff did not re-attend the surgery until 16 March 2005. The plaintiff made no mention of the accident or any symptoms associated with it. Further attendances occurred on 22 March 2005, 26 April 2005 and 10 May 2005, at which time no mention was made of the accident.
64 Dr Horvat noted however on 23 August 2006, the plaintiff attended his colleague, Dr Sulava, complaining of his left arm being numb and tingly. Dr Sulava referred the plaintiff for an x-ray of his neck which was reviewed on 11 September 2006 and revealed mild degenerative spondylosis at C4-5 with mild bilateral osteophytic foraminal encroachment at C4-5.
65 Dr Horvat subsequently reviewed the plaintiff on 20 November 2006 when the plaintiff was complaining of neck pain and taking Mobic.
66 Dr Horvat considered the plaintiff sustained a soft tissue injury to his neck, shoulder and sternal region and some initial minor head trauma as a consequence of the accident.
67 Dr Horvat reported the plaintiff subsequently did not re-attend specifically regarding the injuries from his accident and it was assumed the majority of his symptoms had resolved. Further, it was Dr Horvat’s understanding the plaintiff was able to return to work and underwent no further treatment in respect of his accident injury.
68 When he reported in December 2006, Dr Horvat was not aware of any permanent degree of disability suffered by the plaintiff as a consequence of the accident as no mention had been made of it by the plaintiff over the following two years. He noted the plaintiff may have aggravated his neck but the time from the accident to his current symptoms had been substantial.
69 Dr Horvat further reported in April 2007, noting the plaintiff attended on 30 January 2007 complaining of persistent neck pain; hence he was referred for a CT scan of his cervical spine.
70 Following receipt of these investigations, the plaintiff was referred to Mr D’Urso, neurosurgeon, who examined him in March 2007.
71 Dr Horvat noted Mr D’Urso recommended a cervical MRI and he understood Mr D’Urso had referred the plaintiff for such but he had not reviewed the plaintiff since that time.
72 When Dr Horvat last saw the plaintiff in February 2007, the plaintiff presented with pain and stiffness associated with neck movements. Dr Horvat noted at that time the plaintiff had received analgesics and anti-inflammatory preparations to help him manage his symptoms and he had also been prescribed the anti-inflammatory, Mobic.
73 Dr Horvat concluded that it was too difficult for him to ascertain a prognosis for the plaintiff; however, in his view plaintiff had degenerative changes to his neck which appeared to have been aggravated by the accident. Dr Horvat considered it likely those degenerative changes would continue to degenerate and that the outcome of the MRI scan may help to paint a picture of the plaintiff’s likely prognosis.
74 In a report of February 2007, Dr Horvat again opined that the plaintiff suffered soft tissue injuries to his neck and likely an aggravation of degenerative changes in his cervical spine in the accident. Furthermore, he thought the plaintiff suffered soft tissue injuries to his right shoulder and clavicular region, noting presentation on the date of the accident all suggested soft tissue injuries.
75 Dr Horvat noted of concern was the time lag between the plaintiff’s initial presentation and the subsequent presentation of neck discomfort on 23 August 2006, over two and a half years later. However, Dr Horvat believed the accident may have been severe enough to cause significant neck injury which had subsequently continued to degenerate.
76 Dr Horvat confirmed there was no pre existing neck condition, with the plaintiff having first attended the clinic on 1 March 2004. The plaintiff had been suffering gastro oesophageal reflux disease prior to the accident and was not on medications other than for that condition.
77 Given the plaintiff’s condition had not settled, Dr Horvat believed the injury would not settle in the foreseeable future.
78 Counsel for the plaintiff tendered a clinical note dated 26 April 2005 indicating the plaintiff was being prescribed Mersyndol Forte at that time.
79 Dr Sulava reported that he saw the plaintiff on 23 August 2006 when the plaintiff requested a Centrelink medical certificate in respect of his Dupuytren’s contracture. At that examination, the plaintiff also complained of left arm numbness and tingling which was emanating from his neck for which he was referred for an x-ray. Although the plaintiff denied that at this examination Dr Sulava provided him with Centrelink certificates for his left hand condition, I accept this was the case having looked at Dr Sulava’s clinical notes, his written report and the certificate to this effect in the plaintiff’s file dated August 2006.
80 Dr Sulava again saw the plaintiff on 11 September 2006 with the results of the x-ray. In his report dated 27 February 2007, Dr Sulava noted he had not seen the plaintiff since then nor was he aware that the plaintiff had been involved in a motor vehicle accident.
81 In January 2008, Dr Sulava reported that on 13 September 2007 he “had the pleasure to meet the plaintiff who advised him immediately he was involved in the accident”. Dr Sulava noted that the plaintiff attended essentially because his solicitors were asking for the dates the plaintiff had attended the surgery in relation to the accident.
82 When he last reported in July 2009, Dr Sulava concluded there had been no progress to recovery since the accident where the plaintiff could return to any form of employment. He noted the plaintiff was self employed and a number of times had tried to return to work but the trials had failed.
83 Dr Sulava noted that the plaintiff’s condition had progressively deteriorated to the stage where surgery had been suggested with the plaintiff being reluctant to proceed.
84 Dr Sulava noted overall there had been other unrelated medical issues, which he did not detail, affecting the plaintiff’s wellbeing and compounding his medical condition to the point where surgery would not be recommended should his state not improve. Dr Sulava commented that he would be very surprised if the plaintiff ever recovered even to be able to have surgery before aged sixty five.
85 Dr Sulava believed the plaintiff had a genuine physical injury from the accident and he considered conservative measures should be persevered.
Medico-Legal
86 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in June 2009.
87 The plaintiff told Mr King in the year of the accident he was running his own small plastering business, working fulltime and managing without difficulty.
88 Following the accident, the plaintiff told Mr King he took two weeks off work, then tried to return to work and worked intermittently over the next nine to twelve months doing only light supervisory duties in what was essentially a two man plastering business.
89 The plaintiff told Mr King that he did not return to see his general practitioner over the first year because his symptoms remained much the same and he wanted to maintain his small plastering business. The plaintiff told Mr King that eventually the business had to be closed down as he could not contribute and he had not worked in any capacity since 2006, since which time he had been on a disability pension.
90 The plaintiff told Mr King that over the last five years he had continued to be disabled by constant neck pain and stiffness associated with pain and stiffness in his right shoulder and some intermittent tingling and numbness in his right forearm and arm.
91 On examination, Mr King found mild to moderate restriction of neck movements by some pain and spasm - approximately two thirds of normal range. There was no clinical abnormality of the left upper limb. There were classical symptoms of a mild definite rotator cuff lesion of the right shoulder with mild definite limitation of glenohumeral and combined movements. Subjectively there was a slightly diminished sensation over the radial side of the right forearm which, in Mr King’s view, could possibly be related to mild sensory impairment in the C4-5 distribution and there was mild Dupuytren’s contracture of the right palm.
92 Mr King had available to him the 2007 CT and MRI scans of the plaintiff’s cervical spine.
93 In conclusion, Mr King was of the view the plaintiff had been chronically disabled to a moderately severe degree since the accident by persistent neck pain and stiffness and by persistent stiffness and pain in his right shoulder resulting from a chronic rotator cuff lesion.
94 Mr King’s overall impression was of a well motivated man who struggled on at work running his own small plastering business for about a year or more after the accident but eventually found he could no longer manage and had to abandon the business.
95 Mr King considered the plaintiff was now chronically disabled to a moderately severe degree by his neck and right shoulder pain. His condition had stabilised and it was reasonable for the plaintiff to decide against surgery. Mr King considered it highly unlikely the plaintiff would ever be able to find suitable work again in the foreseeable future in view of his age and accepting he had done manual work all his life.
96 Mr King could not find any evidence of any psychological overlay and his overall impression was the plaintiff was a genuine, well motivated man with a long term physical impairment of neck and right shoulder pain function.
97 Mr King considered the trauma to the plaintiff’s spine suffered in the accident would have been superimposed upon pre existing mild to moderate degenerative changes, as shown on x-ray, consistent with the plaintiff’s age and occupation. He thought it was a reasonable assumption that the onset of neck pain and stiffness with some mild radiculopathy symptoms was a result of injuries sustained to the cervical discs and associated ligamentous structures at the time of the accident.
98 Mr Khan, orthopaedic surgeon, examined the plaintiff in December 2007 and more recently in June 2009.
99 The plaintiff told him that prior to the accident he had been doing his own business of plastering for more than twenty years, working eight to nine hours a day, six days a week.
100 The plaintiff told Mr Khan that after the accident he tried to return to work and that his partner finished his contract with him at the end of 2005 or 2006.
101 The plaintiff told Mr Khan that as his pain was not settling, he returned to see his general practitioner and had some x-rays which the plaintiff seems to have told him was on the initial examination.
102 The plaintiff told Mr Khan that he did not return to his doctor until 16 March 2005 and he then saw Dr Sulava on 23 August 2006 complaining of left arm pain with numbness and tingling.
103 Mr Khan noted an x-ray of the cervical spine taken on 8 September 2006 showed mild degenerative spondylosis at C4-5 with mild bilateral osteophytic foraminal encroachment at that level.
104 On examination in June 2009, Mr Khan reported that the plaintiff complained of an aching type of pain in the right side of his neck. He concluded the plaintiff had mild symptoms of cervical disc degeneration before his accident and occasionally required analgesics and medication. However following the accident, in which the plaintiff sustained a fairly severe jarring injury to his neck and thoracic spine, he developed a flare up of pre existing degenerative changes at C4-5 and C5-6 and had developed two level disc prolapses with right brachial paralgia. Mr Khan considered the plaintiff had nerve root compression of the right sided C5-6 nerve roots as demonstrated by clinical and radiological examination.
105 In Mr Khan’s view, the plaintiff’s present disability related to persistent pain in restriction of movement of his cervical spine and referred pain down his right arm with numbness consistent with the accident. Mr Khan considered the plaintiff had clinically secondary changes in his right shoulder with some tightness of the capsule of the shoulder. He thought the plaintiff was not fit for his pre injury duties.
106 When Mr D’Urso first examined the plaintiff in early 2007, the plaintiff gave a history of persisting symptoms since the accident date, complaining of a lot of neck pain and stiffness since that time.
107 On this initial examination, the plaintiff had about eighty five per cent range of movement in flexion and extension of his neck, with right rotation limited to about fifty per cent and left rotation to about seventy five per cent of normal.
108 Having seen the February 2007 CT scan, Mr D’Urso concluded the plaintiff had significant cervical spondylosis and likely disc prolapse at C4-5 motion segment and there was probable impingement of exiting nerve roots at that level. He recommended an MRI scan.
109 Following the MRI scan of 4 June 2007, Mr D’Urso reviewed the plaintiff on 2 July 2007 when he was complaining of persisting neck pain and paraesthesia affecting particularly his right arm and shoulder..
110 The plaintiff was reviewed by Mr D’Urso at the request of his solicitors on 28 November 2008, at which time he described deterioration in his neck and right arm pain.
111 Mr D’Urso indicated to the plaintiff he had significant nerve root entrapment in his cervical spine at two levels. He considered if the plaintiff’s symptoms were worsening or unmanageable with medical measures, surgical intervention could be considered. Mr D’Urso noted his preferred option would be a two level anterior cervical discectomy and instrumental fusion.
112 Mr D’Urso accepted that shortly after the accident the plaintiff had to cease working as a plasterer. He found the plaintiff had significant abnormalities as evidenced on investigation. For those reasons, Mr D’Urso believed the plaintiff sustained a significant neck injury as a result of the accident.
113 Mr D’Urso most recently reported on 8 May 2009, having examined the plaintiff at the request of his solicitors. At that time, the plaintiff continued to describe chronic neck pain and right brachialgia.
114 Mr D’Urso thought it appeared likely the plaintiff sustained a significant cervical injury as a result of the accident. In his view, there was most likely underlying degenerative spondylosis of the plaintiff’s cervical spine, particularly at C4-5 motion segment. He noted however the accident could well have resulted in the development of disc prolapse and radicular arm symptoms. His view remained unchanged to that as previously expressed.
115 Mr Ireland, hand surgeon, assessed the plaintiff on behalf of the defendant on 20 May 2009.
116 The plaintiff told Mr Ireland that following the accident he continued under the care of his family doctor before referral or before any investigations were undertaken.
117 The plaintiff told him that he attempted to return to work three days after the accident but noted shoulder pain prevented him from doing his work. He tried to do his normal work for about two days but had not returned to any form of work since that time.
118 In Mr Ireland’s view, the plaintiff suffered from cervical spondylosis with foraminal stenosis. Mr Ireland deferred to the opinions of Mr D’Urso and Mr Klug. He believed the plaintiff’s shoulder pain was referred pain from the cervical spine as he could detect no evidence of rotator cuff injury or injury to any other joints of the shoulder. In addition, he considered the plaintiff suffered from bilateral Dupuytren’s contracture not related to the accident.
119 Mr Ireland thought the plaintiff would be suited to return to sedentary work or work at ground level that did not require any work with the right shoulder extended past ninety degrees.
120 The plaintiff completed a Transport Accident Commission Claim for Compensation on 14 November 2006. The plaintiff set out he suffered a neck injury, bruising to the body and back, shock and anxiety state in the accident. He detailed on the form that he was employed as a plasterer/sole trader and expected to be absent from work for more than five days. He did not provide any details of any hours worked or wages paid or money earned prior to the accident.
The Defendant’s Medical Evidence
121 Mr Klug, neurosurgeon, first examined the plaintiff in September 2007 and most recently in June 2008.
122 On the first examination, the plaintiff told Mr Klug that at the time of the accident he was a self employed plasterer. Following the accident, the pain persisted for the next few days and he continued to attend his general practitioner. The plaintiff asked for x-rays to be undertaken and finally he had various investigations and was told there was a disc disorder.
123 The plaintiff told Mr Klug that following the accident he remained away from his normal occupation for about two weeks and then returned to work but found he could not cope. In particular, plastering was not within his capabilities. He lasted only two days and had not worked since. The plaintiff told Mr Klug he had continued to suffer from symptoms which had never really abated since the accident.
124 On examination, Mr Klug noted there was a minimal restriction of cervical movements and neurological examination was normal save for some slight asymmetry of the triceps tendon reflexes. However, he was not convinced of any definite evidence of weakness in either upper limb.
125 Mr Klug had available to him various investigations, together with the clinical notes of the plaintiff’s general practitioner. Mr Klug noted unfortunately there was no medical documentation relating to the plaintiff’s condition in the months after the accident.
126 Mr Klug considered the 2007 imaging showed multi level changes in the neck which appeared to be more marked on the right. He noted that on examination in August 2006, the plaintiff was said to be complaining of symptoms of numbness and tingling in the left arm.
127 Mr Klug concluded that it was most probable that the plaintiff was suffering from degenerative changes in the cervical spine being responsible for his pain. He considered at that time the plaintiff’s symptoms had an organic basis consistent with the changes noted on imaging.
128 Mr Klug noted the main issue was whether or not the accident was playing any role in the plaintiff’s current condition. At that time, Mr Klug found it difficult to exclude some contribution from the accident in regard to the plaintiff’s neck condition, but he believed any such contribution was of a minor degree and his current symptoms were a reflection of a degenerative disorder with some evidence of progression.
129 Mr Klug confirmed he found it difficult to relate the accident as being a significant factor in regard to the plaintiff’s condition. However, in his view it was not possible to exclude some small component as being so related.
130 Mr Klug accepted the plaintiff’s condition was such that he could not undertake all aspects of plastering work and it would be difficult for him to do work above shoulder height. However, he thought the plaintiff had some capacity for employment.
131 On re examination on 27 May 2009, the plaintiff confirmed the earlier history given. On examination, Mr Klug found there was no objective evidence of impaired motor or sensory function. In general, the plaintiff moved freely and there was some slight restriction of neck movement, some tenderness in the region of the right shoulder and some mild restriction of movement in that joint.
132 Mr Klug felt it most likely the plaintiff was suffering from symptomatic cervical spondylosis which was responsible for his complaints of neck pain. He considered, in view of the length of the time since the accident, it was more probable than not that the plaintiff’s current symptoms would persist, with some waxing and waning, indefinitely and that his prognosis would have to be considered somewhat guarded.
133 He confirmed his views as to the plaintiff’s employment capacity. He also stated he found it hard to believe that the accident was playing a significant role in the plaintiff’s current condition. He accepted at the time of the accident the plaintiff suffered some aggravation of pre existing neck disorder and that the aggravation had long since ceased and the continuation of the plaintiff’s symptoms was a reflection of the underlying degenerative disorder which, in his view, would no doubt be slowly progressive.
134 Mr Klug concluded as always it was difficult to be definitive in regard to this comment. He noted that one would have to be of the opinion that the accident could still be contributing in a small way to the plaintiff’s current condition, but overall he believed such would not be considered a dominant factor. He considered it unlikely the plaintiff’s current condition substantially interfered with his domestic activities but believed it may prevent him undertaking leisure activities of a physical nature.
135 Dr John King, psychiatrist, examined the plaintiff on 21 May 2009. The plaintiff gave him no particular history as to his work situation or his post accident medical treatment.
136 Dr King thought the plaintiff did not suffer from depression. He believed he did not satisfy the diagnostic criteria for Post Traumatic Stress Disorder, in that the plaintiff’s nightmares and dreams of the accident had settled, and Dr King was not convinced the plaintiff suffered from full flashbacks. He diagnosed an adjustment disorder with anxiety.
137 Dr King thought the plaintiff’s psychiatric injuries did not interfere with his capacity to work in any way.
138 On a questionnaire completed by the plaintiff when he was hospitalised at Western General Hospital for his hand surgery in June 2006, in which “no” was answered to the question whether he had had severe back or neck problems.
139 An entry in Dr Sulava’s notes of 11 November 2008 setting out a diagnosis of diabetes-steatosis hepatitis with secondary hypersplenism – “due to overconsumption of ethanol” was tendered, as were all the notes from his Clinic.
Overview
140 Whilst I accept that the plaintiff suffered a soft tissue injury to his cervical spine in the accident, I am not satisfied that there is any ongoing impairment related to the accident that is serious.
141 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
142 Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s evidence and credit.
143 Whilst he initially deposed that for about twelve months prior to the accident he was helping his son build his house free of charge, the plaintiff deposed he had continued working as a plasterer until the accident. He also later deposed as to his involvement in ongoing plastering work at premises in Maribyrnong at the time of the accident.
144 As the plaintiff ultimately conceded in cross examination, he did not do much plastering work at all during the 2002-3 financial year, earning only $16,000 plastering, and he also did unpaid work for his son. Further, he finally conceded in the year prior to the accident he had not worked as a plasterer at all and had no income from the partnership and he was working solely for his son.
145 Mr Jack Caran’s evidence that the plaintiff was engaged in full time work as a plasterer and worked for a number of builders at the time of the accident is clearly incorrect.
146 It is somewhat curious to note, however, that Dr Horvat thought that the plaintiff continued working normally for some time after the accident.
147 In light of my findings as to the lack of plastering work in the year or so leading up to the accident, I do not accept there were any plastering jobs the plaintiff attempted to return to thereafter. There is no evidence from the plaintiff’s business partner, Nick, nor any financial records or documents relating to any work undertaken by the partnership after the accident.
148 The medical practitioners who have examined the plaintiff and have supported an incapacity for pre injury work due to his neck condition have been given a very different picture by the plaintiff of his work situation at the time of the accident and thereafter.
149 Mr D’Urso, Mr King, Mr Khan and Mr Klug were told by the plaintiff that he was working fulltime as a plasterer at the time of the accident. They were also told by the plaintiff that he briefly tried to return to work after the accident but could not continue plastering because of his accident injuries.
150 Having found that the plaintiff was not working as a plasterer at the time of the accident and not being persuaded that the partnership had any further work available to him thereafter, I am not satisfied therefore that there has been an interference with the plaintiff’s work as a consequence of the accident which could be said to be serious.
151 Further, I do not accept the plaintiff has had ongoing constant neck pain and stiffness since the accident. I do not accept that he reported problems of this nature to Dr Horvat on any of the four examinations subsequent to the said date and prior to August 2006.
152 In this case, it is not simply that there is no mention of such complaint in Dr Horvat’s notes. He specifically commented in his reports of his concern as to the lack of complaint by the plaintiff and the time lag between the accident and when the plaintiff actually reported left sided neck problems in August 2006.
153 I am of the view that if the plaintiff had in fact suffered constant pain and stiffness after the accident, he would have reported it when examined and requested treatment.
154 Further, when the plaintiff saw Dr Sulava on two occasions in August and September 2006, the plaintiff did not mention the accident to him. It was not until September 2007 that Dr Sulava became aware of the plaintiff’s involvement in the accident when the plaintiff raised the issue having been asked by his solicitors to check the dates of attendances at that clinic.
155 The plaintiff did not make a claim for compensation in relation to the accident until November 2006.
156 I do not accept the plaintiff’s evidence that he reported neck pain prior to August 2006. In cross examination, the plaintiff initially said he would have told Dr Horvat in the four visits in 2005 and then said he thought he told him on the last visit in 2005.
157 I do not accept the evidence of the plaintiff’s wife and son as to the onset of neck pain and its alleged ongoing nature following the accident given the plaintiff’s own unconvincing evidence and Dr Horvat’s evidence to the contrary.
158 Further, medical practitioners, who have found the plaintiff’s current
presentation results from the accident, were given inaccurate histories by him
as to his work history after the accident.
159 The plaintiff told Mr King that after the accident he did not return to the doctor in early days as symptoms remained much the same and he wanted to continue plastering work. Mr King accepted that the plaintiff was chronically disabled to a moderately severe degree since the accident by persistent neck pain and stiffness.
160 The plaintiff told Mr Khan after seeing his doctor on the said date, as his pain was not settling, he returned to see his doctor and x rays were ordered.
161 Mr D’Urso accepted that the plaintiff had persisting pain ever since the accident date. He based his opinion on the plaintiff’s history that he had a lot of pain and stiffness since the accident.
162 Mr Klug, whom the plaintiff told he had continuing symptoms and was attending his doctor from the accident date, was advised of the correct history though sources other than the plaintiff.
163 When he first reported in 2007, Mr Klug confirmed he found it difficult to relate the accident as being a significant factor in regard to the plaintiff’s condition. However, in his view it was not possible to exclude some small component as being so related.
164 Most recently in 2009, Mr Klug stated he found it hard to believe that the accident was playing a significant role in the plaintiff’s current condition. He thought any aggravation had long ceased and the continuation of the plaintiff’s symptoms was a reflection of the underlying degenerative disorder.
165 Whilst noting the difficulty being definitive in this regard, he noted that one would have to be of the opinion that the accident could still be contributing in a small way to the plaintiff’s current condition, but overall he believed such would not be considered a dominant factor.
166 I am not satisfied that the plaintiff has suffered a serious long term impairment as a result of the accident.
167 Whilst there may have been some soft tissue injury and/or aggravation of the plaintiff’s degenerative condition in the accident, as evidenced by his complaint to Dr Horvat on the said date, any such neck symptoms did not persist in the two and a half years thereafter nor do they persist at present.
168 I find that any ongoing problems the plaintiff may have in his cervical spine are degenerative in nature.
169 Further, it is of note when the plaintiff first reported a neck problem in August 2006 he complained of left upper limb problems. The plaintiff’s complaints to various examiners since 2007 have been predominantly right sided with a finding by Mr D’Urso of mild global weakness in the right upper limb and a finding of right sided mild radiculpopathy by Mr King. Further, the CT scan of 2007 showed a right foraminal C4-5 disc prolapse.
170 Leaving to one side the nature and timing of the plaintiff’s neck complaint and my findings as to his work situation, I do not accept there are other consequences that are serious and long term.
171 The plaintiff’s present treatment is in the form of medication only. Surgery has not been suggested by Mr D’Urso unless the plaintiff’s symptoms were worsening or unmanageable with medical measures.
172 The plaintiff has not deposed to nor given evidence about any particular activities that have been supposedly affected by his neck condition.
173 Further, Mr Klug considered it unlikely the plaintiff’s current condition substantially interfered with his domestic activities but believed it may prevent him undertaking leisure activities of a physical nature.
174 In all the circumstances, I am not satisfied the plaintiff suffered a serious injury to his neck in the accident and I dismiss his application for leave to proceed.
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