Caran v Draganic and TAC
[2010] VCC 1140
•17 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03067
| BOZO CARAN | Plaintiff |
| v | |
| LUKE DRAGANIC | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 and 29 July 2010 |
| DATE OF JUDGMENT: | 17 August 2010 |
| CASE MAY BE CITED AS: | Caran v Draganic & TAC |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1140 |
REASONS FOR JUDGMENT
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Catchwords: TRANSPORT ACCIDENT – Section 93 Transport Accident Act 1986 – injury to cervical spine – significant gap in obtaining medical treatment – causation – seriousness.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B W Collis QC with | Vincent Verduci & Associates |
| Mr A D B Ingram | ||
| For the Defendants | Ms F M McLeod SC with | Solicitor to the Transport |
| Ms A C Ryan | Accident Commission | |
| HIS HONOUR: |
1 The plaintiff was involved in a motor vehicle collision on 9 June 2004, as a result of which he claims to have suffered injuries, in particular to his cervical spine. Although he remained working as a self-employed plasterer for a period of time, he claims that by 2006 the injury to his neck prevented him from maintaining that employment, and he has not worked since.
2 He claims ongoing pain and restriction of movement in the neck requiring significant medication.
3 This is an application for leave to bring proceedings pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in a transport accident on 9 June 2004.
4 Mr Collis, on behalf of the plaintiff, identified the body function said to be lost or impaired as the cervical spine. The application is thus brought under sub- section (a) of the definition of “serious injury” contained in s.93(17) of the Act.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from a loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.
6 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of body function.
7 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, radiology reports, extracts from clinical notes and claim forms were tendered into evidence. I have read all the tendered material.
8 On behalf of the defendants, Ms McLeod at the outset noted that the areas of contention were, firstly, as to causation, and further, as to whether the consequences of injury to the plaintiff reached the serious injury level. At the conclusion of the evidence, she accepted the only issue of contention was as to the causative relationship between the plaintiff’s current consequences of injury, and the transport accident.
Relevant Background
9 The plaintiff was born in 1946 and is currently sixty-four years of age. He left school at age eleven, worked for a period on the family farm in Bosnia and served in the army. He married in 1968 and came to Australia the same year.
10 Since coming to Australia, he has had constant employment, including:
ƒ as a process worker ƒ as a labourer at the Dartmouth dam ƒ as a labourer and crane and forklift driver for Australian Tube Mills. 11 In 1987, he commenced his own business as a plasterer, undertaking sub- contracting work for builders at residential homes.
12 His net earnings over the relevant years from his plastering business were as follows:
Financial Year Ending Net Earnings 30 June 2002 $44,635.00 30 June 2003 $16,903.00 30 June 2004 Nil 30 June 2005 $8,049.00 30 June 2006 $1,687.00
13 For the year ended 30 June 2004, the plaintiff explained that his net earnings were nil as he worked for that year assisting his son build his house. He claims he did not charge his son, and was not paid for his efforts.
14 In respect of the 2005 and 2006 years, that is after the transport accident, the gross earnings of the plaintiff’s business were respectively $33,000 and $8,000.
15 Apart from a low-back injury in the 1970s in respect of which the plaintiff had two or three months away from work, he stated he was otherwise fit and healthy in June 2004 and in particular, had no pain nor restriction in his neck. He was able to undertake all aspects of his plastering work, and in addition, did carpentry and other heavy manual labour required in the building industry. He claims to have been very active around the family house, undertaking gardening, repairs and maintenance and assisting with the domestic duties.
The Transport Accident and its Consequences
16 At the time of the accident, the plaintiff was travelling at 40 to 50 kilometres an hour and was struck by a motor vehicle approaching in the opposite direction. The plaintiff’s vehicle suffered approximately $8,000 damage. An ambulance was called, but the officers determined the plaintiff did not require hospital admission and instead he was taken to his general practitioner, Dr Horvat. According to the doctor’s clinical notes of that day,[1] examination revealed tenderness to the posterior cervical spine and shoulder blade area. He observed some right para-lumbar muscle spasm. He prescribed Mersyndol Forte as analgesia and Mobic as an anti-inflammatory.
[1] Defendants’ Court Book (“DCB”) 265
17 There was no attendance by the plaintiff upon Dr Horvat or any other practitioner for symptoms arising from the transport accident, from that time until 23 August 2006. Over that period of more than two years, the plaintiff went to see Dr Horvat on four occasions, 16 March 2005, 22 March 2005, 26 April 2005 and 10 May 2005, all for unrelated conditions. There was no reference to the transport accident nor any injuries sustained, in any of those visits.
18 On 23 August 2006, the plaintiff attended his general practitioner and was this time seen by Dr Sulava. The reason for the attendance was in respect of a constriction of the fingers of his left hand known as Dupuytren’s contracture. In addition, on that day, he complained of numbness and tingling in his left arm, emanating from the neck.[2] X-rays were performed on 11 September 2006 which revealed degenerative spondylosis at C4-5 with mild bilateral osteophytic foraminal encroachment.
[2] DCB 263
19 Dr Horvat reviewed the plaintiff on 20 November 2006 and he was then complaining of pain in the neck. The anti-inflammatory, Mobic, was prescribed. Prescription of that medication has continued through to the present time. The entry in the general practitioner’s notes[3] states:
“Works as a plasterer – says has not worked much since mca 2004 (had
Dupuytren’s contraction surgery).”
[3] DCB 263
20 From that time through to the present, the plaintiff has been seen regularly by Dr Horvat and treated with a range of conservative treatments, including the prescription of Mobic and Tramal (from March 2008). He also currently takes Panadeine Forte and Mersyndol Forte. He claims there are gastrointestinal side-effects of these medications.
21 A CT scan of the plaintiff’s cervical spine was undertaken on 2 February 2007[4] which concluded, relevantly:
“1 Moderately severe C4-5 cervical canal stenosis secondary to a central C4-5 disc prolapse. ? underlying cord or nerve root impingement. MRI of the cervical spine is recommended.
2 Mild C3-4 and C5-6 cervical canal stenosis secondary to a central disc prolapse at both levels. ? underlying cord or nerve root impingement.
3 Mild to moderate bilateral C4-5 osteophytic foraminal stenosis.”
[4] Plaintiff’s Court Book (“PCB”) 43
22 In late 2006, Dr Horvat referred the plaintiff to Mr D’Urso, neurosurgeon. That doctor referred the plaintiff for MRI examination in June 2007[5] which concluded:
“There are disc protrusions and end plate osteophyte formation at C4-5 and C5-6 as described, resulting in right-sided C5 and C6 foraminal narrowing and compression of the exiting nerves. The extent of foraminal narrowing appears most marked at C4-5.”
[5] PCB 44
23 Mr D’Urso obtained a history of ongoing pain to the neck and right shoulder from the transport accident. The plaintiff described the symptoms as being worse in the morning, with a lot of neck stiffness and pain. Mr D’Urso considered that the radiology revealed disc and osteophyte complex at C4-5 causing right C5 nerve root compression. He further noted disc prolapse at C5-6 causing some milder C6 nerve root compression with some slight cord impingement. Mr D’Urso continued to treat the plaintiff and noted that by November 2008,[6] his neck and right arm pain had increased. There was paraesthetic sensation in the right arm running down to the fingers. He received a history:
“Prior his accident, Bozo states that he was working full-time as a plasterer and had done so for twenty years. He had to stop the employment one month after the motor vehicle accident.”
[6] PCB 115
24 Mr D’Urso considered there was significant nerve root entrapment in the cervical spine at two levels and that surgery by way of a two-level anterior cervical discectomy and fusion was indicated. He discussed the surgery with the plaintiff. He considered the plaintiff had suffered a significant cervical spine injury in the motor vehicle accident, possibly causing C5-4 disc prolapse and aggravating spondylosis at C4-5. He thought there was a direct relationship between the symptoms and the motor vehicle accident.
25 When the plaintiff consulted Mr D’Urso again on 16 July 2010, he noted that the symptoms as earlier described had persisted. There was sleep and mood disturbance.
26 In his report of 8 May 2009, Mr D’Urso said that it was likely there was an underlying degenerative spondylosis of the cervical spine and the transport accident could well have resulted in the development of disc prolapse and radicular arm symptoms.
27 Of further note, in his report of 23 March 2007,[7] the plaintiff described himself as, at that time, working as a part-time plasterer.
[7] PCB 113
28 According to the clinical notes of the Western Hospital,[8] the plaintiff attended on 4 July 2005 complaining of Dupuytren’s contracture and was placed on a waiting list for release surgery. This took place on 28 June 2006.[9] At the time of the surgery, he answered a questionnaire[10] in which he denied any severe neck problems.
[8] DCB 73
[9] DCB 92
[10] DCB 81
29 The plaintiff was reviewed by the Western Hospital in October 2006[11]and it was noted there was some delayed healing to the operation site.
[11] DCB 54
30 In about September 2006, the plaintiff requested a Centrelink medical certificate from Dr Sulava as a result of the Dupuytren’s contracture.[12] Such a certificate was issued for the period 26 August 2006 to a date in November 2006,[13] although it is difficult to read as to the symptoms said to have given rise to the certification.
[12] DCB 145
[13] DCB 255
31 Ms McLeod submits the real reason for the plaintiff ceasing work in 2006 was the difficulty with his hands rather than any neck problem. However I note from the report of Mr Ireland, hand surgeon of 20 May 2009,[14] that the condition would have prevented the plaintiff from returning to work only for a period of three months. He described the conditional as “minimal” and it was the plaintiff’s neck condition rather than the hand condition which prevented him from returning to work.
[14] PCB 145(f)
32 The course of the plaintiff’s employment after the transport accident requires careful consideration. As stated, before the transport accident, he worked for a period of approximately twelve months assisting his son in the construction of a dwelling. Also, he deposed[15] that he was undertaking some plastering work for a friend at Maribyrnong. He was off work for a period of approximately two weeks.[16] According to his affidavit sworn 3 October 2007,[17] he deposed:
“As a result of my injuries I have been off work from that time until early 2006 when I tried to return to work doing plaster work on two houses together with my partner and worked for about two weeks in March and May 2006, but I had trouble working and it was aggravating my injuries and again, I had to give this work up and I have not worked since that time. I have been engaged in unpaid activities when I helped my son, who is a builder, by attending at the worksite only to keep an eye on the material and speak to subcontractors. All the work is done by subcontractors and I am not involved in physical work and do not get paid. I do this to keep busy and have something to do. Sometimes I buy things for the workers which they need on the job. I usually stay at the job two or three days per week, sometimes two or three hours per day. I am unable to do this on a full-time basis and I don’t consider this work. I also helped my son prior to my accident but then I was engaged in doing plasterwork full-time whereas now I am not really doing any physical work.”
[15] PCB 42d
[16] PCB 17
[17] PCB 17
33 According to the plaintiff’s further affidavit of 11 December 2008,[18] he deposed:
“Although I continued to have ongoing pains particularly affecting my neck and right shoulder regions, I tried to go back to plastering work after a few weeks but found that I could not cope with the lifting of heavy plaster sheets or overhead work. I had to give up most of my plastering work and to go back and continue helping my son with very light duties such as keeping an eye on tradesmen working on his projects and maintaining security on those projects. ….”
[18] PCB 28
34 According to the affidavit of the plaintiff’s son, Jack Caran, sworn 21 January 2009:[19]
“Since this accident, my father has not been able to return to his work as a plasterer with other builders. He has been attending the place of work where I am building however he does not engage in any plastering work or other physical work as he is unable to do so because of his injuries but attends the worksite to check up for me whether workers have turned up to work and check on deliveries. … .”
[19] PCB 32
35 According to the history provided to Dr Horvat,[20] the plaintiff said:
“I subsequently reviewed Mr Caran on 20 November 2006 … On this occasion he alleged that he had worked as a plasterer and alleged that he had not worked much since his motor vehicle accident in 2004.”
[20] PCB 50
36 According to the report of De Sulava of 27 January 2008:[21]
“Mr Caran told me that he had been working until the accident as a self- employed person. Unfortunately, after the accident he had to cease work due to the symptoms he was experiencing and there were apparently a few trials at a return to work which had all failed.”
[21] PCB 111
37 When the plaintiff saw Mr D’Urso in late 2006 or early 2007, at that time he provided a history:
“… and he was working part-time as a plasterer.”
38 However, in his further report of 2 December 2008,[22] Mr D’Urso states:
“Prior to his accident, Bozo states that he was working full-time as a plasterer and had done so for twenty years. He had to stop the employment one month after the motor vehicle accident.”
[22] PBC 115
39 Further:[23]
“He immediately attended his general practitioner with symptoms on the day of the accident, and shortly after had to cease working as a plasterer.”
[23] PCB 116
40 In a history provided to Mr Kahn, consultant orthopaedic surgeon, when seen in September 2007,[24] the plaintiff said:
“He then tried to return to work. His partner finished his contract with him
at the end of 2005 or 2006.”
[24] PCB 121
41 In his report of 10 June 2009,[25] Mr Kahn states:
“Following the injury he was unable to perform heavy type (sic) of work or any work requiring extension of the neck such as plastering the ceiling. His son continued his business and Mr Caran did mainly light supervisory duties. … .”
[25] PCB 132
42 To Mr Kevin King, orthopaedic surgeon, according to his report of 18 June 2009,[26] the plaintiff provided the following history:
“Mr Caran tells me he was then sent home and the next day he was conscious of generalised aching pain in the neck and shoulders and in the front of his chest. He took off two weeks from his own small business as a plasterer and 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.”
[26] PCB 139
43 When examined by Mr Klug, neurosurgeon, at the request of the Transport Accident Commission in September 2007, the plaintiff gave the following history:[27]
“He told me that following the accident he remained away from his normal occupation for approximately two weeks. He then returned to employment but found he could not cope. In particular, plastering of a ceiling was not within his capabilities because of ongoing pain referable to his neck. He only lasted some two days. He has never worked since that time.”
[27] DCB 22
44 Mr Klug received a similar history when he examined the plaintiff again in 2009.[28]
[28] DCB 16
45 When the matter of the plaintiff’s post-accident employment was raised in cross-examination, the plaintiff gave an explanation of his post-accident work which was somewhat different. He stated that he stopped work all together in 2006.[29] However, in 2008, he did undertake some plastering work with his partner, Nick Visovic.[30] This work was undertaken as the plaintiff was attempting to assess whether he was able to do any work in plastering. In this work, the hours he worked varied, sometimes for several hours, sometimes all day. There were several jobs and he worked for several days on each job.[31] He did not receive any payment for this work.
[29] T 11
[30] T 11
[31] T 11-12
46 In the financial year ended 2005, according to the plaintiff’s taxation return, his business earned $33,000 gross, of which, after payment of expenses, and a distribution to his wife, left the plaintiff with income of $8,000 net.[32] The plaintiff stated that these earnings were from plastering work in that year, for which he charged $30 to $35 per hour. This converted to approximately 1,000 hours or approximately twenty-five weeks’ work (presuming an eight hour day). In answer to questioning by me,[33] the plaintiff said that in that year he worked the whole of the year, with gaps between jobs. Admittedly, his evidence in this regard was somewhat vague and uncertain.[34] He stated that he then stopped work completely in approximately May 2006, save in respect of the attempts he made in 2008. In 2005, the work involved some general labouring, moving bricks and timber and some plastering.[35]
[32] T 18
[33] T 20
[34] T 20, L15
[35] T 24, L22
47 As can be seen, there are inconsistencies between, on the one hand, the plaintiff’s evidence in cross-examination, and on the other hand, the evidence as deposed in his affidavits, and the histories to the various doctors. To some extent, this affects the plaintiff’s credibility. I did not find the affidavits of the plaintiff’s wife and son helpful because of the inaccurate statements of the plaintiffs work attendances over the relevant period. I accept the plaintiff was away from work after the transport accident for several weeks. Thereafter, he resumed plastering, working both for his son, and then in addition, in his own plastering business. This continued up until about the middle of 2006, but in a reduced manner. His earnings, both in terms of gross earnings of the business, and his net earnings, were significantly reduced when a comparison is made in respect of those earnings for the years ended 2002 and 2003. I accept that from the middle of 2006 to the present time, the plaintiff has undertaken plastering work from time to time but on an even more significantly diminished basis. As he says, he has tested himself to determine whether or not he is able to perform the work, although this has, at times, meant that he has worked for some days, and undertaken a range of physical work.
Medical Opinions
48 The general practitioner, Dr Horvat, noted[36] that after the initial attendance by the plaintiff on the date of the transport accident, he attended on a number of occasions at the practice over the period from March to May 2005, there being no mention of any symptoms from the transport accident. It was not until August 2006 that there was any complaint of arm pain said to be related to the neck. He accepted the plaintiff had suffered a soft tissue injury to his neck, shoulder and sternal region but assumed that the majority of symptoms had resolved. He said:[37]
“I am not aware of any permanent degree of disability as a consequence of the motor vehicle accident as no mention had been made over the following two years. He may have aggravated his neck, but the time from the accident to his current symptoms has been substantial.”
[36] PCB 47
[37] PCB 48
49 Further:[38]
“Of concern has been the time lag between his initial presentation and his subsequent presentation of neck discomfort on 23 August 2006, which is over two years later. However, I do believe the motor vehicle accident may have been severe enough to cause significant neck injury, which has subsequently continued to degenerate.”
[38] PCB 50
50 Mr D’Urso, the treating neurosurgeon, concluded that there was a causal link between the plaintiff’s neck symptoms over the period of his treatment, and the transport accident. He noted that the accident caused a “significant whiplash injury” to the cervical spine[39] which caused, possibly, a C5-6 disc prolapse and aggravation of spondylosis at the C4-5 motion segment. Such was the seriousness of the condition at the present time that Mr D’Urso contemplated surgery, being a two-level cervical discectomy and fusion. He noted the condition in the plaintiff’s neck, at C4-5 and C5-6 was likely to have been an underlying degenerative condition, made symptomatic as a result of the transport accident.
[39] PCB 116
51 The plaintiff was examined by Mr Kahn, orthopaedic surgeon, in September 2007 and April 2009.[40] Mr Kahn also considered that the plaintiff had a pre- existing asymptomatic degenerative condition in his cervical spine, particularly at C4-5. The transport accident had flared-up the degenerative disease and had possibly caused a disc prolapse at C4-5. As with Mr D’Urso, Mr Kahn relied upon the plaintiff’s complaints of ongoing pain and restriction in the cervical spine from the time of the transport accident, through to the date of examination. He considered the transport accident was responsible for the aggravation of the injury to his cervical spine with the development of two disc prolapses at C4-5 and C5-6. He noted right brachial neuralgia and compromise of the right C5-6 nerve root.
[40] PCB 120, 130
52 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in June 2009.[41] Mr King considered that the plaintiff had suffered a heavy jerking strain to his head and neck in the transport accident. Like the other practitioners, Mr King concluded there was a causal link between the transport accident and the plaintiff’s ongoing symptoms and neck condition. There had been an aggravation of the underlying degenerative disease in the cervical spine as a result of the accident. Mr King said:[42]
“The overall impression is 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 (he had only one other partner to help with the plastering work).”
[41] PCB 138
[42] PCB 143
53 On behalf of the defendants, the plaintiff was examined by Mr Klug, neurosurgeon, in September 2007 and May 2009.[43] As stated, Mr Klug did not receive a complete history as to the plaintiff’s attendance at work after the accident. Mr Klug, noting the gap in complaint and treatment by the general practitioner from June 2004 until August 2006, and while accepting that the plaintiff’s original time away from work could be accident-related, concluded that at the present time, the plaintiff was suffering from the underlying degenerative condition in his cervical spine. He stated:[44]
“I find it difficult to exclude some contribution from the road traffic accident in regard to this person’s neck condition, but I believe that any such contribution is of a minor degree and that his current symptoms are a reflection of a degenerative disorder involving that region of his spine with some evidence of progression.”
[43] DCB 21, 15
[44] DCB 26
54 Further:[45]
“As indicated, I find it hard to believe that in regard to his current condition the road traffic accident is playing a significant role. I accept that at the time of the injury he did suffer some aggravation, probably of a pre-existing disorder in his neck and I believe that the aggravation related to the accident has long since ceased and that the continuation of his symptoms are a reflection of the underlying degenerative disorder which will no doubt be slowly progressive. As always, it is difficult to be definitive in regard to the above comment. One would have to be of the opinion that the road traffic accident could still be contributing in a small way to his current condition but overall I believe that such would not be considered a dominant factor.”
[45] DCB 19
Conclusions from the Medical Evidence
55 The reports of Dr Horvat indicate an uncertainty as to whether the plaintiff’s current neck condition is related to the transport accident. Messrs. D’Urso, Kahn and King do make the causal link, and while they (with the exception of Mr King) received a somewhat inaccurate post-accident work history, they did have the report of Dr Horvat referring to the significant gap in treatment from June 2004 to August 2006.
56 Mr Klug is of the view that the contribution of the transport accident to the plaintiff’s current symptoms is minor, and that he is suffering from symptoms of the underlying degenerative disorder in the cervical spine.
57 Each of the plaintiff’s specialists apparently gives his opinion in the knowledge of the gap in treatment and relies upon the history provided to them by the plaintiff of ongoing pain since the transport accident and restriction in work duties.
58 Their opinions are therefore much reliant upon the accuracy of this history and consequently upon the credibility of the plaintiff.
59 Much then hangs upon whether or not I accept the plaintiff as providing an accurate history of the ongoing symptoms from June 2004 to the present time, and their affect upon his work capacity.
60 I had the opportunity to observe the plaintiff in the course of a lengthy cross- examination. There were distinct inaccuracies between the evidence provided in his affidavits, and under cross-examination. Assessing the plaintiff, however, on the whole, I found him to be a truthful witness. I do not find that he was attempting to reconstruct the course of his injury to assist his case. There were elements of his evidence that were unreliable. I accept that he suffered a significant jolting to his cervical spine in the transport accident. The forces at work could give rise to a significant neck injury. I accept the opinion of the bulk of the practitioners that he had an underlying but asymptomatic degenerative condition in his neck. I accept that the original soft tissue injury to his neck required him to have some two weeks off work. Thereafter, he returned to work, but was restricted in the type of work he could do, and the periods during which he could do it. As time progressed, his capacity for work became more reduced with the increase in neck symptoms.
61 Of significance is the considerable gap of more than two years between his first complaint to Dr Horvat, and the next complaint in August 2006. During that period he went to the clinic on four occasions with no mention of the accident or its consequences. Ms McLeod argues that means that if he had any symptoms in that period they were minor and did not require even mention to his doctor. In assessing the plaintiff, however, I accept that he is a somewhat stoic type and given the fact that he was self-employed, less likely to make much of the complaints of neck pain than might another person. While he earned no income in the year before the transport accident, this was to do with the fact that he was assisting his son in the building of his son’s house. That fact aside, there is a significant reduction in his both gross and net earnings in the years 2005 and 2006. There is a sufficient temporal relationship between the transport accident and this reduction in earnings to support the plaintiff’s claim.
62 On balance, I accept the opinions of Messrs. D’Urso, Kahn and King that there is a causal relationship between the transport accident and the plaintiff’s current significant symptoms.
Conclusions
63 There is little doubt that at the present time the plaintiff has consequences in respect of his cervical spine condition which meet the test of “serious injury” contained in s.93(17) of the Act. Ms McLeod did not seek to argue to the contrary. The real question is whether there is a causative relationship between the transport accident, and those symptoms.
64 Mr Collis submitted that it was sufficient for the success of the plaintiff’s application, in accordance with the opinion of Mr Klug, that the transport accident was a minor contributing factor. He relied upon Wilson v State of Victoria.[46] However, I am not satisfied that Buchanan JA[47] meant that any contribution to injury was sufficient. The appropriate test, in my view, is in accordance with s.93 of the Act which requires:
[46] [2004] 10 VR 361, at 366
[47] at paragraph 17
(a) there to be an injury arising from a transport accident - s.93(1); (b) that injury is a “serious injury” - s.93(6); (c)
that is a serious long term impairment or loss of a body function - s.93(17).
65 There are essentially three matters to be considered in determining whether the transport accident caused an injury resulting in the present condition of the plaintiff’s cervical spine. The first is the fact that the plaintiff, after attending his general practitioner on the day of the transport accident, did not next attend for a period of over two years to complain of any symptoms arising from the accident. The second is the extent to which the plaintiff was able to maintain his employment as a plasterer in the years after the transport accident. The third, and probably the most important is the extent to which I accept the statements in his affidavit,[48] and the histories to the various doctors,[49] that prior to the transport accident, he was asymptomatic, and subsequent to it, he developed pain in his neck which continued, and increased to the point in 2006 where he was unable to continue in employment, and to the present time when he is on significant quantities of medication and faces the prospect of cervical surgery.
[48] PCB 17, 28, 29, 42(d) and 42(e)
[49] Mr D’Urso PCB 70, 113, 115; Mr Khan PCB 121-2; Mr King PCB 139-140; Mr Klug DCB 22.
66 I am satisfied, in respect of the first and second matters, that the plaintiff is a somewhat stoical individual and that, at the outset at least, his cervical symptoms were not so significant as to remove him entirely from the workplace. Further, I accept his explanation that at least to his mind, while he had symptoms of cervical neck pain and restriction, they were not sufficient to warrant complaint to his doctor.[50] It was only when the symptoms increased to the point of providing a very significant disruption to his work activities, that the complaint was made, and a Claim for Compensation lodged with the Transport Accident Commission.[51]
[50] See reference to the ‘stoical plaintiff’ per Nettle JA in Dwyer v Calco Timber Pty Ltd (No.2) [2008] VSCA 260, at para 3
[51] Claim Form dated 13 November 2006 - PCB 149.
67 As stated, I am satisfied the plaintiff is a witness of truth and do accept his claims of the onset of pain after the motor vehicle accident, and its continuance, in fact increase, from that time through to the present.
68 I am satisfied that the consequences of which the plaintiff complains do meet the “very considerable” test which the authorities require. I am further satisfied that those consequences are causatively related to the transport accident.
69 In such circumstances, I will grant leave to the plaintiff to bring common law proceedings, and make consequent orders.
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