Castellas v TAC

[2018] VCC 2092

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-16-04184

LEIGH CASTELLAS	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	5-7,10,13 December 2018
DATE OF JUDGMENT:	14 December 2018
CASE MAY BE CITED AS:	Castellas v TAC
MEDIUM NEUTRAL CITATION:	[2018] VCC 2092

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious Injury-paragraphs (a),(b) and (c)
Legislation Cited: Transport Accident Act 1986
Judgment:                Applications dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Plaintiff in person and with Ms Kaye Castellas (litigation guardian)
For the Defendant	Mr P Gates	Solicitor to TAC

HIS HONOUR:

1       The plaintiff is a thirty five year old man who had a litigation guardian appointed by the Directions Judge on 16 March 2018. That was his mother Kaye Castellas. She was in attendance at all times and was invited by me to fully participate at all stages of the proceedings and assist her son in any way either of them wished as he was self-represented. I will try to explain the various legal principles in plain language.

2 The procedure for this serious injury application had basically been set and explained to both of them by the Directions Judge in charge of the self-represented list at a number of Directions Court hearings. Joint court books had been prepared by the defendant and I checked at the outset that the plaintiff had all of that material and explained how the case would run. He claims “serious injury” under three paragraphs (a),(b) and (c) in the Transport Accident Act 1986 following a transport accident in Elizabeth Drive, Sunbury on 16 January 2009.[1]

[1]Court Book(CB)5

3       In plain terms paragraph (a) applies when “serious injury” is sought for a physical injury such as the spine in Mr Castellas’ case. Paragraph (b) concerns a scarring or disfigurement such as his facial scar. Paragraph (c) concerns where it is sought for a psychiatric/ psychological condition. In cross-examination the paragraph (c) injury was dealt with first and then the scarring paragraph (b) claim and finally the spine under paragraph (a). As the transcript runs in that order I will deal with them in that sequence.

4       The plaintiff confirmed in court that he relied on all three being the impairment of the spine under (a), scarring to the forehead under (b) and a psychiatric/psychological condition under (c ).[2]  As he was not represented by lawyers at the trial stage it is necessary to state some of the obvious requirements of the law when someone is seeking a “serious injury”.

[2]CB5,Transcript(T)14-15

5       It is incumbent upon the plaintiff to prove his case. In legal terms he carries the burden or onus of proof in relation to each of the three injuries and paragraphs he relies on. In relation to the psychiatric/psychological injury the evidence here indicated this is really an aggravation application given the clear material about mental health issues he had in the years before the 2009 transport accident. It was also explained how a judgment had to be made by me that involved a comparison with other cases in the range of possible impairments and disfigurements when considering a “serious injury” application.

6       There were five affidavits from the plaintiff as well as another statement. They started in September 2009 with affidavits prepared and filed by Nowicki Carbone, his then solicitors, and later by his other solicitors, Maurice Blackburn, together with some affidavits he himself had prepared.[3]  He said in court and the papers indicate that the major consequence Mr Castellas relies on flowing from the transport accident injuries is the loss of his ability to play in the rock band.[4]

[3]CB6-32,32.8

[4]T172

7       Sometimes in these applications there is clear objective medical pathology that of itself can go a long way toward demonstrating the seriousness of an injury. That is not the case here. Accordingly it is the careful assessment of the plaintiff as a witness that is at the heart of whether or not “serious injury” has been suffered. In this application even more care than usual needed to be exercised in view of the appointment of a litigation guardian due to mental health issues bearing on capacity and understanding.

8       Also the accident was almost ten years ago and that is another factor that had to be borne in mind when assessing the evidence and the plaintiff as a witness. The court is required to assess the injuries and any impairment now, that is, not back in 2009 when the accident occurred. That raises what is usually called “causation” in legal language but in plain terms just means Mr Castellas must prove any impairment he is suffering now was caused by the 2009 accident.

9       Another legal requirement also needs to be stated. The law requires in the case of psychiatric/psychological injury under paragraph (c) that the test is “severe” with respect to such a mental health claim being determined as “serious injury”. The law says “severe” is an even  higher test than “serious” which is the test  with respect to the spine under paragraph (a) and scarring under (b).

10      As is usually required in serious injury applications this case involved cross-examination directed to the plaintiff’s medical history and credit in a number of areas. In particular attention was directed to his mental health condition prior to the accident. The plaintiff could not remember a lot of details so far back and this was understandable as at times they involved his childhood and teenage years and he also suffers from mental health problems. Allowance was made for these obvious factors in assessing him.

11      In spite of my explaining to him the necessity for him to answer questions about his prior health condition, he was not willing to answer a lot of questions that were relevant.  He often resisted answering proper questions put to him on these matters.[5] The court process was not easy for him to deal with. At times he became quite frustrated and non-responsive to questions.  He was shown a good deal of patience and indulgence in this regard which was entirely proper given his mental health issues. I shortened the court hours both in the morning and afternoons to assist him.

[5]T20,25,29,35,39,41

12      Nevertheless and always mindful of his difficulties, this cross- examination was relevant to the court understanding accurately what his psychiatric/psychological condition and general activities were  prior to the 2009 accident as well as now. It was also explained to him that  the court was required in relation to his paragraph (c) application to carry out what is called a before/after analysis of the evidence.

13      It was a very considerable benefit to the court to have the opportunity to not only hear Mr Castella’s give his evidence but also to observe his demeanour and presentation. He was faced with an overwhelming number of references from his own medical records. Sadly they indicated a young man who from a very early age had some very serious issues involving mental health and drug and alcohol usage. He was evasive and often reluctant to admit what was clearly written about a number of these past health and behaviour notes.

14 There is some pathology in his spine that may have arisen from the 2009 accident but he has been involved in other traumas over the years including falls. Pathology of itself it does not prove what is required by the law as to “serious injury” under the Transport Accident Act. Therefore the considered assessment of him as a witness was also fundamental to judging the spinal claim under paragraph (a). To a lesser extent it was also relevant in properly considering the scarring or disfigurement claim under paragraph (b).

15      It is not necessary to quote from the multitude of medical documents. Without going into detail, what is apparent from copious medical and clinical notes and reports that were contained in a court book close to 700 pages is that Mr Castellas had serious mental health issues well before the 2009 accident. I will just footnote some of those references in something like the order in which he was directed to them in cross-examination.[6] There were many more.

[6]CB470,469,80,466,346,461,52,462,7,62,27,32.8,63,38,19,461,462,88,63,472,473,

16      Information came from a great number of sources.  What he had said to doctors at different local clinics, at hospitals, what doctors had diagnosed and what steps such as referrals and scripts they organised to treat him were all very informative and relevant. In addition, what was recorded as parental concerns and in police/court records relevant to mental and behavioural issues speaks for itself about serious mental and behavioural disorders well prior to 2009. They involved significant alcohol and drug problems. These were sufficient to require medical help not only from his local doctors but from specialist people he was referred to.

17      I will just take a few entries out of the many. The Family Medical Centre in Sunbury recorded in May 2008 that he had issues with drugs and drinking with speed, ice, pills and cannabis being mentioned.[7] Royal Melbourne Hospital notes in 2005 refer to acid, LSD and intoxication and him requiring overnight admission. It was also recorded he had had similar experiences in the past.[8] Another Sunbury clinic in Gap Road provided clinical records that make it clear that before the 2009 accident, he was suffering from a great deal of trouble in this regard.[9] Alcohol abuse was diagnosed by a specialist psychiatrist back in 2003 as was alcohol dependency by another general practitioner in 2008.[10]

[7]CB462

[8]CB88

[9]CB471-482

[10]CB462,466

18      In court the plaintiff attempted to minimise this past medical history and persistently said he only “dabbled” in drugs.[11] As regards his alcohol consumption, he attempted to minimise it and at times put that in terms of no more than what “teenage boys” might be doing but the evidence went much further than that.[12] It clearly indicated very significant issues regarding illicit usage and mental health from early years right up to 2009 as well as in the years since that accident.

[11]T53,57,58,63

[12]T39,40,44,53,66,90

19      In the end after considering all the evidence in this case, it is not possible to carry out a clear before/after analysis that enables the plaintiff to say an aggravation case has been proved. What the law requires is that an aggravation case, which is the issue in this paragraph (c) application, must provide sufficient evidence and proofs for the court to be able to accurately assess the before/ after picture. After such an accurate picture has been proved it is the aggravation itself, that means looked at on its own, that must be proved to be a “serious injury”. That has not been proved.

20      His accuracy and reliability as a witness were also challenged on a number of other matters including his previous work and income. It is not necessary to go into this in detail but the evidence demonstrated a picture that was quite inaccurate in terms of any solid earning history from employment.

21      Another topic where his credit was damaged was a further car accident in June 2018.  Apparently he hit a pole at 80 km/h and sustained injuries. Part of a little finger was amputated. The plaintiff denied there were any spinal injuries which would seem surprising given the circumstances of that very heavy collision. The Northern Hospital records describe neck problems.[13] This is inconsistent with what he was saying to the court in attempting to eliminate any impact on his 2009 serious injury spinal claim arising from the 2018 accident.

[13]CB534

22      What I have said about the unreliability of the oral evidence was to an extent confirmed in the written materials originating from his two firms of solicitors and his own statement. In a statement he filed after solicitors ceased acting, he said he had “never had a problem with alcohol or drugs” until the accident.[14] At one point when it was pointed out to him that he had sworn in his own earlier affidavit about his “drug addiction”, he resiled from that and blamed the solicitors, Nowicki Carbone, for in effect not accurately recording what he said.[15] This was not persuasive. It was a witness seeking in vain to explain away clear inconsistencies.

[14]CB32.8

[15]T55-56,CB19

23      Records indicated he had gone to Alcoholics Anonymous (AA) at one stage. Again in a futile attempt to avoid awkward questions directed to previous alcohol addiction, he volunteered that he had gone to AA to “see how other people lived and so he could write good music”.[16] I do not accept this was coming from a witness who was reliable but one rather seeking to avoid an awkward fact.

[16]T43-44

24      There is a  marked disparity between what is in the affidavits, in his additional statement as well as in the histories to doctors about the impact of the 2009 injuries, his involvement in music and his band and when that is compared with his own Facebook site. In effect he would have the court believe that these injuries have all but ended his capacity to both enjoy and perform as a musician but that is significantly inconsistent with what he has put out to the world on his own Facebook site.[17]

[17]CB 234-324

25      Without going into the evidence in great detail that Facebook site shows that there was virtually a tour by the band up and down the east coast of Australia in December 2009 in which Mr Castellas was a participant. In May 2010 he was inviting people to performances by the band known as “ThE DiRtY SiRkUs” and they were producing an album according to his site in July. Other pages show tour attendances in Adelaide, Horsham, Canberra, Brisbane and Tasmania just to mention a few of his Facebook references.

26      He may well not have been playing in the band all the time but he was actively involved in its promotion, travel and certainly playing at different times. Comparing this to his last written statement to the court where he said as a result of his injuries it was hard to “stand and walk for long periods” and that was impacting on his capacity as a musician, the differing accounts cannot be reconciled.[18] In addition to band performances he was travelling thousands of kilometres in a van with other members towing their musical gear and this is again inconsistent with what he has been saying in regard to the spinal symptoms and disability.

[18]CB234-324,32.8

27      Even the circumstances of his leaving the band have been described in very conflicting stories. Affidavit evidence was that the band was “begging” him to stay and he also gave this version to Dr Entwistle as well as telling him that he had been offered “good money” to go onto world tours with a rock band.[19] This evidence is in direct conflict with his sister’s affidavit in which she said he had been “kicked out’ of the band.[20]

[19]CB179

[20]CB32.2

28      Then his Facebook contains his description of these events in the following terms “hey brother got some fucked news the rest of the band pulled the pin on next tour” as well as “they won’t take time off work fuckin cunts!!!”[21] He posted in 2012 another advertisement on “Melband.com” with another version “im 27 just recently left my band due to their lack of dedication”.[22]

[21]CB264

[22]CB332

29      A large body of Facebook evidence then shows his considerable efforts to advertise himself and get another band going.[23] In some advertisement called MUSOLIST in May 2012, he was putting himself out to the industry as a hard rock guitarist available to start/join a band ASAP as well as extoling all his capacities to tour, travel, record and even go international.[24] He went to the USA in 2013 and again in 2014 for months at a time and he advertised about trying to get a band going with him participating in it as a guitarist from Australia.[25] He gave a California telephone number to contact him on, he being “leigh 29 guitar from Australia”.[26]  

[23]CB234-324,242

[24]CB329

[25]CB330,333-334

[26]CB330

30      To say this material and advertising was inconsistent with all he had been saying in affidavits and to doctors over the years about his musical capacity is a very real understatement. His attempt to explain away this difficult document for his case was to blame the authorship of it on a girlfriend. This carried no weight.[27]

[27]T181

31      In his first and principal affidavit of some ten pages he swore a full paragraph about football which had him playing football for Sunbury Lions in the season before the accident that is 2008.[28] In fact he had not played since the under 12’s in 1995. Similarly the affidavit speaks at length about not being able to play tennis due to his injuries. He was tackled on this and apparently he had never played tennis. When challenged on these errors he sought to blame them on his solicitors, Nowicki Carbone, as their “lies”. [29]

[28]CB11

[29]T213-214

32      I do not accept this excuse for affidavit errors when he had said the affidavits were true and correct.[30] These were not minor errors expressed in legal terms a lay person would not understand. No legal training is needed to understand if you are playing football or tennis. It was just another example of witness who tended to blame others for difficult inconsistencies in the evidence. These were tendencies that were the opposite of a frank and straightforward witness.

[30]T17-18

33      In the end I cannot accept the plaintiff as a reliable witness. He has exaggerated his disabilities, both mental and physical. He has seriously understated his problems prior to the 2009 accident. He also understated the effects of the June 2018 accident. There were a number of credit matters that I have referred to as well as others in the course of his three days in the witness box that lead me to be unpersuaded about what he has said in relation to injuries, symptoms and consequences he attributes to the 2009 accident.

34      The comments I have made apply to each of the three injuries and paragraphs he relies on. There is not one doctor who has a full and adequate history of this man’s problems before and after the 2009 accident. Accordingly the medical evidence is poisoned by that inadequacy. I give it little weight. I do not accept the opinions of those doctors he relies on in support of his “serious injury” applications. Given what I have concluded as to his credit, the applications are not saved by those medical opinions.

35      Dealing with the scarring that he relies on as a serious permanent disfigurement under paragraph (b), it runs parallel with and under his right eyebrow. It is somewhat tucked in just above the eye in the eye socket. It is barely visible now. I disagree entirely with a description in March 2011 from a Dr Stapleton who said it was clearly visible across a room.[31] Whatever its appearance back then, it is very different now. I must judge the disfigurement now. I had to approach the witness box to view the scar and it is about 3 cm long and even from a metre or so away is not clearly seen. I asked the plaintiff to point it out.

[31]CB37

36      After I explained to the plaintiff that I had to consider the range of possible cases when judging serious injury he volunteered that he had to put cosmetics on this scar. He said he put eyeliner on it. I do not need evidence to tell me that eyeliner is a reasonably visible and usually a darkish coloured cosmetic. I left the bench a second time and approached the witness box. There was no eyeliner on or around the very light scar that I could see. After that he said it was make up that he had to apply. I could see none. I do not accept this evidence as accurate or reliable. It seemed to come from a witness who found himself cornered.

37      I do not accept that he suffered any significant embarrassment from the scar in the past and certainly not now.  He is heavily tattooed around the face with a number of obvious tattoos on the left side of his face and forehead that he said represent the tattooists telling his “life story”.[32] On the right side of his face he has a large claw tattooed extending out from his ear to his right cheek that he described at one stage as “the devil claw”.[33] He also has two steel studs in his face.

[32]T106,108

[33]T108-109

38      I reject his evidence that he had tattoos applied because of embarrassment from the scar. I also reject his evidence that it has caused any embarrassment or consequences at all, and judging it now, it would not even be obvious to someone speaking to him from a metre or two away.

39      It is worth noting that from 4 to 19 December 2009 he played lead guitar in a rock band that did a public performance tour of the east coast of Australia from Victoria to Queensland. That is inconsistent with a person being embarrassed or self-conscious about a facial scar.[34] Also he is a man whose Facebook photos show is very heavily tattooed all over his upper body at least. [35] Exhibit 1 was a DVD of him playing lead guitar for the band on stage in public on 20 August 2010 and it is not consistent with a person embarrassed about a scar under the eyebrow.

[34]CB324

[35]CB321-323

40      The two close up views I had of the scar were very helpful. I do not accept that the paragraph (b) disfigurement relied on here meets the test of serious injury. It is barely a disfigurement at all, let alone one that could be said to be a “permanent serious disfigurement”.

41      Regarding the paragraph (a) claim for the spine, it seemed to start off as neck and low back but as the affidavits progressed together with his last statement it seems it is more the back that has been relied on. While it is now years old the DVD in exhibit 1 showed movements on stage by Mr Castellas on lead guitar that could hardly be freer, more vigorous or more energetic. They are not consistent with any significant spinal injury suffered the year before and the same applies to the extensive travel he was probably involved in all over Australia. I do not accept his evidence he could only do this because of a back brace and tape.

42      Further film was shown and it has to be said some of it is seven years old being from 2011.[36] He was involved at an outdoor event at Wildwood that included a concert gig. Over some hours he demonstrated a capacity to stand for lengthy periods, to run, to walk, as well as bend over in order to lift and carry heavy band gear such as speakers. He jumped off a chair and a stage. No apparent pain or disability were evident. Nor was there any restriction on moving freely throughout all these activities. The plaintiff said “he busted his arse” and wore a back brace on that day in response to the suggestion he could do all these things freely in the film.[37] 

[36]Exhibit 2

[37]T229,234,236,240

43      It is worth noting that the very day after he spent quite a few hours at the Wildwood event on 20 November 2011, he swore an affidavit at Maurice Blackburn’s office on 21 November 2011.  In it he described increased lower back pain from something as innocuous as cutting vegetables at the kitchen bench because of “the prolonged standing and the forward leaning required”.[38] He also swore in that affidavit about other activities such as walking and lifting that are entirely inconsistent with what he did at Wildwood the day before.

[38]CB21

44      Exhibit 3 was film of him in 2015 walking for some time and over some distance. Perhaps more to the point he was also shovelling sand or screenings into a wheelbarrow and when it was loaded, wheeling it out of view. He said in court he had a brace on but the fact is no restriction or problems can be detected from how he performed either in the lengthy walk or on the shovel. Looking carefully at all the evidence, these films in exhibits 1,2 and 3 damaged his credit and supported my view he has exaggerated his spinal symptoms in his affidavits as well as  when speaking to doctors and in court.

45      The likelihood is he did suffer from some essentially soft tissue injury to the spine in the accident. But judging it now, almost ten years later, it has not been proved to be a “serious injury” in terms of its present consequences. If that view is erroneous then the evidence has not proved the necessary causative link back to the 2009 accident. In other words I am not satisfied now that any such impairment and consequences are due to the 2009 accident.  

46      I should add that his evidence was also unpersuasive about all the references in his own documents to different tour venues for the band being no more than simple promotion rather than any personal involvement. He persisted in attempts to minimise his actual participation and said that he was often not even there. I do not accept this. His notes clearly read as coming from an active performer who was probably on site, touring and playing at least most if not all the time. To say it was merely promotion is not how the notes read as he wrote to his Facebook followers telling them how wonderful this band life on the road was for him. How he advertised himself to the music industry was in the same vein. It was as a musician who had a full capacity in all the activities in the rock band industry.

47      There are some other very brief affidavits that were tendered as part of his case. They came from family and friends. These people were basically reliant on what he has told them about his capacities and complaints he has made. In view of what I have concluded about reliability after hearing him for three full days in court, these further materials do not take his case any further.

48      The medical evidence does not require much in the way of specific comment as is often needed in serious injury applications. Firstly a lot of it is quite out of date and of limited use in assessing 2009 injuries now, in December 2018, which is required by the law.  Secondly and more importantly, the doctors were reliant on their acceptance of what he has said about symptoms and disabilities. As they have not been given accurate and full information, their opinions carry little weight. Thirdly if I am wrong and he does suffer now from any condition under any of the three paragraphs relied on that could be said to be a “serious injury”, it has not been proved to be caused by the 2009 accident.

49      Dealing briefly with more recent reports, his treating local doctor last reported a year ago in December 2017. At that time mental health issues were very significant as they led to Dr Pattison saying a litigation guardian was needed but little else.[39] There is no up to date report from him.

[39]CB110.1

50      The last medico-legal report for the plaintiff is nearing two years old from Mr S Doig, orthopaedic surgeon in March 2017 and obtained by Maurice Blackburn.[40] He diagnosed stable soft tissue injuries to the spine but I reject his opinions as he accepted complaints that are not established by the evidence. Just to take two examples, the plaintiff said he could not stand for long periods and tried to return to football.[41] These and other matters Mr Doig relied on fly in the face of what the evidence established.

[40]CB76

[41]CB77

51      There is no up to date report obtained on behalf of the plaintiff or from among the TAC’s reports that assists him in relation to paragraph (c). The last one to discuss the issues is quite dated. It came from Dr T Entwisle, consultant psychiatrist, on 14 August 2017to TAC. He diagnosed the majority of mental health problems as personality disorder, alcohol and drug dependence and brief drug related psychotic episodes and he said they pre-dated the 2009 accident.[42] No aggravation case, which is what this paragraph (c) claim involves, has been clearly made out as “severe” and thus a “serious injury” on its own. Even if his current condition could be said to meet the “severe” test, then the causal connection to the 2009 accident has not been proved. 

[42]CB181

52      Oral evidence closed at the end of the third day, Friday 5 December. I had asked the plaintiff and Mrs Castellas to leave the tender of any reports and other documents they wished to rely on until Monday morning so they were not rushed. On Monday morning the plaintiff was in no fit state to proceed and his mother said he had too much to drink.[43] His condition in court was obvious. I stood the matter down for an hour or so to let them consider what they wished to do.

[43]T263-265

53      I then accepted the entirety of the joint court book which ran to close on 700 pages as exhibit A for the plaintiff. This was because it was obvious from his state that he had no hope of being able to sort out such a large number of  documents into what he thought assisted his case and what did not assist, even with his mother’s help.[44]

[44]T273-274

54      That same morning the defendant provided some brief written submissions in support of its case which had been foreshadowed on the Friday.  A copy was given to Mr Castellas and his mother so they could comment on them and generally make their own final comments. The litigation guardian did not think her son could even proceed the next day, Tuesday 11 December, when I suggested the matter could go over until then if that would assist  the plaintiff to feel better and to have the opportunity to collect his thoughts.

55      In the end the hearing resumed at their request several days later. This was on Thursday 13 December which afforded enough time for the plaintiff to be in a better condition and for the defendant’s written final submissions to be considered by them.

56      Final or closing comments from both parties, which included both Mr Castellas and his mother, were taken on 13 December.

57      For the reasons set out above, I dismiss the applications under paragraphs (a),(b) and (c ) for “serious injury”.