Cianciarulo v Transport Accident Commission
[2020] VCC 1236
•19 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03210
| MICHAEL CIANCIARULO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2020 | |
DATE OF JUDGMENT: | 19 August 2020 | |
CASE MAY BE CITED AS: | Cianciarulo v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1236 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – serious long-term impairment of the cervical and thoracic spine
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Hooley v Transport Accident Commission [2019] VSCA 263.
Judgment: Pursuant to s93(17) of the Transport Accident Act leave is granted to the plaintiff to bring common law proceedings in relation to injury suffered by him in the transport accident on 9 September 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis with Mr B Johnson | Maurice Blackburn Lawyers |
| For the Defendant | Mr J Batten with Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 Some might argue that we have ‘sold the farm’ for future generations by borrowing money to maintain jobs and to prop up the economy until the passing of the current health crisis caused by the COVID-19 virus. Thankfully, I do not have to decide that argument. However, in the application before me, selling the farm, and ongoing full-time employment, even in these uncertain times, are relevant issues.
2 The plaintiff, Michael Cianciarulo, was born in 1987. After finishing Year 12, he commenced and completed a four-year apprenticeship as an auto electrician. He then obtained full-time employment as an auto electrician with Refuel International, performing electrical work on aviation trucks and the like. In 2010, together with his father and brother, he purchased a farm at Gordon.
3 The plaintiff’s general health is good. In approximately July 2014, he suffered a shoulder injury at work, but made a full recovery from that injury.
4 In the early morning of 9 September 2016, the plaintiff was travelling to work, when he was stationary in his car on the Western Ring Road at the Boundary Road exit in Laverton and was struck from behind by another car (“the collision”). The impact of the collision propelled his car into the car in front. His car was written off and he felt immediate pain in his upper back.[1]
[1]Joint Court Book (“JCB”) page 9
5 Following the collision, the plaintiff attended his local general practitioner, Dr Hassan Hamie.[2] He was prescribed painkillers and had a short period (a week) off work. The plaintiff says that he had ongoing pain in his spine, which required conservative treatment and medication. In September 2019, he resigned his employment with Refuel International and thereafter obtained employment with LED Autolamps, where he continues to work. He says that his current job is lighter and he needed a lighter job because of ongoing symptoms from the claimed compensable back injury.
[2]JCB 34
The application
6 As mentioned, this is a serious injury application. The plaintiff alleges that he has suffered a “serious long-term impairment or loss of a body function” in the nature of injury to the spine and in particular with respect to the thoracic spine.[3]
[3]Transcript (“T”) 3, Line (“L”) 22
7 The issues to be determined in this application are the nature and extent of any injury suffered in the collision and whether the plaintiff has an ongoing compensable injury productive of consequences so as to meet the serious test as required by s93(17)(a) of the Transport Accident Act 1986 (“the Act”). The principles in respect to such an application are well known and are not in dispute.
8 The issues in dispute can be further narrowed. The plaintiff submits that as a consequence of the collision, he has had ongoing pain in his spine requiring modification of a range of day-to-day activity, but also the need to give up his pre-injury employment and instead take up lighter employment for less money. He says the interference in day-to-day activity, the inability to perform full and unrestricted employment as an auto electrician, and the requirement to take lighter and less remunerative employment means that he has suffered a “serious injury”.
9 The defendant, on the other hand, submits that the plaintiff may have suffered a soft-tissue injury to the thoracic spine, but that the ongoing symptoms and consequences complained of by the plaintiff do not relate to that condition and are, instead, either caused by an underlying condition of Scheuermann’s Disease, or a non-organic Chronic Pain Syndrome and that, regardless, even if the plaintiff has an ongoing physical injury to the spine, he has been able to maintain full-time employment, and so the consequences to him are not “very considerable” and do not meet the very serious test.
The credit of the Plaintiff
10 The defendant also raises as an issue the credit of the plaintiff. As has been said many times before, in cases of the present kind, the credit of the applicant will often be critically important.[4]
[4]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph [87]
11 Mr Batten and Mr Pinkstone, on behalf of the defendant, submit that:
“… this isn’t a full frontal surveillance attack on the plaintiff as being wholly unbelievable because he’s not credible. What the defendant says is that whether or not he’s all that intelligent, his answers weren’t directly responsive, slightly evasive and in the defendant’s submission, he, as is often the case, regrettably, has become the case … .”[5]
[5]T87, L5-11
12 The plaintiff came across as an unsophisticated man but I did not form an impression that he was “slightly evasive” in the “witness box”. My overall impression of him in the “witness box” was a truthful witness attempting to give a fair account of events in his life that had occurred before and after the collision in circumstances where he is an auto electrician and not a scholar. In respect to his viva voce evidence, I am satisfied that I can rely on it, even though at times it was difficult to discern what he was attempting to convey.
13 The main credit issue that arose is the plaintiff’s evidence about the sale of the farm. The plaintiff swore two affidavits in support of this application. No mention of the farm is made in the first affidavit sworn 29 October 2018. In his further affidavit sworn 13 May 2020, there is mention of the farm.[6]
[6]JCB 15, paragraph [6]
14 The plaintiff’s affidavit evidence regarding the farm is unsatisfactory. In his further affidavit, he says: “As mentioned in my first affidavit, I previously owned a cattle farm with my brother and father.”[7] That evidence is patently wrong, as there is no mention of the farm in the first affidavit.
[7]JCB 15, paragraph [6]
15 After setting out in limited detail the background regarding the farm in his further affidavit, the plaintiff goes on to say:
“We sold the farm in 2017 in part because I was not able to help the way I used to. … It upset me greatly that my brother, father and I had to sell the farm because we could not maintain it. I have lost the income from selling the farm as well.”[8]
[8]JCB 15, paragraph [6]
16 The plaintiff was cross-examined regarding the farm and the inference in the affidavit that there was some pecuniary loss relied on from the sale of the farm, although his counsel, Ms Pilipasidis and Mr Johnson, made it clear at the commencement of the hearing that no pecuniary loss consequences from the sale of the farm were relied on. Rather, the sale of the farm was relied on as a pain and suffering consequence but not as a pecuniary loss consequence.[9]
[9]T4, L26-31
17 The whole of the evidence regarding selling the farm unfolded in a way that made it hard to follow exactly when and why the plaintiff decided to sell the farm. For that reason, I asked questions of the plaintiff regarding this issue.[10] His evidence is that within about three weeks or so of the collision, the decision was made by him, in conjunction with his father and brother, to sell the farm. The farm in fact sold within a couple of weeks, and settlement occurred in either late November or early December 2016.
[10]T79-83
18 Pausing. Remembering that the plaintiff had a week off work following the collision before returning to his pre-injury employment, it would be remarkable if within a month or so of the collision he had determined that the back injury would prevent him from maintaining his involvement in the farm and require the sale of it. The plaintiff gave an explanation, in response to a question from me, when he said:
“… because, ah, as I said, we weren’t – we weren’t expecting to sell it quick, um, and I guess by selling it - yeah, we – we weren’t expecting to sell it quick, and then I guess there was, oh, I wouldn’t say like an excuse, but maybe the time at the farm was up because of my back injury, you know what I mean? Like, yeah.”[11]
[11]T82, L21-26
19 The above passage from his oral evidence highlights my impression of the plaintiff as an unsophisticated witness, who at times had trouble articulating what it was he was trying to say. Re-reading the transcript, it is apparent he frequently answered questions in a similar manner, namely in the manner of a man who was struggling to express himself.
20 In the further affidavit, he says the decision to sell the farm was “in part” because he was not able to help on the farm the way he used to. The totality of the evidence leads to the conclusion that, at best, the plaintiff’s back injury was a factor in the decision to sell the farm but no more than that. In the circumstances, I place little weight on his evidence about selling the farm insofar as it is relied upon as a pain and suffering consequence, and of course I place no weight on it at all as a pecuniary loss consequence.
21 I do not know whether or not it was a wise decision to sell the farm. But the argument that it was sold due to the claimed serious injury is not made out on the evidence. However, I do not consider the argument about selling the farm to impugn his credit. I do not consider there was any attempt by the plaintiff to be dishonest regarding the reasons for selling the farm, but the reasons for the sale of the farm are poorly explained. What this does highlight is that his evidence at times, namely a lack of clarity, is such that the ultimate determination of this application does require corroboration of aspects of the plaintiff’s evidence.
What is the nature and extent of the injury suffered by the Plaintiff?
22 Returning to deal with the nature and extent of injury suffered by the plaintiff. Following the collision, the plaintiff ended up at the Northern Hospital with neck and back pain and a recommendation to attend his general practitioner.[12] He then attended Dr Hamie, who concluded that he was suffering from “whiplash and a number of musculoskeletal injuries and thoracic pain”.[13] Dr Hamie prescribed painkillers and thereafter, a referral to physiotherapy.
[12]JCB 34
[13]JCB 34
23 On 30 November 2016, an MRI scan was arranged of the thoracic spine[14] which concluded “mild signal abnormality demonstrated involving the superior end plates of T11 and T10”.
[14]JCB 89
24 By 4 August 2017, Dr Hamie arranged an MRI scan of the plaintiff’s cervical spine[15] because of ongoing neck pain. Dr Hamie notes that the neck pain “began to give Michael headaches that would last for days and restrictions of movement in his neck and back”.[16]
[15]JCB 90
[16]JCB 34
25 The most recent comment from Dr Hamie is a report dated 16 July 2018. In that report, Dr Hamie states that he believes the plaintiff’s accident has aggravated and likely caused some of the radiological findings. He notes there was no history of back or neck problems before the collision. He concludes that –
“These injuries have been present for nearly two years, they are looking like they are going to become chronic and more than likely the patient will have to live with his constant pain.”
26 Further, Dr Hamie states:
“His future capacity to work will be affected as he will no longer be able to do any occupation that is physically demanding.”[17]
[17]JCB 35
27 Dr Hamie had occasion to refer the plaintiff for specialist orthopaedic assessment. On 7 January 2017, the plaintiff attended Mr Gerald Quan, spinal and orthopaedic surgeon. Mr Quan has provided a report dated 30 November 2017 in which he notes that at the first attendance, the plaintiff told him that –
“… over the prior four months … most of his pains had settled significantly, however the posterior lower thoracic and thoracolumbar pain had unfortunately persisted to affect him on a daily basis.”[18]
[18]JCB 30
28 The plaintiff was reviewed by Mr Quan on 26 September 2017. In his report, Mr Quan notes a diagnosis from an objective clinical and radiological point of view as –
“T10/11 spondylosis (degeneration) associated with mild wedging of these thoracic vertebrae in the presence of mechanical axial lower thoracic back pain and in the absence of any major spinal stenosis and neural compressive pathology.”[19]
[19]JCB 31
29 Mr Quan was asked a question: “Whether the injuries are consistent with the stated cause”. He qualifies his answer by commenting that as a treating spinal surgeon, he does not generally get involved in matters of causation. However, he states that –
“Any repetitive injuries or injuries or accidents involving a heavy impact, jolting movement, seatbelt injury involving hyperflexion or hyperextension can cause or exacerbate axial thoracic back pain symptoms associated with thoracic spondylosis and vertebral wedging, or alternatively the symptoms may also be due to the natural process of aging and degeneration.”[20]
[20]JCB 31
30 Pausing again. It is relevant that the plaintiff did not have any past history of back or neck pain. That tends against the conclusion that any ongoing symptoms are due to the natural process of ageing and degeneration.
31 Following his last review of the plaintiff in September 2017, Mr Quan comments that there was “relatively minor objective pathology on sensitive radiological imaging”.[21] He recommended ongoing conservative treatment. He noted that usually the prognosis would be “very favourable” but there had, however, been no real improvement when he last saw the plaintiff.
[21]JCB 31
32 Dr Hamie arranged referral for conservative treatment. The plaintiff initially attended for physiotherapy with Paul McCann in October 2016 “for treatment to lower thoracic/upper lumber spine injuries”. Mr McCann diagnosed primarily soft tissue injuries.[22]
[22]JCB 36
33 In a report dated 1 February 2019, Mr McCann notes the last physiotherapy session with the plaintiff was August 2017, at which time the plaintiff was still working in his pre-injury occupation but was experiencing “some difficulty” in persevering with this work.
34 The plaintiff then switched physiotherapists to Andrew Seng. In his report, Mr Seng diagnosed chronic T10 and T11 vertebrae compression fractures, consistent with the collision.[23] He records ongoing mild to moderate pain along the right mid-thoracic spine, close to where the plaintiff had the compression fractures. He notes the need for occasional ongoing physiotherapy treatment.
[23]JCB 37
35 The plaintiff was referred for a joint medico-legal assessment with Mr Rodney Simm, orthopaedic surgeon, who examined him on 6 June 2018. In a report of 7 June 2018, Mr Simm opines that the plaintiff had suffered –
“… an unresolved soft tissue injury to the cervical spine following a rear-end collision. … ongoing pain and frequent headaches, which are consistent with a whiplash type injury. …”
and:
“persisting painful dysfunction of the mid and lower thoracic spine. … .”[24]
[24]JCB 42
36 Mr Simm discusses the radiological findings, in particular, the findings in the thoracic spine. He comments that –
“… there is some uncertainty regarding whether or not these changes are due to the trauma sustained in the accident.”[25]
[25]JCB 43
37 Mr Simm further comments:
“My assessment of the MRI scan changes was that the changes were also consistent with developmental Scheuermann’s disease, which may lead to some degree of wedging of the thoracic vertebrae … .”[26]
[26]JCB 43
38 Importantly, Mr Simm concludes that –
“… although there is some uncertainty about the diagnosis of the MRI scan changes, it should be accepted on balance that there were mild wedge compression fractures of the superior end plates of T10 and T11 superimposed on structural changes from Scheuermann’s disease.
The reason for this conclusion is the fact that there was no history of any previous lower thoracic back pain. The acute pain experienced in the transport accident was consistent with trauma at the T10 and T11 levels. He has experienced a chronic adverse pain response and this may relate, in part, to aggravation of pre-existing degenerative changes… .”[27]
[27]JCB 43
39 Mr Simm states that the plaintiff requires ongoing symptomatic treatment and over-the-counter painkillers as necessary.
40 The plaintiff was seen for medico-legal purposes by Dr Ales Aliashkevich, neurosurgeon, on 28 January 2020. In a report of that date,[28] Dr Aliashkevich provides a diagnosis that is complicated by what appears to be some commentary from him, such as “history of motor vehicle accident on 9 September 2016” which could not be said to be a diagnosis. However, he does also include in his diagnosis, chronic low thoracic back pain, chronic neck pain and stiffness, chronic headaches, Chronic Pain Syndrome, aggravated multi-level cervical spondylosis,[29] and states that from the neurosurgical perspective, the injuries were consistent with the stated motor vehicle accident.
[28]JCB 57
[29]JCB 66
41 Dr Aliashkevich further states that, on the basis of the history, radiological investigations and his own examination findings, he believes that –
“… the accident has caused T10 and T11 vertebral fractures and produced whiplash injury to his neck resulting in chronic neck and back pain and development of whiplash associated disorder”[30]
and that he concurs with Mr Simm’s opinion and diagnosis.
[30]JCB 66
42 Dr Aliashkevich opines that the plaintiff has a current reduced capacity for suitable full-time employment and the injuries have “substantially reduced his capacity to perform a labour-intensive, physical and repetitive employment”.[31]
[31]JCB 67
43 The plaintiff was seen for medico-legal purposes by Dr Robyn MacBeth, occupational and environmental physician, on 13 March 2020. In her report of that date,[32] Dr MacBeth diagnoses “soft tissue injury to the cervical spine” and “minor wedge compression fractures of the vertebral end plates of T10 and T11,”[33] and that “as a secondary consequence of the cervical and thoracic spine injuries,” the plaintiff has –
[32]JCB 70
[33]JCB 81
“• Chronic thoracic pain.
• Chronic neck pain, and headaches.
• Thoracolumbar spine dysfunction, and associated disability.
• Cervical spine dysfunction, and associated disability.
• Likely aggravation of asymptomatic pre-existing degenerative changes in the thoracic spine.
• Likely aggravation of asymptomatic pre-existing degenerative changes in the cervical spine.”[34]
[34]JCB 81
44 Dr MacBeth goes on to state that the plaintiff will likely continue to experience persistent neck and thoracic pain, as well as cervical and thoracolumbar spine dysfunction, for the foreseeable future.[35] She also notes various restrictions for work, and states that the plaintiff is not fit to return to full-time, unrestricted work in his pre-accident position of employment.[36]
[35]JCB 83
[36]JCB 82
45 The plaintiff was next seen by Dr Clayton Thomas, rehabilitation physician, on 15 July 2020. In a report dated 17 July 2020,[37] Dr Thomas recorded the history of immediate back pain following the collision. He comments in his report that:
“… there is a question mark as to whether T10 and T11 were fractured or whether this aggravated previous degenerative changes, Scheu[e]rmann’s disease, at this level but whichever be the case, he has been left with mechanical derangement of his lower thoracic spine which has remained symptomatic.
The diagnosis is therefore of chronic lower thoracic backache.”[38]
[37]JCB 84
[38]JCB 86
46 Dr Thomas states that the injuries are in keeping with the nature of the accident and that the plaintiff –
“… continues to work in a full-time position. His work duties have changed. His current work duties do not place as much strain on his back and he finds this is more comfortable and is effectively able to work full time within the current work duties.”[39]
[39]JCB 86
47 Dr Thomas further states that –
“I think he would have difficulty if he were to continue to work as an auto electrician in his previous position. …
As a consequence of the accident, he has gravitated towards work which is easier and more comfortable for him to do including his current position. This is appropriate for him.”[40]
[40]JCB 86
48 Finally, Dr Thomas states that, in respect of ongoing treatment, the plaintiff should continue with an active exercise program, such as he was then currently performing, and that infrequent occasional physical therapies to reduce his pain are not unreasonable. He states that the plaintiff requires low-dose paracetamol, codeine and/or tramadol, and that infrequent use of such medications was reasonable.[41]
[41]JCB 87
49 As can be seen, the medical material discussed so far is effectively singing from the same hymn sheet; namely, that the plaintiff suffered a soft-tissue injury to the back, in particular, the mid-thoracic and cervical spine, which may have either caused the radiological findings or aggravated previously asymptomatic degenerative change by way of Scheuermann’s disease. Either way, it makes no difference to the conclusion thus far of compensable injury to the spine.
50 However, just when it appeared that there was no great medical dispute in this matter, the plaintiff was referred for medico-legal assessment with Mr Gary Speck, orthopaedic surgeon. Mr Speck examined the plaintiff on 15 May 2020 and produced a report dated 22 May 2020.[42] In that report, Mr Speck diagnoses “[s]oft tissue injury of the low back in the presence of Scheuermann’s disease”.[43] That diagnosis is consistent with the medical opinion already discussed. However, Mr Speck then states that “[t]he soft tissue injury has resolved”.[44] He goes on to state that –
“The prognosis for the soft tissue injury in the presence of Scheuermann’s disease is excellent. The expectation is of resolution of symptoms within 3 months of the transport accident. The current presentation relates to a chronic pain syndrome.”[45]
[42]JCB 151
[43]JCB 162
[44]JCB 162
[45]JCB 163
51 Mr Speck was then asked to produce a supplementary report, which he did. In a report dated 6 July 2020,[46] he was provided with further material, including the reports of Mr Simm, Dr Aliashkevich and Dr MacBeth. Armed with that further material, he states:
“Although at worst one might consider him to have had two stable minor crush fractures of T10 and T11, I would favour the diagnosis of soft tissue injury in the presence of pre-existing Scheuermann’s disease.
In either case settling of the symptoms should occur in the first 3 months and at worst over a period of 12 months with 90% of symptoms settling in the case of fractures in the first 3 months.”[47]
[46]JCB 166
[47]JCB 171
52 Mr Speck repeats his opinion that the plaintiff’s current presentation was –
“… of a chronic pain syndrome rather than ongoing organic pathology.”
53 Mr Speck repeats his diagnosis of:
“Soft tissue injury of the low back in the presence of Scheuermann’s disease. The soft tissue injury has resolved.”[48]
[48]JCB 171
54 It is immediately clear that Mr Speck’s opinion is at odds with all of the other medical opinion. He does not exclude that the pathology at T10 and T11 could be related to the collision but, rather, he favours a diagnosis of soft tissue injury in the presence of pre-existing Scheuermann’s disease, and opines that such soft tissue injury has now resolved. I do not accept Mr Speck’s opinion. Firstly, it is clearly against the weight of medical opinion. He is on his own as to the views expressed by him and not much more needs to be said other than the whole of the evidence tends against the opinions expressed by him. But, secondly, I reject Mr Speck’s opinion, because it does not adequately explain the history as to what has occurred to the plaintiff since the collision, namely ongoing mid to upper thoracic and cervical pain, requiring orthopaedic referral in January 2017 and review in September 2017 with Mr Quan. Mr Speck seems to just ignore that fact, other than to ascribe it as now caused by a Chronic Pain Syndrome, which I take to mean an ongoing psychological condition, in circumstances where there is no evidence from any other examiner of an ongoing psychological condition.
Has the Plaintiff suffered a “serious injury”?
55 As should be clear from these Reasons, the main issues in this case to be determined were to do with credit (the sale of the farm) and the identification of ongoing compensable injury in light of Mr Speck’s opinion. Once those issues are resolved, then this becomes a relatively straightforward application, namely whether the plaintiff has suffered “very considerable” pain and suffering and pecuniary loss consequences so as to meet the serious injury test.
56 The starting point of the determination of the serious injury issue is the plaintiff’s affidavit material. In his first affidavit, the plaintiff sets out that he has continued to experience pain and restricted movement in his upper back, with good days and bad days, and “the pain varies between 6/10 and 9/10”, and that his “back pain makes it difficult for me to bend and twist, which are integral parts of my work”. He says that he continues “to experience pain in the base of my neck, extending into my head. I have good days and bad days with my neck pain, and the pain varies between 5/10 at its best and 8/10 at its worst. My neck is constantly stiff and sore.”
57 In the first affidavit, the plaintiff gives evidence that he continues to experience regular headaches, that his back and neck pain makes it hard for him to work and he can no longer “work at the same capacity as an auto electrician as I used to”.[49]
[49]JCB 11, paragraphs [19]-[23]
58 In that affidavit, the plaintiff also notes that his upper back and neck pain is aggravated by physical activity and household tasks, such that he “avoids these tasks where possible”.[50]
[50]JCB 11, paragraph [24]
59 In the further affidavit, the plaintiff gives evidence of ongoing use of painkilling medication, including tramadol, and ongoing conservative treatment by way of Pilates and physiotherapy. He says that in September 2019, he resigned from Refuel International because “I was simply unable to put up with the physical demands of the job as it was very physical and heavy work”. The plaintiff then describes his current employment with LED Autolamps as “very light work and work that I can manage albeit with pain”.[51]
[51]JCB 14, paragraphs [2]-[3]
60 In a further affidavit, the plaintiff describes ongoing pain in the back and neck, with some improvement since changing jobs, and that he avoided things that may be too physical or placed a strain on his back. He says that he continues to use Panamax or Panadol and takes tramadol or Panadeine Extra “sparingly when the pain is really bad and I cannot put up with it”.[52]
[52]JCB 15, paragraph [7]
61 The broad thrust of the plaintiff’s affidavit material is that he has ongoing symptoms in his mid/upper thoracic spine and into the neck, with frequent headache and as a consequence he is now restricted to lighter physical, recreational and employment activities.
62 The plaintiff’s affidavit evidence is consistent with his oral evidence. In cross-examination, he confirmed that his general practitioner continues to provide him with prescriptions for tramadol and Panadeine Extra[53] and that he continues to take Panadol and Panamax regularly, almost daily.[54] He confirmed ongoing physiotherapy and Pilates.[55] He gave evidence of leaving Refuel International because “I was – just couldn’t cope with the pain and all that with my back and all that, and I needed – I wanted to go onto a more lighter role”.[56] He gave evidence that his current employment is less physical than the work at Refuel International. He said that “with the other job there was more aggravation. Um, this one here, it’s more light, I still have pain and all that but it’s more manageable”.[57]
[53]T15, L2-3
[54]T15, L23-24
[55]T16, L11-17
[56]T22, L1-4
[57]T24, L4-9
63 In addition to the evidence of the plaintiff, the plaintiff relies on affidavits from his wife, Rosemarie Cianciarulo, sworn 17 June 2020,[58] from his father, Giuseppe Previtera, sworn 24 June 2020,[59] and from his previous supervisor at Refuel International, Johnny Caruana, sworn 22 June 2020.[60] Those affidavits are relatively brief but do corroborate the evidence of the plaintiff of ongoing pain, restriction for physical activity and the like.
[58]JCB 18
[59]JCB 23
[60]JCB 26
64 Mr Caruana confirms that after the collision, the plaintiff was restricted at work. He says that –
“After the accident, we were selective in the work we gave to Michael. I would try and allocate Michael to jobs where he had the opportunity to take regular breaks to stretch and walk around.
…
Michael left Refuel International in September of last year (2019). One of the reasons he expressed for having to resign was that he was worried he could not continue to work in this role and perform to a good level with his injury. Michael told us he wanted a new role that was going to be easier on his back. … .”[61]
[61]JCB 28
65 It was submitted on behalf of the defendant that the fact that the plaintiff continues in full-time employment was a reason why the plaintiff did not meet the “serious injury” test. Of course, the fact that the plaintiff continues in full-time employment is part of the evidence that I must analyse, but the fact that the plaintiff has returned to work is not somehow determinative against him on the issue of serious injury. It is the whole of the evidence that must be considered.[62] I accept the plaintiff’s evidence that he has obtained lighter employment to better manage his ongoing back injury. That evidence is consistent with the medical opinions discussed earlier in these Reasons to the effect that the plaintiff is now unable to undertake full and unrestricted employment as an auto electrician. He is currently earning approximately $1,400.00 gross per week whereas before the collision he was earning approximately $1,554.00 gross per week.
[62]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]
66 I conclude that the plaintiff has suffered a “serious injury”. He is still a relatively young man. I accept his evidence and the medical evidence to the effect that he is now permanently compromised from undertaking full and unrestricted work as an auto electrician. He is worse off financially as a consequence. I find he is somewhat stoic and, to his credit, continues to work full time notwithstanding the symptoms from his injury. He requires ongoing painkilling medication including prescription medication by way of Tramal on an approximate weekly basis. He is restricted in a range of domestic and social activities. Taken in combination, the consequences by way of pain and suffering and pecuniary disadvantage[63] are such that I conclude the plaintiff has suffered a “serious injury”.
[63]Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [40]
67 Accordingly, I grant leave to the plaintiff to commence a common law proceeding for damages arising out of the motor vehicle accident in which he was involved in on 9 September 2016. I shall make consequential cost orders.
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