Clarke v Transport Accident Commission

[2021] VCC 1637

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-00656

ROBERT CLARKE	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne (via Zoom)
DATE OF HEARING:	14 October 2021
DATE OF JUDGMENT:	5 November 2021
CASE MAY BE CITED AS:	Clarke v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 1637

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury – Injury to the neck – Disentangling – Pain and suffering consequences

Legislation Cited:      Transport Accident Act 1986

Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Johns v Oaktech Pty Ltd [2020] VSCA 10; Peak Engineering v McKenzie [2014] VSCA 67; Demmler v Transport Accident Commission [2018] VSCA 284; Nikolic v Transport Accident Commission [2020] 148

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms S Bailey	Arnold Thomas & Becker
For the Defendant	Mr A Clements QC with Mr P Bourke	HWL Ebsworth Lawyers

HIS HONOUR:

Introduction

1This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). The principles in respect to such applications are well known and are not in dispute.

2Briefly by way of background, the plaintiff, Mr Robert Clarke, is currently forty years of age.  He is separated with shared custody of two daughters now aged nine and eight years respectively.  He completed Year 12, by which time he had already commenced work in the bathroom and shower-base manufacturing industry, an industry in which he continues to be employed on a full-time basis.

3Pre-injury, the plaintiff’s social and recreational interests appear to have largely been outdoor and associated with sport.  In 2010 he injured his right knee in a football injury, to which I shall return to discuss in more detail, but it was an injury that required surgery in 2010 and 2011.  Unfortunately, he re‑injured his right knee in 2018 when he ‑ruptured the anterior cruciate ligament (“ACL”).

4The plaintiff was involved in a transport accident which occurred on 11 October 2012 (“the accident”).  The plaintiff was stationary in his work vehicle – he was then working for a company called Marbletrend – when he was ‘rear ended’ by a vehicle that failed to stop in time.  The defendant accepts that the accident caused an injury to his cervical spine, which is the injury relied on as a “serious injury”.  The defendant accepts that there is an ongoing organic basis for neck pain.  The plaintiff claims that the impairment consequences from the neck injury are “very considerable”.

5The application proceeded in the usual way with the plaintiff cross-examined as to the contents of his affidavits, and the parties otherwise tendered relevant medical reports, affidavits and materials.  I have taken into account the transcript of the plaintiff’s oral evidence and all of the tendered evidence, but I will only refer to it to the extent necessary.

6The dispute in this proceeding is whether the plaintiff has ongoing impairment consequences from a compensable injury that are “serious”, or as senior counsel for the defendant put it, this is primarily a “range case”.[1]  By that, I take it to mean the primary issue is whether the plaintiff can identify impairment consequences from compensable injury which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as more than “significant” or “marked” and as being at least “very considerable”.

[1]Transcript (“T”) 4, Line (“L”) 24

7In addition, said to be tied in with the “range issue”, is what the defendant described as a disentanglement issue, namely whether it is the neck injury, as distinct from the unrelated right knee injury, that are the cause of ongoing impairment consequences in particular for sporting activities.

8Pausing, in assessing the seriousness of the claimed impairment consequences, I must consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[2]  I must also take into account the broad range of impairments and impairment consequences, not just those that come before the courts.  The plaintiff bears the onus to establish that the impairment consequences from the claimed neck injury are “serious”.

[2]TTB SMS Pty Ltd v Reading [2020] VSCA 203 at paragraph [30]

The right knee injury

9It is convenient to deal with the evidence and the submissions regarding the plaintiff’s unrelated right knee injury, because factual conclusions regarding the right knee impact on conclusions regarding the impairment consequences from the neck injury.

10The plaintiff swore an affidavit dated 21 January 2020 in which he gave evidence of prior injuries as follows:

“In about 2011, I had an ACL replacement on my knee done after a football injury.  I was on my way with the recovery.  In about 2016, I had some counselling when I separated from my wife.  In about 2016, I injured my back and buttock at work, which I got over.[3]

...

A lot of my life, I played footy.  I had a knee injury before the car accident which I was getting over, and I was planning on getting back to playing footy.  Since the accident, I haven’t played football because of my neck pain.  I did try a bit of running, but the jolting was just making my neck pain worse and I was getting pretty bad headaches.”[4]

[3]Plaintiff’s Court Book (“PCB”) 17, paragraph 3

[4]PCB 19, paragraph 16

11In a second affidavit, sworn 1 October 2021, the plaintiff made further reference to the unrelated right knee injury as follows:

“I refer to paragraph 16 of my previous affidavit, which is roughly the same.  Before the accident, I had played footy with the seniors at the Yarra Junction Football Club for about six seasons, as a ruckman.  In the 2012 season, I was the assistant coach/runner, as I was getting over my knee injury.  At the time of the accident, I was over my knee injury.  But I couldn’t play finals because I didn’t qualify for playing enough games.  I was planning on going back to playing footy in the next season.  If it wasn’t for my neck injury, I would still like to be playing now if I could.”[5]

[5]PCB 24-25, paragraph 14

12As is clear, the thrust of the plaintiff’s affidavits was that he had an unrelated ACL  injury to his right knee, from which he was recovering, or had substantially recovered from, when the accident occurred, and that it is the neck injury from the accident that limits his social and recreational activities, and not his right knee.

13The question of the extent of the unrelated right knee injury assumed greater prominence during cross-examination. 

14The plaintiff accepted that he injured his right knee doing pre‑season training for the 2010 football season[6] for which he required an ACL repair and for which he required further arthroscopic surgery in 2011.[7]  He was still getting over those surgeries when the 2012 football season commenced.  At the start of the season he was the assistant coach and runner because he was getting over the knee injury.[8]  He said he played a couple of reserve games and possibly four senior games in 2012, and “The last game was, I think, the third last game of the season that I played.”[9]  He stopped playing because he did not get picked and did not qualify for finals.[10]

[6]T10, L18

[7]T11, L25

[8]T13, L9

[9]T13, L20-22

[10]T14, L1-2

15The plaintiff said in cross-examination that his knee was good when playing football in 2012 and his fitness was pretty good.  He disagreed that with an unstable knee he might be able to run in a straight line but would not be able to twist or jump.  In fact he got a synthetic ligament so he could get back to playing football quicker.[11]

[11]T14, L17-18

16The plaintiff has not returned to play football since 2012.  It was suggested to him that by the time the 2013 season rolled around – that is, after the transport accident – he was thirty-two years of age and his football days were coming to an end.  He disagreed, and said he would still be playing football now.[12]

[12]T15, L16

17Next, it was put that he could not possibly be playing football now because in 2018 he ruptured the synthetic ligament in his right knee.  He said he did rupture the ligament.[13]  That occurred when he was assistant coach for his daughter’s under‑8 football team and joined in an indoor dodge-ball type of training session.  When he was avoiding a ball, he landed on his right leg and again ruptured the ligament.[14]  He was sent off for further scans and orthopaedic assessment and was told that he had ruptured the reconstructed ACL.  He attended a surgeon who recommended surgery, but he had decided not to have any further surgery.  His knee had remained the same ever since.  He accepted it was now “probably unstable”[15] but he denied any tendency to give way or a feeling of instability.  He described the right knee as not as strong as the left knee.  He accepted that he could not play football right now because of the right knee.

[13]T15, L23

[14]T16, L6-19

[15]T19, L29-30

18The plaintiff was then cross-examined about some of his other previous interests such as kickboxing.  It was put to him that he would not be able to engage in those sorts of interests with his right knee the way it is, but he did not accept that.  In particular, in respect to kickboxing, it was put to him as follows:

MR CLEMENTS:

Q:“Well, what I’m putting to you, Mr Clarke, is that even if your neck was brand new and pain free, now, you couldn’t kickbox because of your right knee.  That’s true, isn’t it?---

A:Well, it was a decision that I made at the time for not getting the knee done is because I couldn’t run.

HIS HONOUR:

Q:Don’t worry about that, Mr Clarke, Mr Clements will ask the question again and just see if you can answer what he’s asking?---

A:Yes, sir.  Yes.  Sorry, ask the question again, Mr Clements.

Mr CLEMENTS:

Q:Sure.  Even if your neck was brand new and pain free, you couldn’t kickbox now because of the state of your right knee.  That’s true, isn’t it?---

A:I could still do training.  So, yes.  I could do, still, training.”[16]

[16]T22, L30 – T23, L12

19The re‑rupturing of the repaired ligament in the right knee is not mentioned in the plaintiff’s affidavits.  He was asked about that, and said that it “slipped my mind”.[17]  He was challenged about that as follows:

Q:“It slipped your mind?  Are you serious about that?---

A:Yeah.  My – my decision not to get the operation was because my days were over of running and training and – – –[18]

...

Q:I suggest the reason that you did not mention the 2018 knee injury in your affidavits is you wanted to create the false impression that it is only your neck which stops you doing sports like football and kickboxing?---

A:That – the neck is the reason why I haven’t been kickboxing and playing football since 2012.  I certainly would have been doing more kickboxing and more football and more running and more sports 2012, 2013, 14, 15, 16, 17, and 18 (indistinct words).

Q:But not after 2018 because of your right knee, that’s true, isn’t it?

A:No.”[19]

[17]T24, L9

[18]T24, L11-13

[19]T24, L27 – T25, L6

20The cross-examination continued with the plaintiff broadly challenged that he had deliberately omitted the re‑rupture of the right ACL from his affidavits to try to maximise the consequences of the transport accident and to minimise the consequences from the right knee, as encapsulated in the following exchange with senior counsel for the defendant:

Q:“Yes, it was.  You left this out of your affidavit because you didn’t want the reader of the affidavit to know that in 2018 you suffered another serious injury to your right knee which impacted on your ability to play sport?---

A:No.  I, sorry, I, I don’t know how to answer that question.  I don’t see the question.  Can you say that a third time, please?

Q:Sure.  You deliberately left the right knee 2018 injury out of the affidavit, didn’t you?---

A:No, I didn’t.  I didn’t deliberately leave it out.  Not at all.”[20]

[20]T28, L14-23

The credit of the plaintiff and disentangling

21As has been said many times, when it comes to an assessment of the “seriousness” of a claimed injury, the credit of the plaintiff is an important issue and an important starting point.[21]

[21]Johns v Oaktech Pty Ltd [2020] VSCA 10

22The defendant submitted that the Court ought be a little cautious about accepting the plaintiff’s evidence, and would have reservations about his reliability.  It was submitted that the Court should take the view that the plaintiff sought to inaccurately overstate the effects of his neck injury, and that it was quite misleading to leave out the very significant setback to his right knee in August 2018.[22]

[22]T48

23In reply, counsel for the plaintiff submitted that he is not a person who has wilfully, or in any sort of malicious way, attempted to mislead the Court regarding the extent of his unrelated right knee injury.[23]  Taking a look at the case based on the whole of the evidence, the knee injury and in particular the re‑rupture of the ligament had been referred to in medical material, and so, it was submitted, an adverse inference should not be drawn in respect to the credit of the plaintiff.

[23]T70, L16

24There is no doubt that the plaintiff’s affidavits deal with his unrelated right knee injury in an unsatisfactory manner.  The plaintiff struck me as a straightforward and unsophisticated man in the witness box, who did his best to answer questions put to him.  I do not conclude that he deliberately set out to create a false impression in his affidavits.  But, by the same token, the evidence in his affidavits is incomplete and unsatisfactory, because it does not paint an accurate picture of his right knee injury both before and after the accident.  The affidavit evidence regarding the right knee injury is unreliable.  I need to carefully assess his evidence in the light of the objective evidence, especially about his right knee injury, before accepting what he says.

25Further, taking the whole of evidence approach, the overall evidence of the right knee is unsatisfactory. The plaintiff relies on lay affidavits sworn on 4 October 2021 by his ex-wife, Ms Bree Clark,[24] and his mother, Ms Petula Clark.[25]  Those witnesses describe in the affidavits what they have observed of his neck injury and restrictions.  But, their affidavits make no mention of the knee injury and so that lay evidence needs to be evaluated through the prism of the overall unsatisfactory evidence of the knee injury.[26]  Further, the evidence from health practitioners and medico-legal examiners regarding the right knee injury is extremely limited.  In fact, it is almost non-existent.  The treating practitioners make no mention of the right knee.  The medico-legal examiners at best obtained a passing reference to it.  For example, Dr Hazem Akil, neurosurgeon, had a history that the plaintiff “did have a reconstruction following a rugby accident”.[27] The most complete medico-legal history was obtained by Dr Albert Kaplan, psychiatrist, who recorded that the plaintiff underwent a right knee reconstruction in relation to a football injury and suffered a ruptured ACL some three years ago and the knee is unstable.[28] It is unhelpful that the history seemingly provided to Dr Kaplan is a more accurate history than that provided to the physical examiners.  It begs the question why the plaintiff chose to place such limited accurate evidence before the Court regarding his right knee.  It begs the further question why there is no proper medical evidence from a treating doctor or orthopaedic surgeon regarding the right knee.

[24]        PCB 28

[25]        PCB 32

[26]        Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraph 68

[27]        PCB 69

[28]        PCB 77

26This becomes relevant because of the “disentangling” issue raised by the defendant, in reliance on what was said in Peak Engineering v McKenzie[29] by Maxwell P where his Honour said:

“... where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial.  This would seem to be an essential pre‑condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. ...

It is possible to imagine a case where the consequences of the original injury are so clearly separate and distinct from the consequences of the subsequent injury that no ‘disentangling’ is necessary.  But this was not such a case.  As the appellants pointed out, there was evidence indicating that certain of the pain and suffering consequences which his Honour regarded as relevant were attributable to the knee injury as well as to the hand injury.”[30]

[29][2014] VSCA 67

[30]Ibid, paragraphs [24]-[25]

27The defendant submitted that the Court cannot take into account impairment consequences in respect to the inability to engage in football, kickboxing or strenuous physical activity because, regardless, the plaintiff’s unrelated right knee condition prevents him from engaging in those activities.

28The plaintiff, on the other hand, submitted that no disentangling arises.  He says that he suffered losses from the compensable neck injury in respect to football, kickboxing and the like, and that was why he did not return to those activities after the accident.  In that setting, when he re‑ruptured his ACL in 2018, he could see no point in having further knee surgery, because he would still be unable to return to his sporting and physical pursuits because of the neck injury.  In other words, he says that if he did not have the neck injury, he would have his ACL repaired again and return to physical activities.

29In general, I have sympathy for the proposition that the plaintiff, at age forty and at his stage in life, with the shared care of two young daughters, decided there was no point in again having knee surgery because his sporting and physical interests were already curtailed because of the neck injury. 

30But specifically, there is an absence of objective evidence regarding the state of the plaintiff’s right knee – both before and after the accident - to make a factual finding in support of his submission that it is the neck that curtails his interest in activity such as football and kickboxing. 

31The lack of reliable objective evidence regarding the right knee, in circumstances where his evidence is unreliable, means I am unable to accept the submission that his right knee had come good, or was coming good, before the transport accident, or that he has not bothered to have the ACL repaired since the re‑rupture in 2018 because he could see no point, as the neck injury curtailed his sporting and physical interests. 

32Therefore, I do not accept that the plaintiff would now be engaging in physical activity such as playing football or kickboxing if he had not injured his neck in the accident.  I prefer the submission of the defendant.  He has failed to discharge his evidentiary burden to establish that the impairment consequences for activity such as football and kickboxing is due to the neck injury and not the knee injury.  This is not a case where the impairment consequences from the compensable injury are so distinct from the non-compensable, so that disentangling does not arise.

The neck injury

33As already mentioned, there is no dispute that the plaintiff suffered an injury to his neck/cervical spine in the accident.  The dispute is whether he can demonstrate “very considerable” impairment consequences referable to the neck injury.

34The conclusion arrived at regarding the deficient evidence about the right knee injury does not mean that I must reject the other evidence of the plaintiff about his neck injury.

35The plaintiff’s affidavits set out evidence of the neck injury and impairment consequences, with the caveat that this evidence needs to be qualified by the conclusions I have made regarding the impairment consequences from the right knee injury.  About the neck, he said in his first affidavit[31] that he has constant neck pain, which he deals with as best he can.  The treatment has been conservative, including the use of pain killers and a referral to Empower Rehab.  Specifically, in respect to consequences, he said –

[31]        Sworn 21 January 2020, PCB 16

“13.Before the injury, | really loved kickboxing. | used to train about two to three times a week.  | believe | was really good at it.  | used to compete and spar as well. Since the accident, | have avoided doing this because | just didn’t want to make my neck pain worse.  | really miss doing this.

14.Before the injury, | believe | was an extremely fit and active person. Now | am neither of those things.

15.Before the injury, | did weights about three or four times a week.  | used to do it at home and at the gym.  Now | avoid doing this as well, as doing weights aggravates my neck pain.  | have lost a lot of tone in my body and it is disheartening in a way.

16.A lot of my life, | played footy.  | had a knee injury before the car accident which | was getting over, and | was planning on getting back to playing footy.  Since the accident, | haven't played football because of my neck pain.  | did try a bit of running, but the jolting was just making my neck pain worse and | was getting pretty bad headaches.

17.Now, | find it hard to sit in the one position for a long time due to my neck pain. | feel like | have got to move around and do stretches.  Now, | find it hard standing for a long time with mostly my neck pain, but also my back pain.

18.Before the injury, | believe my sleep was ok.  Now, my sleep is broken because of my neck pain.  | find it hard getting comfortable and | feel like | am waking up a lot through the night.  | usually wake up with a pretty sore and stiff neck.

19.Since the injury, | have put on a bit of weight, as | am not active like | used to be.

20.Now, with the medication that | am on for my neck pain, | get lethargic, distant and not in full control.  | feel kind of lazy.  | feel like my concentration is lacking also.  | feel like this more so in the mornings.

21.| now find it harder doing the dishes and standing over the sink for a short time, having my neck bent down on an angle, due to my neck pain.

22.Now with the shopping, | try not to carry as many bags as | used to, because generally when | am lifting heavier things, | get worse neck pain.

23.Now, | still do the gardening.  But usually when | do the gardening, it does make my neck pain worse.  At these times, | just take more medication or | just suffer, and push through it, or | go and get some remedial therapy treatment.

24.| used to do kickboxing, play footy and go to the gym, and a lot of my mates were through these circles.  Now, | feel like my social life has reduced a lot. | feel like | don’t have many friends now.

25.With work, | have now leant to try to be smarter when carrying things, and | try to get help when | am doing this.  My job now is pretty much doing a lot of driving.  Now | take a lot of breaks and do lots of stretches to get through the work day. When | have to do long drives like to Horsham or Warrnambool, | get pretty bad neck pain and headaches. | didn’t have this issue before the injury.

26.Generally, | find it harder looking around for traffic with my neck pain.  Now | have to use my mirrors a lot more because of my neck pain, and | find it hard looking up at traffic lights.  Generally, movements where | am trying to strain my neck to look out for things, does make my neck pain worse.

27.When | had the accident, my eldest daughter was one year old. | used to love picking her up a lot of the time, playing with her and holding her above my head and things like that.  My injury has impacted me picking them up a lot.  Now | have had to be a lot more careful and cautious playing with them, picking them up, holding them and hugging them, because of my neck pain.  Now, | do less physical type of things with them due to my neck pain.  It has changed the way | am being a dad, and | wish | could be a more active dad with them.”[32]

[32]PCB 19 – 20, paragraphs 13 – 27

36In his second affidavit sworn 1 October 2021,[33] the plaintiff essentially confirmed the evidence in his first affidavit, or in his words, his symptoms and impairment consequences are “pretty much the same”.  He now takes Panamax as needed when the pain is severe.  At other times he takes Nurofen.  Treatment continues to be self-management.  He continues to work full time, noting that there is no claim for pecuniary loss consequences to date.

[33]PCB 22

37The plaintiff was cross-examined broadly as to the consequences from his neck injury.  He said he attended a pain management program with Empower Rehab which had been roughly 16 or 18 psychology sessions and the same number of physio sessions.  The aim of that was to better manage and cope with his neck pain.  In addition, he had been provided with an independent gym program to follow at home and he had gym equipment.  He said he found the Empower Rehab program very helpful.[34]  About that program, he was asked –

Q:    “And it helped you manage your neck pain a lot better than you were      doing before the program …

A:    Yeah, it helped, yes.”[35]

[34]T32

[35]T32, L31 - T33, L1-2

38The plaintiff agreed that his neck pain varies and sometimes it is worse than other times.  He was asked whether there were times when it is bad and times when it is not so bad.  He said, “No.  There’s times when it’s, really, really, really bad and there’s times that I can manage it.”[36]

[36]T33, L11-13

39The plaintiff was challenged as to whether he has neck pain all the time.  He said, “I have pain all the time.”[37]  He accepted it was not as bad when he took the medication and that he did not take medication every day, maybe once or twice a week.  He did not take painkillers because he was very mindful of not taking medication every day.[38]

[37]T33, L21

[38]T34, L28

40The plaintiff was asked about going on camping trips.  He accepted he had been on camping trips but gave an example of a trip he undertook during the Empower Rehab program where he had severe issues with sleeping.[39]

[39]T36, L22

41In re-examination he said his neck injury affects the ability to go camping.  He said he had cut camping trips short to go home because the pain was too much.  He described times when he cannot manage the pain.  He said he still went fishing but the amount of times he would spend out fishing has decreased and that he liked fishing a lot.[40]

[40]T37, L15

42In re-examination the plaintiff explained he had had side effects from some of the medication.  He said his pain level was still the same from when he stopped taking prescription medication.[41]

[41]T39, L12

The medical evidence

43There is no need to refer to the very early medical reports, in circumstances where compensable injury to the neck is not in dispute, but I take those reports into account as they contain relevant matters of history.  In particular, I take into account the referral to Dr Neels Du Toit at Metro Pain Clinic and the treatment by way of medial branch blocks.[42]

[42]PCB 48

44The plaintiff’s treating general practitioner is Dr Arnold Shmerling.  In a report dated 31 October 2017,[43] Dr Shmerling sets out his involvement and treatment.  Next in a report dated 22 August 2019,[44] he described the plaintiff suffered from chronic neck pains which at no time had been successfully controlled.  In a third report dated 29 June 2021,[45] Dr Shmerling repeated the history and treatment provided to the plaintiff.  In late 2019 he recommended for the plaintiff to attend an occupational rehabilitation group called Empower, a group which specialises in intractable chronic pain management cases.[46]  In a fourth and final report dated 11 October 2021, Dr Shmerling described his attendances upon the plaintiff over the last few years as infrequent.  In that report he stated that the plaintiff “is prone to recurrent neck pain, which may be related to posture or work activities” and that “treatment needs to be supportive and symptomatic” but he thought the prognosis “should be good.”[47]

[43]PCB 50

[44]PCB 52

[45]PCB 53

[46]PCB 55

[47]PCB 87

45Mr Nick Economos is a physiotherapist at Empower Rehab.  He has provided a report dated 5 October 2020,[48]  which records the initial assessment on 23 October 2019.  He then sets out the plaintiff’s attendances for physiotherapy treatment, including attendances which have occurred via Telehealth due to Covid restrictions.  At a Telehealth attendance on 23 September 2020 he recorded that  the plaintiff had returned to a gym exercise program.  In the report he also records the plaintiff’s sleep as improved and that “he was overall 80% better”.  He describes the plaintiff as being confident to self-manage flareup in pain and that the plaintiff preferred not to set any further physiotherapy appointments at that stage.  Mr Economos concludes by stating that he “anticipated that Mr Clarke can continue to upgrade his physical capacity in order to return to heavier lifting activities at work as well as leisure activities.”[49]

[48]PCB 63

[49]PCB 67

46The plaintiff was seen at the request of his solicitors by Dr Akil, neurosurgeon, on 4 August 2021.  In a report of that date, Dr Akil sets out the mechanism of injury, current symptoms and examination findings.  He then opines that the plaintiff suffered the aggravation of cervical spondylosis in the accident.[50]  In respect to prognosis, he described it as poor.  He recommended the plaintiff return to see a pain specialist and should reconsider a spinal injection.[51]

[50]PCB 70

[51]PCB 72

47The plaintiff was seen at the request of the defendant by Mr Vasudeva Pai, orthopaedic surgeon, on 20 September 2021.  In a report dated 28 September 2021, Mr Pai sets out the history and examination findings as recorded by him describes the plaintiff as having chronic symptoms of whiplash, which he is self-managing and doing 40 hours per week of work.[52]  He records the plaintiff using Panadol and undergoing remedial massage.  He found some limitation of neck movements.  He said, “main residual symptoms are still painful stiffness in the neck and headaches”.[53]  He concluded by describing the prognosis as moderate “considering his ongoing symptoms which have been ongoing for 9 years.”[54]

[52]Defendant’s Court Book (“DCB” 17)

[53]DCB 17

[54]DCB 20

Serious or not?

48Consistent with the concession made by the defendant and notwithstanding the unreliable evidence from the plaintiff regarding his right knee injury, I am satisfied that he suffered injury to his neck, described as either a whiplash injury or the aggravation of cervical spondylosis.  I accept that he has had persisting symptoms since then and continues to suffer ongoing, fluctuating neck pain.

49The plaintiff is still a relatively young man at age 40 years of age.  It is relevant that he has had the pain now for over nine years and there is no suggestion of a “cure”.  The plaintiff’s age and the length of time that he will have to put up with the pain is a relevant factor.[55]

[55]Demmler v Transport Accident Commission [2018] VSCA 284

50I accept that the plaintiff’s level of pain is such that he requires the regular use of over-the-counter painkillers such as Panamax or Nurofen.  I accept the pain at times interferes with his hobbies such as camping and engaging with his children, notwithstanding that his right knee injury also prevents him from undertaking some physical activities.  I accept that the pain from his neck interferes with his sleep.  I accept that he has difficulty driving for extended periods, but equally he is able to drive, particularly to undertake his current employment.  In respect to employment, I accept that the nature of his work has caused flare ups and as submitted on his behalf it is not going to stop him from working in some capacity – and so no claim is made based on any pecuniary loss consequences as such – but he is going to be prone to flare ups if he continues to engage in heavy work[56].   

[56]        T 76-77

51I accept that the plaintiff has impairment consequences from the neck injury.  Those consequences are of significance to him and are not trivial.  But equally, in assessing the “seriousness” of the neck injury to the plaintiff, it is relevant to look at not only by what has been lost, but what has been retained or remains unaffected by the injury.  The plaintiff is still able to work full time, spend time with his children, attend to the usual domestic duties and engage in some social and recreational activities, such as camping.  The level of neck pain while constant is not such that any major treatment is indicated and the plaintiff is not resorting to the stronger forms of painkillers.  Ultimately, and bearing in mind the range of possible injuries and impairments, the plaintiff’s impairment consequences are somewhere in the range below what I consider to be “very considerable”.  As mentioned, the impairment consequences whilst not trivial and perhaps capable of being described as marked, or significant, do not on my assessment, meet the test of “very considerable” bearing in mind the need to exclude consequences from the unrelated right knee injury.

52Accordingly, the application is dismissed.