Crick v TAC
[2019] VCC 46
•1 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02916
| MITCHELL CRICK |
| v |
| TRANSPORT ACCIDENT COMMISSION |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2019 | |
DATE OF JUDGMENT: | 1 February 2019 | |
CASE MAY BE CITED AS: | Crick v TAC | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 46 | |
REASONS FOR DECISION
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the back – transport accident
Legislation Cited: Transport Accident Act 1986, s93(17)(a) and (c)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Davies v Nilsen & Anor [2014] VSCA 278; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Davidson v TAC [2015] VSCA 12
Judgment: Leave granted to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr D Masel SC with Ms E Hill | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1. The plaintiff’s originating motion sought leave for the granting of a certificate for a serious injury for impairment, specifically:
Discogenic back pain on the basis of a disc protrusion at L5/S1 level with displacement of the S1 nerve roots;
Mild anterior wedging of T12 and L1 vertebrae;
Adjustment disorder with anxiety;
Panic attacks;Nervousness and depression
as a result of a motor vehicle accident on 24 August 2012.
2. At the commencement of the hearing, whilst not the subject of a formal abandonment by the plaintiff, only the back was pursued.
3. Furthermore, and it is convenient to address the matter now, when opening the plaintiff’s case, a matter of contention arose in relation to “leg pain”. Mr Speck to whom the plaintiff was seen for examination at the request of the defendant on 11 January 2019, referred among other matters to radiating pain into the lower limb following certain symptoms that came on in January 2015. The defendant in due course placed some reliance on the ultimate opinion of Mr Speck that the plaintiff’s back constituted a new injury and was not an injury caused by the August 2012 accident. The defendant pointed to the onset of leg pain in and after January 2015 as offering additional support for Mr Speck’s opinion that the injury was new. The plaintiff, however, referred to the opinion of Mr Bittar, neurosurgeon who saw the plaintiff on 7 December 2018 who reported that following the plaintiff’s accident in August 2012 he suffered “back pain and right leg pain since”. The plaintiff’s affidavit evidence in support of his application also referred to leg pain although he did not identify when it commenced but in oral evidence he said that it was very soon following the car accident.
4. Mr Masel SC on behalf of the defendant contended that it would be prejudiced if the plaintiff were permitted to rely on evidence in regard to leg pain but that the defendant would content itself by addressing the evidentiary worth of the references to leg pain in the course of its final address.
5. Another matter I need mention is that the plaintiff suffered a closed head injury in a previous car accident in 2010. I regarded it as appropriate that in my overall assessment of the plaintiff’s evidence that I bore that fact in mind particularly as in closing address the plaintiff’s credibility was the subject of criticism by the defendant. Mr Mighell QC who appeared on behalf of the plaintiff observed that the plaintiff more readily comprehended short questions as opposed to more complicated ones and he asked that I bear that in mind. Overall, however, I found the plaintiff to be well spoken and articulate in his evidence.
6. Despite the originating motion pursuing both s 93 (17) (a) and (c) under the Transport Accident Act1986, Mr Mighell said in opening that only the ground under (a) would be pursued.
7. Pursuant to ground (a) of the Act, for a serious long term impairment, the injury to be regarded as a serious injury must be, in comparison with other cases, “fairly described as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”: Humphries v Poljak [1992] 2 VR 129. For the reasons that follow, I am satisfied it is.
Background
8. The plaintiff is a young man aged 28. He is a carpenter by qualification, having completed his apprenticeship in November 2013. He has a partner but they do not cohabit. She made an affidavit and it was received in evidence. I have read her affidavit and it is anecdotally consistent with the plaintiff’s account but not probative of causation. Also received in evidence were affidavits by the plaintiff’s brother Alister Crick with whom he worked for a time and a former employer of the plaintiff, Ivo Eliseo.
The applicable legal approach
9. In determining the plaintiff’s injury I did so by reference to the following two staged process:
·First, I have considered what the plaintiff’s injury is and the impairment said to be produced in consequence of it;
·Second, whether the plaintiff’s impairment is long term.
10. Initially I thought that perhaps the resolution of the plaintiff’s application was more complicated than it has proved to be. The complication I envisaged was because of the plaintiff’s misfortune in having suffered injury in the earlier motor vehicle accident in 2010. However, neither party submitted that there existed any condition impinging on the plaintiff from the 2010 accident that required disentangling.
11. In addition to the 2010 accident, the plaintiff’s evidence is that in early 2015 while working and digging holes on a building site, he experienced an acute flare up of back pain. Thereafter, the plaintiff ceased his pre-injury work as a carpenter and he has not returned to it.
12. The defendant did not contest that the plaintiff is unfit to undertake his pre injury work. I am satisfied that he is not able to do so. I am also satisfied by the medical evidence that it is more probable than not that this will be the plaintiff’s prevailing situation for the foreseeable future. However, the defendant contested the cause of the plaintiff’s impairment occasioned by his back injury. The defendant submitted that the plaintiff had not proved the cause of his back injury was the car accident in August 2012. The defendant argued that the plaintiff was a poor and unreliable historian. The defendant submitted that due to the plaintiff’s deficiencies in this regard there had been confusion in the consequences attributable from the first and second accidents and that this has impacted the reliability of the opinions of doctors to whom the plaintiff had presented.
The Plaintiff’s evidence
13. The plaintiff made two affidavits in support of his serious injury application dated 16 June 2016 and 28 November 2018. In the second affidavit he deposed that he is unable to return to his employment as a carpenter. He said he intends to undertake a fulltime 6 month course in project management at Swinburne University due to commence in April this year. The plaintiff deposed that he has been engaged in other pursuits to try and support himself financially and to augment his savings from which he has been living since ceasing work. He said these endeavours have included an online clothing and street apparel business, some investing and that he had sold a house that he owned with his brother. The plaintiff said that he has also undertaken sporadic work, in the order of 15 hours or so per week, for his brother. He said that this work had not been undertaken on a regular basis and, moreover, whenever he undertook physical activity on work sites it proved necessary for him to “stop what I’m doing due to increased pain in my back.”
14. The plaintiff described the current state of his back. He said the pain is of such magnitude that he is required to “lie down for long periods of time,” which he explained to mean, that he will lie down on a hard surface at least once a day for over an hour. The plaintiff described his pain as affecting his legs although predominantly his right leg. He said the leg pain came on intermittently and occurred after the August 2012 car accident, and within the first 2 days, of it. He described the leg pain as present in 2013 and 2014. He described it as presenting daily and that it tends to come on towards the end of a day.
15. The plaintiff takes both over the counter medication and prescription medication in the form of Nurofen (6 per day), Endone (1 per week which is a recent increase from 1 per month) and Valium (1 tablet per week).
The plaintiff is cross-examined
16. The defendant questioned the accuracy of the plaintiff’s recollection of the car accident and the pain he experienced as a result. The defendant referred the plaintiff to the absence of a complaint of back pain in the notes of the ambulance attendants at the scene of the accident or, in notes from the Maroondah Hospital, where the plaintiff was taken by ambulance. The plaintiff was directed to ambulance notes and a reference contained in them to a headache with neck pain but not to back pain. Despite this the plaintiff said he recalled saying at the scene of the accident that he had low back pain.
17. The ambulance and hospital admission notes are not determinative. The absence of reference to back pain is not evidence that back pain was not mentioned by the plaintiff but even if he omitted to do so, frankly, I would not be disposed to find him untruthful when he says he complained of back pain bearing in mind all of this transpired in the aftermath of the motor vehicle accident. In my judgment, a failure to give a complete account then and there, if that was the case, is explicable.
18. The plaintiff was asked about comments attributable to him referred to in a report of the psychiatrist, Dr Ingram whom the plaintiff saw on 4 September 2012. Dr Ingram’s history concerning the August 2012 accident included an account that the plaintiff thought it had led to a worsening of chest pain. He accepted he might have said such a thing although he could not recall telling Dr Ingram as much. The point of this comment is, that the plaintiff suffered a chest injury after the 2010 accident, and not the 2012 accident. The plaintiff accepted that he did not suffer chest injury following the 2012 accident. If the plaintiff reported such a view to Dr Ingram, I do not regard it as a matter of importance or has it adversely impacted my assessment of the plaintiff’s credibility.
19. Following the accident of August 2012 the plaintiff attended on Dr Hamilton, a general practitioner, at the Seymour Street Super Clinic. Dr Hamilton noted the accident had occurred some 3 weeks earlier and he recorded that the plaintiff had suffered a fracture of the sternum. That history is also wrong because the fractured sternum was a consequence of the 2010 accident. The plaintiff explained that perhaps Dr Hamilton had misunderstood him when he recounted his history but that in any event he did not recall a conversation with Dr Hamilton. I am not troubled by the discordant account contained from Dr Hamilton.
The subsequent medical and allied treatment
20. The plaintiff attended on Norwood Physiotherapy of his own initiative in an effort to manage his pain. Between 6 September and 10 October 2012, he received 8 treatments. It seems that an appointment for 17 September 2012 was rescheduled for that afternoon because the plaintiff had by then returned to work. The plaintiff could not recall the precise date he returned to work, whether it was later than September or perhaps October, but it seems likely to me that the plaintiff had returned to work by 17 September 2012. I don’t think anything turns on it anyway.
21. In relation to the plaintiff’s return to work following the August 2012 accident there was also a contest raised by the defendant about the work duties to which he returned. I am satisfied that it is more likely than not that on his initial return to work the plaintiff was performing a form of modified or light duties and, by reference to the notes of his physiotherapist, he had returned to normal duties by 10 October 2012. The plaintiff’s normal duties were not described comprehensively in evidence but he said they included carrying concrete bags, lifting beams and framework. He said the type of work his employer undertook was domestic renovations and extensions.
22. The plaintiff received no further physiotherapy treatment after October 2012 until 23 January 2013. He could not remember why he attended for treatment in January 2013, “other than having back pain that was continuous”. The entry for January 2013 is that the plaintiff had experienced low back pain that had been aching for one week and that he had been too busy to come for treatment prior to Christmas. The plaintiff continued with physiotherapy through to May 2013.
23. The plaintiff said he suffered flare ups of back pain from his work. He said that when this happened he would attend physiotherapy, and as well, he was taking hydrotherapy sessions.
24. The plaintiff testified that during October, November and December 2012 and despite having experienced low back pain he did not obtain physiotherapy because he was unable to afford it however he said he had recourse to hydrotherapy.
25. The plaintiff applied for an ABN on 7 November 2012. He said he did so to facilitate sub-contracting work and not because as was suggested to him by the defendant he had intended to commence his own business.
26. The plaintiff said he believed he ceased work for Ivo Solar at “the end of 2013” by which time he had completed his apprenticeship.
27. The plaintiff said that in the Christmas 2014 and New Year of 2015 he drove with 2 friends to Byron Bay where he holidayed. He described that during the course of the drive he needed to stretch out on the rear seat of the car because of back pain.
28. The plaintiff had hurt his wrist whilst working in May 2014. An ultrasound disclosed he had a ganglion. When he attended on Dr Wilks in relation to it he made no complaint about his back. He explained himself on the basis that he had been making efforts to self -manage his back pain with hydrotherapy. Mr Masel put to the plaintiff that the absence of complaint of back pain to Dr Wilks was explicable because he was not suffering any significant problems with his back. The plaintiff denied this. I asked the plaintiff why he did not take the opportunity to mention his back if it was hurting to Dr Wilks and he said that he is of the disposition that if he has a specific ailment that sends him to the doctor then it is that ailment he will address. He reiterated however that although low back pain was impacting on him at the time he was managing it by swimming which he found helpful. I accept his evidence on this matter by way of explanation.
29. In January 2015 the plaintiff experienced the episode of acute back pain that is detailed in his affidavit. He denied when it was suggested to him by Mr Masel that this was the first occurrence of pain of such a nature and he said that he had experienced many occasions of pain, some of which he described as worse than others.
30. The plaintiff saw an acupuncturist Dr Badic in January 2015 who reported that the plaintiff had presented with right sciatica and low back pain. Dr Chen, a general practitioner, provided a report at the request of the plaintiff’s solicitors dated 20 February 2015 in which he recorded that the plaintiff had presented to the Mooroolbark Super Clinic on 14 May 2014 and again on 12 January 2015 with low back pain “which was due to transport accident 2 years ago as he stated”. The report went on and included “? Hair line fracture of Lumbar 2-3, he could not remember”. That uncertain entry was inexplicable and the query bears no connection with other evidence.
31. Mr Masel characterised the plaintiff’s attendances on doctors after January 2015 as constituting a “flurry of activity” in comparison to the more laissez-faire approach prior to then. The plaintiff explained that after the pain episode in January 2015 he had reached the point where he had had enough of it and decided to do something more determinedly about it. I accept his explanation.
32. The plaintiff said that it was also at about this time that he had adjusted his work. He was by then helping his brother and his brother’s carpentry business perhaps performing 10 to 15 hours a week and also was involved in an apparel business operated online from home together with other jobs of work that included dabbling in currency dealing. He was resolute however that he could not complete a single day’s work from beginning to end. In my judgment there is no evidentiary basis to suggest otherwise. I accept his evidence.
33. In October 2018 the plaintiff attended on Mr Speck on behalf of the defendant and part of what is recorded included telling Mr Speck that he had made improvements as a result of hydrotherapy and that not working had also helped. He reported having “come a long way” and that he was “feeling pretty good”. The plaintiff said his comments were related to his mental state but nonetheless, he agreed that his comments were also intended to refer to the pain he had experienced in his lower back.
34. Mr Masel directed the plaintiff to the report of Mr Kossmann, who provided three reports dated 28 September 2015, 1 December 2017 and 19 January 2018. The plaintiff thought it possible that he had told Mr Kossmann in an examination in September 2015 that his symptoms had improved since he commenced swimming.
35. The plaintiff said that although he recalled seeing Dr Boys, a consultant orthopaedic surgeon to whom he was referred, he did not remember telling him that he had been off work for 4 months as a result of the accident as mentioned in the report dated 17 October 2016.
36. In re-examination the plaintiff said he ceased work in January 2015 because he had had more than enough of the pain he had been dealing with both at work and outside work. He cited the trip to Byron Bay as an example of the type of sudden flare-up of low back pain he experienced.
37. The plaintiff was adamant that he could not work from 7.00 am to 4.00 pm as had prevailed prior to his injury because his back pain limits him in his work. He said that after returning to employment following the car accident in August 2012, that he found it necessary to take days off due to low back pain and this also was the case when he worked with his brother. He estimated that on average he would have one day a week absent from work due to his pain.
The medical evidence
38. I have already referred to passages from a number of the medical reports. There were many medical reports introduced in evidence. I do not intend to recite significant parts of all of them. In almost all instances the evidence on which the plaintiff relies contain consistent findings by way of a diagnosis about the plaintiff’s back, and that is, that the plaintiff suffers an impairment to his low back as a result of the August 2012 accident. The diagnosis was not contested. However, according to the defendant, there are many matters referred to by the doctors upon whose opinions the plaintiff relies that should be seen as controversial and unsafe to rely upon in attributing cause. In short, the defendant submitted that the reports related “facts” recounted by the plaintiff that in important respects are incorrect. For example, references to the length of time the plaintiff had off work after the accident, the nature of duties to which he returned and the specific injuries that occurred as a result of the 2010 accident as opposed to the August 2012 accident contain inaccuracies. I have already accepted that there are discrepancies in some matters of history and of conditions recorded by doctors presumably by reason to what was related to them by the plaintiff. However, these matters do not detract from the uniformity of diagnosis about the plaintiff’s back.
39. The defendant criticised the plaintiff’s reliability in his account of suffering leg pain after the accident in August 2012 and thus called into question whether I should feel confident in accepting the account by Professor Bittar who reported that following the accident the plaintiff suffered back pain and right leg pain since.
40. In regard to the opinion of Professor Bittar the defendant contended more broadly that there was a failure on his part to analyse other disclosed facts such as the absence of complaint of pain in the ambulance records or the notes of discharge from the Maroondah Hospital, so that his inclusion of references to the onset of pain, presumably on no more than the say so of the plaintiff, was not reasoned. The defendant submitted that Professor Bittar overstated the length of time taken for the plaintiff to return to work and that he was wrong to state as a matter of fact that the plaintiff’s return to work after the August 2012 accident was part time when evidence in a note from the plaintiff’s physiotherapist was that the work was full time. I do not accept the defendant’s submission. A medical expert is entitled to draw conclusions from histories recounted by a plaintiff. To the extent the acceptance of the history depends on an assessment of the credibility of a plaintiff then that is a matter for me. A history may be contestable for a number of reasons including errors made in the giving of an account by a plaintiff or because of errors in the accurate recording of matters by a doctor. Errors made by a plaintiff may be unintended or deliberate. I am satisfied that errors based on an inaccurate account by the plaintiff were unintended. In addition I am not satisfied that such errors lead me to a different conclusion on causation.
41. In regard to the opinion expressed by Mr Kossmann that attributed the back to the August 2012 accident it was put against him on behalf of the defendant that his reporting of the plaintiff’s history was flawed when he included that the plaintiff had returned to light duties and subsequently ceased work. It was submitted that he had been undiscerning in attributing the August 2012 accident as the cause of the low back injury and failed to take account of other facts such as the plaintiff having reasonably quickly returned to his normal suite of work duties and that he had continued to perform the same until early January 2015 when he was digging while working and suffered the prolapse. In relation to the defendant’s submissions that these amounted to deficiencies in the reports of Mr Kossmann, I adopt the reasoning and the conclusion I have expressed in regard to Professor Bittar. I do not accept the validity of the criticisms directed at Mr Kossmann.
42. Taken in their entirety and coupled with the plaintiff’s oral evidence and the favourable view I have formed of him, I am satisfied and accept the plaintiff’s evidence and also the opinions expressed by those doctors to whom he has referred, which is of an account of the onset of the plaintiff’s back pain and associated leg pain occurring at or about the time of the August 2012 accident.
43. Where on occasions reports contain, as they do, inaccuracies from errors in information given by the plaintiff, such as, for example, an enlargement of the period of time that the plaintiff was absent from work following the accident in August 2012, or the period of time that he was performing light or modified duties following his return to work, or whether in fact he returned to normal duties almost immediately after his return to work or at some other time, I am not satisfied that they amount whether individually or collectively to errors or omissions that diminish the opinions. Accepting as I do, the plaintiff’s evidence that he did complain of back pain very soon after the accident, and of leg pain too, the attachment by way of cause of injury to the lower back to the accident of August 2012, is a reasonable finding. I prefer it to the defendant’s contention of the back injury being due to a discrete incident occurring at work in early January 2015 that should be regarded as a new injury.
44. However there are further reasons why I reject the defendant’s submissions of cause of injury and they stem from the principal reports relied on by the defendant.
The defendant’s medical evidence
45. Dr Anthony Kam is a Consultant Radiologist. He was requested by the defendant to review documents and radiological images relating to the plaintiff and to furnish a medical report. This he did. In dealing with the nature of the plaintiff’s pathology of the spine and relevantly the disc protrusion at L5 S1 and whether or not it is related to the trauma sustained in the accident of August 2012, Dr Kam referred to a CT scan of the lumbar spine dated 21 January 2015 that revealed a small focal right subarticular disc protrusion at the L5 S1 level. He reported that there is likely contact of the traversing right S1 nerve root at the L5 S1 subarticular recess. As to the MRI of the lumbar spine dated 3 February 2016, he thought it showed an annular fissure at the L5 S1 level. He noted an associated L5 S1 right subarticular focal disc protrusion causing contact and displacement of the traversing right S1 nerve root. He believed the appearance similar to that shown on the CT scan dated 21 January 2015. In regard to the MRI of the lumbar spine dated 6 October 2016 he pointed out it was obtained on a low field MRI scanner at reduced resolution but the imaging was adequate. The images again showed an annular fissure at the L5 S1 level and associated L5 S1 right subarticular focal disc protrusion causing contact and displacement of the traversing right S1 nerve root. Dr Kam expressed his opinion in the following terms:
“The post-accidents CT and MRI scans obtained in 2015 do reveal a focal disc protrusion at L5/S1. The disc protrusion is not definitely shown on any of the prior imaging studies although dedicated spinal CT or MRI images are not available prior to 2015. Having reviewed the available documents, it is possible and most likely that Mr Crick suffered the disc protrusion at L5 /S1 as a result of the 24 August 2012 accident when he complained of low back pain. However, as close to 3 years has elapsed between the 24 August 2012 accident and the discovery of the L5/S1 disc protrusion on imaging, it is equally possible that Mr Crick developed the L5/S1 disc protrusion due to an alternate cause E.g. Work trauma and/or ageing related disc degeneration.”
46. I am not persuaded that the alternative possibilities of a discrete trauma or age related degeneration in the plaintiff who was, after all, only 25 years of age in January 2015, is to be preferred in light of my satisfaction that there was a complaint and onset of low back pain by the plaintiff of a constant nature since the accident. Moreover the fact of a temporal lag between the disc protrusion being seen on imaging is not to conclude that it would not have been recognised on imaging at or about the time of the accident or in periods subsequent and before the radiology to which he referred.
47. I have already made mention of Mr Speck. He is an orthopaedic specialist and he examined the plaintiff on 10 October 2018 and he furnished a report to the defendant dated 11 January 2019. The defendant submitted that in my consideration of the competing medical opinions, Mr Speck’s opinion should be given considerable weight as it provided an evident pathway of disclosed reasoning on established facts.
48. In his report Mr Speck said that he had been asked to consider if the plaintiff sustained a new injury or an aggravation of a previous injury as a result of the workplace incident in or about January 2015 to which he said:
“Mr Crick’s symptoms in January 2015 related to a specific acute work injury as did a number of his attendances at physiotherapy during 2013. The episode in January 2015 however was ongoing with related radiation of pain into the lower limb and for the first time investigations with MRI scan indicating a mild protrusion of the L5/S1 disc. I believe this was a new injury.”
49. Later in his report Mr Speck noted that the plaintiff “has been complaining of continuous pain since the episode of January 2015 consistent with a pain syndrome rather than ongoing symptoms referable to the disc prolapse, he had on imaging in 2015.” Accepting as I do, the veracity of the plaintiff’s account of complaints since before January 2015, and extending back to after the accident in August 2012, I am not persuaded by Mr Speck’s analysis that the injury was a new injury.
50. I do not accept the overall characterisation of the report of Mr Speck as contended for by the defendant. I do not regard it as evidencing a sufficiently persuasive basis to prefer his opinion that the plaintiff’s L5/ S1 disc protrusion and radiation of pain into the lower limb constituted a new injury as opposed to an injury that was caused by the car accident and has been made worse over time.
The approach to differing medical opinions
51. The determination of the outcome of the plaintiff’s application is not to be resolved only by a comparative assessment of competing medical opinions. Cases must be decided on the whole of the evidence: Davies v Nilsen & Anor [2014] VSCA 278 at [95]. In adopting a whole of evidence approach, I am satisfied that the plaintiff has discharged his burden of proof that the cause of the injury to his low back was the 2012 accident. I find his evidence, and hence the opinions on which he has relied, preferable in explaining his impairment to his back. At the date of the August 2012 accident the plaintiff was a young man of 21 years. He was essentially a healthy young man, making due allowance for the effects of the plaintiff’s previous car accident in 2010. I am satisfied also that the accident in August 2012 was a serious accident and involved the plaintiff’s vehicle being “t-boned” by a police vehicle. I am satisfied and accept the plaintiff’s evidence that since the accident he has experienced low back pain and that he continues to suffer from pain and that the position in which he has found himself, is counterintuitive to the alternative thesis, that he experienced no greater than a soft tissue like injury that should have resolved in a short period of time, the failure of which is a sufficiently cogent basis to conclude the existence of a new injury in January 2015. In fact I am satisfied by the plaintiff’s evidence and accept that he has suffered intermittent and recurrent low back pain since the accident.
52. Mr Mighell submitted that I should be satisfied on the balance of probabilities that the plaintiff suffered a back injury in the subject accident and that the nature of the injury should be accepted as a disc protrusion at L5 S1. I agree. As well, he submitted, that I should accept and prefer the plaintiff’s evidence of a continuation of symptoms with fluctuating flare-ups from the date of the accident and that I should accept the plaintiff’s evidence that from the time of the accident he has had pain extending predominantly into his right leg but on occasions into his left. I do. Mr Mighell submitted that there was contemporaneous evidence, scant though it is as to the leg, and he referred in particular to the handwritten note of the physiotherapist. I am not satisfied I can make any sense of the reference in the note to the plaintiff’s lower legs and I have not done so but that is not critical because I accept the plaintiff’s evidence that he experienced such pain.
53. It was further submitted that I should accept the plaintiff’s account that he did not return to unrestricted duties at any time after the accident. There was very little in the evidence and certainly no precision offered by way of cross-examination of what the normal or modified duties were, but in any event, I am not satisfied that such duties the plaintiff performed, howsoever characterised, were the cause of the disc protrusion but rather that the culprit falls to the car accident of August 2012.
54. I accept that it was peculiar that despite the plaintiff’s evidence that he experienced pain in his low back it was not raised by him with Dr Wilks in May 2014 when he had an opportunity to do so. However, the plaintiff offered his explanation, which I have accepted, that he was relying on self-management of the pain through alternative mechanisms including physiotherapy, hydrotherapy and swimming. I am not inclined to impose the wisdom of someone who perhaps, for example, by dint of greater age might have more determinedly sought specific medical treatment at earlier points in time. Moreover, according to the plaintiff’s evidence, the back and leg pain had not reached an incapacitating state in May 2014 - that came later in January 2015, after which the plaintiff said he had come to the point where he had “had enough” of the pain and, consistent with that mindset, the evidence reveals thereafter considerable medical activity on his part.
Pain and suffering consequences
55. Much of the plaintiff’s affidavit evidence about the adverse consequences that have impacted his life as a result of his pain was not challenged by the defendant in cross-examination. The plaintiff’s evidence bears relevance to my assessment of whether the nature and symptoms of the plaintiff’s injury and the consequences of it are, subjectively for him “serious”; and to my determination of whether the injury as thus assessed is objectively “serious” when compared with the range or “spectrum” of comparable cases. I am satisfied that the plaintiff has proved that his pain and suffering consequences are very considerable.
56. The plaintiff suffers ongoing pain in his low back at the L5 S1 level with pain extending into both legs but substantially his right leg. He described the immediate onset of his back pain in his description of the accident to be found in his affidavits. He said he was driving home from dinner with his then girlfriend at about 9.00pm and as he drove through the intersection of Dorset and Canterbury Roads, Bayswater North, with a green light a police vehicle came through the intersection against the red light and collided with his car. He deposed to remembering his car spinning around and his head being swung back and then forward and his head hitting the window. He recalls being dazed from the knock to his head and he was unable to talk. He recalls an ambulance attending which was a MICA unit and that he was taken to Maroondah Hospital. He deposed that he immediately felt pain in his back and that his neck was aching.
57. He said that he was discharged the following day from the hospital and undertook physiotherapy from early September to early October 2012. He had the following few weeks off work with certificates of incapacity, whereupon he returned to light duties. He said he did his normal work other than heavy lifting. He said he was having trouble with physical aspects of the job and was unable to undertake work on his own as he could not do the necessary lifting work. He said by mid-2013 he had recommenced physiotherapy. He said that he was not sleeping well because of the pain in his back. He said he bought a new bed in an effort to assist in getting a better night’s sleep. He said that following a day’s work he would struggle to walk upstairs to reach his bedroom. He was taking Panadol to try and manage his pain and in order to keep going.
58. He said that by the latter months of 2014 he had established a company with his brother through which they were still subcontracting and that the company had commenced to obtain its own work. He deposed that the business of the company was beginning to get busy but he was struggling to perform his work because of his back. He said his back commenced to lock up after lifting at work.
59. The plaintiff deposed and confirmed in his oral evidence the pain he encountered over the Christmas and New Year excursion to Byron Bay. He said in evidence that it was necessary for him to lie on the back seat of the car. On its return journey his back worsened.
60. Come early January 2015 the plaintiff was digging a hole and experienced what he describes in his affidavit as a “hot sharp pain all up his back” and he has not worked since.
61. The plaintiff deposed that he attends his gym and does a swimming program and he does light weights. He said that his back pain is ongoing. He said the pain increases at night when he is in bed. He said that he is unable to lie on his back and so will usually sleep on his side with his knees curled up. He gauged his day time pain as 5/10 and at night as more akin to 7/10. He said he has a nerve pain which shoots down his right side like an electric shock and this affects both his legs but that it is worse in his right leg. He described the pain in his back as being worse on his right side and that of a morning his back is very stiff and sometimes so bad he will need to crawl into his living room. He said he can no longer run and is only able to bend with difficulty. He says he experiences difficulty sitting or standing for lengthy periods of time. His back worsens when he drives. He says he can manage with difficulty his house work but he finds it and shopping for household needs exhausting as they take a lengthy period of time to complete. Any sweeping hurts his back.
62. In his affidavit he said that he purchased a Harley-Davidson motorbike in 2014. He said many of his mates had motorbikes and they would go for drives down to the Mornington Peninsula on weekends which he thought he would be able to manage by riding on flat roads as opposed to the rough roads which he once navigated when pursuing his previous pursuit of dirt bike riding. However, he said that after four or five rides he found the Harley too difficult due to his back and he sold it as he was unable to continue to ride. He spoke of how he had previously played basketball and been a snowboarder and surfed none of which he can currently pursue.
63. In his second affidavit the plaintiff deposed that earlier in 2018 his back had seized up and he fell over. He said he continues to suffer a dull ache in his low back and that it is always present. He said it is aggravated by sitting for long periods of time, or standing for long periods of time, or by bending over on a repetitive basis or by lifting of heavy weights. His backache is aggravated when sitting in a car or when getting in and out of the same. He deposed that he still finds it difficult to sleep because of the pain and frequently wakes in the night because of the pain with the result that he does not sleep soundly and has not since the accident leaving him of a morning tired and fatigued. In Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P said:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep”.
64. The plaintiff said that in an effort to manage the pain he regularly will lie on the floor.
65. The age of the plaintiff is relevant. He is 28. There is no reason to anticipate that he will have anything other than a normal life expectancy. The consequences which he suffers as a result of the accident are likely to persist on a long term basis. Those consequences include pain and suffering and the substantial interference which has occurred in relation to the plaintiff’s career as a carpenter and his enjoyment of it. As to his love of carpentry he said the loss of it has been “devastating” as it is the only work he has known. He deposed that his four best friends are carpenters. He described his love of the physical nature of the work he performed and the satisfaction he gained of constructing things himself and performing a job well done. He regarded himself as a good carpenter and he is adversely affected that his injuries have caused him to lose the opportunity to work in his trade.
66. The plaintiff said he used to love snowboarding and tried to do it after the accident but was unable to do so because of the pain in his back. He has made some effort to reignite his interest in dirt bike riding by utilising a friend’s farm and riding over his paddocks but after a half hour his back pain increases to a point where it becomes necessary for him to stop.
67. He said his love of basketball was such that he endeavoured to return to playing the game but could manage only a couple of games and could last only a short period of time on the basketball court due to his back pain and he spent the rest of the season off the court coaching and scoring as he could not continue to play.
68. I am not satisfied that the applicant’s efforts in other employment endeavours have detracted from the judgment I have reached. There is nothing speculative about the plaintiff’s stated desire to have continued in his trade as a carpenter. The plaintiff was on his career pathway and that has been lost in consequence of the identified injuries and the law pays proper attention to such diminished career progression or career opportunities: Davidson v TAC [2015] VSCA 12.
69. The defendant’s counsel submitted that the plaintiff’s social media accounts and sporting endeavours suggest that the plaintiff remains reasonably active in social, business and recreational activities. The social media accounts depict the plaintiff attending a soccer game, socialising with friends in bars and at festivals, riding a Harley Davidson motorcycle, snowboarding and engaging in work activities. The plaintiff did not obfuscate when directed to the entries. He admitted that in 2013 he travelled to Mount Buller to snowboard. However, the plaintiff said he would not snowboard the entire day. He said, “I physically couldn’t for my back pain”. Nonetheless, the defendant’s counsel submitted that despite the plaintiff’s restrictions in his low back and mobility, even if causation is proved, the injury has not disadvantaged the plaintiff to the required standard. I do not agree.
70. Having regard to all of the circumstances, I find that the social media and sporting evidence demonstrates that the plaintiff is a young man who has retained some ability to engage in social and recreational activities, however that capacity to engage is not comparable to the plaintiff’s social life prior to the low back injury, the details of which the plaintiff deposed to in the affidavit evidence to which I have made mention.
71. I am satisfied based upon the test referred to in the statute, that the plaintiff’s car accident in August 2012 has produced an impairment of function to his back and it is a long term impairment. I am satisfied that the injury he suffered is a serious injury with pain and suffering consequences which are “serious”. I am satisfied that the plaintiff suffers from a range of social, domestic, recreational and work pursuits at a very considerable level.
72. I have reached my conclusion by making relevant comparisons with like impairments as I am required to do.
73. I shall grant the application and make consequent orders.
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