D'Amore v Transport Accident Commission
[2025] VCC 553
•8 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-04425
| MATTHEW D'AMORE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2025 | |
DATE OF JUDGMENT: | 8 May 2025 | |
CASE MAY BE CITED AS: | D'Amore v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 553 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – spine injury – impairment consequences
Legislation Cited: Transport Accident Act1986
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Ms R Matson | Zaparas Lawyers |
| For the Defendant | Mr A Moulds KC with Ms J Clark | Hall & Wilcox |
HIS HONOUR:
Introduction
1Matthew D’Amore (“the plaintiff’) was riding a bicycle in Tootgarook, Victoria on 18 March 2021, when he was involved in a transport accident (“the accident”) as defined in the Transport Accident Act 1986 (“the Act”).
2The accident happened when the plaintiff was struck from behind and run over by a car while riding his push bike, as part of a road rage or assault using the car.
3This is a “serious injury” application brought by the plaintiff pursuant to s93 of the Act in respect to an injury to the spine suffered by him in the accident.
Much is not in dispute
4The dispute in this case is about “range”, in the sense of whether the plaintiff has made out a “very considerable” consequence, although that boils down further to whether the plaintiff demonstrated any actual pecuniary disadvantage because of a loss of earning capacity caused by the accident.
5But first, there is no dispute that the accident occurred.
6Next, there is no dispute that the plaintiff is currently 44 years of age. He is a single man with two children with whom he has limited contact.
7The plaintiff was effectively raised by his mother and stepfather. He had a close relationship with his grandfather, until his grandfather passed away in mid-2013. His family have a background in hospitality, having operated various Italian or pizza/pasta restaurants. The plaintiff left school partway through Year 11 and did some labouring work. He worked off and on in the family restaurant businesses and most of the work he has done has been as a cook in Italian restaurants. He has effectively worked as a chef, without holding formal qualifications.
8It is not in dispute that from his early teenage years the plaintiff began using alcohol and was dealing with family and social issues. At some point he commenced using marijuana, before escalating his drug use to methamphetamine (“ice”).
9There is no dispute that by approximately mid-2013, the plaintiff’s life was spiralling out of control. He had a failed relationship and was becoming involved in the criminal justice system, with intervention orders made against him on behalf of several family members. His drug use was escalating. He sought medical treatment for that, including hospitalisation and inpatient rehabilitation treatment.
10By mid-2013, the plaintiff was living on the Mornington Peninsula. By that stage he was no longer in full-time employment. His evidence was that by then he did seasonal work on the Mornington Peninsula as a cook, when such work was available. When there was no work, he relied on Centrelink benefits.
11There is no dispute that the objective evidence of the plaintiff’s actual earnings before the accident is limited.
12For the financial year ended 30 June 2017, the plaintiff had disclosed earnings of $3,713 from an employer known as “Buckley’s Chance”, which was apparently some form of café. He also declared an amount of $2,852 from The Trustee for Retirement Wrap, but that does not appear to be earnings. Otherwise, he had $13,774 from Centrelink.
13For the financial year ended 30 June 2018, he had $1,636 of declared earnings from The Trustee for Retirement Wrap and $13,709 from Centrelink.
14For each of the financial years ended 30 June 2019, 2020 and 2021 his sole income was from Centrelink.
15Therefore, there is no dispute that, at best, by mid-2013 the plaintiff was still performing some seasonal work as a cook, while otherwise dealing with drug and social issues. Whether that work continued is hard to say. By the financial year ended 2017, he managed to only earn $3,713 from work as a cook. He then had no earnings in each of the 2018, 2019, 2020 and 2021 financial years, noting that the accident occurred on 18 March 2021.
16There is no real dispute, and indeed it is the only inference available from the evidence, that for the several years before the accident the plaintiff was battling drug addiction and facing social issues, factors that prevented him from working.
The injury
17There is also no dispute that the accident caused the plaintiff to suffer an injury to his spine.
18After the accident, the plaintiff was taken to hospital and underwent radiological examination of his spine. A report of the radiology of the plaintiff’s spine undertaken on 19 March 2021 and recorded findings of “Mild superior endplate compression of T11 and T12 keeping with grade 1 fractures”.[1]
[1]Plaintiff’s Amended Court Book (“PCB”) 68
19The plaintiff was initially hospitalised for several days. After discharge, his treatment has been conservative.
20For this proceeding, the defendant accepts that the plaintiff suffered fractures to T11 and T12 and that he continues to have some symptoms and impairment consequences from that injury.
21Where there is a red-hot dispute is the extent of ongoing impairment consequences and whether such consequences meet the well-known “very considerable” test.
Some medical evidence
22In a report to the plaintiff’s solicitors dated 20 February 2013, Mr Raf Asaid, orthopaedic surgeon, diagnosed the plaintiff as having suffered T11 and T12 vertebral body compression fractures. He said the plaintiff was likely to experience some restriction for physical activity as a consequence of those fractures.[2] He said the plaintiff then had a theoretical capacity for sedentary-type employment, and should undergo a period of physiotherapy treatment, but did not otherwise require any specific treatment. Overall, he said the plaintiff’s prognosis was guarded.[3]
[2]PCB 56
[3]PCB 58
23Dr Terence Saxby is a consultant orthopaedic surgeon who examined the plaintiff at the request of the defendant and provided a report dated 18 March 2025.[4] Dr Saxby said that his consideration of the radiology was that the plaintiff had suffered a 10 per cent crush fracture of T11 and T12.[5] He opined that the plaintiff could return to hospitality work but with restrictions and that he would need the option between sitting and standing and to not do repetitive bending or lifting of more than 10 kilograms.[6] Overall he said the plaintiff was capable of suitable employment, but with restrictions.[7]
[4]Defendant’s Court Book (“DCB”) 22
[5]DCB 27
[6]DCB 28
[7]DCB 29
24Professor Richard Bittar is a consultant neurosurgeon who examined the plaintiff at the request of his solicitors and provided a report dated 21 September 2024.[8] Similar to Mr Asaid and Dr Saxby, Professor Bittar diagnosed superior endplate compression fractures of T11 and T12 with approximately 10 per cent loss of vertebral height. However, Professor Bittar went further and diagnosed probable aggravation of lumbar spondylosis and aggravation of cervical spondylosis.[9] Professor Bittar recommended that the plaintiff undergo MRI scanning of his spine, no doubt to resolve the issue of what he described as probable aggravation of lumbar spondylosis. For various reasons, the plaintiff has not had an MRI scan.
[8]PCB 59
[9]PCB 61
25There is no other useful medical evidence. The plaintiff did not provide a report from his general practitioner (GP), although apparently it is agreed between the parties that the GP has not been forthcoming with such a report. The plaintiff has not had any recent MRI scans of his spine, perhaps due to financial constraints, although the defendant continues, apparently, to accept the cost of ongoing reasonable medical and like expenses.
26In the circumstances, there is no dispute the plaintiff suffered 10 per cent compression fractures to T11 and T12. But in the absence of any objective evidence to support Professor Bittar’s contention that the plaintiff has also aggravated degenerative change in his lumbar and cervical spine, I am not prepared to accept Professor Bittar’s diagnosis in that regard.
27In any event, the actual diagnosis is probably not that important. The defendant accepts that the plaintiff has ongoing symptoms. The defendant accepts that those symptoms mean the plaintiff now has a “light work” back.
Contentions
28The plaintiff contended that he had suffered a “serious injury” by reason of the physical injury to his spine. He contended that the pain, the restriction for day-to-day employment and pecuniary loss consequences, in isolation or in combination, met the “very considerable” test.
29The plaintiff contended that before the accident he had an earning capacity, even if it was limited because of his drug and social issues. In final submission, it was said that before the accident he had the capacity to earn $3,713, as disclosed in his tax return for the 2017 financial year. It was submitted that was a substantial sum for a gentleman otherwise receiving Centrelink benefits. Therefore, even if that was all he could earn before the accident because of his drug and alcohol use, the loss of that earning capacity was a significant loss to him.[10]
[10]Transcript (“T”) 78, Lines (“L”) 5-10
30In addition, the plaintiff submitted that the level of pain, the need at times to use over the counter or prescription painkillers, the restriction for day-to-day activity as set out in his affidavits, including an inability to sit and stand, interference with sleep, inability to ride a bicycle and the like, all amounted to a “very considerable” consequence.
31On the other hand, the defendant contended that the fact the plaintiff might now have a “light work” back and some restrictions for employment, simply did not equate to a “very considerable” consequence.
32The defendant highlighted that the plaintiff had the evidentiary onus to prove what the accident had caused him to lose.
33The defendant highlighted that the plaintiff had all sorts of social and addiction problems before the accident. The defendant highlighted the lack of objective evidence about earnings, beyond the limited earnings in the tax returns and submitted that the Court was entitled to ask the rhetorical question, what work was he going to do anyway? The defendant highlighted the lack of any reliable evidence for a conclusion about whether the plaintiff’s ongoing addiction and social issues would enable him to work in any event.
34In short, the defendant contended that even if the plaintiff now had a loss of earning capacity because of the accident, there was simply no actual pecuniary loss caused by the accident, or inadequate evidence, to conclude that the plaintiff had suffered any pecuniary disadvantage.[11]
[11]T 67 – T 68
Evidence
35The parties tendered documents from court books. The plaintiff’s tender included three affidavits sworn by him, some limited treating practitioner material (mostly comprising documents from hospital and clinical records), together with the medico-legal reports of Mr Asaid and Professor Bittar. Similarly, the defendant tendered the medico-legal report of Dr Saxby, as well as extracts of clinical records and extracts from records at various rehabilitation facilities that had treated the plaintiff.
36The plaintiff otherwise gave oral evidence about the contents of his affidavits and the other documents.
37I have considered all the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I shall only refer to the relevant material to the extent necessary in these reasons.
Consideration
38Senior Counsel for the plaintiff contended that this was not a proceeding in which his credit was in issue. Therefore, it was further contended that, because the plaintiff was a credible witness, the Court should rely on the evidence in his affidavits in support of a conclusion that he had suffered a “very considerable” consequence.
39I accept that the plaintiff presented as a straightforward witness when giving his evidence to the Court. But I do not accept that just because he presented as a credible witness, that is sufficient to resolve critical issues in respect to the extent of his drug and alcohol addiction and capacity for work, notwithstanding the accident, where he failed to provide any objective evidence relevant to those issues.
40The lack of any reliable, objective evidence about the extent of his ongoing addiction issues and how that might impact the plaintiff’s capacity for work, is a major hurdle for the plaintiff to overcome. There is simply no objective evidence to draw a conclusion that he would have overcome his addiction issues, so as to be able to return to hospitality work.
41In an affidavit sworn by him very recently on 24 April 2025, he said:
“Despite my difficulties in the past which I know that I will continue to have to manage, but which I believe are now better controlled, I believe that my back pain is the main reason which is preventing me from working.
42In other words, as recently as 24 April 2025, the plaintiff candidly acknowledged that he has ongoing problems with addiction that he will need to continue to manage, but which he believes are now better controlled. But the short point is that there is no objective evidence to confirm his belief or explain what is meant by “better controlled”.
43In opening, the plaintiff emphasised the claimed impairment consequences for work caused by the accident. Then in closing submission, his Senior Counsel said that the sole issue in this case was that before the accident he had the ability to work, and any restriction for work was because of “the drugs”. The point being made was that he now had a further incapacity for work because of the accident.
44In a broad submission, perhaps because of the state of the evidence, his Senior Counsel went on to highlight, as an example, the similarity between the plaintiff’s situation and that of a working parent who is not working at the time of an accident because of the care of young children, but had the capacity for work and would have returned to work at some point in time.
45In other words, just like a parent on parental leave, it was said that the plaintiff would have returned to work at some point in time, but for the accident.
46In my opinion, to equate the plaintiff’s situation with that of a parent who takes time out of paid employment for the unpaid job raising children, is misconstrued. The well-known fact that small children grow and develop to a point where a parent can return to paid employment is a vastly different scenario to that of someone without an end date for an ongoing drug addiction that causes an incapacity for work.
47In any event, when asked but for the accident when the plaintiff would have exercised an earning capacity, by reference to the evidence, his Senior Counsel said, that it was difficult to say, but “presumably when he had his drug and alcohol addictions under some level of control”.[12] That exchange highlights the evidentiary problem, because there is simply no evidence that he now has, or will be able to get, his drug and alcohol addictions under some level of control.
[12]T 79, L 7-9
48The plaintiff has had trouble with drug and alcohol addiction for at least 12 years and more likely for a longer period extending back to 2010, or even earlier. He has had related social and criminal issues. For over a decade his main source of income, and mostly his only source of income, has been Centrelink benefits. The fact the plaintiff may have been a credible witness in court cannot overcome the evidentiary difficulty on this topic. There is simply no reliable evidence to conclude he has suffered any pecuniary disadvantage because of his back injury, even if he now has a “light work back”.
49Despite submitting that the sole issue in the proceeding was the analysis about the plaintiff’s back injury preventing him from working, in final address Senior Counsel for the plaintiff said that, even if the issue of pecuniary disadvantage was taken out of the equation, the level of pain, treatment and impairment for day-to-day activity would otherwise meet the test of “very considerable”. Senior Counsel highlighted what the plaintiff said in his affidavits about restrictions, the use of over-the-counter painkillers from time to time and the like.
50In his first affidavit sworn 1 September 2023,[13] the plaintiff set out what were described as consequences of the accident. He said he continued to have daily back pain, worse when it was cold or with physical activity. He said he was restricted in a lot of things and a lot of movements, and gave as an example carrying anything heavy, sitting for too long or lying down for too long. He said he could walk for about five minutes until he needed to stretch. He described interference with sleep. He said he did not have a driver’s licence and his main form of transport before the accident was riding a bike, but that was now too painful. He then set out significant psychological consequences, which were not pressed as a “serious injury”, as well as various employment consequences.
[13]PCB 7
51In the second affidavit sworn 11 December 2014,[14] the plaintiff said that broadly he continued to experience the pain and limitations that he had been experiencing at the time of his first affidavit, although he could manage to walk longer than before. He described how he had been prescribed painkillers but was concerned about becoming reliant upon those, and the cost of them, and for various reasons he did not use regular painkillers. He otherwise set out again mental health and employment concerns.
[14]PCB 16
52Then in a second further affidavit sworn 24 April 2015, he described how he had stopped all medications. He said he remained under the care of Dr Sophie Sadr at Yarra Medical Centre. He described how he had been referred for an MRI scan but had not had that scan. He described how he had been referred to a neurosurgeon but had not attended the neurosurgeon. He then described some improvement in his psychological condition.
53During cross-examination, the plaintiff confirmed that he now lived on his own and continued to receive Centrelink benefits. He confirmed that as of July 2024 he was still using ice occasionally, consistent with the GP note. He spent his days watching television, tried to exercise a little bit inside the house and go for maybe three walks a day at different times.[15] He confirmed that he lost his licence and “had not bothered” to get it back because of his ongoing drug problem. It was bluntly put to him that one of the reasons he had not tried to get his licence back was that because he still had a drug problem and he said “Yes”.[16]
[15]T 54, L 15-17
[16]T 55, L 5
Analysis: serious or not?
54The plaintiff has had sporadic GP attendance for back pain since the accident. At times he has been prescribed painkillers. I draw no adverse inference against the plaintiff, but the fact is there is no report from the GP to assist in my understanding of the plaintiff’s current level of pain, impairment consequences, or need for treatment.
55In a similar vein, there is no recent radiology. For whatever reason, the plaintiff has not had the MRI that was suggested, and he has not followed through with a referral to the neurosurgeon, or with physiotherapy as suggested by Mr Asiad. I do not draw an adverse inference about those facts either, but again objectively, the plaintiff’s pain does not appear to be at a level that requires much by way of treatment, or is at a level that might motivate him to arrange treatment.
56Drawing some threads together, first, for a consideration as to whether the plaintiff has suffered a “very considerable” impairment consequence, the Court must consider the possible range of impairments and impairment consequences, and not just those that come before the courts.
57Second, I accept the plaintiff suffered T11 and T12 crush fractures, with the impairment consequences as described in a broadly consistent way by both Mr Asaid and Dr Saxby.
58Third, I accept that the plaintiff has some incapacity for prolonged bending, twisting or lifting of heavy items. But the level of ongoing pain is not at a level that requires much by way of treatment or intervention. The plaintiff is still able to walk, shop, visit family and live independently. There is not a lot of evidence of any hobby or interest that the plaintiff had before the accident. He did not say in his evidence that work as a cook was something that gave him any pleasure, and in any event as already mentioned, the objective evidence is that the plaintiff’s work as a cook had come to an end some years before the accident for other reasons.
59Fourth, based on the evidence that the plaintiff relied on, I consider that the plaintiff has an ongoing problem with drug addiction.
60Fifth, based on the evidence, it is impossible to draw any conclusion about when, or if at all, the plaintiff would have been fit to return to work, had the accident not occurred. Therefore, I do not accept that the plaintiff has made out a case for any pecuniary disadvantage. While he may have a “light work” back because of the accident-related injury to his spine, there is no reliable evidence to conclude that there is any actual pecuniary loss caused by the accident. The absence of any reliable, objective evidence about his ongoing drug addiction is a notable evidentiary omission.
61Next, regarding the ongoing pain and suffering consequences, again, based upon the evidence, those consequences might be capable of being described as “marked” or even “significant”. They are not trivial, but equally on my assessment they do not amount to “very considerable” impairment consequences.
62Therefore, for the reasons given, the plaintiff has failed to establish a “serious injury”. The proceeding is dismissed.
63I shall hear from the parties as to consequential orders.
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