Davis v Transport Accident Commission
[2016] VCC 723
•2 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-12-00307
| MATTHEW DAVIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2016 | |
DATE OF JUDGMENT: | 2 June 2016 | |
CASE MAY BE CITED AS: | Davis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 723 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – injury to the lumbar spine – aggravation – causation
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission & O’Dea v Dennis (1998) 1 VR 702; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Davidson v Transport Accident Commission [2015] VSCA 12; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to bring proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr P Bourke | Slater & Gordon |
| For the Defendant | Mr W R Middleton QC with Ms F Crock | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 21 January 2006 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the lumbar spine.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
6 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
7 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more that “significant” or “marked”: see Humphries & Anor v Poljak.[2]
[2][1992] 2 VR 129 at paragraphs [140] – [141]
8 The plaintiff swore two affidavits and was cross-examined. The plaintiff also relied on an affidavit sworn by his wife, Kellie Davis, on 6 April 2016. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is presently aged thirty-one, having been born in October 1984. He lives with his wife, Kellie.
10 As a child, the plaintiff did not attend the doctor frequently but his family doctor was in Shepparton.[3] The last time he thought he had seen a general practitioner prior to the accident was in February 2001, as he was brought up to be fairly stoic and was probably even a bit wary of doctors.
[3]Transcript (“T”) 21
Pre accident activities
11 Having completed Year 12, the plaintiff then started an Advanced Diploma in Agriculture through Melbourne University College at Dookie in early 2003 (“the course”), having just missed out on the Bachelor degree.[4] It was meant to be a two year full-time course.[5] Having completed the Diploma, the plaintiff expected to then do the Bachelor degree, a total of four years’ study.[6]
[4]T37
[5]T41
[6]T43
12 The course provided theoretical and practical experience in farm work and management. At that time, the plaintiff had aspirations to eventually manage a farm or become an agricultural consultant for other farms. Having lived in Tatura, he grew up around farms and enjoyed the farming lifestyle.
13 When the plaintiff was seventeen, he started work at Hungry Jack’s in Shepparton as a kitchenhand-cook on a casual basis. His duties were physical and included cleaning and lifting. He was required to maintain all the equipment, rotate the stock and prepare and make all the food. There was work all year round.[7] Just prior to the accident, the plaintiff could not recall how many hours he was working per week.[8]
[7]T36
[8]T37
14 After Year 12, in addition to this job, the plaintiff also worked at SPC in the production process, which involved using a jack to move pallets from one production line to another. This was seasonal work, usually from December to about March.
15 The work at SPC involved a range of different duties including cleaning the fruit off the floor, picking up fruit and moving tubs of fruit. The plaintiff did not have any difficulties with these manual tasks. He disagreed that this was not vigorous work.[9]
[9]T35
16 In early 2005, the plaintiff undertook a research and development role at SPC. That work was physical as it required lifting boxes and prolonged standing and walking. In total, the plaintiff thought he had worked for SPC for about four seasons.
17 In the first year of the course, the plaintiff failed his eight subjects. He spent a lot more time working and dealing with his parents’ break up than studying. The following year, he passed the one subject undertaken. In 2005, he passed four subjects, failed two and attained honours in two.
18 As part of the course, the plaintiff did some work experience at Moore’s Dairy farm for about two months. There, he assisted with the day-to-day operation of the dairy farm, which included maintenance work, setting up and shutting the milking shed, and cleaning and feeding out the hay after milking. The plaintiff quite enjoyed this very physical work and he had no difficulties performing it.
19 The plaintiff also helped on friends’ farms and really enjoyed a range of agricultural work. He had no difficulty doing heavy physical work.[10]
[10]T60
20 In 2010, when the plaintiff swore his first affidavit, he was living with his mother and two younger siblings on a 4-hectare property at Tatura. His parents had separated and his father moved to Spain in about 2003.[11] As the plaintiff was the oldest child, he had responsibility for gardening, mowing the lawn and other household tasks.[12]
[11]T24
[12]T37
21 The plaintiff deposed that he was very active and enjoyed playing basketball, Australian Rules Football, ten-pin bowling and bike riding. He was not physically hindered in undertaking any of those sports, gardening, household chores or physical aspects of his work.
22 The plaintiff did not play any of these sports competitively. He just had a kick of the football or threw baskets with his friends. He went ten-pin bowling very occasionally.[13]
[13]T38, T68
23 The plaintiff also had a very active social life with a large group of friends regularly attending nightclubs and bars in Shepparton.
24 On the said date, the plaintiff was involved in a transport accident after his vehicle swerved to avoid another vehicle, and collided with an oncoming vehicle (“the accident”). The plaintiff’s car hit the rear passenger corner of the other vehicle.[14]
[14]T21
Early treatment post accident
25 Police and ambulance attended the accident scene, and it was not thought necessary to take the plaintiff to hospital.
26 Following the accident, the plaintiff had significant pain in his lower back, right leg, and pain and numbness in his right leg. He initially thought he would recover and did not bother seeing a doctor.
27 The plaintiff agreed he did not have back problems at the time of the accident. He was mainly upset and in shock. He felt lower back pain three or four days after the accident, as Dr Sanders recorded. He would not say he was crippled, as Mr Dickens recorded. He was in significant pain.[15]
[15]T52
28 The plaintiff agreed with Dr Sanders’ note that Nurofen and Panadol gave him temporary relief and his back condition seemed to settle down before he went to Spain.[16] However, it did not settle 100 per cent. It was better than it had been previously but he did not feel like it had healed.[17]
[16]T21
[17]T22
29 In around June 2006, the plaintiff went to Spain to visit his father during the university vacation. He returned on about 28 July 2006.[18] The plane trip was very painful and exhausting and he had to constantly get up and walk around as prolonged sitting aggravated his back. The plaintiff denied pain started in the plane, as Dr Sanders recorded.[19]
[18]T62
[19]T22
30 Before the flight, the plaintiff would have the pain that he was used to tolerating, but during the flight it turned into a nightmare. There was no incident or turbulence on the flight that was responsible for this situation. He was virtually unable to move after the flight. The trip back was not at all pleasant. He had a lot of pain during that time.[20]
[20]T59
31 The plaintiff battled on with back pain after the accident, but probably did not realise what a big problem it was until the trip to Spain. He developed severe lower back pain within about an hour or an hour and a half of getting on the plane, so he was basically crippled with pain by the time he and Kellie arrived in Spain.
32 While in Spain for six weeks, the plaintiff attended the Cesano Medical Centre. He underwent x-rays and had physiotherapy. During that time, he went to the physiotherapist every day for about two weeks.[21] His father had attempted on a number of occasions to obtain details of this treatment but without success.[22]
[21]T23
[22]T28
33 The plaintiff disagreed that his back pain post accident was not significant enough to seek treatment and that there was not anything physically wrong with him until the plane trip. He did not see a doctor before going to Spain because he was hopeful the pain would go away.[23]
[23]T40
34 On his return to Australia, the plaintiff’s back pain persisted, and he eventually consulted Dr Jenny Sanders. She prescribed Mobic, and she suggested the plaintiff have physiotherapy.
35 Physiotherapy visits with Mr Plant did the plaintiff no good.[24] He denied his symptoms were improving, as Mr Plant noted. The plaintiff may have just agreed with Mr Plant that this was the situation so he could leave the clinic, as he did not think the treatment was helping.[25]
[24]T13
[25]T14
36 The plaintiff could not recall being advised by Mr Plant to avoid aggravating factors. He agreed Mr Plant taped his lumbar spine and prescribed an exercise regime.[26] The plaintiff probably only did those exercises for a couple of weeks as they were not helping.[27]
[26]T15
[27]T16
37 The plaintiff might have told Mr Plant in mid-August 2006 that he was improving but the plaintiff did not think that was the case. He could not recall Mr Plant telling him that he would make a full recovery.[28]
[28]T17
38 In about August 2006, the plaintiff also consulted general practitioner, Dr Adba, who arranged a CT scan of his back on 28 September 2006. Dr Adba suggested the plaintiff continue Mobic and he prescribed the stronger pain relief, Tramal SR. He also suggested ongoing physiotherapy.
39 The plaintiff attended Dr Adba on 5 and 28 August and 3 October 2006, and 6, 23 and 20 February 2007. He had little memory of those attendances which “all seemed to mix together.”[29]
[29]T26
40 The plaintiff disagreed visits to his general practitioner in September 2010 for a chest infection and August 2012 for lethargy were attendances for “mundane” problems and disagreed that he went to the doctor whenever he felt the need. He denied he attended a doctor when he had a problem. He only went if it was serious.[30]
[30]T28
41 The plaintiff could not recall if the last visit for his back at the Tatura clinic was on 20 August 2008, having had nine or ten post-accident visits.[31]
[31]T29
42 The plaintiff agreed he had seen Dr Yousif at Rushworth on a number of occasions for problems unrelated to his back in 2012 and principally 2014 and 2015, and only once did the plaintiff mention his back and that was then a second issue for the visit.[32] There was one visit for a spider bite to Market Place Medical Centre in February 2013.[33]
[32]T30
[33]T31
43 In about February 2007, the plaintiff saw Mr Pavlovic, orthopaedic surgeon. He believed the plaintiff’s symptoms were severe enough to warrant surgery and suggested the plaintiff seek an opinion from a spinal surgeon.
44 The plaintiff could recall a referral to a Melbourne specialist, orthopaedic surgeon, Mr Speck, in 2007. His mother wanted the plaintiff to see a local specialist and that is why he went to see Mr Pavlovic. There was a referral to another specialist who told the plaintiff he would not see him as he was a TAC patient.[34]
[34]T32
45 As of September 2010, the plaintiff had not seen a spinal surgeon and, given his young age and the risks of surgery, he intended to delay for as long as possible undergoing what appeared to be inevitable surgery.[35]
[35]T56
46 The plaintiff was then having regular physiotherapy from Kevin Collie. He last saw Mr Collie maybe over a year ago, having seen him about fifteen times.[36] He also consulted Margaret Phillips, a naturopath, who suggested herbal remedies, which he then continued to take. The plaintiff stopped taking stronger pain relief and still took Paracetamol regularly, and saw Dr Adba intermittently for treatment.
[36]T18
Post accident work and study
47 The accident happened during the university break and the plaintiff returned to studies on time in the third year of the course. Due to his symptoms, the plaintiff found it difficult to tolerate sitting through lectures and tutorials, as well as the fifty minute drive to university.
48 The plaintiff continued with studies in 2006 and even moved to live on campus for the second semester to avoid the long drive from home. However, he struggled with the prolonged sitting required in lectures. In 2006, the year of the accident, the plaintiff attained five passes, three honours and failed one subject. He agreed it was his best year of study to date.[37]
[37]T42
49 The plaintiff sought special consideration in September 2006, as his back problems made it difficult for him to sit down. He sought special consideration again in November 2006 because of his problems associated with his parents’ marriage breakdown. He did not mention his back problem in this document because he had already advised Dookie of this situation. He disagreed that he did not mention his back in the second request because the family breakdown was a more significant issue. He denied that his back condition had resolved at that time.[38]
[38]T44
50 Due to his difficulties sitting through lectures, at times the plaintiff did not attend. At one stage, it was necessary to take stronger painkillers to help with study, including Panadeine Forte.
51 The plaintiff was supposed to finish the course at the end of 2006, but because he missed lectures and the disruption to his studies because of his symptoms, he did not pass one subject for that semester and was unable to complete the course. He decided to complete the subject off campus the following year and he then moved in to live with his fiancée.
52 The plaintiff undertook the course by correspondence and although that allowed him to study at his own pace, he still struggled because of his work commitments and his symptoms after work. He eventually completed the course at the end of 2009, finally passing the subject of animal management.[39]
[39]T42
53 The plaintiff deposed that after the accident he tried to return to work at Hungry Jack’s but struggled to undertake physical work due to his symptoms. He was then taking over the counter pain medication in an attempt to relieve his symptoms.
54 The plaintiff could not recall whether he had returned to work at Hungry Jack’s at that time.[40] He believed he would have worked at Hungry Jack’s between the accident and going to Spain in June.[41] His working hours varied before the accident from 9 to 40 hours per week. He could not recall his post accident hours but he would have reduced them because of his back condition.[42]
[40]T21
[41]T23
[42]T24
55 The plaintiff was ultimately forced to stop work at Hungry Jack’s as he could not cope with the physical requirements of the job, particularly prolonged standing and lifting.
56 The plaintiff was unable to any work at Hungry Jack’s or any seasonal work because he could not cope with the physical aspect of the work. In about August 2007, he started working at Cyberbunker, a local internet gaming centre. He was then the operations manager in customer service.
57 The work was light, and the plaintiff avoided lifting. He relied on others to do the heavy lifting and even, at times, asked customers to do so. He was able to alternate between standing and sitting freely. He then worked fulltime and found he was exhausted and in pain or discomfort, particularly if he over-exerted himself, but he was quite fortunate his employer was understanding and allowed him to work within his limitations.
Current situation
58 The plaintiff continues to suffer from ongoing lower back pain, which is dull and throbbing almost all of the time. It gets worse if he moves in the wrong way. Every so often, he seizes up completely with back pain. This last happened about eight months ago. When that occurs, he can barely do anything for two to three days at a time.
59 Whilst the plaintiff agreed that over time, his right sciatica had diminished, he still has referred pain.[43]
[43]T52
60 The plaintiff is severely restricted with exercise due to his back. He tries to walk one or two kilometres, depending on what he has been doing. He sometimes “walks funny”, but tries to keep going. He has a treadmill at home, but has only used it a couple of times this year as he prefers to walk outside. He could probably run on it a bit, but believes it would be too jarring on his back. He probably does a slow bike ride of about two kilometres a couple of times a month.
61 It is uncomfortable to sit or stand in one position for any length of time and the plaintiff prefers to move about as much as possible.
62 The plaintiff’s sleep has improved over the years, and he finds that lying down tends to relieve the back pain to some extent. He wakes during the night if he has done something to aggravate his back during the day.[44]
[44]T54
63 The plaintiff now tries to avoid taking painkillers. They mask his pain and he could further damage his back as a result. He believes he will require surgery at some stage and would like to put that off for as long as possible. He tends to only take painkillers now if he has been stupid and attempted to lift something, or has bent or twisted his body. He may take painkillers once every three months.[45]
[45]T55
64 In about early 2015, the plaintiff had several acupuncture treatments in Shepparton, which he self funded. That treatment was reasonably helpful, but the sessions were too expensive to continue at $80 to $100 each.
65 The plaintiff is still not very social and lives a pretty quiet life. Early on after the injury, drinking alcohol did not mix well with his injury, as he was much less cautious in the way he moved and tended to aggravate his pain for days afterwards.
66 Following the accident, the plaintiff just found it too hard to keep going out because of the pain he would experience the following day.[46]
[46]T39
67 There is still not much the plaintiff can do to assist his wife, Kellie, around the house. This situation embarrasses him. He probably does the dishes a couple of times a week.
68 Kellie has been working full time as a pharmacy assistant, but is now working part time and studying nursing. While she is as busy as ever, the plaintiff cannot pull his weight around the house. They actually pay someone to mow the lawn, which is something he never imagined he would have to do.
69 The plaintiff’s driving tolerance is better in bigger cars, and he could probably drive for an hour before he needs a break. He had to sell his low sports car as it was too painful to drive.[47]
[47]T69
70 Although the plaintiff and his wife have been married for five and a half years, they do not have any children, a big part of which is due to the plaintiff’s back injury. He worries how he would cope with trying to play games and the constant lifting.
71 The plaintiff is a young person in a much older person’s body. He has conditioned himself to “budgeting” his activity. He can do so much with pain, but no more at the risk of severe pain and not being able to do anything for a few days.
72 The plaintiff’s state of mind is generally pretty good, apart from the “huge downers”. During those times, it is difficult for him to think past his pain and the fact that he is only thirty one and he has lost his chosen career, and will have to live with back pain for the rest of his life.
73 The plaintiff left Cyberbunker for a while and sold mobile phones from a Telstra shop full time for about two years.[48] He then had a chance to return to Cyberbunker, and become majority owner of the business. The business is not bad, but is not great either, and he worries about the business’s future growth due to the increase in home entertainment.[49] He does not think the business is going to be a long term option.[50]
[48]T65
[49]T70
[50]T71
74 The work itself is manageable. It is a game shop which sells drinks, snacks, collectibles and playing cards. Major physical tasks such as replacing the drinks and replacing the hard drives in all the computers are rotated through all staff. He is lucky he is the owner of the business, and he has one particular staff member who is his workhorse who does most of the physical work. The plaintiff really could not manage without him. He has even asked customers to help him do things in the past.
75 The plaintiff agreed that in the financial year 2013-2014, he earned $39,732. He thought his taxable income for the following year would be greater. He agreed his income had increased every year.[51]
[51]T47
76 Whilst the plaintiff’s income has increased, so has his workload. He was concerned about the future because his type of business in general had suffered a downturn in the last three to five years.[52]
[52]T49
77 The plaintiff would much rather be managing a property, like a dairy farm. Fellow students from the course are managing various properties: dairy, cropping and sheep. The plaintiff would love to be working outdoors, but knows he could never manage the hands-on requirements.[53]
[53]T64
78 The plaintiff did not do the Bachelor course because he would not have been able to pursue a career in agriculture because of his back. The vast majority of jobs in that field require some form of manual labour which he was no longer able to undertake. He would have to be able to “get stuck in and do stuff.” Work in this field had always been the plaintiff’s plan and being unable to do so made him sad sometimes.[54]
[54]T67
79 The plaintiff’s whole way of life has been changed by his back injury. He has changed career, his car and is constantly making smaller decisions that are the result of his back, like getting an upside down fridge or a better bed. That is really no way for a young person to live.
80 The plaintiff believes that the accident has severely affected his employment, domestic, recreational and leisure pursuits.
81 The plaintiff does not think there is any way that he could conquer his back pain so as to allow him to do physical work and raise a family. He has already changed his job and lifestyle and manages his level of activity to cope with the pain. After the initial run of doctors, he was “sick of looking for a solution down those avenues”.[55]
[55]T51
82 The plaintiff is aware that medico-legal examiner, Mr Moran, recently suggested surgery. The plaintiff would rather avoid surgery if he can. However, his view has changed somewhat since earlier on. He would want to do more things to seek a better quality of life so that would include surgery. He would be interested in the options.[56]
[56]T56
Lay evidence
83 The plaintiff’s wife, Kellie, swore an affidavit on 6 April 2016. She has known the plaintiff since primary school. They have been in a relationship since 2005 and married in October 2010.
84 Kellie confirmed the plaintiff’s fun, outgoing nature pre accident, and the change thereafter. Since the accident, the plaintiff has continued to complain of lower back pain, and she has seen him holding his back and grimacing.
85 The plaintiff struggled on the flight to Spain and had to regularly get up and walk around. While in Spain, they were limited in what they could do because of his back pain. They visited a couple of places but the plaintiff otherwise spent a lot of time in bed. She believed the plaintiff’s father took him to the doctor whilst in Spain.
86 The plaintiff’s back pain has continued despite physical therapies which stopped, as he found them unhelpful.
87 The plaintiff has problems with prolonged postures and needs to take regular breaks on trips or stand up when watching television or at the movies.
88 The plaintiff can do light housework but struggles with heavier domestic duties. He was not able to assist with painting or do much polishing of the floorboards when they did some home renovations and she completed those tasks with her father’s help.
89 The plaintiff struggles with cutting trees in the big back yard, so Kellie does it.
90 The plaintiff was very independent before the accident and now has to rely on others, which he finds distressing.
91 The plaintiff’s sleep has been affected by his back pain and he occasionally wakes up in pain, feeling restless and tossing and turning.
92 At the time of the accident, the plaintiff was at Dookie and working at Hungry Jack’s and SPC. She believed he stopped those part-time jobs because he had difficulty coping with their physical demands.
93 The plaintiff was passionate about his studies. Following the accident, he struggled with the university aspect and the practical component, which was very physical, and he eventually chose another career and started working at Cyberbunker.
94 Kellie is aware the plaintiff’s duties are light in nature and if he needs any help to lift anything heavy, he obtains assistance from his colleague.
95 The plaintiff enjoyed a reasonable social life before the accident. He was an energetic person who enjoyed playing sport with his friends. He no longer plays sport, as he is worried it will aggravate his back pain.
96 Kellie has put off having children with the plaintiff because she is worried about the effect his pain would have on their family and how he would cope looking after small children.
The Plaintiff’s medical evidence
Treaters
97 The plaintiff saw Dr Sanders, general practitioner, at the Tatura Medical Centre on 5 August 2006. Her note read as follows:
“Problems CAR crash march 2006, wasn’t aware of back problem then, no injury, 3-4 days after accident, had back pain, L-S, sitting aggravates, taking panadol/nurofen, temp relief, 2/12 seemed to settle down and felt good before trip to Spain, pain stated in plane, had physio and xrays there was good enough to come back but flared up on the plane again, coming back; back 10/7 ago, UNI student.”
98 Mobic was prescribed and it was noted the plaintiff was to see a physiotherapist, Jim Marx.
99 There were further accident-related attendances on 28 August, 3 October 2006, 6, 15, 17 and 23 January, 20 February 2007, 11 June and 20 August 2008.
100 The plaintiff had physiotherapy from Mr Plant at the Goulbourn Valley Physiotherapy Centre on 8 August 2008, with follow up on 15 August 2008, when he was then discharged.
101 Mr Plant noted that the plaintiff reported that lower back pain had commenced following the accident. The symptoms had then been aggravated more recently during a plane flight to and from Spain. The plaintiff reported his symptoms were improving and that he was using Panadol and Nurofen Plus for pain.
102 The plaintiff was then working part time at Hungry Jack’s and studying.
103 On examination, the plaintiff was observed to have an increased thoracic kyphosis. There was limited movement and straight leg raising.
104 Mr Plant explained to the plaintiff his symptoms followed a typical disc bulge pattern and he should avoid aggravating factors. He taped the plaintiff’s back to limit lumbar flexion and prescribed an exercise regime.
105 On review a week later, the plaintiff reported improvement and that the exercises were no problem. Lumbar extension had improved, but flexion and straight leg raising remained limited.
106 Given the plaintiff’s improvement in symptoms, Mr Plant progressed his exercise regime. He prescribed exercises to improve thoracic-lumbar mobility, neutral mobility and scapular posture. Mr Plant then discharged the plaintiff from physiotherapy with an ongoing self-management program.
107 Mr Plant was confident the plaintiff was going to make a full recovery and, therefore, discharged him.
108 The plaintiff was seen on one occasion by Mr Pavlovic, orthopaedic surgeon, in Echuca on 16 February 2007.
109 The plaintiff told Mr Pavlovic he was involved in an accident and several days later developed pain to his lower back and right leg.
110 On initial examination, the plaintiff had a normal gait, but extremely stiff lower back on attempting forward flexion and very tight right paravertebral muscles. There were no signs of sensory or motor deficit.
111 Mr Pavlovic noted a CT scan showed a large right sided posterolateral parosacral and foraminal disc protrusion at the level of L5-S1 and dent in the L5-S1 nerve root.
112 Due to the nature of the plaintiff’s medical problem and persistence of symptoms, the plaintiff’s general practitioner was advised to return him to a spinal surgeon in Shepparton or elsewhere.
113 The plaintiff was seen for the first time by Dr Adba at the Tatura Medical Centre on 28 August 2006. He had earlier been seen by Dr Adba’s colleague, Dr Sanders.
114 In his report of 8 February 2008, Dr Adba, noted that when he saw the plaintiff for the first time, he reported severe lower back pain, limited mobility and right leg numbness, severe enough to interfere with his life and affecting his job to work at Hungry Jack’s, which he stopped later on.
115 Dr Adba asked the plaintiff to continue Mobic and started him on Tramal, and suggested he continue physiotherapy home exercises, walk and restrict his movements.
116 Dr Adba noted that the plaintiff was very compliant with his treatment and continued his studies, but had to give up work.
117 There was then a period of less back pain which did not last for long and more treatment was requested.
118 Dr Adba noted that the plaintiff was referred to spinal surgeon, Mr Garry Speck, in Melbourne, but he chose to see a local surgeon and was seen by Mr Pavlovic, who agreed that his case was severe enough to have more invasive treatment. Mr Pavlovic asked the plaintiff to see a visiting spinal surgeon from Melbourne, Mr Brighton Knight. However, Mr Knight treated only patients with private health cover, so the plaintiff had to wait and be referred as a public patient to a public hospital. While waiting, his condition improved slowly, to the extent that it did not warrant spinal surgery.
119 The plaintiff was referred to a neurologist for severe headache, who reported back that the plaintiff was still suffering lower back pain.
120 Dr Adba then thought the plaintiff would not be able to do heavy manual work on a permanent basis and had to be careful about his back. Over the years, his disc would degenerate quicker than normal, as it had been severely damaged. He noted the plaintiff did not report any mental symptoms due to his back pain, mainly because he was very motivated and, as a university student, understood his situation.
121 In his report of 14 June 2008, Dr Adba advised that the plaintiff was getting better and having less pain in his lower back. He was controlling his pain with occasional Panadol.
122 The plaintiff was working in a game shop where he did not have to do any labour work and that was helping a lot, but it meant he was not working in the field he studied at the university.
123 Noting the referral to Mr Speck, Dr Adba did not anticipate any intervention as the plaintiff’s lower back was improving in terms of less pain and better spinal function.
Investigations
124 Dr Adba organised an x-ray of the plaintiff’s lumbar spine in September 2006. It was reported there was L5-S1 disc disease and that a follow-up CT scan and MRI scan may be useful.
125 Dr Adba also organised a CT scan of the plaintiff’s lumbar spine on that date. It was reported there was large right sided posterolateral paracentral and foraminal disc protrusion, L5-S1 indent in the L5 and S1 nerve roots.
Medico-legal examiners
126 The plaintiff was examined by Dr Glaser, psychiatrist, in March 2008.
127 The plaintiff told Dr Glaser that he initially felt fine and was not transferred to hospital. However, as soon as he tried to do things a short while afterwards, he started to experience a “stupidly painful” lower back, and a couple of months after the accident, he finally attended a doctor and initially had chiropractic treatment.
128 A few months after the accident, the plaintiff went on a trip to Spain, which knocked him about and required further treatment overseas. The plaintiff told Dr Glaser he had to cease his workload at Hungry Jack’s because of the excessive bending involved and he still did some work at the local fruit cannery. He was then working between twenty to thirty hours per week at the local internet café, where he was coping reasonably well.
129 The plaintiff advised that his studies had been pretty average and he found it difficult to sit through lectures, some of which lasted six hours. He was needing stronger painkillers to study. He also had found it difficult with the drive to and from campus, so he had moved into student accommodation.
130 The plaintiff then continued to experience pain over his lower back which, at one stage, used to radiate down his legs, but that was no longer affecting him.
131 Dr Glaser diagnosed an Adjustment Disorder with Anxiety and Depressed Mood. He considered the plaintiff’s psychiatric problems were making an appreciable contribution to his current partial incapacity for work and study. He thought, overall, the prognosis could be regarded with some optimism, although the plaintiff’s current mild, but appreciable, psychiatric problems were likely to trouble him for some time.
132 Mr Peter Moran, orthopaedic surgeon, first examined the plaintiff on 2 April 2008.
133 The plaintiff then advised he had no major symptoms other than generalised soreness after the accident initially, but over the next few weeks, he developed increasingly severe lower back pain, which he tolerated, expecting his symptoms would ultimately settle.
134 The plaintiff told Mr Moran of his problems with studying, that he ultimately “resigned” both because of persisting pain and because of his fears his back injury would prevent him from finding work in the agricultural industry.
135 Mr Moran noted it was some months after the accident before the plaintiff first sought medical assistance.
136 In addition to lower back pain, the plaintiff reported right-sided sciatica with symptoms developing initially in the months after the accident. He advised that leg pain had become less severe, although he had some residual numbness in the right foot.
137 On examination, Mr Moran found the plaintiff to be open and frank, with no evidence of exaggeration or abnormal illness behaviour.
138 There was asymmetrical muscle spasm. There was some restriction of back movement and limited straight leg raising. Neurological examination of the lower limbs demonstrated evidence of a significant right S1 radiculopathy, with an absence of the ankle tendon reflex and slight weakness of calf muscle strength, as evidenced by the plaintiff’s impaired ability to stand on tiptoes on the right side.
139 There were no apparent sensory impairment on this occasion.
140 Mr Moran thought the plaintiff presented with evidence of a lumbosacral disc injury, leaving him with persistent and significant back pain with muscle spasm and an unresolved S1 radiculopathy, suggesting a major lumbosacral disc prolapse. He felt the plaintiff had been woefully undertreated and should seek referral to an orthopaedic or neurosurgical spinal surgeon.
141 Having seen the September 2006 CT scan of the lumbar spine, Mr Moran thought it confirmed the plaintiff had suffered a large right-sided lumbosacral disc prolapse and the film suggested that there was a significant sequestrated fragment of disc within the spinal canal, compressing the cauda equina and, in particular, the right S1 nerve root. This finding was in keeping with the clinical picture. Mr Moran thought an injury of this severity would normally demand consideration for surgery.
142 There was a review on 4 February 2016.
143 Mr Moran explained that since the initial examination, the plaintiff had completed the course by correspondence but had at no stage found work in the agricultural industry as a result of his inability to perform even simple manual tasks.
144 The plaintiff advised that he had radically changed his life to accommodate his back and leg pain. He gave up agriculture, stopped sport and physical activities and ultimately purchased an internet café after working in a Telstra shop for eighteen months.
145 The plaintiff complained his pain was provoked by prolonged sitting and lying. He had significant start up pain and stiffness on rising. He required assistance at work.
146 On neurological examination, the plaintiff’s lower limbs revealed an absent right ankle tendon reflex on the right and slight residual calf muscle wasting as the result of a persisting S1 radiculopathy.
147 Mr Moran thought the February 2016 MRI scan of the lumbar spine confirmed an unresolved right L5-S1 paracentral disc protrusion compressing the traversing right S1 nerve root. There was also a disc bulge at L4-5 with narrowing of the spinal canal at that level, but no definite evidence of neural impingement.
148 Mr Moran considered, as a consequence of the accident, the plaintiff suffered an injury to his lower back, specifically an L5-S1 disc injury with an associated major prolapse which had not resolved with the passage of time since.
149 Current investigations confirmed persisting compression of the S1 nerve root and it was most unlikely that would improve further with the passage of time.
150 Mr Moran thought the plaintiff demonstrated clear evidence of segmental instability at the lumbosacral junction, as well as ongoing neural compression, evident by calf muscle wasting and an absent ankle tendon reflex.
151 Mr Moran considered that surgical management remained a valid option for consideration but there were no guarantees of success. The physical restrictions the condition imposed on the plaintiff were entirely consistent with the pathology defined by recent examinations.
152 The plaintiff was first examined by consultant neurosurgeon, Mr Brownbill, in April 2012. The plaintiff told him that following the accident, he did not attend hospital. He felt shaken but without any particular pain and his car was written off.
153 The plaintiff continued with his studies and part-time job and over the following weeks, noted a gradual onset and then increase of pain in the lower back, with radiation to the right leg. He then saw his local doctor and attended an orthopaedic surgeon. Leg pain improved, but not completely, and it recurred intermittently and his lower back pain improved, but not completely, and it continued with some fluctuations.
154 The plaintiff told Mr Brownbill he completed the course and was then selling mobile phones full time in a Telstra shop. He could not do sporting activities or go partying, and he was unable to drive his low slung sports car, which he subsequently sold.
155 Mr Brownbill reported that examination showed restriction of the thoracolumbar spinal movements and the absence of the right ankle jerk. Radiological investigations had demonstrated a large right posterolateral lumbosacral intervertebral disc prolapse.
156 Noting the plaintiff did not have any problems before the accident and there was a later radiological demonstration of prolapse, Mr Brownbill considered the plaintiff sustained damage to the lumbosacral intervertebral disc in the accident, which acted as the basis for a later prolapse.
157 Mr Brownbill thought the plaintiff, in future, should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. Those restrictions would prevent him from returning to his chosen agricultural career and would also apply to his social and recreational activities. Mr Brownbill anticipated some pain would continue in a fluctuating manner indefinitely.
158 There was a re-examination in February 2016.
159 The plaintiff told Mr Brownbill that it took him six months to go to the doctor after the accident because he was pretty headstrong. He thought the pains would go away and did not think they were serious, but he did have back and leg pain all the time and then did see the doctor.
160 On re-examination, the plaintiff reported a dull pain with fluctuations and sometimes altering his gait. He was always careful with his back and did not do much now.
161 On examination, thoracolumbar spinal movements were restricted and there was absence of the right ankle reflex, but no other neurological abnormality. The plaintiff’s condition had stabilised and was unchanged from the previous examination.
162 Mr Brownbill was provided with Mr Dickens’ reports, in which Mr Dickens discussed the delay of more than six months of seeking treatment following the accident.
163 Mr Brownbill confirmed he considered that in the accident, the plaintiff sustained damage to the lumbosacral intervertebral disc, which acted as the basis for a later prolapse. He confirmed the restrictions on work which he considered appropriate.
164 Mr Robert Dickens, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in November 2013. The plaintiff told him that after the accident, he was shocked. There was a big jolt to him but he had no head injury and no loss of consciousness, but he did have pain throughout the body, but mainly he was upset. He was taken home by his family and when he calmed down, he thought he had not sustained any injury.
165 The plaintiff went about his life doing things as normal, but over the next three or four days, he became aware of increasing pain to the point where he was crippled by lower back pain. He saw his doctor and investigations were organised and he was sent for physiotherapy but did not improve. He was then sent to Mr Pavlovic, who recommended an operation.
166 The plaintiff advised that, since then, he had apparently been given conflicting advice, some people telling him he needed surgery and others that that he did not, so he ended up doing nothing except changing his lifestyle.
167 The pain improved and reached a plateau that he now decided the current level of discomfort was something he just had to put up with.
168 Mr Dickens thought, as a result of the accident, the orthopaedic injuries appeared to have been a prolapsed intervertebral disc at L5-S1 on the right, producing sciatica and clinically proven radiculopathy. He probably thought the injury to the lumbar spine with radiculopathy was consistent with the accident and that there had been no other injuries or diseases since the accident influencing the course of the current injury.
169 Mr Dickens thought the only restrictions or accommodation warranted or necessary with respect to the plaintiff’s activities of daily living or work would be commonsense avoidance of those things that caused him discomfort.
170 Mr Dickens was then provided with the plaintiff’s general practitioner’s notes and records from 2006, and also an email correspondence from the Spanish medical clinic dated 17 December 2012.
171 When asked about the gap in presentation when first attending a general practitioner, Mr Dickens thought it was of interest that the first reference to a back problem according to the contemporaneous general practitioner’s report in the note of 5 August 2006, accorded to the history provided to him, namely, that the plaintiff developed back pain three to four days after the accident.
172 While he did not seek medical assistance until later, certainly from then onwards, the problem appeared to have been an established one with right-sided sciatica which would be consistent with the radiological findings and his clinical findings.
173 Having sought advice some months later, Mr Dickens would expect if the plaintiff had such a problem as a consequence of the accident, that he would have seen practitioners at an earlier time. Apparently he had an exacerbation when flying to Spain.
174 Mr Dickens thought the injury could have resulted from the accident, but as was implied, it would have been likely to have been symptomatic at the time and would have been more consistent had he sought medical advice at the time. The plaintiff, however, indicated the problem commenced three to four days following the accident and, if that was the case, the injury and findings on investigation were injuries which could be consistent with the accident.
175 He was then asked to answer the question, “in view of your recent comments, would you please confirm your impairment assessment giving consideration to whether there’s any unrelated injury or condition?”
176 Mr Dickens stated that he must say, when he saw the plaintiff, he seemed genuine and straightforward in his presentation.[57] On that basis, he would tend to err on the side of accepting his history despite his reservations that were expressed in his earlier report. He thought it would be helpful if the plaintiff could produce evidence of his requirement to have treatment in Spain and noted that evidence was lacking. He must confess, he found it difficult to categorically state the accident did not cause the problem, despite what he had said. There was a Claim for Compensation completed by the plaintiff, undated. In that form, he set out he was working at Hungry Jack’s in the kitchen, cleaning, and at SPC as a general factory hand doing quality control work.
[57]T101
177 Dr Nathan Serry, psychiatrist, examined the plaintiff in December 2015.
178 The plaintiff told him, within a relatively short period of time of the accident, he began to experience lower back pain, particularly with activity. As he was young, he did not take much notice. Unfortunately, his pain increased in severity where he could not ignore it. He saw his general practitioner and was given medication and a referral for physiotherapy.
179 The plaintiff had continued to have lower back pain, and while the pain was extending down the right leg in the form of sciatica, that had diminished over time. The plaintiff described having to budget his activities.
180 The plaintiff reported that in the first year after the accident, it was particularly difficult as he was in a considerable amount of pain, was very restricted and there was little, if any, improvement. He felt completely stuck and became quite depressed and entertained suicidal thoughts. Since then, he had been rather up and down in mood and had some down periods when he was particularly upset with the situation. He had these down periods about three or four times a year and they lasted for a couple of weeks each time.
181 The plaintiff quite often felt stressed, anxious and worried and was apprehensive about his health and future.
182 Diagnostically, Dr Serry thought the plaintiff presented with symptoms and features of a Mild Chronic Adjustment Disorder with Anxious and Depressed Mood and features of traumatisation. He considered the plaintiff’s prognosis was generally positive, but suspected he would continue to experience ongoing physical and mental health issues with a nexus between the two.
Special consideration
183 There was an application for special consideration dated 8 September 2006, in which the plaintiff set out he was unable to attend all classes because of back problems, making it difficult to sit down. Having to live off campus and drive for fifty minutes every day, it was too painful to come to all classes and he needed time for his back to heal.
The Defendant’s medico-legal examiners
184 The plaintiff was examined by psychiatrist, Dr Firestone, in November 2013.
185 The plaintiff told him of the accident and the attendance of an ambulance. Five days later, the plaintiff consulted Dr Adba for severe lower back pain radiating down his right leg.
186 The plaintiff told Dr Firestone of his problems with the course subsequent to the accident and completing the course by correspondence in 2009.
187 Dr Firestone noted the plaintiff’s lowest ebb was in the year after the accident where, despite analgesics, he suffered extreme pain. Dr Firestone noted suicidal thoughts crossed the plaintiff’s mind but he had no plan, and he came to realise he must change his life.
188 On examination, the plaintiff described some anger and depression about his back injury and how he had to adapt his life as a result. Dr Firestone thought this could be characterised as an Adjustment Disorder with Mild Depressive Features, which did not warrant antidepressant treatment.
189 The plaintiff was examined by Dr Peter Boys, consultant orthopaedic surgeon, in February 2016.
190 Dr Boys had available the plaintiff’s clinical notes from his general practitioner and physiotherapist.
191 The plaintiff told Dr Boys he was not aware of any injury at the time of the accident and stated he felt upset.
192 The plaintiff continued to work at Hungry Jack’s. He did not seek medical assistance. He did describe, over the next few weeks, a degree of discomfort in his lower back with activities such as prolonged sitting. He related no specific incapacity at that time but did, over time, experience ongoing central lower back discomfort.
193 Dr Boys noted the plaintiff travelled with his partner to Spain in mid 2006. During the six-week trip, he experienced acute lower back pain in the course of travel, with associated right-sided sciatica. He had medical treatment and physiotherapy in Spain and his symptoms were ongoing when he returned to Australia in September 2006.
194 The first consultation with a general practitioner in Australia was on 5 August 2006.
195 On examination in February 2016, the plaintiff remained aware of central lower back pain. His functional capacity was well preserved. He experienced side effects extending as far as his foot, and related occasional sensation of paraesthesia around the calf and heel.
196 The plaintiff moved freely on examination. There was no localised tenderness in the lower spine. There was no evidence of muscle spasm. Straight leg raising was bilaterally to eighty degrees.
197 There was no isolated muscle wasting in the lower limb. Light touch sensation was intact, with no deficit evident. Knee jerks were symmetrical and the right ankle jerk was absent.
198 Dr Boys thought the plaintiff’s history suggested a delayed onset of minor central lower back pain following the accident. He noted the plaintiff described no specific work incapacity at that time but did describe, over a number of weeks, central lower back pain, which did not initiate medical assessment.
199 The plaintiff kept working, went to Spain and experienced severe lower back pain with sciatica.
200 Dr Boys thought the plaintiff’s history was consistent with L5-S1 discal protrusion occurring in the course of his travels.
201 In the context of the history, Dr Boys believed the plaintiff suffered a minor aggravation of early degenerative changes within the lower lumbar spine as a consequence of the accident. The subsequent disability experienced by him after August 2006 reflected a lumbar discal derangement sustained at that time.
202 Dr Boys did not think there were any psychosocial issues impacting on the plaintiff’s presentation.
203 Dr Boys noted that clinical examination showed evidence of past right C1 radiculopathy with loss of right ankle jerk. The plaintiff described episodic right-sided pain and his primary complaint was of central lower back pain consistent with the effects of past L5-S1 discal protrusion.
204 Dr Boys thought it likely the plaintiff would continue to experience episodic and clinical lower back pain and occasional sciatica reflecting the discopathy event.
205 Dr Boys considered that the plaintiff’s back condition did not limit his capacity to perform heavier low level domestic tasks.
Course records
206 A student record printout from Dookie dated 31 August 2015 set out that the plaintiff commenced full-time study in an Advanced Diploma in Agriculture on 10 February 2003. It was noted the expected completion date of the course was 27 July 2011, and the effective end date, 31 December 2007.
207 In 2003, the plaintiff failed all eight subjects. In 2004, he passed rural economics in the second semester.
208 In 2005, the plaintiff passed four subjects, failed two and attained an H2A in two.
209 In 2006, the plaintiff passed five subjects, attained two H3’s an H2A, and failed animal management.
210 In the second semester of 2007, the plaintiff was enrolled in animal management, having been granted leave from 26 February to 1 July 2007.
211 There was no record of any study in 2008.
212 In the second semester of 2009, the plaintiff completed animal management.
213 The plaintiff applied for special consideration on 21 November 2006 because of breakdown in his family life and his parents divorcing. Those problems made it hard to study and reduced the time for university work as he was expected to deal with family issues.
The Plaintiff’s taxable income
Year ending 30 June Taxable Income 2003 $6,140 2004 $17,439 2005 $13,611 2006 $7,405 2007 $3,725 2008 $22,721 2009 $30,004 2010 $25,078 2011 $23,690 2012 $36,220 2013 $36,175 2014 $39,732
Overview
214 Whilst the defendant relied on Dr Boys’ view that the plaintiff sustained a lumbar prolapse on the plane trip to Spain, the main thrust of its case was that the plaintiff’s application was driven by medico-legal opinion absent any contemporaneous reports from the plaintiff’s treating medical practitioners.[58] Further, it was submitted any impairment of the lumbar spine did not meet the high threshold of “serious”.[59]
[58]T10-11
[59]Sabo v George Weston Foods (2009) VSCA 242 at paragraph [73]; Transport Accident Commission v & O’Dea v Dennis [1988] 1 VR 702
215 Although the plaintiff complained of some back symptoms in the days following the accident and more significant symptoms following the plane trip, I am satisfied the accident was a material cause of the L5-S1 paracentral disc protrusion with right S1 nerve root involvement shown on investigations and clinical examination which is responsible for the plaintiff’s current lumbar condition.
216 There is no suggestion that the plaintiff’s lumbar condition is not substantially organically based.[60]
[60]See, for example Meadows v Lichmore Pty Ltd [2013] VSCA 201
217 Dr Boys is alone in the view that the accident was not involved in the prolapse. However, whilst expressing no concern as to the genuineness of the plaintiff’s history, Dr Boys did not explain how back pain following the accident became asymptomatic before the flight or how there was a precipitating event in the flight that resulted in a prolapse.[61]
[61]T95
218 Other medical practitioners have found a causal connection between the accident and the lumbar prolapse.
219 Noting the history of onset of back pain three to four days after the accident, Mr Dickens thought the plaintiff’s back injury and the findings on investigation thereof were injuries which would be consistent with the accident.
220 Mr Brownbill thought there was damage to the lumbosacral intervertebral disc in the accident which acted as the basis for a later prolapse.[62]
[62]T77
221 Whilst Mr Moran did not mention the plane trip, the plaintiff, on examination in May 2008, the plaintiff gave him a relatively similar history to that noted by Dr Sanders of no major symptoms initially and over the next few weeks, increasingly severe low back pain. Mr Moran thought the accident resulted in a major lumbosacral disc prolapse.
222 I agree with the submission that it is commonsense to suggest that the accident was the material cause of the plaintiff’s lumbar condition, notwithstanding the view of Dr Boys, whose path of reasoning really is not apparent.[63]
[63]T95
223 In my opinion, the views of Mr Brownbill and Mr Dickens as to causation are not speculative, as was submitted by counsel for the defendant.[64]
[64]T79
224 As counsel for the plaintiff submitted, the plaintiff has consistently given the same history of no immediate pain post accident but the onset thereof three to four days afterwards in his low back and referred down his right leg as he told Dr Sanders on 5 August 2006.
225 Despite Dr Sander’s note, I accept as the plaintiff explained that his pain never really went away. This situation was confirmed by his wife. She also confirmed that the plaintiff did not readily volunteer that he was in pain, but she had seen him in pain at that time.[65]
[65]T92
226 Further, I accept that in some ways, the plaintiff has been his worst enemy, not going to the doctor and trying to get on with his normal life with very medical assistance following the accident.[66]
[66]T93
227 In my view, the accident is a material cause of the plaintiff’s present lumbar condition which is unresolved, involving a disc prolapse and ongoing radiculopathy, with all examiners finding an absent right ankle jerk and Mr Moran finding some muscle wasting – clinical findings consistent with the S1 impingement shown on the radiology.
228 Even if the prolapse occurred on the flight as Dr Boys opined, in my view, the accident was plainly causative thereof.[67]
[67]T96
Credit
229 Whilst the plaintiff was criticised for failing to attend a doctor for so long after the accident, no attack was made on his credit by counsel for the defendant. No doctor had questioned the plaintiff’s genuineness and some had commented positively in that regard.[68]
[68]T93, Mr Dickens, Dr Boys and Mr Moran
230 There was no surveillance film or other evidence inconsistent with the plaintiff’s claimed level of pain and restriction. Although the plaintiff’s wife’s affidavit was in many ways a “typical” affidavit in support, as counsel for the defendant submitted, and she was silent as to the extent of the plaintiff’s treatment in Spain,[69] her evidence supporting the plaintiff was not challenged.
[69]T91
231 Whilst criticism was made of the absence of any evidence of the plaintiff’s treatment in Spain,[70] in her note of 5 August 2006, Dr Sanders referred to that treatment.
[70]T80
Is the impairment serious?
232 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[71] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.
[71](2010) 31 VR 1 at paragraph [11]
233 Counsel for the defendant relied Ross AJA’s comments in Tatiara Meat Co Pty Ltd v Kelso,[72] where his Honour stated that complaint of pain, even repeated many times, does not establish the veracity of the complaint.
[72][2010] VSCA 12 at paragraph [46]
234 I accept however, that the plaintiff continues to suffer ongoing lower back pain, which is dull and throbbing pretty much all of the time. It worsens with activity or if he moves the wrong way. This condition is subject to incapacitating flare ups. Whilst the plaintiff agreed that over time his right sciatica had diminished, he still has referred pain.[73]
[73]T52
235 As a result of his back pain, the plaintiff is restricted in his ability to walk, maintain sustained postures, engage in heavy lifting or bending and run or exercise. He “budgets” his activities accordingly.
Treatment
236 A major attack by counsel for the defendant as to the seriousness of the plaintiff’s lumbar condition focussed on his lack of medical treatment post accident.
237 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[74] the assessment of pain and suffering involves what the plaintiff does about the pain (for example medication, rest, seeking medical treatment).
[74](2010) 31 VR 1; T74; L11
238 I accept that the plaintiff has had relatively little medical treatment for his back since the accident. There was no treatment, save for over-the-counter painkillers, between the accident and the plaintiff’s trip to Spain in June 2006.
239 Dr Sanders’ note of 5 August 2006 suggests the plaintiff was going well before he got on the plane to Spain. She does not describe him as being “crippled”[75] before the trip to Spain.[76]
[75]Mr Dickens’ description
[76]T79
240 The first attendance on Dr Sanders was six and a half months after the accident. There were then seven further visits to February 2007 and an attendance in June 2008. There were also two visits to the physiotherapist in August 2006.
241 The last mention of any back condition at the Tatura Medical Centre was on 20 August 2008, when it was noted the plaintiff needed an orthopaedic referral, and Tramadol was ceased.
242 The next mention by the plaintiff of any problems with his back in his general practitioner’s notes was on 11 June 2015, when he attended Dr Yousif principally for reasons unrelated to the accident.
243 It was submitted by counsel for the defendant that the plaintiff was not “doctor shy”, as was indicated by his attendances on general practitioners for unrelated health issues that were not particularly serious, such as a chest infection and that he did attend doctors for health issues that were not major.[77]
[77]T90
244 It was submitted that if the plaintiff was as bad as he said, he would have acted on his incapacity by seeking appropriate medication and treatment.[78] It was submitted the lack thereof militated strongly against the plaintiff and that his failure to seek treatment underscored a lack of symptomatology.[79]
[78]T78
[79]T84
245 There was only one specialist referral in 2007 to Mr Pavlovic, who is not a spinal surgeon. Whilst recommended the plaintiff see a spinal surgeon, the plaintiff did not see Mr Speck or any other spinal surgeon. If he was serious, he would have pursued such an examination.[80]
[80]T81
246 Counsel for the defendant submitted if the plaintiff was “woefully undertreated” as Mr Moran described, that was the fault of the plaintiff.[81]
[81]T82
247 It was submitted that it beggars belief that Mr Moran would be suggesting surgery in 2016, ten years after an accident, on a background where no significant treatment had been sought previously.[82]
[82]T84
248 I do note however that when Mr Moran in May 2008 made the woeful undertreated remark, he then suggested the plaintiff should seek referral to an orthopaedic or neurosurgical spinal surgeon regarding the possible need for surgical intervention.
249 Counsel for the defendant also relied on medical histories that indicated an improvement in the plaintiff’s back condition.
250 Mr Plant had a good prognosis for the plaintiff’s condition in August 2006. Dr Adba noted the plaintiff was getting better and having less pain in June 2008, which it was submitted fitted nicely with Dr Thomas’ comments in December 2007 that, with time, the plaintiff’s leg pain improved and he had predominantly been left with low backache.[83]
[83]T81
251 The continuing improvement of the right sciatica noted by Dr Thomas was also mentioned by Mr Moran on examination in April 2008.[84]
[84]T82
252 However, in August 2008, Dr Adba noted the plaintiff still needed a referral to an orthopaedic surgeon. Also, low back pain dating from the accident was noted by Dr Yousif on examination in June 2015.
253 Clearly, the plaintiff has reported ongoing back problems and limited tolerances to medico-legal examiners in 2013 and more recently in 2016. His description of his current situation to Mr Brownbill echoes that set out in his most recent affidavit of a fluctuating dull pain which occurs with movement and activity, causing him to be always careful of his back.
254 On the basis of the recent examination findings and the examiners’ acceptance of the plaintiff’s ongoing complaints, the early optimism of the plaintiff’s treaters as to his prognosis has not proven correct.
255 Further, I accept the explanation for the plaintiff’s lack of treatment.
256 Counsel for the plaintiff submitted that the plaintiff’s initial reluctance to seek treatment was because he was a headstrong young man who thought his back pain would resolve.[85] He had difficulties in Spain and sought treatment there. On his return to Australia, he persisted with various treatment modalities which were not successful, and he weaned himself off medication, save for over-the-counter medication which he took rarely.
[85]T93
257 It was submitted that the plaintiff had “put himself in cotton wool”.[86] There was nothing further that could be done to help him return to a full range of activities.[87]
[86]T98
[87]T97
258 Referral to a spinal surgeon was recommended at an early stage but given his young age, the plaintiff was reluctant to undergo surgery. Surgery has recently been suggested and although the plaintiff is understandably concerned about the risks of surgery, he would now give it serious consideration if it was recommended. However as Mr Moran stated, he could offer no guarantee that surgery would result in major clinical improvement.[88]
[88]T100
259 In my view, whilst treatment has been limited, the plaintiff’s lumbar condition has had serious consequences for his life.
260 I accept that from secondary school, the plaintiff had aspired to work in agriculture. He grew up near Tatura, surrounded by farms. His friends were from farming families.
261 The plaintiff just missed out on the Bachelor degree and commenced the course in 2003 with the intention of competing the Bachelor degree thereafter, a course of study that would take four years.
262 As a result of his inability to undertake the physical work involved in the agriculture, the plaintiff has had to have a change of career, in recent years undertaking retail work running the internet café.
263 In my view, the loss of opportunity to work in his chosen field is a serious consequence for the plaintiff, one quite analogous to the plaintiff in Davidson v Transport Accident Commission,[89] where her career aspirations as a chef were destroyed by her transport accident injury.
[89][2015] VSCA 12 at paragraph [31]; T99
264 This situation saddens the plaintiff, as it was always his long-term plan to work in the agricultural filed.[90]
[90]T67
265 I accept that but for the accident, the plaintiff would have completed the course earlier than 2009 and he would have then gone on to do the Bachelor course. Having successfully completed that study, a range of jobs in that field, including those of a physical nature would have been available to him.
266 Although he failed every subject in the first year because of problems at home between his parents, the plaintiff had got back on track with his studies in 2004 and 2005. He clearly knuckled down afterwards, as counsel for the plaintiff submitted.[91]
[91]T104
267 After the accident in 2006, the plaintiff had difficulties with studying and had problems sitting. He needed special consideration and had to live on campus for some of the time,[92] taking three years to complete the last subject. It is understandable with these difficulties and the plaintiff’s inability to engage in physical work that he did not attempt the Bachelor degree.
[92]T103
268 I do not accept the course lead simply to a consultant role, as counsel for the defendant submitted.[93] The plaintiff would have been required to work hands-on with animals, particularly at the start of his career. He would not have graduated into a purely advisory role and would have required experience working hands on in the agricultural field.[94]
[93]T89
[94]T97
269 There is no suggestion on the medical evidence that the plaintiff could undertake unrestricted physical farm work. The consensus of medical opinion is that the plaintiff has a limited capacity to do heavy tasks.
270 Dr Boys thought the plaintiff’s low back condition limited the plaintiff’s capacity to perform heavier low level domestic tasks. Mr Brownbill considered, in future, the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
271 Whilst the plaintiff’s earnings may have increased every year since he commenced part-time work whilst studying, he has never had the opportunity to work in his chosen field. He has had to give up the part-time jobs at SPC and Hungry Jack’s, which were quite physical, and take on lighter office work at Telstra and, more recently, his current position, running his own business at the café.
272 In his current work, I accept the plaintiff has difficulty with heavy work and often relies on one of his employees for the assistance.
273 I also accept that because of his back condition, the plaintiff in limited in his physical activities such as heavy work around the house and home renovations, his wife now requiring assistance from her father in tasks the plaintiff previously performed. He now pays someone to mow the lawn, a job he previously could do.
274 I accept that because of his back injury, the plaintiff was unable to continue working at both Hungry Jack’s and SPC, roles he had undertaken since school. Whilst these jobs may not be described as vigorous work,[95] I accept the plaintiff was unable to continue in these jobs to his pre-injury level, as doctors at the time confirmed.
[95]T75
275 The plaintiff was not a particular sportsman pre injury, playing basketball and football on a very social basis and going ten-pin bowling a couple of times a year. I do accept however, in the future, the plaintiff may have difficulty playing boisterous games with his children because of his back condition.
276 The plaintiff had to sell his sports car post injury, as it was too painful to drive it. Also, because of his back pain, the plaintiff cannot drive an ordinary motor vehicle for more than hour without requiring a break.[96]
[96]T65
277 When considering pain and suffering, I am also entitled to take into account the expected mental consequences of the plaintiff’s physical injury as Winneke P stated in Richards v Wylie.[97]
[97](2001) 1 VR 79 at paragraph [17]
278 I accept that since the accident, the plaintiff has had difficulty coming to terms with his pain and various restrictions in his daily life, particularly study and his career.
279 Whilst the psychiatrists who provided opinions did not elevate the case by any great magnitude, as counsel for the defendant submitted,[98] Dr Glasser, Dr Sherry and Dr Firestone agree that the plaintiff suffers an Adjustment Disorder as a result of his accident injury.
[98]T91
280 The plaintiff is still a very young man at thirty one. He has a lifetime ahead of him with a bad back.
281 In Stijepic v One Force Group Aust Pty Ltd,[99] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[99][2009] VSCA 181 at paragraph [43]
282 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. The Court noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
283 Taking into account all the evidence, I am satisfied the plaintiff has a long term “serious injury” in relation to his lumbar spine, meeting the test in Humphries v Poljak.[100]
[100][1992] 2 VR 129
284 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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