Demos v Transport Accident Commission
[2016] VCC 1525
•18 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-04752
| PETER DEMOS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2016 | |
DATE OF JUDGMENT: | 18 October 2016 | |
CASE MAY BE CITED AS: | Demos v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1525 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – s93 Transport Accident Act 1986 – injury to the back
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Jones v Dunkel (1959) 101 CLR 298; O’Donnell v Reichard [1975] VR 916; Grinham v Tabro Meats Pty Ltd & Anor; Victorian WorkCover Authority v Murray [2012] VSC 491; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; (1985) 62 ALR 85; Davidson v Transport Accident Commission [2015] VSCA 12
Judgment: Judgment for the plaintiff. Leave is given for the plaintiff to bring common law proceedings to recover damages in respect of a transport accident occurring on 1 December 2011.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Richard Stanley QC with Mr P Hamilton | Zaparas Lawyers |
| For the Defendant | Mr A Clements QC with Ms C Spitaleri | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 Mr Demos seeks leave to start a common law proceeding for damages for personal injuries suffered in a motor vehicle accident. I will deal with the legal requirements for seeking leave later.
Circumstances
2 Mr Demos is thirty-eight. After completing Year 12 at the South Oakleigh Secondary College in 1996, he went into retail. He worked in menswear, mainly for a store called Man to Man. For about two or three years he was the store’s manager. While employed, he studied at night to become an estate agent. Once qualified, he left menswear and worked as an estate agent for four or five years. Then, he saw an opportunity in scaffolding. Scaffolding safety regulations had recently been made and builders needed scaffolders to put up their scaffolding. The scaffolding industry was booming. He started a scaffolding business and operated it for four years before joining Kwikserve Scaffolding Ltd (“Kwikserve”) in 2010.
3 Marrying in 2002, he and his former wife have two sons, aged nine and eleven. Unfortunately, his marriage failed and they separated in October 2011. The separation was heated, in that his former wife alleged his drug use and obtained a family violence intervention order. He did not see his sons until December 2011.
2011
4 On 1 December 2011, Mr Demos was driving between two work sites. While in Governor Road, Mordialloc, he slowed his car by braking because of a build-up of traffic ahead. His car was then struck from behind. The force of the collision spun his car around. Despite the impact, his car remained driveable. He drove it back to work. He felt pain in his lower back but continued to work. As his pain worsened, he went off work for a week.
5 On 12 December 2011, Mr Demos went to a general practitioner, Dr Andrew Woodard, who noted some tenderness over the left L4 facet joint and a good range of movement except on extension due to pain. Mr Demos thought the effects would pass, especially over the Christmas break. He did not then seek further treatment.
2012
6 At the time of the accident, Mr Demos was employed by Kwikserve as a scaffolder, having worked with that company since March 2010. He resigned on 30 August 2012 after an argument with a fellow employee but ultimately due to his back pain. On 25 October 2012, he completed a “Worker’s Injury Claim Form”. His employer received it five days later, together with a Certificate of Capacity prepared by Dr Woodard on 19 October 2012. His claim was accepted and, I assume weekly payments of compensation were paid. Judging from the records of his medical clinic, further certificates were supplied during 2013 and 2014.
7 Mr Demos returned to live with his parents in about the middle of the year and still does. From then until the first neurotomy (June 2015), his father, Michael, says of his son:[1]
“After the accident, Peter changed significantly … I could tell he was having troubles with his back but over time it got very bad. It was as if he had become an old man. My wife and I started having to do a lot to take care of him and his children … Before Peter had his neurotomy procedure, he always appeared to be in pain and that is when I consider he was at his worst. He would have difficulty getting up off the couch or even walking short distances. I would always see him moving about because he had difficulty sitting or standing for too long. He spent a lot of time in bed and lying on the couch. When he walked, he often appeared stiff and strained … I would see him taking pain killers and he was often very withdrawn …”.
[1]Affidavit of Michael Demos sworn 15 September 2016 at paragraph [5]
8 Mr Demos restarted a scaffolding business conducted by his company, Solo Hire Pty Ltd (“Solo Hire”). The company hired equipment from Kwikserve, engaged scaffolders and organised their work. Mr Demos did no labouring work due to his injury; he organised others. He worked this way for over twelve months and stopped because he says the business was unprofitable.
9 The taxation records of Solo Hire tell an intriguing story. Each year from 2007, it lost money except for 2013, where it made a pre-tax operating profit of $136,123.[2] The records show the company receiving $239,000 for hiring. For the three months between 1 July and 30 September 2012, Solo Hire’s business activity statement shows sales of $124,120. If so, then the rest of that financial year showed sales of $115,000. Mr Demos was asked about the $124,120 and, later, about the $239,000. Of the former, he said it was his partner paying out his share. Of the latter, much the same – “ex-partner paying out his share” or “paying out his stake, because the company was at a loss”.
[2]In effect, the pre-tax operating profit was the after-tax profit because the company paid no income tax
10 Solo Hire’s profit and loss statement and balance sheet for that year was prepared by an accountant. It was adopted by Mr Demos and his co-director. Trying to make sense of Mr Demos’ evidence is impossible. The statements do not record any injection of capital. What they show is the profit and a reduction in liabilities: loans to the company from others declined by $83,753; and the company was able to lend another company, Solo Developments Pty Ltd, $33,589. This is a combined change of $117,342. The company also paid its debt to a finance company over a chattel mortgage. The balance sheet explains these changes by the operating profit. It gives no other explanation.
11 Every year between 2007 and 2015, Solo Hire lost money except for 2013. I set out details for Solo Hire and Mr Demos later. Despite using the 2012-2013 statements against Mr Demos on the question of his credit, nevertheless, I accept he stopped working in business about a year after leaving Kwikserve.
12 Following his resignation, Mr Demos went to his chiropractor, Keith Lorback, twice August and once in October. On 17 October 2012, he returned Dr Woodward. Two days later, his back was x-rayed. It showed some degenerative changes. On 25 October 2012, he completed a Worker’s Compensation Claim. His claim was accepted.
13 On 16 November 2012, he saw Dr Tim March, another general practitioner in the same practice as Dr Woodward, specialising in backs. Dr March found all movements of his back were painful, particularly on extension. Mr Demos was tight in slumping and had paravertebral tenderness on both sides at L4 and L5 with the right side greater than the left. He diagnosed facet joint and disc injury.
14 On 23 November 2012, an MRI scan was performed. The radiologist’s conclusion was mild disc degeneration at L4-5 and L5-S1 without nerve root compression. Interestingly, there was a posterior annular fissure or tear found in the L4-5 disc. Dr March prescribed anti-inflammatory medicines and gave him flexion exercises. He then had physiotherapy.
15 Before the accident, Mr Demos set up a scaffolding training business. During 2012, he closed that business.
2013
16 On 23 May 2013, Dr March administered cortisone injections into the right L4‑5 facet joint and the left and right L5-S1 facet joints. The cortisone aspect gave relief for a few weeks of the pain in his buttocks and legs.
17 Dr March referred him to a physiotherapist, Karen Chang. She first saw him on 6 June 2013 and, of the movements of the lower back, found restrictions in extension and lateral flexion. She started him on gentle core strengthening exercises with Pilates. From 23 July 2013, each week he did hydrotherapy and Pilates. By 4 September 2013, Ms Chang noted some improvement, in that the shooting pain into his legs had gone, he had a better posture and felt looser on most days. However, he still experienced fluctuating levels of pain. In reporting to Dr March, Ms Chang was cautious, recommending a focus on rehabilitation with a return to suitable light work when he is able to do so. By February the following year, another physiotherapist (Warrick Pearson) in the same practice as Ms Chang, said he could return to work for 2 to 3 hours each day doing light administrative, customer service or supervisory roles. He was unsuited to manual labour.
18 On 3 December 2013, Mr Roy Carey, an orthopaedic surgeon, examined Mr Demos at the request of Dr March. Among other things, he noted from his examination:
“Interestingly he was able to flex almost to touch his toes and this didn’t worry him much. Coming back from that position was extremely painful. Further, he had absolutely no spinal extension because of pain.”
19 Mr Carey’s examination suggested facet joints as the source of the pain. He arranged a form of scan called CT/SPECT and was of the opinion this might show facet inflammatory changes. It did not, showing no specific abnormality. As a result, Mr Carey gave a broad diagnosis – an aggravation of pre-existing lumbar spondylosis, which was asymptomatic until the accident happened. Nevertheless, he suggested to Dr March referring Mr Demos to Mr David Vivian, an orthopaedic physician, to explore pain management rather than the drastic alternative of a two-level fusion. This was done.
2014
20 Dr Vivian saw Mr Demos on 1 April 2014. He found, on examination:
“He flexed to 60 degrees and said that, prior to the accident, he could easily put his palms on the floor. In standing, he could hardly side bend or extend at all. Straight leg raising was normal. Tenderness was prominent around the lumbosacral area. The hips moved normally.”
21 Unlike Mr Carey, Dr Vivian thought the source of pain more likely came from within a disc or discs, and less likely, from a facet joint or joints. However, he recommended bilateral medial branch blocks to see if there was facet joint pain. If there was, Dr Vivian would recommend a radiofrequency neurotomy. For financial reasons, the branch blocks were not tried until 2015.
22 At some time during this year, Mr Demos stopped running the business of Solo Hire as it was unprofitable.
23 In September 2014, there was some sort of settlement under the Accident Compensation Act 1985 in relation to his entitlement to weekly payments of compensation.
2015
24 During this year or, even 2014, Mr Demos applied for a disability support pension.[3] During this year, he received some payments.
[3]As part of the Plaintiff’s Court Book is a copy of a medical report, dated 24 February 2015, of Dr March relating to a disability support pension
25 On 3 June 2015, Dr Vivian’s colleague, Dr Neels Du Toit, performed bilateral L3, L4 and L5 medial branch blocks. The pain relief pointed to facet joints as the source of Mr Demos’ back pain and, in turn, pointed to bilateral lumbar radiofrequency neurotomy as a cure.
26 On 26 June 2015, a radiofrequency neurotomy was performed on the L4-5 and L5-S1 facet joints bilaterally. Dr Du Toit said of the treatment:[4]
“This treatment gave him significant relief in lower back, buttock and leg pain. It allowed him to return to work with only minimal restrictions on his day-to-day duties.”
[4]Report dated 12 September 2016 at page 2
27 He expected the benefit of this procedure to last for twelve to eighteen months.
28 In September or October 2015, Mr Demos retrained as a laminate floor installer and then started working for himself.
29 Mr Demos’ father described his son after the radiofrequency neurotomy:[5]
“After the first neurotomy procedure in 2015, Peter did improve significantly. He immediately appeared more mobile and became more active. I was very happy to see him find employment again and be able to play with his young boys. Although I still see Peter in pain and moving around stiffly sometimes after a long day at work or sometimes after he aggravates his back, he is not decimated like he was prior to the procedure. In the middle of this year [2016], Peter started deteriorating again and I noticed he was regularly stiff, inactive and in pain again. I noticed he was taking pain killers which again made him withdrawn. It took quite a while for the funding of the second neurotomy procedure to be approved and I was scared to watch Peter decline again. It was stressful to watch him start to go through it all again when he had gained a life back.”
[5]Affidavit sworn 19 September 2016 at paragraph [8]
2016
30 During February and August 2016, employees of G4S Compliance & Investigations Pty Ltd observed Mr Demos on behalf of the defendant. They filmed him. I saw these films, both in court and in chambers after reserving this judgment.
31 Of all the films, the most significant were those taken on 2 February 2016. Between 11.17 and 11.24am, Mr Demos removed from his car a large roll of electrical cable and four large rolls of underlay. The latter he carried one at a time on his right shoulder, each weighing about 15 kilograms, according to him. He says he also carried large, rectangular boxes containing pieces of wood. The film for that day was not confined to that short period.
32 On 10 February 2016, Mr Demos swore his first affidavit.
33 On 13 April 2016, Dr Symon McCallum, pain physician and anaesthetist, examined Mr Demos at the request of his solicitors. He diagnosed facet joint pain in the lower back with the possible addition of discogenic and muscular pain. As to prognosis, he said:[6]
“I think the prognosis for Mr Demos is a difficult question to answer. He is extremely fortunate that he has responded extremely well to the radiofrequency neurotomy procedure. This can continue to give him significant benefit in the future. It has enabled him to start a new career. His prognosis as to regarding returning to scaffolding I think is extremely poor. I think Mr Demos’ prognosis as regarding to be able to play football fully with his children is also going to be guarded … .”
[6]Report dated 13 April 2016
34 On about 13 May 2016, Dr Ales Aliashkevich, a neurosurgeon and spinal surgeon, saw Mr Demos at the request of his solicitors. On examination, he found good muscular strength, normal tone and bulk. Deep tendon reflexes were symmetrical and no sensory loss on pinprick testing. There was a slight loss of flexion of the lumbar spine. Dr Aliashkevich ruled out scaffolding work but saw Mr Demos as “fit for part-time light duty work as a floor installation trainee, avoiding lifting weights in excess of 10 kg and avoiding repetitive bending and twisting”.[7] He saw Mr Demos never returning to his scaffolding work with his “restricted capacity for light work possibly improving depending on his response to pain management”.
[7]Report dated 13 May 2016 at page 2
35 On 26 June 2016, Dr du Toit saw Mr Demos again, who reported significant improvement in his back symptoms. But in the last few weeks, he had started to notice a recurrence of pain.
36 On 15 July 2016, Mr Gerard Powell, an orthopaedic surgeon, examined Mr Demos at the request of the defendant’s solicitor. He noted:[8]
“Mr Demos was able to get on to the examination couch without difficulty. Straight leg raising was restricted to 70 degrees bilaterally by back pain and hamstring tightness. There were no nerve root tension signs.”
[8]Report dated 20 July 2016
37 After noting Mr Carey’s view that Mr Demos’ pain was primarily posterior element-type pain rather than discogenic, Mr Powell thought the symptoms pointed to facet joint pain in the lower lumbar spine. Curiously, he did not know whether the 2015 procedure had been medial branch blocks or radiofrequency denervation. He linked the accident to the symptoms through the aggravation of pre-existing lumbar spondylosis.
38 As to prognosis:
“The prognosis is unclear. Given that he has had lower back pain for the last five years, it is likely that he will continue to have some ongoing symptoms of lower back pain. He has previously responded well to medial branch blocks (or possibly radiofrequency denervation). I would expect that with further treatment of the same type his symptoms would once again improve … .”
39 Later, the defendant’s solicitors gave Mr Powell surveillance video footage for 2 and 9 February 2016. Mr Powell reported again.[9] He dealt with the footage at length. This is what he said about it:
[9]Report dated 19 August 2016
“The video footage of those duties shows Mr Demos engaged in heavy manual labour which involves repetitive heavy lifting, bending, leaning and carrying heavy items, including cable drum of hose, large rolls of insulating and carpeting materials and large boxes. The footage shows him to be moving freely without evidence of discomfort or restriction.
The footage shows him loading and unloading a trailer and he is able to reach and climb inside the trailer. He is also viewed driving and reversing a car with the trailer attached.
I note that the footage occurs after Mr Demos had undergone his medial branch block procedures in July of 2015 and after he resumed working as a floor installer in December 2015. The footage appears to show him working as a floor installer.
When I reviewed Mr Demos in July of 2016 he reported a 6-week history of recurrence of symptoms of lower back pain. The footage clearly pre-dates this and corresponds to the time Mr Demos reports he was symptom-free.
The brief and video-evidence provided does not cause me to change the opinion provided in my report of 20.07.2016.”
40 On 16 August 2016, an investigator filmed Mr Demos on two occasions. The second is interesting because it is only ten days shy of the second neurotomy procedure.
41 Dr Aliashkevich also saw the surveillance footage for 2 February and 6 and 16 August 2016. What he saw did not alter his opinion, including the capacity for work.[10]
[10]Report dated 13 September 2016
42 On 26 August 2016, Dr Du Toit repeated the radiofrequency denervation procedure and was confident Mr Demos will again experience significant relief lasting twelve to eighteen months. As to the future, Dr Du Toit felt Mr Demos would require radiofrequency denervation every twelve to eighteen months. More broadly, he said:[11]
“It is my opinion that his prognosis of a return to unrestricted duties in the future is guarded. I think that he will have difficulty in performing heavy lifting or pushing or pulling heavy loads. However, he will be able to return to most duties without the fear of making back pathology worse. We have been able to control his pain with lumbar facet joint radiofrequency denervation, which has allowed him to return to work and most duties unrestricted, apart from heavy lifting, pushing and pulling. I would advise him that these restrictions should remain indefinitely.”
[11]At page 2
43 On 31 August 2016, Dr Brendan Hayman, a psychiatrist, saw Mr Demos at the request of his solicitors. This was five days after the last radiofrequency neurotomy, which eliminated all back and radiated pain and the need to take medicines. Dr Hayman found no psychological disorder or illness. There was no need for psychological treatment and there was a very good psychological prognosis. He saw Mr Demos as resilient, robust and stoic.
44 On 15 September 2016, Mr Demos swore his second affidavit.
Financial affairs
45 The parties summarised the taxable income of Mr Demos taken from his taxation returns and the sources of that income:
(a)2006-2007: $32,451: from three sources but, principally, Solo Hire;
(b)2007-2008: $48,090: Solo Hire entirely;
(c)2008-2009: $51,457: Solo Hire entirely;
(d)2009-2010: $44,460: about two-thirds from Solo Hire and about one-third from Kwikserve;
(e)2010-2011: $91,234: mainly Kwikserve but $9,757 from Peter Demos Enterprises;[12]
(f)2011-2012: $85,004: again, mainly Kwikserve but $10,575 from Peter Demos Enterprises;
(g)2012-2013: $19,874: as in (e) and (f);
(h)2013-2014: $20,452: the entire amount described as interest; from what investment, I do not know;
(i)2014-2015: $38,402: $33,945 were weekly payments of compensation and the rest, $5,312, described as “Government”. I assume this latter were disability support payments.
[12]A scaffolding training business run by Mr Demos
46 The records of Solo Hire show:
(a)2006-2007: income - $167,009; expenses - $173,680; loss - $6,671;
(b)2007-2008: $230,912; $240,460; loss $9,548;
(c)2008-2009: $205,800; $247,381; loss $41,581;
(d)2009-2010: $118,494; $165,627; loss $47,133;
(e)2010-2011: $22,357; $72,932; loss $50,575;
(f)2011-2012: $10,000; $12,763; loss $2,763;
(g)2012-2013: $241,708; $105,585; profit $136,123;
(h)2013-2014: $103,996; $117,813; loss $13,817;
(i)2014-2015: $9,855; $17,484; loss $7,629.
Present situation
47 Before the accident, Kwikserve employed Mr Demos as a scaffolder. His work involved supervising crews of scaffolders, installers or dismantlers. He is now employed by his company, Solo Hire, as a laminate flooring layer, contracting with other businesses to do so. His duties include removing old carpet from homes but not installing new carpet. Removing carpet involves kneeling and bending. It is not very strenuous. He lifts rolls of carpet or underlay. He carries packets of laminate flooring. They weigh between 10 and 20 kilograms. If assisting a carpet layer, he is paid by the hour. If laying flooring, he is paid by the metre. However, there are times he works for nothing. When filmed on 2 and 9 February 2016, he was helping his cousin and was paid nothing to do so.
48 Following the recent neurotomy, he suffers very little back pain. He takes no pain-relieving medicines. He sleeps well. Before the neurotomy, he took such medicines.
49 Before the accident, Mr Demos went scuba diving on seven or eight occasions. He loves water sports, as well as eating seafood and fishing. On his last dive before the accident, he collected 100 scallops. He has not returned since, although he would like to do so. He fears the risk of being underwater with a tank strapped to his back and getting into difficulty.
50 Before the accident, he was a very good soccer player. Now, he no longer plays soccer. His boys play soccer. They play with the club he joined at the age of eight or nine. He takes them to training. He will kick the ball to them. Despite being asked to train or coach at his boys’ club, he does not do so. Why?:[13]
Q: “I suggest to you that carrying rolls of heavy underlay is more physically demanding than being a soccer coach. You know that’s true?---
A:I physically couldn’t show the boys what needed to be done in the state I’m in.”
[13]Transcript at page 65
51 After several questions exploring this answer since the second neurotomy, there came:
Q: “But why can’t you do it?---
A: Because I run the risk of upsetting my back. It’s a physical game.”
Legal considerations
52 Briefly, in order to give leave, the following must be established:
(a)Mr Demos suffered an “injury” as a result of a “transport accident”;
(b)the “injury” must be a “serious injury”, which is defined in s93(17) of the Transport Accident Act 1986;
(c)Mr Demos relies on paragraph (a) of the definition of “serious injury” – “serious long-term impairment or loss of a body function” with the relevant part being the low or lower back;
(d)what is “serious” is set out in Humphries & Anor v Poljak:[14]
“… we think that the task of a judge confronted with the requirements to determine an application made pursuant to subs(4)(d) when reliance is placed upon subs(17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”
Jones v Dunkel[15]
[14][1992] 2 VR 129 at 140 per Crockett and Southwell JJ
[15](1959) 101 CLR 298
53 Although the Defendant’s Court Book contained two reports from Associate Professor Anthony Buzzard, surgeon, it relied on neither. The plaintiff submitted I should draw what is known as a Jones v Dunkel inference.[16] The defendant submitted I could not, and relied on passages from the judgment of J Forrest J in Grinham v Tabro Meats Pty Ltd & Anor and Victorian WorkCover Authority v Murray.[17]
[16]An explanation of the possible inferences is contained in O’Donnell v Reichard [1975] VR 916 at 929
[17][2012] VSC 491 at paragraphs [126] to [130]
54 Equating non-reliance upon a report as equal to not calling an expert witness to give evidence, there is a presumption the witness adheres to the Expert Witness Code of Conduct and is not in the camp of any party and is not expected to give evidence favourable to the defendant. Since there is no such expectation and the plaintiff could have tendered the reports as part of its evidence, I will draw no inference.
Discussion
Credit
55 As I said earlier, Mr Demos swore his first affidavit on 10 February 2016 after he was seen and filmed on 2 and 9 February 2016. In paragraphs [36], [37] and [41], he swore:[18]
“I am trying to do as much as I can physically. I have not pushed my back as it still feels vulnerable. I am able to do small amounts of shopping but I generally only carry small items. If I attempt to lift anything heavy, I suffer from pain in my back so generally try to avoid lifting if I can.
I am still living with my parents. I try to help them as much as I am able. I don’t do very much around the house which I feel badly about. If my back was not injured, I would be doing the lawns for my parents but I am unable to do so.
… I am very limited and very cautious in what [to] do so as to protect my back … .”
[18]He was taken to sentences in paragraphs [45] and [47] of that affidavit
56 Cross-examination explored the amount of work Mr Demos does now. Before the adjournment for lunch, he said, on average, two to three days each week. In the first questions after lunch, it became three to four days each week for about eight hours each day, being 24 to 32 hours weekly. This change occurred after he was told what he said to Dr Aliashkevich in May 2016 after the first neurotomy procedure. Before lunch, he was at pains to qualify his answers as an average. After lunch, he agreed with what he told Dr Aliashkevich:
“He was able to return to work doing flooring jobs over the past six months, working three to four days per week, about eight hours per day totalling in 24-32 hours per week …”.
57 The financial return of Solo Hire for 2012-2013 is confusing. The sales for the year and the operating profit are an anomaly when compared with previous and subsequent years. The BAS for the first quarter of 2012-2013 is an anomaly compared with the rest of that year: sales of $124,000 in that quarter compared with total sales of $115,000 for the other three quarters. Mr Demos’ explanation makes no sense when one reads the financial statements. His explanation might have made sense if he and his co-director were partners in a partnership rather than directors and shareholders in a company.
58 I need to treat the evidence of Mr Demos cautiously. What the films of 2 and 9 February 2016 show is at odds with what he claimed he could do in his first affidavit sworn on 10 February 2016. They do not show a person being very cautious about his back. His change of position on his hours of work is disturbing. His explanation about the figures of Solo Hire in 2012-2013 is nonsense.
59 Treating his evidence cautiously inevitably causes you to look at the other evidence carefully. Paradoxically, in it, there is corroboration of his position. Between leaving school and the accident, Mr Demos worked continuously. He became the manager of a store. While working and married, he studied at night. That is no easy feat. It shows determination. He persevered with his studies and qualified as an estate agent. He left retail and worked as an estate agent. He saw an opportunity in scaffolding. He qualified as a scaffolder and set up his business. He joined Kwikserve in 2010. After the accident, he continued with Kwikserve until resigning. He then turned to the business of Solo Hire but found it uneconomic when he could not do the scaffolding work himself. There followed a period of little income. Except for 2013-2014, he depends on weekly payments and a disability support pension. After the first neurotomy, he retrained and now works. Admittedly, these facts come from Mr Demos. However, despite my caution, I accept them as accurate.
60 Before the accident, Mr Demos was a hardworking person, striving to better himself financially. After the accident, he continues with Kwikserve for a year, leaves and tries unsuccessfully to run his old business on a different basis. He then has meagre income until after the first neurotomy. What this shows is someone who would work if he could. The fact that he did not, points to a disability. As I said, paradoxically, the background lends strong support to his claim of incapacity.
61 The defendant’s Senior Counsel conceded the medical opinions supported the fact of injury and the restrictions it causes for physical work, adding, pithily, “the medical opinions are only as good as the histories provided by the plaintiff”. Unfortunately, pithiness does not always tell the full story. I have found helpful the statements of Samuels JA in Paric v John Holland Constructions Pty Ltd:[19]
“… It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided …
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion …”.
[19][1984] 2 NSWLR 505 at 509-510. An appeal to the High Court was dismissed: (1985) 62 ALR 85
62 Both Mr Powell and Dr Aliashkevich saw, at least, the film of 2 February 2016. It caused neither to change his opinions. The film of 2 February 2016 presents a fair climate for their opinions. I do agree the history does not give a fair climate for Dr McCallum’s opinion.
63 I do not accept Mr Demos’ evidence of how many days and hours he can work or his restrictions. This includes what he told Dr Aliashkevich. The February 2016 film shows real capacity; the August films are equivocal. The prognoses of Mr Powell, Dr Aliashkevich and Dr du Toit are disarming. With regular neurotomies, he faces a future of doing most duties unrestricted but avoiding heavy lifting, pushing and pulling. Without this treatment, one supposes he would return to the unemployed period between 2012 and 2015.
64 The accident caused injury to Mr Demos’ L4-5 and L5-S1 facet joints and to the L4-5 disc. Broadly, he suffers from lower back pain, coming from those facet joints. It does not come from the disc or the surrounding muscles. Branch blocks showed the source of pain lay in certain facet joints. Radiofrequency denervation gave excellent pain relief. Where some movements of the lower back had been restricted, especially extension, by May 2016, there was slight restriction in flexion and little or nothing with extension. By August 2016, he needed further treatment.
65 The neurotomy procedure gives considerable pain relief. It allows Mr Demos to do many things falling short of scaffolding work. Its effects last almost twelve months but then fade. It needs to be redone. If not redone, then Mr Demos faces a much reduced future. His counsel put it well in describing the process as a roller coaster. He has a smooth ride for twelve months or so, followed by a decline, only to be resurrected by a further procedure. In February 2016, his back was good. Following the second procedure, he has little or no pain or restriction.
66 Mr Demos is only thirty-eight. He needs to work, if only to carry out his responsibilities to his children. He can do quite physical work and for lengthy periods. His ability to do so depends on regular treatment. Absent the treatment, the economic consequences for him would be dire. After a year or so, the effect of the treatment wears off; his ability lessens until the next treatment. He faces decades of such treatment. If he is sensible, he needs to be wary of what he does to his back. The facet joint pain is the consequence of the aggravation of degenerative changes. If he is not careful, it could worsen despite the treatment. Even if careful, the effects are long term. No one suggests the effects of the aggravation will disappear.
67 The plaintiff referred me Davidson v Transport Accident Commission.[20] Having allowed the appeal, the Court decided the question of “serious injury” itself. Owing to a wrist injury, the applicant lost the prospect of undertaking a career as a chef or in a professional kitchen, which was significant. In this case, Mr Demos cannot return to scaffolding: his chosen career. This is important but should not be over-emphasised. He has the intelligence and experience to do non-physical work. For years, he was a salesman and an estate agent. Even in his present job, I could not say his pecuniary loss will be overly significant provided his treatment continues.
[20][2015] VSCA 12
68 Although I have treated Mr Demos’ evidence cautiously, I accept he does not coach soccer. Given his love of the game and his sons’ involvement, the inability to coach is a significant loss. On the other hand, his ability to go scuba diving is relatively unimportant. He did little of it before the accident.
69 Mr Demos has a serious long-term impairment or loss of his lower back. It is serious because the consequences to him are very considerable from the perspective of pain and suffering and long-term because there is no end in sight. I will give him leave to start a proceeding for damages.
70 I will hear the parties on the question of costs.
- - -
0
5
0