Denton v Transport Accident Commission
[2023] VCC 1806
•26 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION SERIOUS INJURY LIST | Revised Not Restricted Suitable for Publication |
CI-22-00944
| GLENN DENTON |
| v |
| TRANSPORT ACCIDENT COMMISSION |
---
| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 August 2023 |
| DATE OF JUDGMENT: | 26 October 2023 |
| CASE MAY BE CITED AS: | Denton v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1806 |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT COMPENSATION
Catchwords: Serious injury - paragraph (a) of the definition of "serious injury" - spine - right ankle - paragraph (c) of the definition of "serious injury"
Legislation Cited: Transport Accident Act 1986
Cases Cited:Richards v Wylie [2000] VSCA 50, Transport Accident Commission v Katanas [2017] HCA 32, Rowe v Transport Accident Commission [2017] VSCA 377, Lexa v Transport Accident Commission [2019] VSCA 123, Shock Records v Jones [2006] VSCA 180
Decision: Application dismissed
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald KC Mr A Mackaskill | Henry Carus & Associates |
| For the Defendant | Mr R Middleton KC Mr S Pinkstone | TAC Law |
HER HONOUR:
1.Mr Denton applies under s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) for leave to bring proceedings for damages in respect of the sequelae of the physical and psychological injuries suffered in a transport accident on 24 January 2013 (‘the 2013 transport accident’), when he was struck at speed by a car while riding a motorcycle at 100 km/h. Mr Denton says that he has suffered a long term impairment of the function of the spine (cervical and lumbar), as well as his right ankle, the consequences of each of which, taken separately, meet the definition of serious injury under s 93(17)(a) of the Act. He also claims that he has suffered major depressive disorder and post-traumatic stress disorder as a result of the 2013 transport accident, and that the sequelae of this injury meet the definition of serious injury under s 93(17)(c) of the Act.
THE ISSUES
2.Mr Denton says that although he suffered physical and psychological injuries in a 2008 transport accident, resulting in a common law settlement for damages just two weeks after the 2013 transport accident, he was well enough in late 2012 to take up work as a truck driver in Queensland, and that the sequelae of the 2013 transport accident meets the narrative test for serious injury under both paragraphs (a) and (c) of s 93(17) of the Act. In respect of paragraph (a) of the definition of serious injury, Mr Denton relies, separately, on the impairment to the right ankle, as well on the impairment to the spine. Mr Denton relies, among other things, on the expert opinions of Mr Russell Miller, Dr Kah Heng Lee and Mr Arshad Barmare to the effect that he cannot return to his pre-injury occupation due to the physical restrictions arising from the 2013 transport accident injuries and has no experience or training in sedentary occupations, for his submission that he has no work capacity due to the injuries sustained in the 2013 transport accident. Mr Denton relies, among other things, on the psychiatric opinions of Dr Gregory White, Dr Justin Lewis, Dr Gregor Schutz and Dr David Weissman to the effect that he has no realistic work capacity from a psychiatric perspective, for the submission that he satisfies the narrative test for serious injury under sub-paragraph (c) of the definition of serious injury.
3.The defendant says that the recent expert evidence is to the effect that Mr Denton’s condition is predominantly a psychological one. For this reason, the defendant says that the application falls to be determined under sub-paragraph (c) of the definition of serious injury. The defendant says that the evidence reveals that Mr Denton suffered significant psychiatric sequelae as a result of the 2008 transport accident which rendered him unfit for any work. While the defendant accepts that there has been some aggravation of his pre-existing psychological state due to the 2013 transport accident, it submits that Mr Denton has not sufficiently delineated what those consequences are, nor established that those consequences are in and of themselves severe, nor that they are severe when compared with other cases in the range of psychiatric disturbances or disorders. In particular, the defendant relies on the opinion of Dr David Weissman that there is no psychiatric incapacity for employment flowing from the 2013 transport accident.
4.In relation to physical injury, the defendant says that Mr Denton has complained of near constant pain in his back and neck after the 2013 transport accident but the medical evidence is that he last took Norspan patches in 2018 and last had massage therapy in 2020. He takes Panadol or Nurofen intermittently, apparently for a combination of pain in the back, right shoulder and right ankle but has never been prescribed analgesic medication. He has never pursued specialist treatment for the back pain or right shoulder pain. He has continued to abuse methamphetamines. The medical evidence was that in the 2013 transport accident he suffered abrasions to his right ankle and there was no evidence of any specific bone or joint injury. He has had no treatment for his right ankle for the past 10 years. The defendant says that Mr Denton has sought to do the impermissible, that is, to aggregate the effects of all his claimed impairments. The defendant submits that Dr Saxby’s opinion, to the effect that Mr Denton has no ongoing physical injury from the 2013 transport accident, is to be preferred to that of Mr Miller, who took a history of no prior spinal problems from Mr Denton, as well as an inability to recall the circumstances that led to imaging of his neck in 2010. The defendant also relies on the opinion of Dr Lee, occupational physician, to the effect that the major reasons for Mr Denton not returning to any work are “non-anatomical/non-physical factors”.[1] Finally, the defendant submits that in the absence of good medical evidence of incapacity for pre-injury or other employed by reason of any injury suffered in the 2013 transport accident, the Court should not find that Mr Denton is physically incapacitated for employment, particularly because he has not looked for work, had any ongoing treatment or been prescribed any medication, seen any specialists for his spine or right ankle and has continued to abuse amphetamines.
[1] Plaintiff Court Book (‘PCB’) 148.
THE HEARING
5.The plaintiff gave evidence and was cross-examined. No other witnesses were called. Each party tendered a court book and provided written submissions in addition to the oral submissions made during the hearing. I have considered all of the evidence as well as the oral and written submissions of each party.
LEGAL PRINCIPLES
6.In the case of one transport accident, it will be necessary to compare the condition of an applicant before and after that accident. Where a prior accident caused physical and/or psychological injuries, and the subject transport accident is alleged to have aggravated those injuries, it will be necessary for the applicant to establish that the aggravation (whether in relation to physical or psychological injury) meets the applicable narrative test for serious injury.
7.Where the injuries caused by a transport accident have both physical and mental consequences for a plaintiff, whether the application is to be determined under sub-paragraph (a) or (c) of the definition of serious injury depends on which of these sets of consequences, physical or mental, is the dominant cause of the plaintiff’s condition.[2]
[2] Richards v Wylie [2000] VSCA 50 [24] (Buchanan JA), [28] (Chernov J) (‘Richards’).
8.The application of the narrative test relevant to organic and psychiatric injuries entails a two stage process:
Assessment of whether the nature and symptoms of the injury and consequences of the injury are, subjectively for the applicant, “serious” or, in the case of mental or behavioural disturbance or disorder, “severe”; and
A determination of whether the injury as thus assessed is objectively “serious” or, in the case of mental or behavioural disturbance or disorder, “severe” when compared with the range or “spectrum” of comparable cases.[3]
[3] Transport Accident Commission v Katanas [2017] HCA 32 [6] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ).
9.Where an application is considered under sub-para (a) of the definition of serious injury, the Court is required to assess the physical consequences of any physical impairment as well as any mental or behavioural disturbances flowing from the physical injury.[4]
[4] Richards (n 2) [28] (Chernov J).
10.In an application under sub-para (c) of the definition of serious injury, it is not enough for a plaintiff to prove that the transport accident was a contributing factor, among other factors, to his current psychiatric condition. Rather, a plaintiff must prove that the condition that results from the transport accident satisfies the statutory definition.[5] The Court must be satisfied that Mr Denton has a severe psychological impairment that was caused by the 2013 transport accident.
[5] Rowe v Transport Accident Commission [2017] VSCA 377 [82]–[83],[86] (Osborn, Priest and Beach JJA); Lexa v Transport Accident Commission [2019] VSCA 123 [59] (Kyrou, Kaye and Emerton JJA).
11.When determining the question of loss of earning capacity,[6] either under sub-para (a) or (c), the Court is required to be satisfied that the subject injury relied upon of itself caused the requisite degree of loss of earning capacity. This requires the Court to exclude the contribution of other medical conditions or factors.
[6] Shock Records v Jones [2006] VSCA 180.
12.To the extent that Mr Denton’s case is that the 2013 transport accident aggravated his pre-existing psychological condition (which itself flowed from predisposing factors as well as the sequelae of injuries suffered in the 2008 transport accident), he must establish that the aggravation suffered meets the narrative test for serious injury and that the aggravation was caused by the 2013 transport accident.
13.In this case, it is necessary to determine what Mr Denton’s physical and mental condition was prior to the 2013 transport accident.
THE PLAINTIFF
14.Mr Denton is 52 years old. He attended Niddrie Technical School where he completed Year 11, and subsequently commenced a gardening apprenticeship. He was then self-employed for a few years and performed gardening and landscaping work. He also worked in roofing for approximately one year. In around 1994, he obtained his endorsed truck driver’s licence and commenced working as a driver in the transport industry. He worked in removals, freight driving and long-haul driving. He has a son from a previous relationship but does not have contact with him. He lives with his partner, Lynda Harris.
15.At the time of the 2008 transport accident, Mr Denton was employed as a truck driver in 2008 and was earning $1,800.00 gross per week.[7]
[7] Defendant Court Book (‘DCB’) 97.
2008 TRANSPORT ACCIDENT
16.In March 2008, he was injured in a transport accident (‘the 2008 transport accident’) when struck by a car while he was riding his motorcycle. He was in hospital overnight. Mr Denton filed a TAC Claim form on 31 March 2008 for injuries to his left ankle, right shoulder, neck pain and headaches, bruises and lacerations to his left arm.[8] He had physiotherapy and a few injections to the right shoulder during 2008.
[8] Ibid 74–87.
17.Mr Denton had operations on his left ankle and right shoulder. His left ankle surgeon, Mr Otis Wang, reported on 8 February 2011 that he performed an arthroscopy of the left ankle on 9 July 2010,[9] where he found a microfracture of the talus and removed a spur and loose body. Two weeks after the surgery, he noted that Mr Denton had reported no pain. Mr Wang told Mr Denton that there was a long-term risk of progressive left ankle arthritis.
[9] PCB 214.
18.Mr Richard Dallalana, who performed a surgical right shoulder arthroscopic labral repair plus excisional arthroplasty AC joint and bursectomy in February 2009, reported in March 2011 when reviewing Mr Denton some 14 months after right shoulder surgery, that Mr Denton had a near full range of motion and good strength in the right shoulder.[10] Mr Dallalana expected that he may permanently experience mild occasional pain in the AC joint.
Plaintiff’s evidence
[10] Ibid 218.
19.Mr Denton swore an affidavit on 7 September 2011[11] in relation to the 2008 transport accident, in which he stated that he had surgery to the right shoulder and to the left ankle. His ongoing problems included pain and restriction in his neck, left ankle and right shoulder, as well as his psychiatric conditions. He continued to experience pain and swelling in the left ankle most days and found it difficult to weight bear on that leg. He had headaches most days. As a result of his pain, he took Tramal for an extended period, then switched to non-prescription medication, taking up to 9 Panadol per day. His injuries significantly impacted on his social, recreational and domestic capacities, and prevented him from returning to work. He was out of the workforce for a number of years.[12]
[11] DCB 95–102.
[12] Ibid 100.
20.He could no longer ride as much on his motorcycle due to his right shoulder, neck and left ankle pain and was unable to drive a truck. He was unable to maintain a relationship and had stopped socialising. He was abusing alcohol and was referred by his general practitioner to a psychologist. He was irritable, aggressive and unable to concentrate or keep up with his bills. His weekly payments from the TAC were terminated in March 2011. He was unable to return to truck driving and stated that he would continue to suffer a loss of earnings into the future.
21.In his affidavit sworn on 4 May 2023 (‘the first 2023 affidavit’), Mr Denton stated that as a result of the 2008 transport accident, his main problems were as recorded in the previous paragraph. He stopped taking Tramal after a few years and switched to non-prescription painkillers “when [he] needed them”.[13] He stated that he had some years off work, during which he was depressed and drinking heavily. He formed a new relationship with Treacy in 2010 or 2011 and became engaged in 2012. By October 2012 he felt that his left shoulder pain had settled down, although he continued to have pain in the left ankle, neck and right shoulder, which he managed with over-the-counter medication. He had resumed an active social life and was riding his motorcycle in spite of his ongoing symptoms, as well as being active in his motorcycle club. He obtained work as a water truck driver in Queensland commencing in late October 2012. He planned to marry, work there for five years and then retire in order to travel. He received gross pay of $3,718.50 per fortnight from 11 November 2012 to 20 January 2013.
Medico-legal opinions
[13] PCB 20.
22.Dr Chris Baker, occupational physician, assessed Mr Denton at the request of TAC and reported on 25 May 2010[14] taking a history of ongoing neck, shoulder and ankle pain as well as headaches. He told Dr Baker that he was suffering from psychological problems and was getting worse. He could only drive limited distances, and his sleep was disturbed by pain. He was taking Tramal, but had ceased physiotherapy because it had not helped him. He had become withdrawn and did not have money to undertake activities. Dr Baker noted a history from Mr Denton that he had a prior history of a low back injury, from which he fully recovered, and had at one point in the past required some bereavement counselling.[15] Dr Baker diagnosed a soft tissue injury to the neck. He noted that an MRI revealed no abnormalities in the neck, and for this reason Dr Baker considered that Mr Denton’s headaches related to his psychological state and chronic pain problems. He opined that Mr Denton’s “presentation now is partly related to his psychological state with a probable Adjustment Disorder with symptoms of depression and chronic pain”.[16] Dr Baker recommended that Mr Denton be assessed by a psychiatrist, and that he participate in a multidisciplinary pain management programme. He considered that after ankle surgery and rehabilitation, Mr Denton would be in a position to resume truck driving.
[14] DCB 89.
[15] Ibid 92.
[16] Ibid.
23.Mr Denton was referred to a psychologist, Amy Hede. She reported on 17 July 2012[17] to Mr Denton’s then solicitors that she saw him twice, once on 13 December 2011 and once on 19 January 2012, for assessment. Further sessions were planned for treatment, but he did not attend. Her provisional clinical appraisal was that Mr Denton presented with “a Major Depressive Episode (moderate), on a background of probable Dysthymic Disorder and Amphetamine Dependence”.[18] She considered that further investigation into his mood and substance abuse was needed as well as the impact of multiple life stressors such as relational difficulties and the 2008 transport accident.
[17] Ibid 103.
[18] Ibid 104.
24.Dr Andrew Firestone, psychiatrist, attempted to perform an impairment assessment on 7 November 2012,[19] at a time when Mr Denton was employed in Queensland as a water truck driver. Dr Firestone noted that Mr Denton left after 20 minutes, and therefore his assessment was “unreliable, given the lack of information and the short interview time”.[20] He took a history from Mr Denton that the left ankle surgery had not improved his symptoms and that it was still swollen. He reported being very depressed, and said that he had been prescribed antidepressants but did not take them because he did not like taking tablets. He did not take tablets for his pain. Dr Firestone considered that he presented as depressed, irritable and hyper alert at the interview, and was a vague historian who said he was fed up with the TAC process and doctors. Dr Firestone noted from the clinical records that Mr Denton had a problem with amphetamines in 2001, and that he had taken Efexor and Risperdal for four years until October 2001. He noted a diagnosis by Dr Baker in 2010 of a probable Adjustment Disorder with symptoms of depression and chronic pain. Dr Firestone noted that Dr Baker as well as the treating surgeons considered that depression was significantly increasing Mr Denton’s perception of pain.[21] Dr Firestone diagnosed an Adjustment Disorder with depression relating to his continuing pain and disability. He considered that Mr Denton had no work capacity given his depression and irritability. He found a 20% whole person psychiatric impairment all of which was attributable to the 2008 transport accident.
[19] Ibid 106.
[20] Ibid 112.
[21] Ibid 110.
25.On 29 November 2012, Mr Michael Dooley, orthopaedic surgeon, provided an impairment assessment to the TAC in which he noted a history from Mr Denton that he “had been generally fit and well in the past”.[22] Mr Denton complained of right shoulder girdle pain, left ankle pain, some neck pain and headache. Mr Dooley considered that in the 2008 transport accident Mr Denton suffered a soft tissue injury to the right shoulder (in terms of aggravation of underlying rotator cuff disease and of underlying osteoarthritis in the acromioclavicular joint). He expected that Mr Denton would continue to experience intermittent neck pain and right shoulder pain with a lot of activity at or above shoulder level, but that no specific treatment was required and this condition was not expected to deteriorate over time. In relation to the left ankle, Mr Dooley noted that surgery had removed some loose bodies from the ankle, but that no further treatment was required and the condition was not likely to deteriorate, although Mr Denton would likely continue to suffer some intermittent left ankle pain.
[22] PCB 181.
26.On 7 February 2013, Mr Denton settled his common law claim in respect of the 2008 transport accident for the sum of $310,000.[23]
[23] DCB 114–116.
2013 TRANSPORT ACCIDENT
27.On 24 January 2013, Mr Denton was involved in the transport accident in Victoria that is the subject of this application. In the first 2023 affidavit in support of the current application,[24] Mr Denton stated that he was in Victoria to visit his mother. He was riding his motorcycle along a freeway when a car travelling in another lane veered across the freeway and collided with him at approximately 100km/h. He lost consciousness and was taken to the Royal Melbourne Hospital in an ambulance. He was in hospital overnight and was discharged the next day.
[24] PCB 17–29.
28.Ambulance Victoria records[25] noted history from Mr Denton that he was unable to recall the exact details of the transport accident but was able to get up. His cervical spine was “aching, aggravated by palpation”. He had “aching” pain from the “moderate abrasions” to his knuckles on both hands, right knee, right ankle, right forearm, and right fifth toe. The initial diagnosis was one of “muscular/soft tissue” injuries.
[25] Ibid 42–47.
29.The Police Incident Report recorded “minor injuries to solo rider”.[26]
[26] Ibid 48.
30.Mr Denton was taken by ambulance to the Royal Melbourne Hospital. The Emergency Department Medical Record noted that he attended at 5:38pm on 24 January 2023 and was discharged the following day.[27] It was noted that at the scene of the accident he was “confused at scene, walking, headache, neck pain, abrasions esp. right UL, Lt elbow ache, LBP”.[28] On examination, it was noted that he was alert and oriented. He had “mild generalised tenderness” in the abdomen; “abrasions esp Rt FA, Rt knee, Rt ankle, Rt lat trunk; long roll lumbar tenderness; left elbow painful ROM”.[29]
[27] Ibid 63.
[28] Ibid.
[29] Ibid.
31.The Royal Melbourne Hospital summary of his treatment prepared by Dr Denise Van Vught dated 17 August 2021[30] noted that he had CT imaging of his abdomen and was admitted overnight for observation. His wounds were cleaned and dressed and he was discharged the following day. Mr Denton re-presented to the Emergency Department on 3 February 2013 with a secondary infection of his non-healing right ankle wound. He was admitted under the plastic surgical unit, given intravenous antibiotics, and on 4 February 2013 underwent debridement of the wounds and dressing. He underwent application of split skin grafts on 9 February and was discharged on 14 February 2013. He did not present further to the hospital with ongoing issues relating to his injuries. The report concluded that “at the time of discharge, his prognosis was good, and there was no reason for him not to return to employment upon healing of the wounds over a period of 4-6 weeks”.[31]
[30] Ibid 65–66.
[31] Ibid 66.
Plaintiff’s evidence
32.In his first 2023 affidavit, Mr Denton stated that his medical history includes: a history of alcohol and substance abuse; mental health problems after his brother’s death in 1996 and a relationship break up in 2000 which improved after treatment; a further deterioration in his mental health between 2005 and 2007 after another relationship broke down, and he was distressed about the lack of contact with his son; assault with a metal bar in 2008; and injuries sustained in the 2008 transport accident.
33.Mr Denton’s account of the sequelae of the 2013 transport accident may be summarised as follows. He has not worked since that accident. From 2013 to 2020 he lived off his inheritance, and since then has relied on his partner’s income.[32] He has only driven his motorcycle very occasionally, and gave up his club membership in around October 2013. His relationship with Treacy broke down. He lost his parents in 2013, and his best friend in 2014. He was grief stricken and drinking heavily. He was suicidal but also reclusive. He found it difficult to leave home to seek treatment. He saw a psychologist for a few sessions and tried Effexor but ceased taking it due to the side effects. He did not seek much medical treatment because he had become reclusive and too unwell psychologically, but also because he previously found the process stressful when dealing with the 2008 transport accident. He has had some treatment from a friend, Michelle Carnes, who knows Bowen therapy treatment. His current partner, Lynda, started bringing meals around to him and that evolved into a relationship.
[32] DCB 22.
34.Mr Denton described his current symptoms as: “constant back pain”,[33] radiating at times to his hips and groin and into his legs, which is aggravated by sitting, standing and walking and bending; “near constant” sharp neck pain which prevents him from turning his head; “very frequent” headaches which are worsened by activities such as mowing the lawn; pain in the shoulders, especially on the right side, when lifting things; frequent aching pain in his right ankle when walking or standing, which is worse than the occasional left ankle pain.[34] He was taking Norspan patches for a time after the 2013 transport accident, but became addicted to them and stopped using them. He relies on over the counter medication when he needs “something to take the edge off the pain”.[35] He also uses a TENS machine for pain relief.
[33] PCB 23.
[34] Ibid 17–29.
[35] Ibid 24.
35.At night he suffers pain, intrusive memories and nightmares relating to the 2013 transport accident which disturb his sleep. He used to enjoy cooking but can no longer do it. He does very little at home now and watches a lot of television. His sexual relationship with Lynda has been detrimentally affected by his pain and depression.
36.He used to have a large social network and enjoyed watching live music and attending drag racing events. He also used to enjoy fishing on the Murray River. He still has a boat and tried once to put it in the water since 2013 but it worsened his back pain. He used to go camping but no longer does so. He struggles to walk his dogs because he cannot handle them on the leash. He used to enjoy driving his cars, but no longer goes out much. He struggles with depression and anxiety and has withdrawn socially. He no longer showers, shaves or brushes his teeth regularly. At times, he needs help getting off the toilet because of his back pain.
37.He has lost interest in all areas of his life and has suicidal thoughts at times. His memory and concentration have been affected, to the point where he cannot recall where he left a fuel tank for repair, nor how to repair bicycle wheels (which he learned from his father at a young age).
38.He feels unable to work, whether in manual work or truck driving. In relation to truck driving, he could not manage the prolonged sitting nor the impact on his ankle pain. He feels pain in the left ankle at times when walking, but the right ankle is worse than the left. He has never used a computer before nor worked in an office. He believes that his debilitating depression and anxiety would make it difficult for him to attend a workplace and interact with other people.
39.In a supplementary affidavit sworn on 18 August 2023, Mr Denton stated that he is taking antidepressant medication which does not appear to be helping much. He has booked an appointment with a psychologist. He continues to take over the counter medications. His worst problems are his lower back, neck and right ankle. His mental health remains poor. He stated that his driving infringements and offences occurred in the aftermath of each of the 2008 and 2013 transport accidents, when he drank excessively and had mental health issues. He is eligible to apply for reinstatement of his driving licence but needs first to get an alcohol interlock device fitted to the vehicle he will drive. He is not motivated to make these arrangements because his partner drives him where he needs to go, and he does not go out much.
Lay evidence
40.Lynda Harris, Mr Denton’s partner, swore an affidavit on 5 July 2023[36] in which she stated that she was friends with Mr Denton at the time of the 2008 transport accident and that after that accident he resumed riding his motorcycle and remained active in organising fundraisers for his motorcycle club. She entered a relationship with Mr Denton in around 2014, when she used to help him out. She stated that she often observes Mr Denton in pain, whether in the back, shoulders, neck or legs. She stated that he wakes at night, and stays in bed during the day at times, which seems to make his pain worse. His domestic activities are limited by pain. He rarely leaves the house, or gardens. He has lost confidence, rarely socialises or answers his phone. He does not take care of his appearance. He walks the dogs once a week. He rarely works on the cars and motorcycles he used to work with, as he gets frustrated by pain. They have not been camping or boating together. He “is still able to have a laugh, but it is like he has lost his shine”.[37] He needs to be reminded of appointments.
[36] Ibid 30.
[37] Ibid 34.
41.Michelle Carnes, Bowen Therapist, swore an affidavit on 12 July 2023[38] in which she stated that she gave Mr Denton massages three times per year for some years since the mid-1990s, but often had no contact with him for years. She gave him massages about four times in late 2013, and then about once per month (sometimes more frequently) until 2022. The main areas she focused on were his right ankle, neck and shoulders, and lower back and hips. She was paid in kind for her services.
[38] Ibid 36–38.
42.She stated that prior to 2013, she knew him as an active, fun-loving person who enjoyed riding his motorcycle, helping people, and camping. Since the 2013 transport accident, she has found him deeply depressed and quiet, and that he appears to be in pain.
Medico-legal opinions
Surgical opinions[39]
[39] I have put to one side the report of Mr John Crock, plastic surgeon (PCB 106), as it concerns scarring of the right ankle, which is not the subject of this application.
43.Mr Arshad Barmare, orthopaedic surgeon, reported to the TAC on 22 February 2021[40] that Mr Denton described pain in the low back, both shoulders, right ankle and the neck, which could vary in intensity between 6 to 8 throughout the whole day. Mr Denton told him that, apart from the right shoulder problems, there were no pre-existing or unrelated conditions which could account for his current symptoms but that the right shoulder was functioning well prior to the 2013 transport accident. Mr Barmare concluded that as a result of the 2013 transport accident, Mr Denton had suffered a soft tissue injury to both shoulders, right ankle, lower lumbar spine and cervical musculoligamentous injury to his cervical spine. He recommended an aggressive regimen of physiotherapy for pain relief and “general optimisation”, along with a pain management protocol. Mr Barmare noted that after seven years out of work due to his physical symptoms, which also affected his daily living activities, it was highly unlikely that Mr Denton would return to his pre-injury employment.
[40] PCB 197.
44.Mr Russell Miller, orthopaedic surgeon, reported to the plaintiff’s solicitors on 20 October 2022[41] receiving a history from Mr Denton that he was unsure of a loss of consciousness in the 2013 transport accident, but that he was not working at the time, and had not returned to work. Mr Miller noted that his complaints were of “widespread, diffuse, and intermittently severe symptoms”[42] including: neck ache radiating into his shoulders and arms, with associated headaches; low back ache, which was equally severe to the neck; aching left hip; tender scar on the right foot, as well as ache in the foot causing problems with footwear, squatting, uneven ground etc.[43] He told Mr Miller that his longstanding right shoulder problem had been surgically treated and he had made a good recovery from it. Mr Denton was generally avoiding medication but was taking Panadol, Nurofen and Morphine patches.
[41] Ibid 117.
[42] Ibid 117–118.
[43] Ibid.
45.Mr Miller noted a complex mental health history. Mr Miller recommended further imaging of the left hip, spine, right shoulder and right ankle. Mr Miller considered that the injury to the spine was a musculo-ligamentous strain with aggravation of degenerative disease in the cervicothoracic and lumbar spine, with radiation into the arms and legs but no radiculopathy or neurological deficit. He considered that this injury was associated with the development of a chronic pain syndrome, requiring up to date imaging to identify specific pathology.
46.Mr Miller considered that the ongoing right shoulder symptoms are a combination of rotator cuff dysfunction, capsulitis, pathology in the acromio-clavicular joint, referred pain from the cervical spine, and manifestation of a chronic pain syndrome. Further imaging was required to better identify pathology.
47.Mr Miller considered that the left hip symptoms were referred pain from the lumbar spine, the development of a chronic pain syndrome and probable underlying arthritic disease. Further imaging was required to better identify pathology.
48.Mr Miller considered that the soft tissue injury to the right ankle and subsequent skin graft had left Mr Denton with issues with the scar, as well as a chronic pain syndrome “which influences the current clinical presentation”.[44]
[44] Ibid 122.
49.Mr Miller considered that the prognosis in respect of all these symptoms was only fair. He considered that Mr Denton’s work capacity would be affected by a number of physical restrictions, and further impacted by his chronic pain syndrome. He would be unable to return to employment involving repetitive bending, lifting, prolonged walking, standing, twisting, squatting, kneeling, walking on uneven ground and climbing. Given his education and work experience, Mr Miller opined that “a return to work would be problematic”.[45]
[45] Ibid 123.
50.Mr Miller noted, in related to Mr Denton’s mental state:
The client had prior complex psychosocial issues as outlined above. The client suffered an adverse mental state reaction including problems with anxiety and depression and the probable development of a chronic pain syndrome which will complicate the assessment and management of his condition. This requires additional assessment by a psychiatrist.[46]
[46] Ibid 122.
51.Mr Miller acknowledged that there were pre-existing right shoulder symptoms and cervical spine imaging, and that Mr Denton had developed a chronic pain syndrome after the 2013 transport accident. He concluded that the issues in the spine and left hip are substantially related to the 2013 transport accident, but that the right shoulder condition was only partially related to the 2013 transport accident.
52.On 20 May 2023, Mr Miller reported that, on review, Mr Denton told him his right shoulder and right ankle symptoms were a bit worse than when he was last seen, and that his neck/back and left hip symptoms were about the same as when he was last seen.[47] Mr Miller noted that x-rays of the left ankle and left hip on 9 May 2023 showed evidence of minor arthritic disease in each case. He noted that he had not yet received up to date imaging of the right shoulder and spine. He considered that the prognosis for the left hip was good. Without MRI of the right shoulder, he considered that prognosis was fair. He concluded in relation to the right ankle that prognosis was fair due to the presence of early arthritic disease and development of a chronic pain syndrome which needed to be assessed by a psychiatrist. He repeated the conclusions of his earlier report. He felt that conservative treatment was warranted but suggested that surgical treatment of the right shoulder and/or right ankle would depend on further imaging.
[47] Ibid 130.
53.On 13 July 2023, Mr Miller reported[48] that he reviewed MRI’s of the right shoulder, cervical spine, lumbar spine and thoracic spine, as well as the x-ray of the right ankle performed on 7 July 2023.
[48] Ibid 138.
54.Mr Miller concluded on the basis of these imaging results that there was aggravation of degenerative disease in the lumbar and cervicothoracic spine, and that ongoing symptoms in the spine and right shoulder meant that Mr Denton’s prognosis was fair, and that the long-term prognosis for the right ankle was poor.
55.Dr Terence Saxby, orthopaedic surgeon, reported to the TAC on 13 June 2023[49] that the Royal Melbourne Hospital notes recorded multiple abrasions to Mr Denton’s knee, right ankle and right forearm. CT scans of his spine were reported as normal. He was discharged to outpatient follow up for dressings. He had a skin graft for his right foot wound on 9 February 2013 and was in hospital for 5 days. The discharge summary indicated that it was unlikely that his work capacity would be affected by the right ankle injury. He did not return to the hospital with any ongoing issues concerning the skin graft.
[49] DCB 53–66.
56.Dr Saxby noted the 2008 transport accident was significant in that Mr Denton suffered injuries to his right shoulder, cervical spine and left ankle. He required surgery to his right shoulder and to the left ankle. He continued to have pain in his right shoulder, left ankle, as well as cervical pain.
57.Dr Saxby noted that Mr Denton had not worked for the past ten years. He opined that the injuries sustained in the 2013 transport accident were “quite minor”,[50] soft tissue injuries, with no significant cervical or lumbar injury, and therefore that these injuries were not preventing him from returning to work. He considered that Mr Denton’s injuries would have resolved within five months, allowing him then to return to normal work. Dr Saxby opined that at the time of assessment, there was no further treatment required, and Mr Denton was 100% fit to return to his pre-injury duties.
[50] Ibid 60.
58.He did not consider that the 2013 transport accident had aggravated the pre-existing problems to the cervical spine, right shoulder and left ankle. He noted that there was already a permanent impairment in the right shoulder and left ankle prior to the 2013 transport accident, and the clinical findings thereafter did not appear to have changed. He did not consider that the injuries sustained in the 2013 transport accident would have interfered in Mr Denton’s domestic duties or leisure activities. He considered that Mr Denton had a long and significant psychiatric history which affected his employment, domestic and leisure activities much more than the physical injury of January 2013.
59.In a supplementary report dated 24 July 2023,[51] Dr Saxby reviewed the radiological reports of 7 July 2023 and indicated that they confirmed his impression that the left ankle, right shoulder and lumbar and cervical spine conditions resulted from the 2008 transport accident and the treatment that followed.
[51] Ibid 67.
60.Dr Saxby also addressed the differences between his opinion and that of Mr Miller.[52] He noted that they largely agreed on clinical findings and assessment of the injuries, but disagreed on the cause of the conditions and of Mr Denton’s inability to return to work. They also disagreed as to whether recent x-ray of the right ankle permits a conclusion as to likelihood of the development of arthritis in the future. Dr Saxby confirmed his opinion that the present conditions affecting Mr Denton’s left ankle, cervical and lumbar spine and right shoulder relate to age-related change which were in evidence following the 2008 transport accident and continued to progress naturally. Dr Saxby based this conclusion on the hospital notes concerning the 2013 transport accident which note injuries comprising soft tissue abrasions and a right ankle injury requiring skin graft, but no significant bone or joint injury, nor any specific complaints of problems with the shoulder, spine and ankle. For this reason, he considered that there was no significant aggravation of Mr Denton’s pre-existing orthopaedic conditions by reason of the 2013 transport accident. He also concluded for this reason that the 2013 transport accident was not a significant cause of his incapacity for work. He noted that Mr Denton has not worked for ten years and that there are multiple problems preventing a return to work including mental health issues.
[52] Ibid 69.
61.On 17 August 2023, Dr Saxby provided a further supplementary report[53] in response to a request for an impairment assessment. He noted that Mr Denton sustained injuries to his right shoulder, cervical spine and left ankle in the 2008 transport accident. Given that the 2013 transport accident-related injuries were soft tissue injuries including an ankle injury requiring skin graft, but no specific treatment for cervical or lumbar spine issues, Dr Saxby considered that there was no permanent impairment relating to any physical injuries sustained in the 2013 transport accident because the conditions of the cervical and lumbar spine, right shoulder and right ankle are pre-existing conditions and have not been aggravated or injured in the 2013 transport accident.
Occupational physician
[53] Ibid 71.
62.Dr Kah Heng Lee, occupational physician, reported to the plaintiff’s solicitors on 23 June 2023[54] that Mr Denton was able to sit for 90 minutes during the consultation, and walk at a brisk pace, but could only half-squat due to back and hip pain. Based on Mr Denton’s neck, left shoulder, back, hip and right ankle symptoms, Dr Lee opined that he would require restrictions on squatting, bending, twisting, prolonged standing or walking, lifting more than 10 kg, reaching over shoulder height, repetitive shoulder movements, or repetitive neck movements. He would be fit to undertake sedentary work after vocational training. Dr Lee noted:
The major driving factors to Mr Denton’s presentation appear to be non-anatomical/non-physical. He clearly requires multidisciplinary pain management including analgesia, pain education, physiotherapy, and psychology/psychiatry support. He will also require vocational rehabilitation/supportive services.[55]
[54] PCB 140.
[55] Ibid 149.
63.On 21 July 2023, after reviewing the imaging performed on 7 July 2023, Dr Lee confirmed that his opinion remained unchanged.[56]
Neuropsychological assessment
[56] Ibid 152.
64.Mr Martin Jackson, neuropsychologist, performed a neuropsychological assessment on 5 July 2023 and reported to the plaintiff’s solicitors on 23 July 2023.[57] Mr Jackson noted that Mr Denton presented as extremely depressed, and answered questionnaires in a manner “suggestive of severe depression, extremely severe anxiety and moderate stress”.[58] After testing, Mr Jackson concluded that Mr Denton is a man:
of estimated average premorbid abilities who demonstrates intact (average or above) performance in the areas of: verbal intellectual abilities; most perceptual intellectual abilities; immediate memory span; high level attention; initial learning of information with lots of repetition and time to process information; delayed visual memory; recognition memory; well learned language skills; some executive skills; and impulse control.[59]
[57] Ibid 155.
[58] Ibid 167.
[59] Ibid 169.
65.Mr Denton performed in the low average range on testing for: delayed recall of verbal information; sequencing span; and some executive skills (visual logical thinking and letter fluency). He performed in the extremely low to borderline range on testing for: basic processing speed; some aspects of working memory (working memory span and mental arithmetic); and initial performance on memory tasks before repetition.
66.Mr Jackson concluded:
In terms of the cause of Mr Denton’s cognitive impairments, it is highly likely that his impairments are due to his current mental health condition (particularly depression). It is well documented in the scientific literature that the cognitive consequences of significant depression are slowed processing speed with a secondary impact on new learning. This is exactly the profile that Mr Denton is demonstrating.
It is unlikely that he has any cognitive impairment due to a traumatic brain injury……there was no loss of consciousness or brain injury in the first accident of 2008…..it is unclear whether there was any loss of consciousness in the second accident of 2013, although there was a short period of confusion suggesting a short period of posttraumatic amnesia. As such, he would be rated as having sustained a mild concussion or mild traumatic brain injury in the accident of 2013. However, a person would be expected to recover from such a minor injury in a relatively short period of time. As such, it is clear that Mr Denton’s current cognitive impairments….are not related to a head injury or traumatic brain injury and are clearly related to his current mood disorder.[60]
[60] Ibid 170.
67.Mr Jackson concluded that the prognosis of Mr Denton’s neuropsychological/cognitive condition depended on any improvement in his mental health condition. However, his slowness to process information and the fact that he gets overwhelmed so easily would made him unfit to return to his pre-injury work as a truck driver.
Psychiatric opinions
68.Dr Gregory White, psychiatrist, reported to the plaintiff’s solicitors on 20 September 2021 that he reviewed Mr Denton’s medical records from the Essendon Medical Centre and noted entries in August 2009, December 2011, and June and July 2012, in which Mr Denton described very heavy drinking, significant depression and chronic pain.[61] An entry on 2 April 2013 recorded heavy alcohol use, break up in a relationship, and low mood. He noted the opinions of Dr Firestone (November 2012) and Dr Lewis (March 2020).
[61] Ibid 80.
69.Dr White noted that Mr Denton admitted a history of amphetamine use and denied any history of alcohol problems prior to the 2008 transport accident, but was unable to recall the exact extent or duration of his psychiatric symptoms between the transport accidents in 2008 and 2013. He denied significant long-term anxiety, instability of mood, impulsivity, obsessionality, antisocial behaviour, anger management problems or self-esteem issues. He was unable to give dates or details regarding his psychiatric history and use of alcohol and illicit substances. However, he was confident that after 2008 he had not suffered any memory difficulties or intrusive memories or flashbacks. In addition, Mr Denton said that he did not work after the 2008 accident for a few years not because of mental health difficulties but because of his physical injuries. Mr Denton told Dr White that in the 2013 transport accident he lost consciousness for about an hour and spent around three weeks in hospital; that he had been off work since then because of the pain in his back, shoulders, neck and leg; and that he had sustained a head injury in that transport accident which affected his memory and concentration.[62] Mr Denton told Dr White that he was now totally unfit for any employment because of his psychiatric symptoms but also because of the chronic pain and physical disability following the 2013 transport accident.
[62] Ibid 83.
70.Dr White diagnosed post-traumatic stress disorder, and major depressive disorder, single episode, as conditions which “appear to have been precipitated by a significant traumatic motorbike accident in 2013”,[63] and were possibly exacerbated by the ending of a relationship due to his post-accident symptoms. Dr White noted that predisposing factors included: the suicide of his brother; the Adjustment Disorder suffered as a result of the 2008 transport accident; the death of his mother around the time of the 2013 transport accident; and the estrangement from his surviving brother in the context of settlement of his parents’ estate. Dr White considered that compounding factors included the “significant ongoing impacts from the psychiatric and physical symptomatology upon his relationships, enjoyment of life, activities of daily living and work capacity”.[64]
[63] Ibid 91.
[64] Ibid 92.
71.Dr White noted the possibility of an additional neurocognitive disorder resulting from the “head injury apparently suffered at the time of the 2013 accident”,[65] and recommended that this be investigated. Dr White recommended psychiatric treatment with medications, as well as ongoing psychological counselling.
[65] Ibid 93.
72.On the basis of the material he was provided and his assessment of Mr Denton, Dr White concluded that Mr Denton was totally incapacitated for work due to his psychiatric condition and symptoms, the majority of which resulted from the 2013 transport accident. Dr White assessed a 25% psychiatric whole person impairment, of which 5% related to pre-existing impairment; and 10% related to impairment secondary to physical injury.[66] Dr White noted that Adjustment Disorders tend to remit over time, and so if it had not been for the physical injuries sustained in the 2008 accident, Mr Denton might have been psychiatrically capable of working, but for the occurrence of the 2013 transport accident and its psychological sequelae.
[66] Ibid 97.
73.On 22 November 2022, Dr David Weissman, psychiatrist, reported to the plaintiff’s solicitors receiving a history from Mr Denton to the effect that his right shoulder and left ankle injuries were caused by the 2008 transport accident but were aggravated by the 2013 transport accident. Mr Denton told him that in the 2013 transport accident he suffered injuries to the head, both shoulders, lower and middle back, both hips and right ankle.[67] He was not taking any regular medication nor having any treatment. He described his concentration and short-term memory as very poor and said that he only washed and dressed once or twice per week because he could not be bothered. He did not like leaving the house. He referred to intermittent passive suicidal ideation. He could not stand for long periods and did no cooking or shopping. He told Dr Weissman that prior to the 2013 transport accident, he could manage all his activities of daily living and domestic chores and was just getting his “life back on track after being off work for so long”.[68] He admitted to being depressed at that time but felt that getting a new job boosted his mood, as he was earning money. Currently, he could only walk 500 metres before his legs and back were aching. He could not lie on his side due to the pain in his hips. When driving long distances, he would need to stop and stretch his back. He said that he had bad dreams three or four times per week about both transport accidents; and avoided riding his motorbike due to anxiety which related to both transport accidents. He had thoughts and flashbacks about the 2013 transport accident “every day” and that he felt that this accident was worse than the 2008 transport accident because he sustained a head injury and had poorer memory and concentration since then.[69] He said his alcohol intake increased significantly after both transport accidents.
[67] DCB 21.
[68] Ibid 23.
[69] Ibid 25.
74.Dr Weissman noted that only two months before the 2013 transport accident, Dr Firestone had diagnosed a probable Adjustment Disorder with depression relating to continuing pain and disability from the 2008 transport accident. Dr Weissman also noted what said in his 2011 affidavit concerning the effects of the 2008 transport accident.
75.Mr Denton told Dr Weissman that he was affected by his brother’s suicide in 1996 and had some psychological treatment as well as being prescribed some antidepressant medication.
76.Dr Weissman noted that Mr Denton:
…seemed to be a somewhat impressionistic historian. He seemed to downplay pre-existing physical and psychiatric symptoms and issues (from the first transport accident, and other matters) and focus on the impact of the second/subject transport accident.[70]
[70] Ibid 28.
77.Dr Weissman noted that the quality of his assessment and report very much depended on the “quality, reliability, credibility, and validity” of the history given by Mr Denton.[71] He noted that Mr Denton had sustained “numerous significant and substantial losses” including the deaths of both parents, his older brother’s suicide, and estrangement from his younger brother and from his teenage son.[72]
[71] Ibid 32.
[72] Ibid.
78.Dr Weissman considered that Mr Denton suffered from a number of pre-existing and unrelated conditions: Persistent Depressive Disorder; Antisocial personality traits; past polysubstance abuse; and a separate chronic Adjustment Disorder with traumatisation features due to the 2008 transport accident.[73]
[73] Ibid.
79.Dr Weissman considered that as a result of the 2013 transport accident, Mr Denton was suffering from: mild and residual traumatisation features, a mild chronic Adjustment Disorder with Depressed and Anxious Mood, generalised anxiety, and agoraphobia, which represented a “mild aggravation of moderately severe, pre-existing/premorbid Persistent Depressive Disorder with anxious distress”.[74]
[74] Ibid 33
80.He assessed a whole person psychiatric impairment of 25%, of which 17% was pre-existing and unrelated to the 2013 transport accident, and of which 8% was a combination of direct and secondary reactive consequences of the 2013 transport accident.[75] He considered that Mr Denton’s premorbid and unrelated psychiatric prognosis was “very poor”, and that “his current overall psychiatric state is much more contributed to by pre-existing and unrelated factors than the second/subject transport accident”.[76]
[75] Ibid 35
[76] Ibid 36.
81.He considered that given Mr Denton’s “personality style, disruption and vulnerabilities”, [77] he would not benefit from either psychotherapy or psychotropic medication. He considered that some psychiatrically based factors contribute to his apparent cognitive dysfunction but that neuropsychological testing would be needed to confirm if there were any neurocognitive disorders flowing from the 2013 transport accident.
[77] Ibid.
82.Dr Weissman considered that Mr Denton was still suffering from a significant mixed depressive syndrome immediately before and at the time of the 2013 transport accident. He did not consider that there was any psychiatric incapacity for work flowing from the 2013 transport accident.
83.On 19 March 2020, Dr Justin Lewis, a psychiatrist, reported to the TAC that Mr Denton told him he struggled with significant pain symptoms after the 2008 transport accident, but was still able to ride his motorcycle, and that the 2013 transport accident significantly re-aggravated pre-existing pain symptoms in the neck and lower back, which have become chronic, and that he also had pain in his shoulders, ankle and hands.[78] He described symptoms of depressed mood secondary to pain, physical restrictions, loss of independence and of previous recreational activities, and said that he spent most of his time on his back to manage his pain. He did not have a regular sleep pattern, and his sleep was often interrupted by pain symptoms. He was only able to do very light domestic duties and, due to his pain, only very occasionally rides a motorcycle, but was very anxious when he doing so. He had become socially isolated. He denied nightmares relating to the 2013 transport accident, nor any re-experiencing, prominent avoidance or hyperarousal symptoms. He was not receiving mental health treatment, nor taking analgesic medication. He noted that Mr Denton “denied any past psychiatric history [or] any relevant medical history”,[79] but reported past use of amphetamines and past heavy alcohol abuse.[80] He denied any suicidal ideation. He presented as a person who had lost confidence. Although his immediate recall was normal, Dr Lewis considered that neuropsychological testing would give a better understanding of his current cognitive profile.
[78] PCB 189.
[79] Ibid 191.
[80] Ibid.
84.Dr Lewis concluded that Mr Denton presented with an aggravation of a pre-existing Adjustment Disorder with depressive features, which was initially precipitated by the 2008 transport accident and was further aggravated by the 2013 transport accident. He was likely to experience ongoing mood difficulties in response to pain and physical restrictions and would benefit from a trial of antidepressant medication. Dr Lewis considered that Mr Denton is completely incapacitated for employment on a background of lowered mood, poor motivation, sleep disturbance and cognitive difficulties.
85.Dr Gregor Schutz, psychiatrist, reported on 10 June 2023 to the defendant’s solicitors that he took a history from Mr Denton that by the time of the 2008 transport accident, he had no active mental health issues.[81] In the 2008 transport accident, he suffered injuries to the left ankle and right shoulder which left him with pain that “had subsided to some degree by 2011”.[82] He reported that his mental health was poor for a few years after 2008, and he had some anxiety, but that “he did not develop any nightmares, flashbacks, panic attacks or driver-related anxiety”.[83] His mental health was good from around mid-2012 in the context of a new relationship, his anxiety and pain resolved, and he was able to return to work. He reported he had been charged with assault and unlicensed driving in the past. He reported using speed and cocaine while driving trucks interstate. He drank heavily after the 2008 transport accident but was not drinking at all at the time of the 2013 transport accident. After the 2013 transport accident, he had pain in both ankles, lower back, neck and headaches. He was able to shower, dress and toilet himself. He had given up camping, motorbike riding and cooking. He had become forgetful, mainly watched TV, and could become very depressed by his pain. He said he would not act on his suicidal thoughts. He had lost motivation, enjoyment and interest and had become tearful and irritable, with reduced appetite. He reported some nightmares, panic attacks and anxiety. He was able to drive a car, but was anxious about riding a motorcycle. He reported no unrelated stressors by 2013 but admitted to being affected by not having contact with his son. Mr Denton reported having become socially withdrawn, unable to do any chores, and being too anxious to leave home to apply for jobs. He was showering only once per week or so.
[81] DCB 39.
[82] Ibid.
[83] Ibid.
86.On examination, Dr Schutz found no evidence of deliberate minimisation or exaggeration. Mr Denton’s affect was mildly restricted, and his cognition was grossly intact. Dr Schutz diagnosed a moderate Adjustment Disorder with depressed mood, as well as Post-Traumatic Stress Disorder, flowing from the 2013 transport accident.[84] The post-traumatic symptoms included nightmares, flashbacks and panic attacks, anxious avoidance, possible dissociation and hypervigilance.
[84] Ibid 42.
87.Dr Schutz opined that after the 2008 transport accident Mr Denton suffered from a chronic Adjustment Disorder with anxious and depressed mood, but his condition improved in 2012 in the context of a new relationship. Dr Schutz noted that this improvement was noted by the general practitioner in January 2012. Dr Schutz stated that, assuming that Mr Denton’s account was reliable, there was no pre-existing condition at the time of the 2013 transport accident.
88.Dr Schutz felt that Mr Denton was permanently unable to work as a truck driver due to his cognitive difficulties flowing from his mood and anxiety pathology, and due to his ongoing significant symptomatology. He would be unable to attend any work reliably. His days were unstructured, he had withdrawn socially, and there was therefore a significant impact on his leisure activities. Dr Schutz considered that, for personality reasons, Mr Denton would not benefit from psychological treatment, and he noted that Mr Denton was not motivated to take psychotropic medication.
89.On 17 July 2023, Dr Schutz provided a supplementary report[85] after considering further expert material provided by the TAC (the reports of Dr Weissman, Dr White, Dr Firestone, Dr Lewis, Dr Saxby and Mr Dooley), as well as Mr Denton’s affidavit of 7 September 2011.
[85] Ibid 48.
90.Dr Schutz considered that, as Dr Firestone had found a 20% permanent whole person psychiatric impairment two months prior to the 2013 transport accident, it would “seem very unlikely” that Mr Denton’s psychiatric condition had resolved by the time of the 2013 transport accident.[86] Dr Schutz concluded:
As such, I would place greater weight on these assessments than the account of the claimant, and I have less faith in his reliability as a historian.
It is now my modified opinion that he more likely than not did have a significant pre-existing condition at the time of the 2013 accident; this is best classified as a chronic Adjustment Disorder with depressed mood and features of traumatisation. This has flowed on mainly from the 2008 accident. I would state that it is reasonable to conclude that there has been an aggravation of his mood condition subsequent to his worsening experience of pain, which he attributes to the 2013 accident. His symptoms of traumatisation have additionally been exacerbated by the 2013 accident. They may at times meet the criteria for PTSD.
I would state that the magnitude of the aggravation is likely to be impossible to ascertain with any accuracy, particularly in the absence of significant treater records and in the presence of a somewhat unreliable historian.[87]
[86] Ibid 50.
[87] Ibid.
91.In a further supplementary report dated 16 August 2023, Dr Schutz assessed a whole person psychiatric impairment of 25%, of which 15% was pre-existing, 5% was secondary to his physical injuries and 5% was non-secondary. [88]
[88] DCB 51–52.
Findings and Reasons
Should the application be considered solely under paragraph (c) of the definition of serious injury?
92.It was submitted on behalf of the defendant that as the dominant cause of Mr Denton’s current condition is the mental and psychological factors flowing from the 2013 transport accident, to be considered in the context of his pre-existing psychological condition, his application should be determined solely under sub-paragraph (c) of the definition of serious injury.
93.I note that there is no expert opinion to the effect that Mr Denton’s pain, either in the right ankle, or the spine, is somatoform in nature.
94.On the other hand, my task in determining the application is complicated by Mr Denton’s case being run on the basis that he has not worked since 2013 due to both his physical limitations from his spine and right ankle injury, and his psychiatric state.[89] The physical injuries outlined in his affidavit include his neck, back, right ankle and both shoulders especially on the right side. I consider that Mr Denton has not ascribed his physical inability to work to any permanent impairment of the function of either the right ankle or the spine, taken separately.
[89] Transcript of Proceedings, Denton v TAC [2023] VCC 1806 (County Court of Victoria, CI-22-00944, Judge Davis, 28 August 2023) (‘T’) 6.6–12. (ID McDonald KC).
95.In any event, I consider that the weight of the expert evidence tends to the conclusion that in the 2013 transport accident he suffered organic injury to the right ankle (abrasions and a wound requiring skin graft) and spine (whether by soft tissue injury to the neck/back and/or aggravation of pre-existing cervical and lumbar degeneration) which caused him pain in the right ankle and/or spine, and that all of his pain (including the pain emanating from his left hip, left shoulder and left ankle which are not the subject of this application) may have caused a psychological reaction (in the form of an Adjustment Disorder). For this reason, I consider it appropriate to consider each of the alleged injuries under sub-paragraph (a) of the definition of serious injury.
Reliability of Mr Denton as historian and witness
96.I found Mr Denton to be a genuine but unreliable witness. He admitted in court to his poor memory. He gave very vague answers to many questions in cross-examination. He gave inconsistent histories to various examining experts, some of whom commented that he was a poor historian. This vagueness and poor memory, along with the inconsistencies between histories given to various doctors, is explicable by the neuropsychological opinion of Mr Jackson, which I accept, to the effect that Mr Denton did not suffer any brain injury in the 2013 transport accident and that his current cognitive difficulties, particularly in working memory span, result from his mood disorder.
97.On the other hand, I note that in cross-examination Mr Denton made a number of concessions concerning the impact of the 2008 transport accident upon him. He agreed that in the 2008 transport accident he suffered injuries to the neck, right shoulder and left ankle, as well as psychiatric injury, and that complained of depression to Dr Firestone in November 2012. He agreed that as at January 2013 he had not made a full recovery from the injuries suffered in the 2008 transport accident. He also agreed that a good portion of the sum he received in the settlement of his common law claim in respect of the 2008 transport accident was linked to his representation that he was unable to return to truck driving due to the sequelae of the 2008 transport accident.
98.I indicate that Mr Denton’s unreliability as historian and witness, has made it difficult to evaluate the various limbs of his application, in particular to reach conclusions about the impact of the 2013 transport accident on his right ankle, spine, and psychiatric condition, considered separately.
Lay affidavits
99.I found the affidavit of Michelle Carnes of limited use, as she provided massage therapy to Mr Denton’s right ankle, across his neck and both shoulders, and across his lower back and hips, and last treated him in 2020. Although she stated that before 2013, she knew Mr Denton as a hardworking person, the evidence from Mr Denton was that he did not work for over four years after the 2008 accident, and the (albeit limited) opinion of Dr Firestone was that he was incapacitated for employment due to psychiatric factors in November 2012.
100.Similarly, the affidavit of Lynda Harris was of limited use. She commenced her relationship with Mr Denton in 2014. Her assertion that she knew Mr Denton in 2008 and that he remained socially active and involved in the motorcycle club after the 2008 transport accident is at odds with the overall picture contained in Mr Denton’s 2011 affidavit (to the effect that he had stopped most of his social activities) and to the complaint to Dr Firestone in November 2012 that he was very depressed and in pain.
Impairment of the function of the spine – sub-para (a)
101.Analysis as at the date of hearing of the current impact of any injury to the spine in the 2013 transport accident requires comparison with Mr Denton’s situation immediately prior to that transport accident. To the extent that there is an aggravation of a pre-existing impairment, Mr Denton must not only show that the aggravation injury is, in its consequences, a serious injury, but also that the aggravation injury is the result of the 2013 transport accident.
102.I consider that, in the context of his representation as at February 2013, after the 2013 transport accident, that he was unable to return to work as a truck driver by reason of injuries suffered in the 2008 transport accident, Mr Denton’s brief return to work between 29 October 2012 and 20 January 2013,[90] is not determinative of any permanent incapacity (whether physical or psychological) for employment arising as a result of the 2013 transport accident, but is merely one piece of evidence to be viewed in the context of all of the evidence.
[90] PCB 207–211.
103.I turn to a comparison between the condition of his spine before and after the 2013 transport accident.
Condition of the spine (lumbar and cervical) prior to 2013 transport accident
104.CT scan of the brain on 24 August 2009 was reported as revealing no cause for his headaches apart from “minimal features of right middle ethmoidal sinusitis”.[91]
[91] DCB 15.
105.An MRI of the cervical spine on 4 May 2010 showed mild lower cervical disc space degenerative change with no disc bulge or focal cord/nerve root compression.
106.Mr Denton’s evidence concerning the impact of the 2008 transport accident is outlined at paragraphs 19-21 above.
107.On the medical evidence, there was a pre-existing injury to the right shoulder and neck, with headaches, flowing from the 2008 transport accident. Dr Baker (2010) diagnosed an injury to his right shoulder and soft tissue injuries to his neck with associated headaches as a result of the 2008 transport accident.[92] Dr Baker also recorded a prior history of a low back injury from which Mr Denton said he had fully recovered. Dr Baker considered that after right shoulder and left ankle surgery Mr Denton would be fit to return to truck driving work.
[92] Ibid 92.
108.Mr Dooley (in 2012), diagnosed soft tissue injuries to the right shoulder and cervical spine which were likely to continue to produce intermittent pain in the right shoulder and neck. He considered that Mr Denton would not require further treatment and retained a work capacity but could not do heavy physical work or work involving at a lot of activity at shoulder height or walking for long periods on uneven ground.
109.In light of the radiology concerning the cervical spine, and the injury to the right shoulder (with associated neck pain and headaches) which required surgery but left Mr Denton with permanent restrictions, I conclude that although he in fact returned to work briefly in late October 2012, he continued to suffer pain and restrictions in the cervical spine with related symptoms in the neck and right shoulder. This is consistent with the representations made at the time he settled his claim with the TAC in early 2013, some two weeks after the 2013 transport accident.
Condition of the lumbar and cervical spine after the 2013 transport accident
110.I note that the Ambulance Victoria notes relating to the 2013 transport accident record a complaint, among other things of pain in the cervical spine, and that the Emergency Department discharge summary includes a complaint of neck pain and lumbar back pain.
111.A CT scan of the brain and cervical spine on 24 January 2013 was reported as showing no acute brain abnormality and, in the cervical spine, degenerative changes with mild narrowing of the left C2-C3, right C3-4, right C4-5 exit foramina.[93]
[93] PCB 69.
112.A CT scan of the lumbar spine on the same day was reported as showing minor degenerative changes with anterior osteophyte formation and L5-S1 foraminal stenoses.[94]
[94] Ibid 70.
113.An MRI of the right shoulder on 7 July 2023 revealed “mild AC joint widening and degenerative change, ? postsurgical……supraspinatus and infraspinatus tendinosis without discrete tear”.[95]
[95] Ibid 74.
114.An MRI of the cervical spine on the same day was reported as revealing no high grade canal stenosis, but there was foraminal narrowing on the right, most pronounced at C3/4,C4/5 and C7/T1, and “on the left most pronounced C7/T1 and C2/3 potentially compromising respective exiting nerve roots”. [96]
[96] Ibid 75.
115.Mr Denton acknowledged that, apart from massage therapy from Ms Carnes, which ceased in 2020, he has not been prescribed any medication nor sought any other treatment in respect of his spine.
116.As there was no relevant evidence from any treating doctors, I turn to the medico-legal evidence concerning the impact of the 2013 transport accident on the function of the spine, which was to the following effect.
117.Mr Miller noted the imaging results of the cervicothoracic and lumbar spine taken in July 2023 which showed degenerative disease in those parts of the spine, and concluded that, against the background of years of physical work, Mr Denton suffered a musculo-ligamentous strain and aggravation of the pre-existing degenerative disease as a result of the 2013 transport accident, with the associated development of a chronic pain syndrome. Mr Miller imposed a set of restrictions in respect of a number of body parts (left hip, right shoulder) which are not the subject of this application but which constrained repetitive use of the right arm, lifting weights of more than 2 kgs, prolonged walking, standing, twisting turning, kneeling squatting, walking on uneven ground and climbing.[97] In terms of the spine, the restrictions included no repetitive bending or lifting more than 5 kgs, and frequent shifting of posture.
[97] Ibid 123.
118.Dr Saxby noted that the injuries sustained in the 2013 transport accident were quite minor soft tissue injuries, not involving significant cervical or lumbar injury, nor aggravation of pre-existing problems to the right shoulder or cervical spine, but rather were age-related degenerative changes which were present after the 2008 transport accident and continued to progress naturally. He also noted that that was already a permanent impairment in the right shoulder before the 2013 transport accident. He considered that the 2013 injuries would not have interfered with Mr Denton’s domestic duties or leisure activities, and ought to have permitted a return to work in pre-injury duties within five months. Dr Saxby reviewed the radiological reports of 7 July 2023 and noted that the right shoulder imaging was consistent with the surgery undertaken on the right shoulder for the 2008 injury. He noted that the imaging of the cervical spine showed some foraminal narrowing at three levels but no high-grade stenosis.
119.Dr Saxby concluded that “the only real permanent injury from January 2013 appears to be the soft tissue injury to the right ankle which required split skin grafting”.[98] He considered that there was no permanent impairment relating to any physical injuries sustained in the 2013 transport accident.
[98] DCB 70.
120.Dr Lee, occupational physician, considered, together, Mr Denton’s symptoms in the neck, left shoulder, back, hip and right ankle, and imposed a number of restrictions, but still felt that Mr Denton retained a capacity for sedentary work after pain management rehabilitation and vocational training. He noted the major driving factors to Mr Denton’s current complaints of pain in the neck, left shoulder, back, hip and right ankle were non-anatomical.
121.From the above, I conclude that Mr Denton had a neck problem - involving pain and restrictions – from 2008 right up to the occurrence of the 2013 transport accident and this was one of the reasons given by him for his inability to work. I consider that part of this pain was related to the right shoulder pain, which was present from 2008 and required surgery.
122.I am unable to be satisfied that any aggravation of the pre-existing degenerative condition of the lumbar and cervical spine caused by the 2013 transport accident, even when amplified by psychological factors (such as aggravation of a chronic Adjustment Disorder resulting from the 2008 transport accident, as suggested by Dr Firestone, Dr White, Dr Weissman, Dr Lewis and Dr Schutz) meets the narrative test for serious injury due to the following factors:
· the history of physical work undertaken by Mr Denton prior to 2008;
· the pre-2008 complaints of back pain;
· the cervical spine issues flowing from the 2008 transport accident, which partly accounted for a claimed reduced work capacity;
· the likelihood that at least part of the neck pain currently complained of is related to the pre-existing right shoulder injury (from the 2008 transport accident);
· the relatively minor nature of the organic injuries suffered in the 2013 transport accident;
· that Mr Denton has not seen any specialists for his spine symptoms;
· that Mr Denon has sought no treatment at all since he ceased massage therapy in 2020 and only takes Panadol/Nurofen intermittently, on a month on, month off basis for a combination of all of his pain (in the spine, right ankle, both shoulders and left ankle);
· the absence of objective evidence about the disabling effect of the pain in the spine;
· the fact that that when considering a return to work, Mr Miller’s opinions conflated the impact of symptoms in the right shoulder and left hip with those of the spine and the right ankle;
· the current opinion from Dr Saxby, which I prefer, to the effect that there is no permanent impairment of the function of the spine relating to the 2013 transport accident and that the accident is not a significant cause of Mr Denton’s inability to return to work;
· the surgical (Mr Miller) and occupational (Dr Lee) medical evidence to the effect that Mr Denton’s current clinical presentation is amplified or affected by his psychological state, but which fails to disentangle the impact of the injury to the spine from all his other current physical injuries;
· the unanimous psychiatric opinion to the effect that Mr Denton was suffering a significant Adjustment Disorder in response to pain and disability flowing from the 2008 transport accident;
· the possibility that Mr Denton’s failure to return to work for ten years may be due to other reasons, such as living off his inheritance until 2020 and then from his partner’s earnings; or not wanting to work.
123.For the above reasons, the claim under sub-para (a) in respect of the spine fails.
Impairment of the function of the right ankle – sub-para (a)
124.There was no evidence of any pre-existing right ankle issues.
125.An X-ray of the right ankle on 24 January 2013 revealed a posterior bony fragment “is likely longstanding”.[99] A further x-ray on 3 February 2013 noted confirmed the likely longstanding nature of the bony fragment.[100]
[99] PCB 71.
[100] Ibid 72.
126.On the evidence, I find that Mr Denton suffered a soft tissue injury to the right ankle in the 2013 transport accident in the form of an abrasion that did not heal and required skin grafting but no significant bone or joint injury.[101] The ankle injury required no other treatment, nor has Mr Denton had any further treatment for it. Mr Miller opined that Mr Denton had been left with issues with the scar (which is not relevant to the present application) and a chronic pain syndrome “which influences the current clinical presentation”.[102] After reviewing the right ankle x-ray taken in July 2023, Mr Miller indicated that Mr Denton’s prognosis was poor due to the presence of early arthritic disease and his development of a chronic pain syndrome. Dr Saxby considered that there was no permanent impairment to the function of the right ankle and that the right ankle injury was not a significant cause of Mr Denton’s inability to return to work.
[101] DCB 70.
[102] PCB 134.
127.In the light of the fact that the claimed injury to the right ankle consisted of an abrasion or soft tissue injury which required skin grafting but no other treatment, I am unable to be satisfied that the presence of early arthritic disease in the right ankle is causally related to the 2013 transport accident. Mr Miller’s opinion as to physical restrictions was heavily reliant on grouping all of Mr Denton’s current physical symptoms (left hip, spine, right shoulder and right ankle) together and is therefore of limited assistance. Mr Miller’s opinion that Mr Denton had developed a chronic pain syndrome in response to all of his injuries to be assessed by a psychiatrist is also of limited assistance. However, even accepting that Mr Denton continues to suffer from right ankle pain flowing from the soft tissue injury sustained in the 2013 transport accident, and that there may be amplification of such pain due to the development, or aggravation of an Adjustment Disorder (which is a response to all of his physical injuries, including those sustained in the 2008 transport accident), I am unable to be satisfied of any impact of this organic injury, taken alone, on his work capacity or pain and suffering. For these reasons, I am not satisfied that Mr Denton has satisfied the narrative test for serious injury. For these reasons, his application under para (a) in respect of the right ankle fails.
Psychiatric injury – sub-para (c)
128.Determination of this limb of the application requires comparison of Mr Denton’s psychological condition prior to the 2013 transport accident with his condition as at the date of hearing. Mr Denton’s unreliability as an historian and witness is particularly relevant to the assessment of this limb of his application. This unreliability flows, according to the neurological assessment, from his psychiatric state, which makes this determination all the more difficult.
129.Mr Denton asserts that he was working and functioning at a reasonable level psychologically at the time of the 2013 transport accident, and that since the transport accident, he has suffered major psychological deterioration. However, while his 2011 affidavit fully canvasses the psychological consequences of his history and the impact of the 2008 transport accident, I consider that his 2023 affidavits underplay the impact of that first accident and his psychological history. In addition, his evidence is at odds with the psychiatric and psychological assessments of Dr Firestone and Amy Hede in 2012. I prefer that evidence to Mr Denton’s recollections of his mental state prior to the 2013 transport accident.
130.I note that Dr Schutz and Dr Weissman doubted the accuracy of the histories given to them.
131.Given the unreliability of Mr Denton as an historian and witness, I have given significant weight to the expert psychiatric opinion, whilst at the same time acknowledging the limitations of opinions based at least partly on the histories given by Mr Denton.
132.The expert evidence is to the effect that, as at the date of the hearing, Mr Denton’s psychological state, however characterised, is poor. The weight of that expert evidence (from Dr White, Dr Weissman, Dr Lewis, and Dr Schutz) considered that Mr Denton had a significant psychological condition (at the very least, in the form of an Adjustment Disorder with depression) prior to the 2013 transport accident, which was caused by his reaction to the physical injuries caused in the 2008 transport accident. In November 2012, Dr Firestone considered that he had no work capacity on psychiatric grounds due to the impact of the 2008 transport accident.
133.The weight of the current psychiatric opinion (Dr Lewis, Dr Weissman, Dr Schutz) is that there has been some aggravation of his pre-existing Adjustment Disorder with depressive features due to the 2013 transport accident. Dr White, Dr Lewis and Dr Schutz opined that Mr Denton has no work capacity due to his psychiatric condition/s.
134.Dr Weissman is the only psychiatrist to fully consider Mr Denton’s pre-existing, albeit unrelated conditions, which he identified as: moderately severe, persistent depressive disorder with anxious distress; antisocial personality traits; past polysubstance abuse; and a separate chronic Adjustment Disorder with traumatisation features due to the 2008 transport accident.[103] He provided cogent analysis of the contribution of those conditions to Mr Denton’s current presentation. He found that the 2013 transport accident caused “a mild aggravation of moderately severe, pre-existing/premorbid persistent depressive disorder with anxious distress”.[104] He considered that Mr Denton’s pre-existing conditions made his psychiatric prognosis “very poor” and concluded that his “current overall psychiatric state is much more contributed to by pre-existing and unrelated factors than the second/subject transport accident”.[105] He considered that there was no psychiatric incapacity for work resulting from the 2013 transport accident.
[103] DCB 32.
[104] Ibid 33.
[105] Ibid 36.
135.I note that Dr Schutz was unable to elucidate the consequences of this aggravation on Mr Denton, concluding that “the magnitude of the aggravation is likely to be impossible to ascertain with any accuracy, particularly in the absence of significant treater reports and in the presence of a somewhat unreliable historian”.[106]
[106] Ibid 50.
136.Dr White, Dr Schutz and Dr Weissman assessed a 25% whole person psychiatric impairment. Dr White, who received limited information from Mr Denton of any past medical or psychiatric history, found that there were no relevant pre-existing psychiatric factors before the 2013 transport accident, and attributed 20% of Mr Denton’s whole person psychiatric impairment of 25% to the 2013 transport accident. On the other hand, possessed of a full history of Mr Denton’s prior psychological and medical background, Dr Weissman and Dr Schutz respectively apportioned 8% and 10% of the current psychiatric impairment to the 2013 transport accident. I prefer the opinions of Dr Weissman and Dr Schutz in this regard because they had details of the relevant pre-existing history.
137.In relation to work capacity, I acknowledge that, on Mr Denton’s own evidence, there may be other, non-psychiatric factors which contribute to the fact that he has not worked since 2013. One of these is that he has not sought work nor needed to work because he lived off his inheritance between 2013 and 2020 and thereafter relied on his partner’s income.
138.Leaving those matters aside, and doing the best I can on the expert material before me, and particularly the opinions of Dr Weissman and Dr Schutz, even assuming that Mr Denton’s psychiatric condition was aggravated by the 2013 transport accident, I am unable to be satisfied that the magnitude of any such aggravation satisfies the narrative test for serious injury under sub-paragraph (c) of the definition of serious injury. In other words, I am not satisfied that Mr Denton suffers from a severe mental or behavioural disorder that arose from the 2013 transport accident.
139.For these reasons, the application under sub-para (c) fails.
CONCLUSION
140.Mr Denton’s application is dismissed. I reserve the question of costs.
0
5
0