Dichoso v TAC
[2025] VCC 601
•8 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-24-01069
| REYNALDO DICHOSO | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 7 May 2025 | |
DATE OF JUDGMENT: | 8 May 2025 (ex-tempore) | |
CASE MAY BE CITED AS: | Dichoso v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 601 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Injury to the spine – aggravation of lumbar spondylosis – injury and its impairment consequences can be separated from the pre-existing spinal condition – injury and its impairment consequences can be separated from medical conditions – considered more than significant or marked
Legislation Cited: Transport Accident Act 1986 (Vic); Evidence Act2008
Cases Cited:Petkovski v Galletti [1994] 1 V.R. 436; Ramazan Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Makita v Sprowles [2001] NSWCA 305; Transport Accident Commissionv Zepic [2013] VSCA 232
Judgment: Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms P Pilipasidis SC with Ms A Macaskill | Henry Carus & Associates TAC & Compensation Lawyers |
| For the Defendant | Mr S Jurica with Ms R Boyce | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1Mr Reynaldo Dichoso is a 74 year old former bus driver, who has had a long history of back pain, stretching from at least 2007. He alleges that on 24 August 2018, when driving a friend's van, he was involved in a motor vehicle accident, which resulted in injury to his spine, both cervical and lumbar. By reason of the decision in Transport Accident Commission v Zepic,[1] those injuries are aggregated to be claimed as impairment of one body function, being the spine.
[1] [2013] VSCA 232
2He claims that his spinal injury aggravated underlying degenerative changes, which have caused impairment consequences to him which are more than significant or marked. In that way, it is his claim that he has sustained a serious injury for the purposes of s 93(17)(a) of the Transport Accident Act.
3The defendant disputes both Mr Dichoso's claims as to whether an injury was caused as a result of the motor vehicle accident and, if it were not successful in that argument, then it argued that the impairment consequences he complains of do not satisfy the relevant test of being considered a serious injury.
4As part of that, the defendant puts in issue Mr Dichoso's reliability as a witness, and also draws attention to the fact that he suffers from numerous other conditions which, it alleges, swamp the identification of any alleged impairment consequences related to his spine injury.
5Both parties agreed that the case revolves around the correct application of the principles outlined in Petkovski v Galletti[2] where the Court stated:
“The accident did not cause the pre-existing condition. At this stage of the process, the applicant must establish what injury was caused by the accident. Where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of the body function before and after the relevant injury.”
[2] [1994] 1 V.R. 436
6For the reasons which follow, I have found that while the plaintiff was an unreliable witness, an assessment of all of the evidence leads to a finding that the plaintiff has sustained an injury to his spine, being primarily an aggravation of lumbar spondylosis, in the motor vehicle accident.[3] That injury and its impairment consequences can be separated from the pre-existing spinal condition and, in addition, can be separated from his other medical conditions. These separately assessed impairment conditions, when compared with the range of other impairments, do rise to the level which can be considered more than significant or marked. For these reasons, I will grant his application.
[3] Plaintiff’s Court Book (“PCB”) 140; 209; 215; 233
Relevant History
7The relevant history may only be briefly dealt with, as I will detail the relevant dates in the course of addressing each of the separate areas of contention. Broadly speaking, the plaintiff was born in the Philippines in 1952. He left high school in about Year 10 at about the age of 16, and then worked in a variety of manual jobs, such as being a furniture painter and bus driver.
8He came to Australia in about 1997, and shortly afterward began working for Ventura Bus Lines as a driver. He did that role for about 20 years, and ceased there in April 2017. I will return to the circumstances of why he ceased, but briefly, it was due to alleged misconduct, rather than anything to do with his physical circumstance.
9He was married and had children, and appears to have been involved in a range of social and community activities, particularly through his church. As noted in the introduction, he had had longstanding back pain and, most relevantly for this case, it presented in a significant way in 2011, when he had MRI of the lumbar spine and was referred to a neurosurgeon, Mr McMahon. He was diagnosed at that time with marked central spinal canal stenosis.[4]
[4] PCB 36
10He continued working full-time hours, despite notations that he was having pain into his buttocks and thighs. This continued to be the case, and it appears that in about 2015 and into 2016, he again presented to his treating doctor with lower back pain. MRI of the lumbar spine once again showed compression and degenerative change, and he was sent to see Mr Knight, orthopaedic surgeon. Medication was prescribed, but he remained at work and, it seems, performing his normal social activities. In 2017, he had a further flare-up of pain, went to his treating doctor, and was prescribed medication, such as naproxen, Mobic and Lyrica for short periods of time.
11The subject accident then occurred on 24 August 2018. The plaintiff deposed in the following terms:
“I was giving a friend a lift in his van, when another car, coming the opposite way, veered into my lane. I tried to move to the left to avoid it, but the other car collided with the driver's side of the vehicle I was driving. I understand my friend's van was written off. The police attended the scene.”[5]
[5] PCB 8 at paragraph [13]
12Skipping over some of the detail, the plaintiff was kept overnight in hospital for observation and then released. He was referred by his treating doctor to neurosurgeons Mr Vellore and also Dr Akil. He was also sent to a pain specialist, Dr Mittal, and began some physiotherapy. He has had branch blocks in 2019 in the lumbar spine, and radio frequency denervation in 2020. Since then, the plaintiff has essentially remained under the care of his treating doctor, on non-prescription medication, and on occasion doing physiotherapy.
13He has a range of other medical issues. These begin with sleep apnoea and the requirement for a CPAP machine. He has been using such a machine to sleep since at least 2015 and perhaps earlier. He is morbidly obese, and certainly at the time of the motor vehicle accident, weighed 125 kilograms. He has, in addition, chronic obstructive pulmonary disease and asthma, which causes difficulty with his breathing. In late 2024, he was diagnosed with a pituitary gland tumour, which presented in his forehead, and he had surgery for it.
Was the Plaintiff an unreliable witness?
14Turning to the unreliability of the plaintiff, it was submitted that the plaintiff's evidence was unreliable. I accept that submission for the following reasons. The plaintiff's evidence in court was given via interpreter. Initially, he commenced giving his evidence without an interpreter, but it became apparent immediately that one was needed. However, his affidavits were each sworn without an interpreter. I draw attention to this fact simply to indicate that it raised a concern in my mind that the plaintiff had sworn affidavits which he did not fully comprehend.
15For example, he swore that he required a stool after the motor vehicle accident.[6] When this was put to him in cross-examination, he appeared to me to be entirely puzzled by the reference to a stool, and gave evidence that he could not recall ever using a stool.[7] The way he answered, the look he gave when he answered, and the categorical denial of using the stool, led me to believe this was the first time he had heard of such a suggestion, let alone personally deposing to such a thing.
[6] PCB 11 at paragraph [28(f)]
[7] Transcript (“T”) 33, Line (“L”) 15-18.
16He also appeared to be confused about the chronological unfolding of events. For example, he deposed to enjoying going to the gym, but could not do so because of his spinal injuries now.[8] The affidavit gave the impression that he was using the gym at a time just prior to the motor vehicle accident. In cross-examination, however, he accepted that he had only been at the gym when he was younger.[9] As to whether he ever attended in 2018, he only tentatively suggested that he 'could have'.[10] He appeared, from both his evidence and manner of giving that evidence, entirely uncertain.
[8] PCB 11 at paragraph [28(f)]
[9] T34, L22-L23
[10] T34, L17- L27
17Secondly, the evidence that he gave in cross-examination seemed at times to contradict the evidence in his affidavits. For example, he deposed that after losing his job in April 2017, he had been planning to work again. He gave evidence that he 'considered' looking for alternative work as a bus driver. In cross-examination and re-examination, however, he gave very specific evidence that after losing his job in April 2017, he had actually made two job applications to two very specific bus companies.[11] So his affidavit evidence of simply considering looking for alternative work was incorrect, because he had taken definitive steps towards obtaining other work.
[11] T72, L30-L31;T73, L1-4
18Such evidence was obviously in his favour, as in part, his case is that he has lost the ability to work as a result of the motor vehicle accidents. Why he had omitted such specific detail was unexplained. I consider this to be a major inconsistency in the plaintiff's evidence, and it furthers my finding that his evidence was unreliable on this point.
19Allied to this is a further inconsistency in respect of the evidence the plaintiff gave as to his weight. He deposed that since the accident, he had become inactive because the injury affected his mobility. As a result, he submitted, his weight had increased from 125 kilograms to around 136 kilograms now.
20However, in cross examination he accepted that as of May 2023 his exercise physiologist Mr Barallon had considered his weight gain was due to inactivity as a result of his asthma.[12] I also note that the treating doctor's notes record that, as of April 2022, his weight was actually 126.6 kilograms, a marginal increase four years after the accident date, and by which any effect on his weight from a limit to his mobility would be apparent. Other evidence indicates that his current weight has been increasing due to the prescription of steroid for the control of the pituitary tumour.[13]
[12] Amended Defendant’s Court Book (“ADCB”) 70
[13] ADCB 154; T51, L9-L13
21The defendant also submitted that the plaintiff was unreliable in respect of the evidence he gave about enjoying dancing prior to the motor vehicle accident, which is contrasted with his evidence now, which is that he no longer enjoys dancing. The plaintiff accepted that he, in fact, did not like dancing even prior to the accident.[14] This a clear inconsistency as well.
[14] T37, L5-L8
22The defendant also submitted that the plaintiff's evidence about his current difficulties with his sex life, which he related to the motor vehicle accident, was made without any reference to the fact that, in the past, he had required Viagra. I do not think much turns on this, as the fact that previously being prescribed Viagra indicates potentially some problems with erectile function, it also stands for the proposition that Mr Dichoso had an active sex life which he enjoyed and wished to pursue.
23However, the answers that Mr Dichoso gave in respect of this topic were inconsistent. When pressed about why he needed the Viagra he first indicated that he did not take the medication but rather gave it to friends in the Philippines.[15] Then he suggested that he had taken it on occasion and given the rest to friends in the Philippines. In combination, the failure to mention the Viagra with the changing story as to why it was taken and what became of it left me entirely uncertain of his evidence on this topic.
[15] T41, L13-L20
24The defendant further submitted that the plaintiff's evidence about not being able to see his grandchildren in particular was incorrect. On this point, he had deposed that he still saw his grandchildren occasionally but he was not able to go and visit them or play with them as often as he would like. I do not consider the plaintiff gave evidence which was inconsistent with his affidavit. This was because he admitted that he had grandchildren in Melbourne but also some in Warrnambool. While it was difficult to see those in Warrnambool, he did admit to seeing those in Melbourne.
25The defendant submitted that the plaintiff was inconsistent in respect of his evidence in respect of his driving. In his affidavit he had deposed to only being able to drive locally.[16] However, in cross examination he admitted to driving to church, which was about 30 minutes away. I accept this represents a minor inconsistency in his evidence.
[16] PCB 10 at paragraph [28(b)]
26The defendant submitted that the plaintiff's evidence about not being able to play volleyball, rugby and basketball with his grandchildren was inaccurate. It was submitted that he had told his treating doctor, Dr Shanmugam, that these activities were now restricted by reason of the motor vehicle accident injury. The plaintiff, however, readily conceded that he was not performing these activities on a sporting basis at the date of his injury. Given the recording in Dr Shanmugam's report has not been tested, I do not consider there to be any great inconsistency between the plaintiff's evidence in court and that recorded by his treating doctor.[17]
[17] PCB 129
27The defendant submitted that the plaintiff's evidence about being able to do long walks was not accurately put in his affidavit.[18] It was submitted that the affidavit attempted to convey the impression that the motor vehicle accident injuries had reduced his capacity to do long walks. In contrast, in cross examination the plaintiff admitted that the reason he could no longer walk those distances was because of his COPD and his obesity. His affidavit evidence, then, was not the complete story and is unreliable on this point.
[18] PCB 11 at paragraph [28(f)]
28The defendant submitted that the plaintiff's evidence that he was unable to work by reason of the motor vehicle accident was incorrect and inconsistent. It will be recalled that the plaintiff had lost his job at Ventura in April 2017 as a result of an allegation of misconduct. Immediately thereafter the plaintiff had gone onto Newstart but then gone onto the aged care pension.
29The defendant submitted that the evidence showed that the plaintiff had been terminated and then had decided to retire such that when the motor vehicle accident had occurred he was a retired man who had no intention of returning to work. As such, there was no impairment consequence associated with the loss of work capacity. The defendant called in aid a note in July 2015 of the plaintiff's special bariatric surgeon, who recorded that the plaintiff was planning to retire in a couple of years.[19] It was submitted that this was consistent with retirement in 2017.
[19] ADCB 65
30In addition, the defendant referred to the fact that the plaintiff did nothing in 2017 to reinstate his medical certification to drive buses after his termination. When this was put to the plaintiff he accepted that he had been told by his heart specialist that until he lost weight, he should not get re-accredited. The defendant submitted that this showed the plaintiff had retired and was not kept out of the workforce by reason of his spinal injury, but by other reasons as at the date of the motor vehicle accident in August 2018.
31There was some debate about the date of the advice given by the heart specialist. Leaving that aside, however, I find that the plaintiff had, in fact, retired some time in 2017. I come to that finding for the following reasons.
32First, the plaintiff had indicated in July 2015 that he was intending to retire in a couple of years. That evinced his clear intention.
33Second, after his termination in April 2017, on his affidavit evidence he took no concrete steps to re-enter the workforce. I do not accept the evidence, which was late given, in the course of cross-examination and re-examination of specific applications to two bus companies. His evidence on this was late. It was not referred to in the affidavits or in recordings of any doctor.
34Third, the plaintiff moved from the Newstart allowance, which had job reporting obligations, to the aged pension well prior to the motor vehicle accident.
35Fourth, the plaintiff took at least two trips back to the Philippines, departing on 9 August 2017, for what appears to be about three weeks, and then again in 11 December 2017 for a period which may be for some weeks or months.[20] This seems to indicate that the plaintiff was not taking serious steps towards re-engaging in the workforce. It is also consistent overall with the plaintiff being age 65, which is about retirement age.
[20] T77
36Lastly, the defendant submitted that the plaintiff had not been candid in disclosing the number of trips he had made overseas after the motor vehicle accident. In the plaintiff's first three affidavits there was little to no mention of travel or to the Philippines. In his last affidavit, he deposed to travelling to the Philippines in April 2025 for the first time in around three or four years; that is, two times since the motor vehicle accident. [21]
[21] PCB 17 at paragraph [11]
37However, examination of his passport revealed, and it is now agreed, that the plaintiff travelled at least four times in the period 2017 to 2019 which were not disclosed, plus the two times which were disclosed. I consider this to be a significant matter as it was touched on by the plaintiff in his last affidavit to leave an impression of significant restrictions in his ability to travel overseas.
38However, this was not the full picture, and that reveals a much more significant travelling history and capacity. That suggests a capacity to travel and to enjoy such activity much more significant than what has been deposed to. For the above reasons, I consider that the plaintiff was an unreliable witness overall. However, as the Court of Appeal has made clear, all of the evidence in a case must be assessed in deciding whether or not the plaintiff's application succeeds.[22]
[22] Ramazan Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
What injury, if any, was caused in the motor vehicle accident?
39Turning to what injury was caused by the accident, to return to the test established in Petkovski v Galletti, that requires an assessment of what injury was caused by the accident. On the defendant's case, that was no more than a temporary soft tissue injury. That submission was made calling in aid the reporting of Dr Kam, a specialist radiologist, and also a neurosurgeon, Mr Siu. Dealing with Dr Kam's evidence, his opinion is essentially that there is no change in the radiological appearance of the spine between the pre-motor vehicle accident and the post motor vehicle accident states.[23] So much can be accepted.
[23] ADCB 62
40However, diagnosis of injury is a combination of radiological finding, clinical examination and appreciation of the history, that of presenting complaint and the experience of specialists skilled in assessing a patient overall. Dr Kam's opinion is necessarily limited by his expertise and the fact that he is only commenting on one matter which goes into a practitioner arriving at an overall diagnosis of injury.
41As to Mr Siu's opinion, he opines that the motor vehicle accident was incidental and the presentation of symptoms the plaintiff complains of is simply the natural history of progression of degenerative lumbar spondylosis with canal stenosis.[24] He arrives at this diagnosis on the basis that, in the motor vehicle accident, the plaintiff was the driver with lap and sash seatbelt applied, and as such there was very little axial loading in the car accident.
[24] ADCB 42
42The plaintiff attacked this finding on the basis that there was no evidence of the forces at play in the accident which form the basis for that opinion as to the axial loading experienced in the car accident. I accept this submission.
43Section 79 of the Evidence Act 2008 and various cases, particularly in Makita v Sprowles,[25] makes clear that the basis of the expert opinion must be properly exposed so that it can be tested and determined to have arisen from specialised knowledge. Here there is simply no evidence as to how Mr Sui came to the opinion that there was insufficient axial loading.
[25] [2001] NSWCA 305
44There is no detailed explanation of the forces involved in the motor vehicle accident. There was simply the recording in medical notes, and as I have set out above, the plaintiff's brief description of how the accident occurred. Even if I were wrong in that conclusion, there are other reasons why Mr Siu's opinion cannot be accepted.
45In summary, that is because of the immediate alteration in symptoms after the motor vehicle accident, demonstrating a definitive change in his clinical course, the treating doctor and specialist's opinions, and thirdly, the medico-legal reporting that the plaintiff calls in aid, starting with the situation immediately around the time of the motor vehicle accident.
46As I have recorded above, at the time when the plaintiff ceased work in April 2017, he was someone who had a long history of back pain, with flare-ups certainly in 2011, 2015, and 2016. These flare-ups in particular have required medication, attendance at doctors, and investigation, but no time off work. It is relevant that he had been to see specialists in respect of his cervical and lumbar spine problems in 2011, and then again in 2015. He had conducted radiological investigation and clinical examination.
47In about September 2015, at his initial consultation with Mr Knight, Mr Dichoso had completed an intake questionnaire in which he had described his pain and his limitations on activity. I consider that acts as a good guide to the plaintiff's situation at that time, and in a situation where he had a flare-up, which required referral to an orthopaedic specialist, it could be thought this was the high point of his pre-existing lumbar problem.
48He recorded that he could tolerate the pain without having to use pain medication. He could take care of himself normally. He could not lift heavy weights, but he could lift. He could walk in an unrestricted manner and sit for as long as he liked. He recorded that standing for a long period increased his pain, and it had an effect on his sleep, and he was sleeping less than six hours.
49He noted that the pain at that stage prevented him from doing more energetic activities, such as sports and dancing. He recorded that job activities increased his pain, but he could still perform all that was required of him.[26] In that setting, Mr Knight recorded in March 2016 that while his spinal cord showed compression, which was significant, he had a high level of function with very little pain and was not concerned about the problem because his symptoms were mild and not particularly disabling.
[26] ADCB 177
50I record that there was no suggestion of any further treatment modality. In that setting, the plaintiff continued on working normally. Then in mid-2017, he experienced an uptick in his lower back pain and went back to his treating doctor, was prescribed Naproxen, Mobic, and Lyrica. Each was taken for a short period of time.[27] He continued working full time.
[27] ADCB 100; ADCB 105; ADCB 106; ADCB 108
51In mid-July 2018, he went to see his treating doctor numerous times, and on none of those occasions did he attend for lower back pain.[28] It is true that on 13 August 2018, his treating doctor wrote a letter referring to his back pain and his other comorbidities and urging the Department of Immigration to allow his wife to stay and care for him.[29]
[28] ADCB 95 – ADCB 97
[29] ADCB 69
52However, that letter does not indicate whether her care was needed on a full-time, part-time basis, or in what capacity he needed care. I do not consider that this indicates that he was incapacitated to any great extent by his back injury or comorbidities. Rather, on an assessment of all the evidence referred to above, I find that the plaintiff's condition was one where he was able to cope with his back problems and deal with occasional flare-ups by a short course of medication, such as Mobic, Lyrica, or Naproxen.
53I otherwise find that he was able to enjoy an active social life, as was displayed in a Facebook post for August 2018 when he was with his wife in Sydney and seemed to be having an enjoyable time about the harbour. I accept that he had some limitations on activities, such as dancing and sports, as noted in the questionnaire, but otherwise he had the capacity to physically perform most of the activities that he had prior to being dismissed from his employment, which was consistent with the questionnaire that he had filled out for Mr Knight.
54In that context, the accident occurred, and almost immediately afterwards symptoms began to present which were not present before the motor vehicle accident. This can be seen in the incident report recorded by police, which immediately noted that the plaintiff had a sore back and tingling in the right leg. This is consistent with the ambulance notes,[30] and Peninsula Health notes recording right lower limb paraesthesia.[31]
[30] PCB 76
[31] PCB 87
55The condition was so significant that the treating doctor arranged for a referral to the neurosurgeon, Dr Akil. He recorded that the lower back pain was worse post-accident and that there had been an onset of pain which was now severe, up to nine out of 10, with 10 being the worst, and in addition, right lower limb pain. On clinical examination, back spasm was found, indicating an objective signs of his condition.[32]
[32] PCB 99
56A further referral was made to the specialist neurosurgeon, Dr Vellore, who recorded that there had been development of low back pain and right-sided leg pain since the date of injury.[33] Referral was made for branch blocks and nerve root blocks.[34] This flurry of activity, I consider, indicates a substantial change in the plaintiff's clinical course and supports a finding that specific injury in the nature of an aggravation of lumbar spondylosis has occurred by reason of the motor vehicle accident.
[33] PCB 97
[34] PCB 102; PCB 103; PCB 55; PCB 105
57Further, an examination of the plaintiff's prior medical history does not reveal this level of intervention, and coming so soon after the motor vehicle accident indicates a very strong temporal connection, at least, with the motor vehicle accident and the ultimate diagnosis. An examination of the treating medical practitioners' reports revealed that they all support the notion that the motor vehicle accident was a cause of the plaintiff's condition, Dr Akil,[35] Dr Vellore,[36] Dr Mittal,[37] and Dr Shanmugam.[38]
[35] PCB 140
[36] PCB 97
[37] PCB 100
[38] PCB 127
58These opinions expressed by treating practitioners I consider carry great weight because they were contemporaneous recordings, having conducted investigations, taken contemporaneous history, and conducted clinical examination when the focus was on the plaintiff's situation at that time. I prefer them to Mr Siu's opinion for this reason.
59Similarly, the medical legal opinion strongly supports the opinions by the treating practitioners. Associate Professor Bittar supports Dr Akil's diagnosis,[39] from a neurosurgical perspective. From an orthopaedic perspective, Mr Chehata similarly supports the diagnosis,[40] and from a pain management perspective, Dr Ramaswamy also supports that diagnosis.[41]
[39] PCB 221
[40] PCB 226
[41] PCB 231
60I accept that series of opinions to that of Mr Siu, and it can be seen that he is reasonably isolated in his opinion. Those opinions also sit comfortably with Dr Kam's opinion, as none of those doctors suggest that there is any specific radiological finding which provides definitive evidence of the injury caused in the motor vehicle accident. By taking the entirety of his condition into account, that material all supports the plaintiff's submission.
What was the extent of the impairment of the body function after the relevant injury?
61It will be apparent from the above that I have found the extent of the impairment of the body function before the relevant injury was reasonably modest. I reach that finding primarily on Mr Knight's recordings and those also of the treating doctor who in combination indicated that while there were degenerative changes in the spine, they were causing limited impact on his physical functioning, and only on occasion required limited courses of prescription medication.
62In contrast, I find that after the relevant injury, the plaintiff presented with almost immediate right lower limb paraesthesia, more moderate on the left side.[42] This required nerve blocks on two occasions in January and February 2019, and then a further radiofrequency denervation in 2020. As will be apparent, I have found the plaintiff an unreliable witness. I have not accepted his evidence unless there is support from other sources.
[42] PCB 100
63These findings on history taken by contemporaneous sources, police and the hospital, remove the concern I have as to the plaintiff's reliability in regard to his affidavit material which was given some six years post the incident. The fact that the specialist medical practitioners considered these interventionist medical procedures in 2019 and 2020 also supports a finding that the complaints he made were consistent with the clinical picture and warranted these treatments. It supports an inference that he had impairment of increasing pain and mobility at this stage.
64However, the test must be concerned with serious long-term impairment. Here, while the initial phase consisted of treatment of these new symptoms, the defendant pointed to the lack of treatment in 2022 and onward: essentially, a few visits each year to the treating doctor, and the use of over-the-counter medication.
65Against that, though, is the fact that after the initial flurry of treating the new condition in 2018 to 2020, there was a diagnosis that he had developed claudication symptoms,[43] such that even as early as 2019, it was considered that decompression surgery and potentially fusion surgery was required.[44] This suggests a permanent, significant condition, I find. Obviously, this surgery has not occurred, for reasons to do with his weight, other comorbidities, and funding.
[43] Dr Mittal PCB 105; Dr Akil PCB 135
[44] PCB 136
66But the condition has been severe enough for that potentiality not to be taken off the table, and even Mr Siu accepts that.[45] That supports a finding that the condition is long-term, and there is no reason why it does not continue to produce long-term impairment consequences.
[45] ADCB 42
67The primary one has been touched on above, which is the change in his mobility, exemplified by the need to use a walking stick. Of course, this is confused to some extent by the obesity and the pulmonary disease and asthma. But I find that those conditions had been present prior to the accident, and now, while they play a role in limiting his mobility, the major cause of his limitation on his mobility is his back condition: see particularly the photos I have referred to in respect of his journey to Sydney Harbour just prior to the accident and then again those immediately afterwards. Those photos,[46] show that almost immediately after the accident, he was using a walking stick.
[46] ADCB 204; ADCB 222
68I accept that this affects his ability to stand, bend, or sit as he used to. Exactly what this effect is, though, I am uncertain, so I put this aside. A further consequence which I also consider very significant is his increasing pain. It will be recalled that prior to the accident, he had short periods on prescription medication for pain, which was otherwise manageable. Since the accident, he has almost consistently been on medication. Presently, this is eight tablets of Panadol Osteo or Nurofen a day, with occasional Tapentadol, for management of what his doctor confirms is chronic and severe pain.[47]
[47] PCB 127
69This opinion from his long-term treating doctor is confirmatory of the plaintiff's evidence as to his pain consequence. This is a significant change, and represents the need for constant medication to control pain, which is no longer low-grade or intermittent, but which is near constant and unremitting. I accept the recordings of Dr Ramaswamy as to his pain levels.
70I do not accept his sleep has been affected to the extent he deposes, given the evidence that since 2015 at least, his sleep has been affected by apnoea. I am also required to consider the fact that the plaintiff is able to socialise, as seen in the Facebook posts and can be inferred from his trips to the Philippines to see his family. He can drive, but certainly not as he used to, and he can attend church.
71Given his age, his range of pursuits, it could be said, are not greatly impacted. However, given he is now in constant, often severe pain, which needs medication daily and limits his mobility, I consider, these factors are sufficient to find a determination that he is entitled to serious injury certification.
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