Edwards v Transport Accident Commission
[2021] VCC 216
•24 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01923
| PAUL ROBERT EDWARDS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 3 and 11 August 2020 | |
DATE OF JUDGMENT: | 24 February 2021 | |
CASE MAY BE CITED AS: | Edwards v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 216 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – Transport Accident Act 1986, s93 – serious injury – (a) and (c) definition of “serious injury” ꟷ lower back injury ꟷ Chronic Pain Syndrome/Somatic Symptom Disorder – Post-Traumatic Stress Disorder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie (2001) 1 VR 79; Transport Accident Commission v Katanas [2017] HCA 32; Rowe v Transport Accident Commission [2017] VSCA 377; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment: Application in respect of low back dismissed. Application in respect of mental or behavioural disorder upheld.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Slater & Gordon Ltd |
| For the Defendant | Mr S A Smith QC with Ms K M Manning | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 By way of Originating Motion filed on 26 April 2019, Paul Edwards (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986, as amended (“the Act”), to bring common law proceedings to recover damages for a back injury and a mental injury (“the injuries”) suffered by him arising out of a transport accident which occurred on 4 November 2016 (“the transport accident”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
3 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2]See s93(6) of the Act
4 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury” contained in s93(17) of the Act which read:
“‘serious injury’” means –
(a) serious long-term impairment or loss of a body function; or
…
(c)severe long-term mental or severe long-term behavioural disturbance or disorder; or
(d) … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine. The mental or behavioural disturbance or disorder is variously described as a Chronic Pain Syndrome/Somatic Symptom Disorder which is psychologically based and a psychological sequelae of the physical injury.[3]
[3]Counsel for the plaintiff in his final address also relied on a condition of Post-Traumatic Stress Disorder, which several of the doctors considered the plaintiff to be suffering from
6 In order to succeed, the plaintiff must prove on the balance of probabilities:
(a) that the “injury” suffered by him was a result of the transport accident;
(b)requirements of the test set out in the seminal decision of Humphries and Anor v Poljak,[4] wherein a majority of the then Full Court of Victoria stated:
[4][1992] 2 VR 129
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[5]
(c)“serious injury” as defined in subparagraph (a), can have its seriousness in part by a mental response to a physical impairment; however, a mental disorder cannot of itself constitute or be the producer of the impairment of a body function;[6]
(d)“serious injury” as defined in subparagraph (c) requires the mental or behavioural disturbance or disorder to be “severe” rather than “serious”. In Mobilio,[7] the then Full Court found the word “severe” to be a higher standard to reach than “serious”. Brooking J stated:
“… Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’ … .”[8]
[5](op cit) at 140. See also Mobilio v Balliotis [1998] 3 VR 833
[6]See Richards & Anor v Wylie (2001) 1 VR 79
[7]Op cit
[8]See Mobilio (op cit) at page 846
7 Counsel for the plaintiff said that the matter was primarily to proceed under paragraph (c) of the definition of “serious injury”. When queried as to what the word “primarily” meant in that context, the Court was informed that:
(a)paragraph (a) of the definition of “serious injury” was not totally abandoned, but what ultimately would be submitted is that this application is primarily a “paragraph (c) case”;
(b)furthermore, in relation to the claim under paragraph (c) of the definition of “serious injury” counsel for the plaintiff said the case would be put on the basis of an aggravation of a pre-existing psychological condition.[9]
[9]See generally Transcript (“T”) 2, Lines (“L”) 4-22
The issues
8 When Senior Counsel for the defendant was queried by the Court as to what were the “issues” I was informed that:
(a)“range” was an issue – as I understood it in relation to the claim under paragraph (c) of the definition of “serious injury”;
(b)to the extent that the plaintiff relied on paragraph (a) of the definition of “serious injury” issues of “disentanglement” will be required; and
(c)Senior Counsel also submitted that there may be issues pertaining to credit “but sit in the background of the case”.[10]
[10]See T13, L23 – T14, L6
The evidence of the Plaintiff
9 The plaintiff relies on three affidavits sworn by him: the first on 15 May 2018,[11] the second on 12 December 2019[12] and the third on 31 July 2020.[13]
[11]See exhibit 2 at pages 4-9 PCB
[12]See exhibit 2 at pages 14-19 PCB
[13]See exhibit 2 at pages 22-25 PCB
10 In his evidence-in-chief, the plaintiff sought to amend the second and third affidavit.
11 In his second affidavit, the plaintiff referred to paragraph 11, wherein he wished to change the reference to “eighty” hours to “sixty” hours. He also referred to his third affidavit, and in particular, paragraph 9, which states:
“My daughter Ruby is now aged 6 and I live with my partner Tyela. We have a pretty quiet life and the camping trips I enjoyed have now finished other than a trip I make to the Murray River in Swan Hill where my father’s ashes are scattered so that I can pay a tribute to him.”
12 The following evidence ensued:
HIS HONOUR:
Q: “Yes, well I have read paragraph 9. What do you want to change?---
A:It’s just that, um, I want to clarify I went camping twice last year, once in May for my dad’s 50th and to pay tribute and once in November on the anniversary of his death and that he ‑ ‑ ‑
Q:You said that ‑ last year?---
A:Last year, yes.
Q:So May last year and November last year?---
A:Yes, and this year I have gone camping twice, once in Nagambie and once in Tocumwal.
Q:And do you know when that was?---
A:Tocumwal was earlier this year just after restrictions had lifted.
Q:So May last year and November last year?---
A:Yes, and this year I have gone camping twice, once in Nagambie and once in Tocumwal.
Q:And do you know when that was?---
A:Tocumwal was earlier this year just after restrictions had lifted.
Q:Yes?---
A:I just wanted to quickly get up there, because we didn’t know when would be the next time.
Q:Yes?---
A:And the last ‑ the recent one in Nagambie was literally only 24‑hours and that was last week.
Q:Twenty‑four hours over the last ‑ ‑ ‑?---
A:I stayed up there last week for 24‑hours on Wednesday.
… .”[14]
[14]See T18, L27 ꟷ T19, L12
13 The plaintiff gave evidence that subject to those changes his affidavits were “true and correct”.[15]
[15]See T19, L17-19
14 By way of his first affidavit, the plaintiff deposed that he was twenty-five years old,[16] currently living in Wallington with his family.
[16]Born in December 1995
15 On 4 November 2016, the plaintiff was involved in a transport accident in North Melbourne when he was driving his car along Queensberry Street and was making a right-hand turn into Abbotsford Street, with the green arrow. As he was making such turn a taxi sped through the red light and collided with his car, causing a “huge impact”. The plaintiff was twenty years old at the time of the transport accident.
16 After the transport accident, the plaintiff had persisting pain in his lower back and middle part of his back. Due to such ongoing back pain he went to see his usual general practitioner, Dr Sukhdeep Baweja, who arranged for x-rays of his lumbar and thoracic spine on 13 December 2016, and in January 2017 prescribed Tramadol medication for the pain and referred the plaintiff for physiotherapy at the Ocean Grove Physiotherapy Clinic.
17 At the time of the transport accident, the plaintiff was working as a labourer for a demolition and asbestos removal company, Digga Excavations (“Digga”). Following the transport accident, he took a week off work[17] and then tried to return to work at Digga on light duties, but could not do it because of back pain. He only lasted for a few days at work.[18] In particular, he also notes that he was struggling mentally and breaking down in tears, and was anxious about loud noises and was not sleeping properly at night. Due to an ongoing mental problem with anxiety and lack of sleep, his general practitioner prescribed medication to help him sleep and advised him to see a psychologist.
[17]This factual allegation was altered in the third affidavit of the plaintiff
[18]This factual allegation was altered in the third affidavit of the plaintiff
18 During 2017, the plaintiff continued to take Tramadol for his back pain, continued with physiotherapy treatment, and also tried hydrotherapy treatment.
19 In April 2017, the plaintiff was referred for an MRI scan of his spine and in May 2017, was referred to a pain management clinic – Advanced Health Care.
20 In particular, in July 2017, the plaintiff came under the care of a pain management specialist, Dr Malcolm Ong, at the Advanced Health Care pain clinic. Following that, he began having treatment from a physiotherapist at the pain clinic, Mr David Goulding. Between August and November 2017, he completed a pain management program, which included treatment from the physiotherapist and also from a psychologist, Mr Stephen Rendall.
21 During 2018, the plaintiff has continued to attend for treatment at the Advanced Health Care pain management clinic in Geelong and also continued to receive ongoing treatment from both a physiotherapist and a psychologist. He also continued to take prescribed medication for his back pain.
22 At the time of swearing his first affidavit on 15 May 2018, the plaintiff continued to suffer pain in the lower part of his back and also in the middle part of his back. Furthermore, in addition to his back pain, he also suffers some pains which radiate down both legs and he also experiences occasional feelings of numbness and pins and needles in his left leg.
23 The back pain varies throughout the day and night as to how severe it is – the pain can be very strong and when he gets stronger flare ups of pain he has to lie down in bed and use heat packs on his spine.
24 The pain in the plaintiff’s back gets worse with certain activities – for example the pain gets worse if he stands or sits in one position for any length of time, causing him to constantly adjust his position to get comfortable. Furthermore, bending and twisting movements cause additional back pain, as does prolonged walking. He struggles to sleep at night because of the pain.
25 Before suffering his back injury in the transport accident, the plaintiff enjoyed fishing, walking his dogs and going four-wheel driving and camping, and in general enjoyed being outdoors. Due to his back injury “all of these activities are now severely restricted for me”.[19] The plaintiff also avoids activities which are too physical or put too much strain on his spine. He struggles with chores around the home and garden, which is upsetting him, because he lives on a 5-acre property with animals.
[19]See exhibit 2 – the first affidavit of the plaintiff, sworn 15 May 2018, paragraph [12] at page 7 PCB
26 Before the transport accident the plaintiff believes that he was physically fit and very active, although he had suffered from depression on and off over the years before the accident. He deposes that he has also been a user of marijuana over the years, both before and after the transport accident.
27 The plaintiff has also been involved in a custody dispute involving his daughter which has caused mental distress for him. Since the transport accident, he has struggled to cope with his back pain and also with the mental problems that he now suffers as a result of the transport accident.
28 The plaintiff deposes that he now suffers from anxiety and depression and feels awful, spending too much time in his bedroom. He struggles to control his emotions and gets very angry and very teary. He has trouble going to sleep and gets very anxious about his pain and whole life situation.
29 The plaintiff deposes that he is now a different father to his three-year-old daughter and is far less social than he was prior to the transport accident.
30 The plaintiff gets very nervous travelling in cars, especially as a passenger, and continues to have nightmares about the transport accident, and also has flashbacks. He deposes that he gets jumpy with loud noises and does not like being around taxis on the road.
31 Due to his back injury, the plaintiff now avoids performing any activities which involves heavy lifting or repetitive strenuous use of his back. This upsets him because he relied on his physical fitness for earning money and his work has always been hard manual labouring.
32 At the time of the transport accident, the plaintiff was working in a very physical job where he spent most of the time removing asbestos from buildings, and had been doing that work with Digga since June 2016. Although employed on a casual basis there was plenty of work available, and prior to his employment with Digga he had worked in various other jobs involving work as a scaffolder, fruit picker, roof tiler and as a labourer for a carpentry business.
33 The plaintiff deposes that he has a limited ability to read and write at low level and only went to school to Year 8. Because of his back injury he has been unable to return to any employment and continues to receive loss of earnings payments from the defendant on the basis that he is unable to work.
34 By way of his second affidavit, the plaintiff confirmed that he attended Galvin Park Secondary School in Werribee, where he passed Year 8. However, when he was in Year 7 he was actually working in a local butcher shop, and on leaving school started as an apprentice butcher, but it did not work out as the business closed. He then commenced work as an apprentice roof tiler, but did not complete such course.
35 The plaintiff was also employed after that at Pizza King in Werribee for about three years, where he worked full time, and immediately prior to commencing work at Digga – the place where he was working at the time of the transport accident – he was employed with Geelong Safety Rails erecting scaffolding. He was an employee on the books, but when worked dropped they did not call him.
36 The plaintiff describes that his work at Digga involved earth moving, demolition and removal of waste, together with tip-truck work. Initially he worked just one day to help his brother out (his brother and stepfather were working for Digga) and then was put on, causing him to drive from Wallington to commence work at Moriac.
37 In particular, the plaintiff did the hands-on demolition and the asbestos removal work where the heavy equipment could not get into various places. This caused him to work at many residential sites across Melbourne, Geelong and as far as Sorrento. Although the business did commercial demolitions, his work was all residential.
38 All his work at Digga was hard physical work involving a lot of pulling down of structures, lifting and carrying of weights and use of tools such as sledgehammers and the like.
39 The plaintiff deposes he was fit and loved the work. On any one job there could be between four to twelve working and sometimes there was only his brother and himself on a site.
40 Although the work was casual, the plaintiff did full-time hours and anything up to sixty hours per week when the company was busy.
41 During his time at work with Digga, he only took time off when the mother of his partner died.
42 At the time of his transport accident, his current partner, Tyela, and the plaintiff were going out, but he was living at his mother’s in a bungalow at the back of her property at Wallington, whereas Tyela was with her father at Leopold.
43 At that time, the plaintiff and Tyela were making active plans to move in together and were waiting to accumulate enough savings to rent. The plaintiff also had family law issues which were causing a distraction.
44 The plaintiff describes that prior to the transport accident, he and Tyela went out regularly, up to weekly or more, to events such as movies, to the beach, to dinner or clubbing in Geelong, Melbourne or Werribee. They attended musical festivals together, and he describes himself as being social and happy at that time.
45 At other times, when he was not working, the plaintiff enjoyed travelling to locations such as Ocean Grove, Phillip Island or Warrnambool with his younger brother, where they went fishing. He also recalls travelling to Swan Hill and camping with his brother. He notes that both his stepfather and mother had four-wheel drive vehicles, which he enjoyed taking away to locations such as Lake Eildon.
46 The plaintiff accepts that he had been described antidepressant medication prior to the transport accident, but he does not recall needing such medication at times when he was in employment. When working, he describes himself as having a good focus and purpose in life, which made him feel mentally well.
47 As a result of the transport accident, the plaintiff continues to suffer ongoing pain in his lower back, together with chronic anxiety and depression. He regularly feels miserable, worthless and hopeless.
48 The plaintiff remains in receipt of Centrelink payments.
49 The plaintiff continues to receive treatment for his injuries, and in particular for his “psychiatric injury”. He attends his general practitioner at Epic Health, Ocean Grove, together with his psychologist, Dr Leonie Cole at Ocean Grove, on either a weekly or fortnightly basis. He also continues to attend a psychiatrist, Dr Gerald O’Brien, every three months or so. All of this treatment is paid for by the defendant. The plaintiff also has a counsellor who comes to his house on a weekly basis and helps with techniques such as relaxation and focusing. The plaintiff describes that his back injury and psychiatric injury continue to have a huge impact on his life – now he avoids fishing, which once gave him so much pleasure. He attempted to return to fishing, but did three casts and then gave his rod to his brother.
50 The plaintiff and his partner are now renting in Drysdale, with his partner working six days per week as an apprentice hairdresser. The plaintiff suffers constant anxiety, including when he is asked to drive longer distances, say to Melbourne, and prefers to avoid this situation. At home, if he is having a good day, he will do some cleaning of the house or may go for a walk. On other days, he remains sitting on the couch and does some other activity each day, but this is not always possible for him.
51 The plaintiff is greatly worried about his future, in that both his back injury and psychiatric injury he has sustained has completely changed him from being an active employed worker enjoying recreational activities, to someone who is withdrawn and regularly miserable and anxious.
52 By way of his third and last affidavit, the plaintiff deposes that he continues to suffer from back pain as a result of the transport accident and that he has not returned to any formal employment, nor has he been retrained to undertake any alternative duties.
53 The plaintiff confirms that at the time of the occurrence of the transport accident he was employed by Digga Excavations at $20 per hour, such hours being variable, given he was employed as a casual worker. However, on occasion he worked long hours in a week.
54 I refer to paragraphs, 4, 5, 6, 7 and 8 of the plaintiff’s third affidavit, which sets out some details of the plaintiff’s earnings over periods leading up to the transport accident and earnings after the transport accident. I set these out as follows:
“Some of the longer working hours that I completed in the financial year ending 30 June 2016 included the following:
Week ending 8 June 2016, 48.5 hours= $970 gross
Week ending 15 June 2016, 54.25 hours= $1,085 gross
Week ending 22 June 2016, 49.5 hours= $990 gross
Week ending 29 June 2016, 60.75 hours= $1,215 gross
During the financial year ending 30 June 2017 and the period just prior to the happening of the accident some of the bigger weeks were:
Week ending 27 July 2016 58 hours= $1,160.00 gross
Week ending 11 August 2016 60.75 hours= $1,215 gross
Week ending 17 August 2016, 58.75 hours= $1,175 gross
Week ending 7 September 2016, 50 hours= $1,000 gross
Week ending 14 September 2016, 53.75 hours= $1,075 gross
Week ending 21 September 2016, 50.5 hours= $1,101 gross
Week ending 28 September 2016, 53 hours= $1,060 gross
Week ending 12 October 2016, 48.5 hours= $970 gross
Week ending 19 October 2016 48.5 hours= $970 gross
Week ending 2 November 2016 47.75 hours= $955 gross
My work involved removal of asbestos, rubbish removal and commercial and domestic excavations, genuine hard work. I was committed to working because my previous working history had been patchy since I’d left school and I had been through periods of unemployment. The work I did with Digga didn’t pay me penalty rates or overtime rates, just a flat hourly rate of $20 per hour and as can be seen from above I did a significant amount of regular weekly overtime before the accident on 4 November 2016.
I did my best to go back to work on light duties and further to paragraph 4 of my first affidavit, I lasted longer than a few days upon my return as this is an error upon reviewing my payslips. I worked the following amounts after the accident:
Week ending 9 November 2016, 42 hours= $840 gross
Week ending 16 November 2016, 35.75 hours= $715 gross
Week ending 23 November 2016, 47.25 hours= $945 gross
Week ending 30 November 2016, 32 hours= $640 gross
Week ending 7 December 2016, 64.75 hours= $1,295 gross
Week ending 14 December 2016, 21.25 hours= $425 gross
Week ending 18 January 2017, 5 hours= $100 gross
I have not returned to any form of employment since this time and I am presently living off government benefits because I am not physically capable of performing the work that I performed prior to the accident. I have asked about the Disability Support Pension; however, I am yet to complete the application and I receive Newstart.”[20]
[20]See exhibit 2 at pages 23-24 PCB
55 The plaintiff notes that his daughter, Ruby, is now aged six and he lives with his partner, Tyela. He describes his life as being “pretty quiet” and the camping trips that he enjoyed in the past have now finished, other than the trip he makes to the Murray River in Swan Hill where his father’s ashes are scattered so that he can pay a tribute to him.
56 The plaintiff notes that he is completely off all prescription medication and he is limited to a combination of either Nurofen or Panadol which he takes between twelve to sixteen per day, basically between six to eight per day. He smokes marijuana which helps dull the pain.
57 The plaintiff continues to see his psychologist, Dr Leonie Cole, ever fortnight through Telehealth and he is also managed by Dr Ong and his general practitioner, although he no longer takes any prescription medication, but does receive advice about pain management.
58 Centrelink has sent him to various job agencies to do applications, however, there has been no success. He was in receipt of payment through the Transport Accident Commission for three years and he did an excavator’s course, however this was not suitable for his back pain due to the vibrations getting in and out of the machines, as well as being seated and moving over rocky uneven ground.
59 The plaintiff notes that his pain is located mainly in his lower back and this is constant, although the intensity fluctuates, and he also suffers from occasional sharp upper back pain that comes and goes. The lower back pain impacts on his ability to work and his ability to sit for long periods and get comfortable.
60 The plaintiff has not returned to full-time driving and although capable of fishing along the thirteenth beach, fishing trips to Phillip Island and Portland, and the along the Murray River, have now “disappeared”. He notes he would struggle to sit for long periods and despite the fact he can cast a line and stand for a while, the enjoyment of this activity has been diminished by back pain.
61 Because of his ongoing back pain, the plaintiff struggles with maintaining a neat and tidy back yard, and this causes him to suffer increased pain, which also increases his anxiety levels, because he feels useless.
62 The plaintiff’s sleep continues to be poor due to difficultly getting to rest, and he is frequently disturbed by pain or anxiety, and this impacts on his motivation for getting out of bed. He feels tired as a result of sleep deprivation, and it is a struggle to get a reasonable amount of rest because he struggles to sleep during the day to catch up.
63 The plaintiff ultimately says in his last affidavit:
“At the time of the accident I was employed on greater than a full time basis. I worked hard and I also worked hard after the accident for more than a month so I could keep my job. My ongoing back pain got the better of me and I am now no longer capable of doing physical labouring work. My hobbies and interests have been impacted quite badly and I am basically house bound most of the time, struggling with both fatigue from lack of sleep and lack of motivation.”[21]
[21]See exhibit 2 at page 25 PCB
The radiology
64 The plaintiff has undergone the following radiological studies:
(a)Dr Baweja arranged for the plaintiff to undergo plain x-rays of the thoracic and lumbar spine and the pelvis and sacroiliac joints on 13 December 2016. In relation to the x-ray of the thoracic and lumbar spine, the radiologist reported:
“… Five views. There is a minor thoracic scoliosis which is convex to the left. The lumbar lordosis is straightened. The vertebral body heights are preserved. No fracture is evident. No bridging syndesmophytes are seen to suggest ankylosing spondylitis.”[22]
[22]See exhibit 3 at page 27 DCB
In relation to the x-ray involving the pelvis and sacroiliac joints the radiologist reported:
“… Three views. The sacroiliac joints spaces are preserved. There are no overt signs of sacroillitis (sic).”[23]
[23]See exhibit 3 at page 27 DCB
(b)Dr Baweja arranged for the plaintiff to undergo an x-ray of his chest on 3 April 2017. The radiologist reported that the lungs are well aerated and clear and the pulmonary vessels and spaces are normal. There was a mild scoliosis of the thoracic spine convex to the left;[24]
[24]See exhibit 3 at page 31 DCB
(c)Dr Baweja referred the plaintiff for an MRI scan of his cervical, thoracic and lumbar spines on 28 April 2017. The comment of the radiologist was:
“… No discernible vertebral body or posterior element injury.
Normal cord signal and appearance. No features to suggest intra- or extradural haemorrhage.”[25]
[25]See MRI scan report, exhibit 3, at page 26 PCB
(d)Dr Baweja arranged for the plaintiff to undergo an x-ray of his chest on 27 May 2015, with a clinical indication of there being “Bilateral lower rib discomfort ? Pleurisy”.[26] The radiologist concluded:
[26]See exhibit 3 at page 34 DCB
“… This need not entirely exclude very early pneumonia.”;[27]
[27]See exhibit 3 at page 34 DCB
(e)Dr Miller arranged for the plaintiff to undergo an ultrasound of his upper abdomen on 5 June 2015. Clinic indications were “? GB. ? Pancreatitis? Any features of cirrhosis”.[28] The radiologist reported:
[28]See exhibit 3 at page 33 DCB
“… No abnormal scan findings. No evidence of gallbladder or liver disease in particular.”[29]
[29]See exhibit 3 at page 33 DCB
(f)Dr Corns arranged for the plaintiff to undergo an MRI scan of his lumbar spine on 22 July 2020. The clinical indications are recorded as:
“… Ongoing back pain, previous motor vehicle accident with MRI in 2017. Pain worse on the right side into the buttock, sometimes to the knee.”[30]
The radiologist concludes:
“Mild disc bulge at L4/5 with contact of the left traversing L5 nerve root. No other evidence of nerve root impingement.”[31]
[30]See exhibit 3 at page 36 DCB
[31]See exhibit 3 at page 36 DCB
Medical treatment undertaken by the Plaintiff
65 The plaintiff relies on a report from his then treating doctor, Dr Baweja, dated 9 April 2017.[32]
[32]See exhibit 4 at page 38 DCB
66 Dr Baweja consulted with the plaintiff for the first time after the transport accident on 12 December 2016.[33] On 12 December 2016, the medical record reads in part:
[33]This date is ascertained from the record pertaining to the plaintiff on the Epichealth Ocean Grove Clinic. Both parties referred to various parts of such records and although seemingly it appeared to be the intention for one or both parties to tender such notes, no formal tender was completed. Accordingly, I will have the Epichealth Ocean Grove Clinic records from pages 103-264 marked as an exhibit – exhibit “F” on behalf of the defendant
“was involved in a motor vehicle accident
a few weeks
states has had back pain
upper thoracic and low back
wishes to get checked for ankylosing spondylitis.”
67 According to his report, Dr Baweja was informed by the plaintiff that the plaintiff’s car, while stationary, was hit by another vehicle and the plaintiff was taken to hospital but later discharged.
68 Dr Baweja notes that the “working diagnosis” at that time was a “whiplash type injury” to the lower and upper back. Dr Baweja notes that the plaintiff was offered an MRI scan of the whole spine on 6 February 2017, but informed the doctor that an independent medical consultation would be organised by Slater and Gordon and they would help in organising an MRI whole body scan.
69 According to Dr Baweja, the plaintiff had slight tenderness in his lower back in the L3-4 region and his neurological examination was normal with preserved deep tendon flexes in his lower limbs, with no issues involving his bladder or bowel incontinence issues.
70 Dr Baweja prescribed mild doses of Tramadol which his lower back pain was responding to and also physiotherapy, together with hydrotherapy.
71 At that time, Dr Baweja considered that the plaintiff was capable to do a desk job, but not a demolition job at that stage, and his prognosis was “uncertain at the moment”.
72 On 11 July 2017, the plaintiff underwent a multidisciplinary pain management assessment.[34] In particular, the plaintiff relies on a series of reports from Dr Malcolm Ong who, amongst other roles, is the director of medical services at Advance Healthcare Group.
[34]Such assessment is found at pages 39-45 PCB and was conducted by Advance Healthcare
73 In his first report, dated 31 July 2020,[35] Dr Ong noted that the plaintiff was initially referred to him for “assessment and to determine his management recommendation of treatments, and provision of an investigation and treatment pathway to assist his injury”.[36] Dr Ong notes that the plaintiff has complex medical issues surrounding his physical injury and pain-related issues, but also multiple other secondary psychological and psychosocial issues.
[35]See exhibit 4 at pages 66-79 PCB
[36]See exhibit 4 at page 67 PCB
74 After the detailed assessment in 2017, Dr Ong notes that it became apparent that the plaintiff suffers from chronic pain and pain-related conditions in various areas of his body and also various psychological conditions relating to those injuries.
75 It was Dr Ong who recommended that the plaintiff participate in a multidisciplinary pain management program, which the plaintiff commenced in August 2017 and completed in December 2017. Dr Ong notes that although the plaintiff had been “rather erratic” with scheduled reviews and attendances, he did complete the course eventually.
76 When first assessed, the presenting complaints of the plaintiff were:
·pain in lower back
·pain in middle back
·radicular pain down lower limbs L>R leg to feet and toes
·no loss of control of bladder or bowel symptoms
·no surgery to spine
·secondary depressive and anxiety symptoms
77 At the time of assessment, the plaintiff was on the current following medications:
·Meloxicam
·Ranitidine
·Endep
·Topiramate
·Baclofen.
78 After making an examination by himself and others in the pain management assessment, the following impressions/diagnosis/differentials were considered:
·Chronic thoracolumbar pain syndrome from inflammatory and myofascial conditions with muscular spasms and possibly developing early limited neuropathic component
·Radiculopathy lower limbs
·Centralisation of pain syndrome
·Secondary Depressive and Anxiety Disorder
·Adjustment Disorder
·PTSD traits
·ATD risk moderate.
79 In that first report, Dr Ong noted that the physical condition had now started to slowly stabilise, but given that he had just completed his pain program it was recommended a period of about three to six months post-program to redetermine his level of stability.
80 Dr Ong states:
“His projected capacity remains limited, lifting under 7.5kg, no repetitive duties, no prolonged sit or stand. His maximum hours are 3-4 days per week at 4-6 hours per day in an office based or sedentary role only.
He is unfit for pre-injury duties due to the nature of those duties and his conditions.
He would benefit from the involvement of an occupational rehabilitation provider to assist him with RTW preparations and / or NES (new employment services) and vocational retraining. The insurer should be able to fund such a venture.
I will be happy to be involved in an facilitate the case conference to assist Paul with a RTW plan and to enable him to move on with a useful future work capacity.
Currently he feels that he is having some difficulty with return to work due to pain, and has limited capacity due to both his physical injury and secondary psychological condition, alone or in combination.
It is important he remains active and continue to participate / seek out long term activities to enable him to move on with his life and stay useful and with less focus on his pain syndrome.
He also understands that he needs to pace himself, and continue to do exercises and maintain his conditions to ensure stability and avoid any re-injury.
Gym and swim or water exercises, general walking and stretching exercises are all useful long term self managed strategies.
Diet, weight monitoring and general healthy practices such as avoiding smoking and alcohol will benefit this patient.
As part of the natural aging process his conditions may aggravate especially with the cold weather, which he has been taught to manage accordingly.
His symptoms are consistent with his injury claims.
His conditions are accident related.
He has been somewhat diligent with instructions.
His level of participation and attendances could be improved.
There are no other major issues of concern known to me.
Paul’s prognosis remains guarded, but it is likely he will suffer persistent pain symptoms and limited capacity for the foreseeable future.”[37]
(My emphasis.)
[37]See exhibit 4 at page 53 PCB
81 I refer to the last extensive report from Dr Ong dated 31 July 2020.[38] That report repeats much of his earlier comments in an earlier report, with the emphasis being on pain reduction techniques and the increase of functionality. In relation to capacity for any type of work, Dr Ong stated:
[38]See exhibit 4 at page 66 PCB
“I am happy for Paul to trial any lighter duties with reduced hours and more of a part time or casual role, if the patient so wishes, but it needs to be within the restrictions I outlined above prior.
…
However, realistically, given his conditions, his advancing age, his limited education, his limited specialized skills, geographical location, availability and choice of employment options, and multiple other demographics and factors, sourcing alternative employment will be a challenge in an open market.
He is precluded to do any pre-injury duties due to the nature of his conditions and the requirements of the previous job.
He is precluded to do any alternative duties that are manual or repetitive or requires pulling or pushing or twisting due to the nature of his conditions and the requirements of those sorts of jobs.
In particular, he is precluded to do any alternative duties that are requires manual reliance on neck or spine or back or upper limbs aggravating tasks due to the nature of his conditions and the requirements of those sort of jobs.
He has limitations and incapacity from both a physical / organic stand point alone (excluding the psychological components), or psychological standpoint alone (excluding the physical components), or in combination.
These limitations are based on each and every injured body parts / pain syndrome, either alone in its own rights or in combination, and include his neck / shoulders / back / spine / upper and lower limbs, whether including or excluding secondary anxiety and secondary depressive symptoms.
He also understands that he needs to pace himself, and continue to do exercises and maintain his conditions to ensure stability and avoid any re-injury.
Gym and swim or water exercises, general walking and stretching exercises are all useful long term self managed strategies.
He has also lost ability to enjoy his hobbies and social activities prior to his injury, and his level of enjoyment has diminished since the injury.
He has suffered as a result of this accident from both a physical and psychological point of view.”[39]
[39]See exhibit 4 at pages 77-78 PCB
82 I also refer to the reports of Mr David Goulding, a musculoskeletal and pain therapist with the Multidisciplinary Pain Management Program, dated 22 November 2017[40] and 13 August 2019.[41]
[40]See exhibit 4 at page 81 PCB
[41]See exhibit 4 at page 86 PCB
83 In his latter report, Mr Goulding sets out various questions posed by those acting for the plaintiff and his answers thereto. I refer to the following:
“1.Do you consider the transport accident of 4 November 2016 to be a significant contributing factor to the current injury and impairment of my client’s injuries?
In my opinion, the transport accident on November 4th 2016 was a significant contributing factor to the current condition and impairment of Mr Edwards. Supporting this opinion is the fact that Mr Edwards did not report any similar condition prior to the accident.
2.Do you consider the transport accident of 4 November 2016 to be a significant contributing factor to the current injury and impairment to my client’s:
i.Back
ii.Neck
iii.Shoulder
In my opinion, the transport accident on 04/11/16 was a significant contributing factor to Mr Edwards’ back and neck condition but not his shoulder condition. Mr Edwards never mentioned a shoulder problem at his initial assessment with us and there were no investigations completed regarding the shoulder. Throughout treatment at our clinic Mr Edwards has never received treatment for a shoulder condition.
As a consequence of the injury and impairment of my client’s injuries is he likely to be precluded or restricted in relation to activities involving:
a.Lifting, bending, twisting and stooping;
b.Prolonged sitting, standing or walking;
c.Pushing, pulling, or lifting
d.Walking or standing
e.Kneeling or squatting
For the foreseeable future? And … [if] so, to what extent?
a)In my opinion, Mr Edwards is not to be precluded or restricted with bending, twisting or stooping of the spine. His lifting is restricted to 20kg. This restriction is likely going to be for the foreseeable future.
b)In my opinion, Mr Edwards is restricted to sitting no longer than 60 minutes and standing no longer than 30 minutes. These restrictions are likely going to be for the foreseeable future. He is not restricted with walking.
c)In my opinion, Mr Edwards is able to push and pull with moderate force. He is restricted to lifting no more than 20 kg. These restrictions are likely going to be for the foreseeable future.
d)Walking or standing. See above.
e)In my opinion, Mr Edwards is not restricted with kneeling or squatting.
3.As a consequence of the injury and impairment of my client’s injuries and impairment is he likely to be precluded from working for the foreseeable future?
In my opinion, Mr Edwards is not precluded from working in the foreseeable future. Mr Edwards has been receiving certificates of capacity from our clinic stipulating that he has a capacity for suitable duties. The restrictions on these certificates have recently stated the following:
- No lifting greater than 20kg
- Changes from sitting and standing as required.
4.As a consequence of the injuries and impairment is he likely to be precluded from performing suitable employment for the foreseeable future, when taking into account his incapacity, age, education, place of residence, skill and work experience?
5.As a consequence of the injuries and impairment is he likely to be precluded from performing suitable employment for the foreseeable future, when taking into account his incapacity, age, education, place of residence, skill and work experience?
In my opinion, Mr Edwards’ restrictions are only mild and as such he should be able to perform suitable employment when taking into account all other factors.
6.If you consider that my client has the capacity for suitable employment, please state-
a. What type of work you consider to be suitable employment;
b. What restriction ought to be imposed on his duties
c. The maximum number of hours per week you consider that he would be capable of working over a sustained period.
d. Whether the restrictions are likely to last for the foreseeable future.
a)Mr Edwards may be suited to roles such as delivery truck driver, security, fork lift driver or traffic controller.
b) The restrictions that should be imposed are:
- No lifting > 20kg
-No sitting> 60 minutes or standing> 30 minutes at a time without a break.
Mr Edwards would be best suited to 3 days of 6 hours to begin with but should be able to increase this to full time over a period of 6-12 months.
In my opinion, the restrictions are likely to last for the foreseeable future.
7.As a consequence of my client’s injuries and impairment is he likely to be preclude or restricted in relation to his social, domestic and/or recreation activities for the foreseeable future? And if so, to what extent?
The physical condition and impairment are likely to only mildly restrict Mr Edwards with his social, domestic and reaction activities for the foreseeable future. With regards to his social activities he may find it hard to sit or stand for long periods when out with friends.
Domestically he may find activities such as heavy gardening difficult. Recreationally, Mr Edwards is most likely going to have trouble with activities such as kayaking, which he liked to do pre-accident.
8. What, if any future treatment is required or likely to be required?
In my opinion, Mr Edwards does not require a lot more treatment. He has completed a comprehensive pain management program and has self-management strategies to help cope in the future. Mr Edwards has a chronic pain condition and he now needs to manage this and avoid looking for patho-anatomical solutions.
He may benefit from occasional reviews of his medication by an appropriate medical practitioner.
Mr Edwards has continued with monthly physiotherapy reviews in the past year for revision of his exercise program and completion of certificates of capacity. Once he no longer requires certificates of capacity, he will no longer require physiotherapy reviews.”[42]
[42]See exhibit 4 at pages 86-89 PCB
84 I also refer to the report of Mr Stephen Rendall, a psychologist associated with the Advanced Healthcare Multidisciplinary Program.[43] Mr Rendall had eleven individual consultations with the plaintiff running from 26 July 2017 to 27 October 2017 and twelve group psychology pain management education sessions with the plaintiff, running from 30 August 2017 to 27 October 2017.
[43]See exhibit 4 at page 90 PCB
85 In particular, at the initial consultation, the plaintiff described that since the transport accident, he has experienced significant symptoms of anxiety when driving, regular nightmares of the accident, regular flashbacks of the accident and increasing anxiety when he hears the sound of metal crunching, which occurs regularly at his workplace in demolition.
86 Mr Rendall provisionally diagnosed the plaintiff to be suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood in the context of his injury and persistent pain condition. He was also of the opinion that the symptoms were consistent with a Post-Traumatic Stress Disorder that included high levels of anxiety and hypervigilance, with driving flashbacks of the car accident, and high levels of anxiety when hearing the sound of metal crushing.
87 Mr Rendall was of the opinion that the plaintiff would benefit from further psychological consultations. In particular, Mr Randal was of the opinion that without any trauma-focussed therapy, the plaintiff would continue to have difficulties with anger, anxiety and stress, all of which contribute to his experience of persistent pain and continue to have a significant impact on his ability to sleep, increasing the likelihood of further mental health difficulties.
88 Mr Rendall noted that the plaintiff faced likely challenges in finding alternative employment or retraining due to his record and difficulties with reading and writing. In any event, he believed that for him to be able to return to any suitable employment, his injuries would have to “heal, his experience of pain [be] reduced and he [be] able to get adequate sleep”.
The evidence of the psychiatrist, Dr Gerald O’Brien
89 The plaintiff also relies on the reports from the psychiatrist, Dr Gerald O’Brien, dated 6 December 2018,[44] 26 July 2019,[45] 29 May 2019[46] and his last report, dated 1 November 2019.[47] The then treating general practitioner, Dr Corns, referred the plaintiff to Dr O’Brien.
[44]See exhibit 4 at pages 97-98 PCB
[45]See exhibit 4 at pages 99-100 PCB
[46]See exhibit 4 at page 101 PCB
[47]See exhibit 4 at pages 102-103 PCB
90 As at the date of his first report, the plaintiff had consulted with Dr O’Brien on two occasions, commencing on 20 September 2018.
91 When first seen, Dr O’Brien got a history of the transport accident some two years ago. Dr O’Brien noted the plaintiff suffered chronic pain which significantly limits his ability to function, particularly with work. He also noted that the impact of the transport accident is likely to have been exacerbated by his father suiciding a week later in the context “of what appears to have been a difficult and at times hostile relationship with Paul and his father”.[48]
[48]See exhibit 4 at page 97 PCB
92 Dr O’Brien went on to note that he considered that the transport accident was only one small part of what has been a chaotic and troublesome life for the plaintiff. In this respect, he referred to the long-term substance abuse issues and his significant ongoing difficulty with anger management that he considered somewhat surprisingly has been helped by counselling at the pain management clinic. Dr O’Brien also noted that the plaintiff presented as an “erratic risk taker” who did extremely poorly at school and has long-term issues with excessive anxiety and generally low mood.
93 Dr O’Brien notes that the plaintiff informed him he has longstanding problems with concentration (which he ꟷ the plaintiff ꟷ feels worsened since the accident) and which was noted by his teachers throughout his truncated schooling. The plaintiff gave a history of someone who has been particularly disruptive and perpetually impulsive.
94 Dr O’Brien notes that the plaintiff was previously overactive and remains restless and fidgety, and has trouble with verbal instructions and considerable organisational difficulties, including with time management and frequently misplacing and losing items.
95 At that time, Dr O’Brien was of the opinion that it was “highly likely” the plaintiff suffered ADHD with a comorbidity of generalised anxiety and some depression. Dr O’Brien noted that the plaintiff virtually had all the symptoms of ADHD and it had been significantly troublesome for him.
96 In his later report, dated 26 April 2019, Dr O’Brien, who had now seen the plaintiff a further three occasions, was of the opinion that the plaintiff had developed a Post-Traumatic Stress Disorder from the transport accident on 4 November 2016. This had been exacerbated by chronic pain syndrome which also began at that time.
97 In particular, Dr O’Brien states:
“I believe that the accident of the 4 November 2016 has been a significant contributing factor to his current psychiatric condition. The post traumatic experience Mr. Edwards has … left him highly anxious when driving limiting his ability to get work. His pain condition severely limits his functioning at work. Circumstances around the accident also appear to have exacerbated its impact. Mr. Edwards’ girlfriend of the time was initially trapped in the car and tragically his father suicided a week after the accident.
I believe Mr. Edwards’ mental state prior to the accident had left him much more vulnerable to post traumatic symptoms from the accident. He has a longstanding history of severe anxiety and depression. He also has a history of poly-substance abuse and I believe has a further diagnosis of Attention Deficit Hyperactivity Disorder. All of these are likely to have exacerbated the impact of the accident and / or limited his ability to cope and deal with this event.
It is my belief that Mr. Edwards will be precluded from work for the foreseeable future. Before he is able to return to work he will need to have improved with regards to his chronic pain syndrome and better management of his ADHD will also be required. He will also require treatment for his post traumatic stress symptoms. This inability to work will also include his pre-injury duties.”[49]
[49]See exhibit 3 at page 99 PCB
98 The plaintiff was further examined by Dr O’Brien on 29 May 2019, at which time the plaintiff had been using Ritalin, which he found of some benefit with his concentration and distractibility, as well as with his impulsivity and irritability.
99 Dr O’Brien still considered the plaintiff susceptible to impulsive actions, including angry outbursts which can lead to significant difficulty for him. Furthermore, Dr O’Brien was of the opinion the plaintiff continued to make what appeared to be impulsive and risk-taking choices. At that time, Dr O’Brien recommended a trial of Strattera, which has the potential of improving not only his impulsivity but also his concentration.
100 In his last report dated 1 November 2019, Dr O’Brien notes he has now seen the plaintiff on five occasions, commencing on 20 September 2018.
101 Dr O’Brien again expressed the opinion that the transport accident was a significant contributing factor to the plaintiff’s ongoing psychiatric condition. He notes that while the accident itself was traumatic and harmful, the consequence of the accident, including loss of transport and significant impact on his physical ability to work has also been significant and exacerbated further his anxiety and depression.
102 Dr O’Brien also expressed the opinion that the psychiatric injury suffered by the plaintiff had precluded him from working for a significant amount of time. However, when reviewed last month (that would be October 2019), Dr O’Brien was of the opinion that the plaintiff’s mental health had improved significantly, and based on this he thought it possible for the plaintiff to return to some form of work and stated “I do not consider that Mr. Edwards psychiatric injury in itself precludes him from performing his pre-injury duties. However he also has ongoing physical problems which are likely to do so.”[50]
[50]See exhibit 4 at page 102 PCB
The evidence of the psychologist, Dr Leonie Cole
103 The plaintiff also relies on reports from the psychologist, Dr Leonie Cole, dated 9 December 2019[51] and 24 July 2020.[52]
[51]See exhibit 4 at pages 105-108 PCB
[52]See exhibit 4 at pages 109-111 PCB
104 Dr Cole commenced to consult with the plaintiff on 17 July 2019 and had a further ten sessions (a total of eleven sessions) from then up until 26 November 2019. At the time of her report dated 9 December 2019 he had future appointments arranged for ongoing therapy. According to Dr Cole, such sessions have been accessed under the TAC Scheme.
105 Dr Cole obtained a history of a “difficult and unsettled childhood” with a history of family violence. The plaintiff has two older brothers and five young step siblings. His parents separated when he was young and his mother re-partnered with his ex-stepfather, who the plaintiff described as both a violent and abusive man. The plaintiff gave a history that he and his siblings would move interstate with their mother several times to escape the ex-stepfather, but his stepfather would eventually find them and the violence would continue.
106 The plaintiff described a “rocky relationship” with his ex-partner and expressed concerns about her parenting style, leading to him apply for full custody of his daughter of that relationship, Ruby.
107 At the time of his treatment, the plaintiff lived in rented accommodation with his long-term partner, Tyler.
108 The plaintiff stated he had never learned to “read and write” and left school before he turned fourteen. The plaintiff described himself as “travelling well psychologically” prior to the transport accident. The plaintiff denied ever having received any formal psychiatric diagnosis prior to the transport accident, although he does recall a period of low mood and anxiety during his mid-adolescence period prior to leaving school and believes this may have been treated briefly with antidepressants at that time.
109 Dr Cole expressed the opinion that the plaintiff was suffering from DSM-5 diagnostic criteria for Post-Traumatic Stress Disorder, Major Depressive Disorder and anxious distress and Somatic Symptom Disorder with persistent pain.
110 Dr Cole is of the opinion that the plaintiff’s history of early childhood trauma has increased his vulnerability towards developing Post-Traumatic Stress Disorder when exposed to a traumatic event in later life.
111 In her current report dated 24 July 2020, Dr Cole notes that the plaintiff has attended a further fourteen sessions between 18 December 2019 and 21 July 2020, together with future appointments arranged.
112 Dr Cole notes that therapy sessions continue to utilise CBT strategies for identifying and managing escalating emotions, as well as supportive counselling, behavioural activation, sleep hygiene and exposure to traumatic memories to defuse their impact.
113 Dr Cole notes that the plaintiff has continued to engage well with the therapy process, attends appointments as scheduled and has been able to successfully use de-arousal strategies to deescalate during stressful situations.
114 Dr Cole does note, however, that the plaintiff continues to have the DSM5 diagnostic criteria for Post-Traumatic Stress Disorder, Major Depressive Disorder with anxious stress and Somatic Symptom Disorder with persistent pain. Dr Cole considers that the transport accident on 4 November 2016 to be a significant factor to the plaintiff’s current psychiatric condition
Medico-legal examinations relied on by the Plaintiff
115 Those acting for the plaintiff arranged for the plaintiff to undergo the following examinations:
(a)an examination by the orthopaedic surgeon, Mr Roger Westh, on 9 April 2019;[53]
(b)an examination by the orthopaedic surgeon, Mr Thomas Kossmann, on or about 21 July 2020;[54]
(c)examination by the rehabilitation and pain management consultant, Dr Clayton Thomas, dated 23 July 2020.[55]
[53]See report of same date, exhibit 5, at pages 161-163 PCB
[54]See report of same date, exhibit 5, at pages 164-174 PCB
[55]See report of same date, exhibit 5, at pages 175-178 PCB
116 The plaintiff also relies on the following medico-legal examinations by the psychiatrist, Dr Nigel Strauss, who examined the plaintiff on the following occasions:
(a) 6 March 2018;[56]
(b) 28 March 2019;[57]
(c) 11 December 2019;[58] and
(d) 21 July 2020.[59]
[56]See report of same date, exhibit 5, at pages 112-125 PCB
[57]See report of same date, exhibit 5, at pages 126-138 PCB
[58]See report of same date, exhibit 5, at pages 139-149 PCB
[59]See report of same date, exhibit 5, at pages 150-160 PCB
117 Seemingly, Dr Strauss examined the plaintiff at the behest of the defendant on 6 March 2019 and 7 March 2019 and at the behest of the solicitors for the plaintiff on 11 December 2019 and 21 July 2020.
The evidence of the orthopaedic surgeon, Mr Roger Westh
118 When the plaintiff was examined by the orthopaedic surgeon, Mr Roger Westh, on 26 March 2019, the plaintiff gave a history of being the driver of a four-wheel-drive vehicle on 4 November 2016 and was not wearing a seatbelt. The plaintiff was making a right-hand turn in the city and his vehicle was struck by a taxi on the left side. Upon impact he said his car was spun around, but he was able to get out of the vehicle, and there was extensive damage to his vehicle. At the time he was very upset and went to a friend’s house by tram.
119 The plaintiff informed Mr Westh that the following day he was complaining of lower back pain and pain between his shoulder blades, and that he was in shock. He rested for a week, returned to work doing light yard duties for about two weeks. His job involved Asbestos removal and demolition work, which he had to cease, because he was unable to do the necessary work.
120 The plaintiff further gave a history that he went to see a doctor in Ocean Grove and was initially told he had a “whiplash”. X-rays were taken of his spine and he was told there was no fractures and he was referred for physiotherapy in Ocean Grove, but such treatment only gave him short-term relief.
121 Because of his symptoms persisting into mid-2017, the plaintiff was referred for pain management at Advanced Healthcare, where he had physiotherapy, psychological support and medications, and he said “he improved a little but the pain was still there”.[60]
[60]See report of same date, exhibit 5, at page 161 PCB
122 The plaintiff’s current medications at that time were Nurofen, two tablets four times per day. He informed Mr Westh that he wished to avoid heavier medications as he has previously had an addictive past. He also informed Mr Westh that he had had a lot of “stress” because his father died one week after the accident.
123 At the time of the examination, the plaintiff complained of constant lower back pain, which is across the base of his spine, and at night the pain radiates into his legs, with the pain being worse with activity, and also lying in bed. He is also aware of pins and needles when lying in bed.
124 The plaintiff asserted that his walking distance is limited to forty minutes and he says he struggles to walk his dogs. Lifting is limited to less than 20 kilograms and he struggles with bending. He can do light housework. He lives with his partner, who works as a hairdresser, and he looks after his five-year-old child (from a previous relationship) every second week. When driving a car for more than an hour his back is sore and the pain varies between 5 out of 10 and 11 out of 10.
125 The plaintiff also informed Mr Westh that he has also been seeing a psychiatrist after the transport accident because of a lot of stress and this is helping with his mental state, and he said at times it has been shocking. He asserted he gets very depressed and cries a lot. He informed Mr Westh he is a regular smoker and also smokes marijuana, and sees his local doctor as required. He says he has difficulty filling in time and tries to go for walks. He used to enjoy fishing a lot, but finds this is difficult as he cannot cast easily. He does not play any sport.
126 The plaintiff advised Mr Westh that he could not do his original demolition work because of the heavy nature of the work and that he has limited education, left school at fourteen, and has limited computer skills.
127 During examination, Mr Westh notes that the plaintiff presented with a “tired and depressed appearance”, but sat comfortably and had a normal gait.
128 On examination of the cervical spine, the plaintiff was tender over the lower cervical region and there was slight restriction of movement. There was no muscle spasm and no dysmetria. Neurological examination in the upper limbs was normal.
129 On examination of his shoulder he had a full pain-free range of movement.
130 On examination of the lumbosacral spine he had normal alignment. He was tender at the L5-S1 level and also in the interscapular region. He had restricted range of movement with flexion and extension 60 degrees/20 degrees, right and left lateral flexion was 20 degrees/20 degrees and right and left rotation was 30 degrees/30 degrees. There was no muscle spasm and no dysmetria.
131 The plaintiff had a pain-free range of movement in his hips. Straight leg raising test was 60 degrees bilaterally with some slight back pain. He was able to sit up on the examination couch. Neurological examination was normal and there was no evidence of any abnormal illness behaviour.
132 Mr Westh had available the x-ray report dated 13 December 2016 of the thoracic and lumbar spine and pelvis and sacroiliac joints. He also had the MRI scan of the cervical, thoracic and lumbar spines, dated 28 April 2017.
133 In his report dated 9 April 2019, Mr Westh stated:
“Thus in summary, Paul Edwards is a 23 year old man who was involved in a motor vehicle accident on 4 November 2016. He was not wearing a seat belt at the time and was thrown about in the accident.
It is likely that he sustained a soft tissue injury to his lower lumbar spine and to a lesser extent the mid thoracic region. Extensive xrays revealed only mild degenerative change in the lower lumbar spine.
Clinical examination has revealed slight restrictions of movement in the lumbar spine. There is no evidence of any radiculopathy.
Mr Edwards now presents with the features of a chronic pain syndrome and he has a significant accompanying post traumatic stress reaction. He has undergone extensive conservative treatment and is still attending for pain management.
As a consequence of his injury and impairment he is likely to be restricted in relation to activities involving:
- Lifting, bending twisting and stooping
- prolonged sitting, standing and walking
- pushing, pulling or lifting
- walking and standing
This is likely to last for the foreseeable future.
As a consequence of his injuries and impairment he is likely to be precluded from working in the foreseeable future.
As a consequence of his injuries and impairment he is precluded from performing any heavy physical work, however theoretically he would be capable of performing suitable light employment. This would appear unlikely at this stage though particularly because of his pain syndrome, education and previous work experience.
As a consequence of his injuries and impairment he is restricted in relation to social, domestic and recreational activities for the foreseeable future.
Future treatment should consist of ongoing supportive care from his psychiatrist. He should also continue to attend for his pain management and it will be important for him to physically exercise on a regular basis.
I do not consider that Mr Edwards requires any further investigations or need to be referred to any other specialist.
His diagnosis can be considered to be poor considering his overall predominantly psychological state.”[61]
(My emphasis.)
[61]See exhibit 5, report of same date, at page 163 PCB
The evidence of the orthopaedic surgeon, Mr Thomas Kossmann
134 When Mr Kossmann examined the plaintiff on or about 21 July 2020, the plaintiff gave a similar history of the immediate circumstances of the transport accident on 4 February 2016.
135 The plaintiff confirmed that no ambulance attended the accident site and he did not seek any medical treatment on that day, but rather caught a tram to a friend’s house, where he stayed one or two days. Then his mother picked him up and he went home.
136 The plaintiff informed Mr Kossmann that he suffered from pain issues in his lumbar spine after the accident, which became worse. A couple of days after the accident he went to his general practitioner and he was told that he was suffering from “whiplash”, even though he was complaining about pain in his thoracic and lumbar spine. He was referred for various radiological studies which were not supplied to Mr Kossmann. The plaintiff informed Mr Kossmann that at the time of the transport accident he was working in a demolition business and returned to work two weeks after the accident, but continued to suffer from pain issues following an argument with his employer in relation to his return to work. He stopped working and has not worked since.
137 At the time of the examination, the plaintiff complained of pain between his shoulder blades and in his lower back, with the pain radiating into both of his buttocks, more on the right than on the left side. From there his pain radiates into his calf and he also complained about sore foot soles and of pins and needles in both of his feet.
138 The plaintiff complained of difficulty putting on socks and shoes and uses mainly slip-on shoes, and also has difficulty cutting his toenails. He has a sitting tolerance of about twenty minutes and has difficulty sleeping, since he cannot find a comfortable position due to his pain issues.
139 The plaintiff told Mr Kossmann that he has difficulty with his short-term memory, concentration and anger management. In addition, he suffers from flashbacks and nightmares in relation to the transport accident on 4 November 2016.
140 The plaintiff did inform Mr Kossmann that prior to the transport accident he was “fit and well and had no previous injury or illnesses”.[62]
[62]See exhibit 5, report of Mr Thomas Kossmann, at page 164 PCB
141 The plaintiff informed Mr Kossmann he passed Year 8 but has very rudimentary writing, reading and spelling skills. Physical examination took place on 21 July 2020, undertaken by using secure videoconferencing. In this sense, the plaintiff was instructed to perform movement of his head and body, as well as his extremities, which were measured using a goniometer directly on the screen. Mr Kossmann, at the time of the examination, had a variety of reports from treating doctors, many of whom were involved with the multidisciplinary pain management assessment and various clinical notes.
142 Mr Kossmann diagnosed the plaintiff to be suffering from:
(a)lumbar spondylosis in the form of MRI signal changes of his L4-5 and L5-S1 discs as well as a small disc bulge at the L4-5 level;
(b)pain in the thoracic and lumbar spine of unclear reason.
143 Mr Kossmann was of the opinion that the plaintiff suffered from pain in his thoracic and lumbar spine following the transport accident on 4 November 2016 and that his pain issues have had an impact on his employability, but also on his social, domestic and recreational activities.
144 Mr Kossmann was of the opinion that the plaintiff’s prognosis regarding his thoracic and lumbar spine is unclear and he recommended that he undergo standing x-rays of his thoracic and lumbar spine, complemented by MRI scans of the thoracic and lumbar spine. Depending on the outcome of these investigations, he may have to undergo further treatment.
145 Mr Kossmann noted that the plaintiff suffers from ongoing pain issues which seem to have failed conservative treatment and he recommended referral to a pain management specialist experienced in the treatment of patients with medical marijuana. He noted that the plaintiff already smokes marijuana and that he should trial medical marijuana, and if this has a positive effect. The plaintiff complained about difficulties which his short-term memory, concentration and anger management, and Mr Kossmann recommended referral to a neuropsychologist and a psychiatrist.
146 Mr Kossmann was of the view that he could not return to the type of work that he was doing at the time of the injury, should avoid walking long distances, on uneven ground, upstairs, downstairs or on inclines/declines. Furthermore, he should avoid climbing up and down ladders, kneeling, squatting and using his upper extremities permanently or above shoulder height, and lifting heavy items more than 2.5 kilograms.
147 The plaintiff advised Mr Kossmann that he has rudimentary reading, writing and spelling skills, which Mr Kossmann considered a significant obstacle for him to find any suitable work that he is capable of within the above restrictions. He recommended a vocational assessment to find out if the plaintiff would qualify for further rehabilitation or re-education.
148 In particular, I refer to question 3 set out in Mr Kossmann’s report and the answer thereto, which states:
“3. Whether you think my client’s injuries are organic in nature and if his injuries are permanent.
Mr Edwards suffers from lumbar spondylosis in the form of MRI signal changes of his L4/5 and L5/S1 disc’s (sic) as well as a small disc bulge at the L4/5 level. I cannot explain his pain issues in his thoracic spine. His pain perception seems more severe than the objective findings can explain so far.
To verify / exclude any more significant pathologies on Mr Edwards thoracic and lumbar spine I have recommended that he undergo x-rays of his thoracic and lumbar spine complemented by MRI’s of the thoracic and lumbar spine.”[63]
(My emphasis.)
[63]See exhibit 5 at page 173 PCB
The evidence of the rehabilitation and pain management consultant, Dr Clayton Thomas
149 When examined by Dr Clayton Thomas on 22 July 2020 (by way of Zoom and Telehealth), the plaintiff gave a similar history in relation to the immediate circumstances of the transport accident as given to both Mr Westh and Mr Kossmann.
150 When seen on 22 July 2020, the plaintiff complained of pain in his spine and in particular the lower back and interscapular pain. He gave a history that when he walked he would have knee pain, and he reported swelling of his knees, pins and needles in the soles and feet if he stood for any length of time, and he also has pain in the arms if he uses them, but otherwise no pain in the arms. He did not report headaches and he reports that his memory is poor.
151 The plaintiff described his pain levels are generally 4-5 out of 10 and on a good day they would drop to 2 out of 10, but they never go away. On a bad day they become 11 out of 10. This will occur when he overdoes it, such as if he tries to clean up his backyard. This situation causes him to cry and become quite distressed and it takes a week or two for the pain to settle down again.
152 The plaintiff also reported problems with his bowel, which only opens every one or two weeks, and he also has bladder urgency and the tendency to have the occasional accident.
153 In particular, the plaintiff reported problems with his mental health, with the primary problem being anxiety being in a car, particularly as a passenger. The plaintiff indicated he is able to drive, but prefers to drive for only short distances as any long driving causes his personality to change and he becomes “nasty”. As a front-seat passenger be becomes scared and tends to look down, hold on and overall feels terrified. He reported that he did not smoke normal cigarettes frequently, but uses cannabis, generally two per day at nighttime, and will drink a bottle of Bourbon every fortnight.
154 Prior to the transport accident he used to enjoy fishing, but now goes fishing infrequently, but does not enjoy this activity.
155 Dr Thomas notes that he was unable to examine the plaintiff. However, he had available to him, and made reference to, a report from the orthopaedic surgeon, Mr O’Brien, dated 19 March 2018. This report seemingly was in neither party’s Court Book, and the report of Mr Westh, dated 9 April 2019, to which reference has already been made. In particular, Dr Thomas noted that Mr O’Brien found:
“… ‘some tenderness to very light palpation over the spinous processes in the mid lower thoracic spine and also in the lumbar spine’.
…
… lumber spine movements were limited. Flexion 40o, 20o of extension, 20o of lateral flexion and 40o of rotation.”
I noted neurologically he was intact.”[64]
[64]See exhibit 4 at page 177 PCB
156 Dr Thomas also set out details from the report of Mr Westh to which reference has already been made. Dr Thomas also notes that he had available in the report from Mr O’Brien, a report of an MRI scan of the plaintiff’s cervical, thoracic and lumbar spine undertaken on 28 April 2017 and again, to which reference has already been made.
157 Apparently Dr Thomas was posed various questions by those acting for the plaintiff, and in answer to those specific questions he states in his report:
“As to your specific questions:
Diagnostically, he has diffuse and nonspecific spinal pain. The imaging is unremarkable. The imaging pre-existed his presentation. His pain complaints are not just at the areas of possible abnormality on the MRI to his lumbar spine but areas above and therefore there is no connection to the imaging and his pain complaints.
I think he has become very deconditioned. I think he has developed fairly significant dysfunctional ways of managing his pain. I think he also is suffering from a somatic symptom disorder. He has a number of somatic symptoms which he finds distressing and disrupt his daily life. These thoughts are disproportionate and persistent with a high degree of anxiety about his health and the meaning of the pain for him. His symptoms have been present now for a prolonged period of time but predominantly with pain and are persistent and severe.
As such, the nature of this man’s chronic pain syndrome is predominantly psychological in its genesis.
As a consequence of the physical injury to his spine and the consequent impairment, he will have difficulty performing physically based activities. He can lift, bend, twist and stoop. I would place a 10 kg lifting limit on him between waist and chest height, a 5 kg lifting limit below waist height or above chest height.
He is quite deconditioned. He needs to be commenced on a walking regime to increase his overall stamina. He can push and pull 20 kg.
The restrictions that he has are likely to be protracted and likely to continue into the foreseeable future.
Any attempt at reconditioning him will need to be done in the context of psychological support.
From a work perspective, the psychological factors here are the dominant ones. I would accept that given his poor literacy and numeracy skills, that work then will be more difficult to find. Light processing work would be reasonable. A semi-sedentary position particularly in manufacturing is difficult to find. Such positions, however, he would have capacity to perform. This is from a physical perspective. The psychological aspects will determine whether this is physically going to be possible for him.
Mr Kossmann, in his report, accepted that the plaintiff suffered from lumbar spondylosis in the form of the MRI signal changes of his L4-5 and L5-S1 discs, as well as a disc bulge at the L4-5 level. However, Mr Kossmann went on to state that any pain in the thoracic and lumbar spine was “of unclear reason”.
Dr Clayton Thomas had available the report from Mr Westh, and also a report from a further orthopaedic surgeon, Mr O’Brien, which was dated 19 March 2018. In particular, as I have already recorded, his conclusions were that the plaintiff was suffering from diffuse and non-specific spinal pain in circumstances where the radiology was “unremarkable”. Such pain complaints were not in the areas of possible abnormality on the MRI scan to his lumbar spine, but areas above, and therefore there is no connection to the imaging and his pain complaints.
Dr Clayton Thomas considered the plaintiff was suffering from a Somatic Symptom Disorder. In particular, Dr Clayton Thomas was of the view that the nature of the plaintiff’s Chronic Pain Syndrome was predominantly psychological in its genesis. In this respect, any reduction of movement and thus restriction of his back was due to psychological mechanisms rather than organic mechanisms.
Dr Rahgozar, although accepting that there was probably a musculoligamentous injury following the transport accident, such is likely to have resolved by the time of his examination. He considered the plaintiff to be suffering from chronic pain in the context of a very complex set of psychosocial circumstances. In particular, he was of the opinion that at the time of his examination, the plaintiff did not suffer from any physical, musculoskeletal or medical pathology.
270 It is to be noted that Mr Westh, Dr Clayton Thomas, Dr Rahgozar and, to a lesser extent, Mr Kossmann, were of the opinion that, to the extent that the plaintiff complained of symptoms such as pain in his low back (and upper back), such pain was mediated by psychological mechanisms rather than some organic condition. In this sense, and taking again all the evidence into account, I am of the opinion that the plaintiff does suffer pain symptoms in his low back which impacts on his ability to work but such symptoms do not have any organic basis.
271 I now turn to the second issue to be determined that whether the plaintiff has a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury” as informed by the Court of Appeal in Humphries and Anor v Poljak.[95]
[95]Op cit
272 Before determining this issue, I do refer to the High Court decision of Transport Accident Commission v Katanas,[96] which involved an appeal by the Transport Accident Commission in respect of the majority decision of the Court of Appeal of the Supreme Court of Victoria (Ashley and Osborn JJA, Kaye JJA dissenting). The Transport Accident Commission submitted that the majority erred in holding that the primary judge misdirected himself as to the application of the so-called “narrative” test based on the Court of Appeal decision of Humphries and Anor v Poljak.[97]
[96][2017] HCA 32
[97]Op cit
273 At first instance, the trial judge effectively set up a spectrum ranging from mild anxiety not requiring treatment to the most extreme symptoms and consequences requiring extensive treatment with medication, and so to conceive the severity of a mental disorder or disturbance solely in terms of the extent of treatment and medication which the disorder or disturbance necessitated. It was submitted by those acting on behalf of the original plaintiff that the primary judge erred in reasoning that to qualify as “severe” a mental disorder must be at the upper echelon of those disorders in that “range”, was to engage in a false and incomplete process of reasoning which caused the assessment to miscarry.
274 The majority of the Court accepted the plaintiff’s contention and stated that although the extent of treatment made necessary by a psychiatric disorder may cast light on whether the disorder should be classed as severe, it was only one among a range of considerations that needed to be taken into account. The correct approach, so it was said by the majority in the Court of Appeal, was to bring into account all relevant circumstances personal to the claimant and apply the narrative test outlined in Humphries and Anor v Poljak.[98] Giving each identified relevant circumstance the weight which appears to be appropriate, the Court of Appeal also added in that task, a judge “‘will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other’”.[99]
[98]Op cit
[99]See Transport Accident Commission v Katanas (op cit) at paragraph [18]
275 The High Court upheld the decision of the majority of the Court of Appeal, and stated:
“… Assuming that the majority were correct in their characterisation of the primary judge’s formulation of the ‘possible range’, it is clear that the range, as so formulated, was incomplete because it had regard to only one criterion of the comparative severity of a mental disorder or disturbance: the extent of treatment made necessary by the disorder or disturbance. That precluded consideration of other relevant criteria of comparative severity – for example, in this case, the severity of the respondent’s symptoms; the severity of their consequences for her; and the extent to which the symptoms or consequences inhibited the respondent’s daily activities, family life, social life and educational pursuits. Because the range as formulated was incomplete, it was prone to skew the assessment of severity and cause the assessment to miscarry.”[100]
[100]Op cit at paragraph [21]
276 Senior Counsel for the defendant submitted the following in support of his submission that the plaintiff should also fail in relation to his claim under paragraph (c) of the definition of “serious injury”:
(a)The plaintiff suffered a pre-existing psychiatric condition of great significance. It was for the plaintiff to establish as a matter of probability that the extent of any aggravation is “severe” in the narrative test as set out in Humphries and Anor v Poljak.[101]
[101]Op cit
In support of such submission, Senior Counsel for the defendant submitted, that the plaintiff suffered a pre-existing psychiatric condition of “great significance”. Counsel referred to two pieces of evidence ꟷ the plaintiff’s evidence that in discussing his job at the pizza shop he was not fit to deal with customers because he had problems in terms of his ability to control “intemperate language on his behalf” and secondly, the evidence of one of the treating psychiatrists, Dr O’Brien.
(b) Dr O’Brien, who in his report dated 6 December 2018[102] opines that:
[102]See exhibit 4 at page 97 PCB
“Thank you for referring Paul whom I have now seen on 2 occasions. As you know he was involved in a motor vehicle accident some 2 years ago and this has been the major focus since then. He experiences chronic pain which significantly limits his ability to function, particularly with work. The impact of the accident is likely to have been exacerbated by his father suiciding a week later in the context of what appears to have been a difficult and at times hostile relationship with Paul and his father.
However, I feel his accident is only one small part of what has been a chaotic and troublesome life for Paul. He has long term substance abuse issues and has had a significant ongoing difficulty with anger management that somewhat surprisingly has seemingly been helped by him receiving counselling at the pain management clinic. He presents as an erratic risk taker who did extremely poorly at school and has long term issues with excessive anxiety and generally low mood.
In particular, Paul also notes long-standing problems with concentration and he feels it worsened since the accident and which was repeatedly noted by his teachers throughout his truncated schooling. He was also seen as being particularly disruptive and he notes that he is perpetually impulsive. He was previously overactive and remains restless and fidgety and has trouble with verbal instructions and has considerable organisational difficulties including with time management and frequently misplacing and losing items.
I feel that it is highly likely that he has ADHD with the common co-morbidity of a Generalised Anxiety Disorder and some depression. He has virtually all the symptoms of ADHD and it has been significantly troublesome for him. He also has a life history that is consistent with this including early and significant substance abuse, multiple jobs, anger management issues and considerable risk taking.[103]
Dr O’Brien trialled the plaintiff with medication for the condition of ADHD.
[103]See exhibit 4 at page 97 PCB
277 Senior Counsel for the defendant also submitted that the death of the plaintiff’s father a week or so after the transport accident and the ongoing custody dispute with his ex-partner in relation to his young daughter, were “intercurrent stressors”. Counsel made references to Transcript 60, Line 19, which records:
Q:“In any event, the death of your father was obviously a very distressing matter for you?---
A:Yes, it was, yes.
Q:And at the time same you were experiencing other things that were stressful for you, weren’t you?---
A:Yes (indistinct).
Q:You had had a long running dispute with your ex‑partner about the custody of your daughter?---
A:Yes.
Q:In fact, on the day of your accident you were returning from Melbourne Magistrates’ Court, is that right?---
A:Yes, that is right, I was going (indistinct words).
Q: To do with the custody dispute?---
A: Yes.
Q: And that had been, as you say, long running?---
A: Yes, it has.”[104]
[104]T60, L19-29
278 Shortly after this evidence, the plaintiff confirmed he does have part custody of his daughter and he is pretty happy with what he has got at the moment.
279 Such submission flows from s93(1) of the Act, which states, in part:
“(1)A person shall not recover any damages in any proceedings in respect of the injury … as a result of a transport accident … except in accordance with this section.”
[My emphasis.]
280 I refer to a Court of Appeal decision of Rowe v Transport Accident Commission,[105] and in particular to paragraphs 82 and 83, which state:
“… The judge was correct to reject the applicant’s submission that all the applicant need establish was that the 2007 collision was a cause of the applicant’s current total psychiatric condition. As s 93 of the Act requires, and as this Court has made plain in Petkovski, Skorsis, Filipowicz and De Agostino, the task of a judge hearing an application under s 93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.
That is not to say, however, that earlier or later traumas are not relevant. An exacerbation of an earlier injury may itself have consequences which meet the statutory test. Similarly, conditions, symptoms or consequences that arise later in time (and perhaps after a later trauma) may be relevant if those later conditions, symptoms or consequences can be said to result from the transport accident in respect of which leave is sought to commence a proceeding.”[106]
(Footnotes omitted.)
[My emphasis.]
[105][2017] VSCA 377
[106]Reference was made to R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at 394, paragraph [27] per Buchanan JA; Altona Bus Lines v Lococo [2002] VSCA 159 at paragraphs [11]-[12]
281 Counsel for the plaintiff submitted, in support of the application under paragraph (c) of the definition of “serious injury”, that there is strong evidence to support the proposition that the transport accident has resulted in the plaintiff suffering a Post-Traumatic Stress Disorder, which was also diagnosed by the psychiatrist, Dr O’Brien, and also the treating psychologist, Dr Cole, and medico-legal psychiatrist, Dr Strauss. Of course, there is no evidence whatsoever that the plaintiff had Post-Traumatic Stress Disorder prior to the transport accident.
282 Indeed, the first reference to Post-Traumatic Stress Disorder is a consultation with one of the doctors at the Epic Health Ocean Grove Clinic ꟷ Dr Yash Ahuja on 28 January 2017, when he recorded that the plaintiff had “PTSD symptoms” and indeed that was when a mental health care plan was devised and there was the recommendation that he attend a psychologist.[107]
[107]See exhibit “F” at page 119 DCB
283 After a consideration of all the evidence and the competing submissions, I do find that the plaintiff has discharged his onus in establishing that the transport accident has resulted in the plaintiff suffering a severe long-term mental or severe long-term behavioural disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”, as informed by the Court of Appeal in Humphries and Anor v Poljak[108] and Mobilio v Balliotis,[109] wherein the then Full Court found the word “severe” to be a higher standard to reach than “serious”.
[108]Op cit
[109]Op cit
284 I have come to such conclusion for the following reasons:
(a)I find that the evidence of the treating psychologist, Dr Cole, and the medico-legal psychiatrist, Dr Strauss, compelling. Dr Cole commenced consulting with the plaintiff on 17 July 2019, and over the time up to the hearing of this matter has had a large number of consultations and ultimately came to the view that the plaintiff was suffering and continued to suffer a Post-Traumatic Stress Disorder, Major Depressive Disorder and anxious distress, and a Somatic Symptom Disorder with persistent pain. Her last report prior to the hearing indicated that treatment would be ongoing into the future.
Dr Cole considered that the transport accident on 4 November 2016 to be a significant factor to the plaintiff’s psychiatric condition. In particular, although well recognising that the plaintiff had had a “difficult and unsettled childhood” with a history of family violence, she considered that that essentially only made the plaintiff more vulnerable to suffering psychological consequences from the transport accident.
The psychologist, Dr Nigel Strauss, consulted with the plaintiff, initially on 6 March 2018 on behalf of the defendant, and also on 27 March 2019; 11 December 2019, and on 21 July 2020, which was a couple of weeks prior to the hearing of this matter. Dr Strauss, on the history given by the plaintiff, was of the opinion he was “extremely vulnerable” before the transport accident on 4 November 2016. Dr Strauss is of the opinion that the plaintiff suffers from a psychologically-based pain or Pain Disorder, sometimes known as a Somatic Symptom Disorder, a mild Post-Traumatic Stress Disorder and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
Such diagnoses are virtually the same as Dr Cole.
In this sense, I consider that the mental or behavioural disturbance or disorder is caused by the mental conditions described by Dr Cole and Dr Strauss.
285 It must be remembered that the symptoms of the Post-Traumatic Stress Disorder clearly commenced after the transport accident. In this respect, I refer to some of the evidence which supports such a diagnosis:
(a) In his affidavit sworn on 15 May 2018, the plaintiff deposes that he gets “very nervous travelling in cars especially as a passenger” and he continues “to have nightmares about the accident”. Furthermore, he has “flashbacks to the accident” and gets “jumpy with loud noises”. He does not like “being around taxis on the roads”;[110]
[110]See exhibit 2 at paragraph [15], page 8 PCB
(b) When initially examined by the psychologist, Mr Stephen Rendall, on 26 July 2017 (as part of the pain management course), Mr Rendall noted that the plaintiff described since the transport accident experiencing significant “symptoms of anxiety when driving, regular nightmares of the accident, regular flashbacks of the accident and increasing anxiety when he hears the sound of metal crunching, which occurs regularly at his workplace in demolition”;[111]
[111]See exhibit 4 at page 92 PCB
(c) When initially assessed by Dr Cole on 17 July 2019, Dr Cole notes that the plaintiff “reported significant post-traumatic symptoms associated with the MVA (including intrusive thoughts, avoidance, negative alteration in mood and cognition, hyperarousal and hyperreactivity)”;[112]
[112]See exhibit 4 at page 106 PCB
(d) When Dr Strauss initially consulted with the plaintiff on 6 March 2018, the plaintiff informed Dr Strauss that he is “very nervous in cars, more so as a passenger than as a driver”. In particular, “he avoids the scene of the accident” and “he is jumpy with loud sudden noises, particularly with traffic noises”. The plaintiff also informed Dr Strauss that he “dreams about the accident and also has flashbacks”.[113]
When last examined by Dr Strauss (per telephone), the plaintiff again stressed that he continues to have “nightmares about accidents reasonably regularly and still has flashbacks to his accident”. The plaintiff informed Dr Strauss that he is “nervous more as a passenger than as a driver”, that if he “… sees a taxi at an intersection he become panicky”. The plaintiff informed Dr Strauss he has never been back to the scene of the accident.[114]
[113]See exhibit 5 at page 116 PCB
[114]See exhibit 5 at page 153 PCB
286 I also consider that there is ample evidence that the plaintiff suffered from what both Dr Cole and Dr Strauss describe as a somatic condition – that is, a condition giving rise to pain in the lower back (amongst other places) mediated by not an organic cause but by a psychological mechanism. It must be remembered that the plaintiff had no history of back pain whatsoever prior to the transport accident and indeed, this was largely demonstrated by the type of work which was open to him – largely labouring-type work.
287 As I have already discussed earlier in this judgment, I consider that the symptoms that he now suffers, in particular to his low back, are of a somatic condition and arose immediately after the transport accident – initially perhaps in some musculoligamentous form of injury but continuing as a somatic condition brought about by psychological mechanisms. No one doubts that he has such pain – the issue amongst the doctors has been whether or not he had suffered an organic injury and continued to suffer an organic injury or whether psychological mechanisms were at play.
288 Again, both Dr Cole and Dr Strauss diagnosed the plaintiff to be suffered from both Anxiety and Depression – Dr Cole diagnosed it to be a Major Depressive Disorder and Anxiety whereas Dr Strauss referred to it as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
289 Again, on the evidence, such condition has overcome the plaintiff since the transport accident and whereas he was actively involved in work prior to the transport accident, enjoyed a social life with his partner, enjoyed going out and fishing regularly and generally being outdoors, this has all changed and he spends much time inside, his social life is virtually non-existent and he is experiencing pain all the time.
290 Other than some brief treatment from Dr O’Brien for what he considered was a long-term Attention Deficit Disorder and which was ultimately unsuccessful according to Dr Strauss, the plaintiff has had no medication for his psychological condition. His treatment from Dr Cole has been cognitive therapy. However, when last seen by Dr Strauss, the plaintiff stated (and I accept) that he was taking about six Nurofen tablets and six Panadol a day to control the pain symptoms that he experiences.
291 Dr Strauss notes that the plaintiff should be seeing a psychologist at the current frequency but does not recommend any other treatment and notes that “unfortunately, his situation has stabilised”. He notes that the plaintiff is now a man with limited motivation, difficulties with interpersonal relationships, significant dependency traits, ongoing problems with substances, reasonably high levels of anxiety and subsequently, resultant significant depression, and also remains traumatised, partly because of the motor vehicle accident.
292 Dr Strauss believed that the chances of the plaintiff working in the foreseeable future are “quite limited” when all factors are considered. He considered it would be extremely difficult to rehabilitate the plaintiff, particularly as he is semi-literate and has only ever done physically-demanding work in the past. As Dr Strauss notes, the plaintiff is a very unattractive proposition when employment possibilities are considered. Dr Strauss ultimately believes that on the balance of probabilities, it is quite doubtful that the plaintiff will work in the foreseeable future and he does not believe his chances of working are beyond “limited”.
293 I should point out that even if I be wrong that the conditions diagnosed by Dr Cole and Dr Strauss pre-existed the transport accident – which I consider highly unlikely in relation to the Post-Traumatic Stress Disorder and the somatic condition – then any psychological condition that the plaintiff did have has been aggravated by the transport accident and the extent of such aggravation is “severe” within the meaning of the definition of “serious injury” contained in paragraph (c).
294 One only has to observe the plaintiff as I had the advantage of during his appearance in Court, to realise that this man suffers significant psychological problems which were clearly nowhere as severe when one looks at the events leading up to the transport accident – that is, his ability to work freely, his ability to socialise with his de facto partner, travel by car to various places to enjoy recreational activity, go out and enjoy dinners and nightclubs and the like – all of this has gone.
295 I should add also that when properly viewed, I do not consider the death of his father nor the ongoing family law issue prior to the transport accident has resulted in the conditions suffered by the plaintiff. In this respect, it must be borne in mind that the plaintiff had virtually nothing to do with his biological father since about the age of three when his mother and biological father separated. Of course, during this time the plaintiff described his father to be a heroin addict. Furthermore, although one can understand a degree of stress in relation to the issues surrounding his daughter, it again has to be borne in mind that in the months leading up to the transport accident, the plaintiff was at great pains to improve himself by cutting back his drug use, coming to an arrangement with Centrelink about repayment of monies, approaching various police stations for the payment of outstanding fines and generally setting out to improve himself and make the prospects of him having greater access or custody of his daughter. Indeed, he succeeded in this over time.
296 I am satisfied as a matter of probability that the plaintiff has suffered a severe long-term mental or long-term behavioural disturbance or disorder as informed by the Court of Appeal in Humphries & Anor v Poljak[115] and Mobilio.[116]
[115]Op cit
[116]Op cit
297 In particular, I consider that the plaintiff has suffered “a severe long term mental or behavioural disturbance or disorder” based on the evidence before me (particularly that of Dr Cole and Dr Strauss). The plaintiff has suffered both pecuniary disadvantage and pain and suffering consequences which are “severe” when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders.
298 I find for the plaintiff in relation to the application under paragraph (c) of the definition of “serious injury”.
299 I will hear the parties on the question of costs.
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
ꟷ Claim for Compensation, dated 6 February 2017
(Found at pages 1-3 of the Plaintiff’s Court Book (“PCB”))
Exhibit 2
ꟷAffidavits of the plaintiff sworn on 15 May 2018, 12 December 2019 and 31 July 2020.
(All such material found at pages 4-9, 14-19 and 26-25 PCB)
ꟷ Particulars of Injury dated 31 July 2020
ꟷ Particulars of Injury dated 31 July 2020 and 2 August 2020
(All such material found at pages 20-21 and 179-180 PCB)
Exhibit 3:
ꟷ X-ray of the thoracic lumbar spine taken on 13 December 2016
ꟷ X-ray of the pelvis and sacroiliac joints taken on 13 December 2016
ꟷ MRI scan of the cervical and thoracic and lumbar taken on 29 April 2017
ꟷ MRI scan of the lumbar spine taken on 22 July 2020
(All such material found at pages 27, 29-30 and 36-37 PCB)
Exhibit 4:
ꟷ Medical report from Dr Sukhdeep Baweja, dated 9 April 2017
ꟷ Multidisciplinary Pain Management Assessment, dated 11 July 2017
ꟷ Medical Reports from Mr Malcolm Ong, dated 22 November 2017, 12 September 2019 and 31 July 2020
ꟷ Email from Mr Ong, dated 31 July 2020
ꟷ Medical reports from Mr David Goulding, dated 22 November 2017 and 13 August 2019
ꟷ Report of the psychologist, Mr Stephen Rendall, dated 23 November 2017
ꟷ Medical report from the psychologist, Mr Tyson Sharpe, dated 6 July 2018
ꟷ Reports from the psychologist, Dr Gerald O’Brien, dated 6 December 2018, 26 April 2019, 29 May 2019 and 1 November 2019
ꟷ Medical certificate dated 21 March 2019
ꟷ Reports of the psychologist, Dr Leonie Cole, dated 9 December 2019 and 24 July 2020
(All such material found at pages 38-110 PCB)
Exhibit 5
ꟷ Medico-legal reports from the psychiatrist, Dr Nigel Strauss, dated 6 March 2018, 27 March 2019, 11 December 2019 and 21 July 2020
ꟷ Medico-legal report from the orthopaedic Surgeon, Mr Roger Westh, dated 9 April 2019
ꟷ Medico-legal report from the orthopaedic surgeon, Mr Thomas Kossmann, dated 21 July 2020
ꟷ Medico-legal report from medico-legal consultant and rehabilitation and pain medicine, Dr Clayton Thomas, dated 23 July 2020
(All such material found at pages 112-178 PCB).
2 The defendant tendered the following material:
Exhibit “A”
ꟷMedico-legal report of the consultant occupational physician, Dr Majid Rahgozar, dated 3 July 2020
(Such report can be found at pages 4-11 of the Defendant’s Court Book (“DCB”))
Exhibit “B”
ꟷ Part of the clinical notes of Dr Gerald O’Brien, dated 10 October 2019
(Such clinical notes can be found at pages 43-44 DCB)
Exhibit “C”
ꟷ Clinical notes of the psychologist, Dr Leonie Cole
(Such clinical notes can be found at pages 81-83 and 85-87 DCB and referable to 11 September 2019 and 25 September 2019)
Exhibit “D”
ꟷ Part of the clinical notes of Dr Corns, general practitioner
(Such clinical notes can be found at page 204 of the DCB relating to 13 November 2018)
Exhibit “E”
ꟷWork records pertaining to the plaintiff running from 1 November 2016 through to, although not continuously, 8 December 2016.
0
6
0