Faalili v Transport Accident Commission
[2015] VCC 50
•5 February 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-04040
| MASELINO FAALILI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 November 2014 | |
DATE OF JUDGMENT: | 5 February 2015 | |
CASE MAY BE CITED AS: | Faalili v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 50 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – injury to lower back – potential intervening incidents also resulting in injury to lower back – disentangling – whether the consequences are “serious”
Legislation Cited: Transport Accident Act 1985, s93(4)(d)
Judgment: The plaintiff has leave to commence a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Slater & Gordon Ltd |
| For the Defendant | Mr G Lewis QC with Ms R Boyce | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 10 September 2010, the plaintiff seeks the leave of the Court, pursuant to s93(4)(d) of the Transport Accident Act 1985 (“the Act”), to bring a proceeding to recover damages at common law for injuries which he suffered in a transport accident which occurred on 22 May 2004.
2 The plaintiff claims that he suffered an injury to his lower back which constitutes a serious long-term impairment or loss of the function of his lower back under paragraph (a) of the definition of “serious injury”.
3 Mr J Mighell QC appeared with Mr M Fogarty of Counsel for the plaintiff. Mr G Lewis QC appeared with Ms R Boyce of Counsel for the defendant.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 7-84, 168-169 and 391-412: Exhibit A;
· The defendant tendered its Court Book (“DCB”) pages 1-32, 47-49, 51, 53-57, 65-68, 70-84 and 96-103: Exhibit 1.
The Plaintiff’s background
5 The plaintiff was born in Samoa in September 1966. He is now forty-eight years of age. The plaintiff is a married man. He and his wife have three very young children.
6 The plaintiff migrated to New Zealand when he was eight years of age. He completed his secondary schooling in New Zealand to Year 12. He subsequently worked in a number of occupations in New Zealand which are referred to in his curriculum vitae,[1] before migrating to Australia in 1993.
[1]DCB 70-73
The transport accident
7 On 22 May 2004, the plaintiff was a front-seat passenger in a motor vehicle which was struck from behind by another motor vehicle (“the transport accident”).
8 As a direct result of the impact, the plaintiff struck his head on the dashboard. He suffered multiple injuries. He was immediately aware of pain in his lower back, right knee and chest. He did not think his injuries were serious at that time. Although an ambulance attended the scene of the transport accident, he declined to be taken to a hospital.
The issues
9 Before summarising the medical evidence, it is relevant to identify the issues raised in this proceeding. Mr Mighell submitted that all of the consequences contended for by the plaintiff were the result of the injury which the plaintiff suffered to his lower back.
10 Mr Lewis conceded that the plaintiff did suffer an injury to his lower back; however, he submitted that the approach that I must take is to ask: Do the consequences of injuries caused by the transport accident, when considered separately and apart from all other injuries, satisfy the serious injury test?
11 The question articulated by Mr Lewis arose, essentially based upon the following:
· The plaintiff had very little treatment before coming under the care of Mr Lo, neurosurgeon, in 2010.
· The plaintiff was employed by Toll Ipec (“Toll”) as a courier driver from 2005 to April 2012. Before he underwent surgery on 20 June 2011, the tasks required of him as a courier driver involved, among other things, lifting and carrying parcels weighing up to 25 kilograms. Those tasks caused him to suffer an increase in his lower back pain (“the lifting tasks”).
· In October 2010, the plaintiff fell from the back of a truck in the course of his employment with Toll. That incident resulted in him suffering an increase in his lower back pain (“the fall”).
· On 26 September 2010, the plaintiff was involved in a second transport accident. That transport accident also resulted in him to suffering an increase in his lower back pain (“the second transport accident”).
12 Mr Lewis submitted that each of these events resulted in the plaintiff suffering either further injury to his lower back, or at least increased lower back pain. Further, that each of those events resulted in an additional impairment of the function of the plaintiff’s lower back which the plaintiff must disentangle in order to satisfy me that the consequences of the lower back injury, resulting from the transport accident, satisfy the serious injury test.
13 In addition to the foregoing, Mr Lewis cross-examined the plaintiff at some length to demonstrate that some aspects of what the plaintiff deposed to in his affidavits were wrong, and some of the histories given to examining medical practitioners were in contrast to his evidence in a number of respects. I will deal with these matters later in these reasons, where they become relevant.
The medical issues
14 Dr Wegrzynowski, general practitioner, first treated the plaintiff in April 2002. The plaintiff regarded her as his usual general practitioner. Dr Wegrzynowski provided a report dated 25 February 2012 which contains a summary of the medical treatment she provided the plaintiff.[2]
[2]PCB 23-28
15 The plaintiff first saw Dr Wegrzynowski on 23 July 2004, which is about seven weeks after the occurrence of the transport accident. He told her that he had been involved in the transport accident. He told her that he hit his face on the dashboard, and that he had suffered a number of injuries. He described the injuries as the development of pain in his lower back, neck and several broken teeth. On examination, Dr Wegrzynowski found that the plaintiff had a normal range of flexion in his lumbar spine, but extension and lateral flexion were severely restricted. She diagnosed a musculo-ligamentous lower back strain. She recommended that he be treated with analgesia, anti-inflammatory medication and physiotherapy.
16 Mr Lewis referred the plaintiff to his affidavits sworn 18 March 2012, and in particular, to his evidence that he tried to return to work for a few days in late 2004.[3] That evidence suggested that the plaintiff was working prior to the occurrence of the transport accident. The plaintiff could not remember what work he was doing at around that time. He thought he might have been engaged in security work; however, Mr Lewis referred the plaintiff to a taxation return which showed that he earned $248 in the relevant financial year. That suggested that the plaintiff did very little work in that financial year, and added some weight to the suggestion made by Mr Lewis that the plaintiff was probably not working at that time. The plaintiff was also not able to remember what work he said he returned to after the occurrence of the transport accident.[4]
[3]PCB 8
[4]Transcript 19-20
17 I refer to that part of the plaintiff’s evidence, because he told Dr Wegrzynowski that he was employed by a recruitment agency. He attempted to return to work on 29, 30 and 31 May 2004, but had not worked since 1 June 2004. Dr Wegrzynowski gave him a Centrelink certificate for the period from 1 June 2004 to 1 September 2004.
18 The plaintiff next saw Dr Wegrzynowski on 25 September 2004. She did not record any complaints made by the plaintiff of pain in his lower back. What she did record was that the plaintiff had undergone significant dental treatment. He had seven teeth extracted. Dr Wegrzynowski understood that the dental extractions were due to dental injuries resulting from the transport accident.
19 The plaintiff next saw Dr Wegrzynowski on 26 November 2004. He told her that he was experiencing lower back pain. The pain was worse on prolonged sitting. It was like an electric shock, with pain radiating down into his right leg. He told Dr Wegrzynowski that he had worked intermittently since the occurrence of the transport accident. Dr Wegrzynowski examined the plaintiff’s lower back. The only abnormality detected was pain on flexion and lateral flexion. She prescribed him Mobic (an anti-inflammatory) for pain relief.
20 Dr Wegrzynowski referred the plaintiff to have a CT scan, which was performed on 3 December 2004.[5] The radiologist reported that it demonstrated minor broad-based bulging of the disc at L5-S1 without focal protrusion, and a minimal broad-based bulging at L4-5 without protrusion. Dr Wegrzynowski referred to the report of the radiologist, but did not say whether she agreed with the radiologist’s conclusions; however, by implication it would appear that she did.
[5]PCB 79
21 The plaintiff next saw Dr Wegrzynowski on 7 December 2004. She advised him to continue using Mobic and to commence swimming.
22 The plaintiff next saw Dr Wegrzynowski on 13 and 22 August 2005, and on 4 November 2005. She recorded that on those occasions, he told her that he was suffering “… persistent back pain, left leg pain, cramping and paresthesia”. On examination, she found “normal mobility” of his lower back. She advised him to continue using analgesia, Mobic, having physiotherapy, and that he should commence swimming.
23 The plaintiff next saw Dr Wegrzynowski on 15 October 2007 for an unrelated problem; however, he told her that he was experiencing lower back pain when lifting heavy loads. By that stage, the plaintiff was working with Toll as a courier driver. I assume that the lifting of heavy loads is a reference to lifting and carrying parcels weighing up to 25 kilograms.
24 The plaintiff was unable to see Dr Wegrzynowski. He went and saw Dr Abdelmalak, general practitioner. The only evidence from Dr Abdelmalak is a certificate of capacity he provided the plaintiff, certifying that the plaintiff was unfit for any duties from 17 to 21 December 2007 due to lower back pain.[6]
[6]DCB 64
25 The plaintiff next saw Dr Wegrzynowski on 4 July 2008. He told her that he was experiencing chronic lower back pain and had experienced the same since the occurrence of the transport accident. He told her that he had suffered acute exacerbations of lower back pain, with pain radiating into his left leg. He also told her that in the previous two weeks, his lower back pain had worsened, with pain radiating to the lateral side of his left leg. She noted that he was not taking any medication, that he was working as “a truck driver”, and that his duties involved lifting. On examination, Dr Wegrzynowski found a number of abnormalities – a decreased range of movement, muscle spasm and “especially” decreased lateral flexion. His straight leg raising was painful. It was 90 degrees on the right side and 80 degrees on the left side. She prescribed him Mobic and referred him “for more physiotherapy”. She gave him a medical certificate to be off work on 30 June 2008.
26 Dr Wegrzynowski referred the plaintiff to have a repeat CT scan, which was performed on 18 July 2008.[7] The radiologist reported that there was a mild broad circumferential disc bulge at L5-S1 compromising the left intervertebral foramen and exiting left L5 nerve root, and a mild broad circumferential disc bulge at L4-5 extending to the left, compromising the exiting left L4 nerve root within the intervertebral foramen. Dr Wegrzynowski referred to the report of the radiologist, but did not say whether she agreed with the radiologist’s conclusions; however, by implication, it would appear that she did.
[7]PCB 80
27 The plaintiff next saw Dr Wegrzynowski on 1 August 2008. She referred him for “further physiotherapy” treatment.
28 The plaintiff next saw Dr Wegrzynowski on 21 May 2010. He told her that he had attended physiotherapy from November 2009 for three months. The physiotherapy treatment involved stretching, exercising, physiotherapy and the use of a TENS machine. He told Dr Wegrzynowski that he was working as a courier driver and that he was experiencing ongoing pain.
29 Dr Wegrzynowski then referred the plaintiff to have an MRI scan, which was performed on 13 July 2010.[8] The radiologist reported that it demonstrated disc degenerative changes mainly at L4-5 and L5-S1. There was a disc bulge at L5-S1, with degenerative changes of the adjacent facets producing bilateral exit foraminal narrowing which was more severe on the left side. It was the radiologist’s impression that there was left L5 nerve root impingement. Dr Wegrzynowski referred to the report of the radiologist, but did not say whether she agreed with the radiologist’s conclusions; however, by implication, it would appear that she did.
[8]PCB 82-84
30 At around the time when Dr Wegrzynowski referred the plaintiff to have the MRI scan, she also referred him to Mr Lo, neurosurgeon. It is convenient to leave the chronology of the treatment of the plaintiff by Dr Wegrzynowski, and to determine what treatment Mr Lo provided the plaintiff.
31 The plaintiff first saw Mr Lo on 8 July 2010. He provided a report dated 23 September 2010 which summarised his initial treatment of the plaintiff.[9] He told Mr Lo that he had been involved in a transport accident on 27 May 2004 and had noted the sudden onset of lower back pain and stiffness. It would appear that he told Mr Lo that in the following three months after the occurrence of the transport accident, his lower back pain settled, but at the end of that three-month period, he began experiencing left-sided flank and lower back pain. He also experienced pain radiating down his left leg into his left medial shin and the dorsum of his left foot, with associated numbness in his left big toe.
[9]PCB 35-38
32 Mr Lo examined the MRI scan. Upon review on 27 July 2010, he advised the plaintiff to undergo further medical and conservative management with hydrotherapy, physical therapy and massage therapy. He was of the opinion that the plaintiff had suffered left L4-5 radiculopathy secondary to lumbar disc bulges. On further review, he considered that the plaintiff had obtained a good response to medical and conservative management, and the prognosis of his leg symptoms was good. However, he was guarded about the plaintiff’s capacity to return to work.
33 Mr Lo referred the plaintiff to Dr Stockman, rheumatologist. The plaintiff saw him on 7 September 2010. He provided a report dated 26 November 2010.[10] It would appear that he obtained an adequate history of the occurrence of the transport accident. The plaintiff described very much the same symptoms which he had earlier described to Mr Lo. Additionally, he told Dr Stockman that he was suffering from constant pain which was 10 out of 10 in terms of severity. Dr Stockman was provided with the MRI scan. After examining the plaintiff, he considered that the plaintiff’s lower back and left leg pain was consistent with lumbar disc degeneration/bulging at L4-5 and L5-S1.
[10]PCB 55-56
34 Both Mr Lo and Dr Stockman were guarded in their opinion about the plaintiff’s capacity for work. Dr Stockman considered that the plaintiff needed to avoid repetitive bending, lifting heavy weights and sitting for long periods of time. He considered that he might require surgery.
35 The plaintiff continued to see Mr Lo. In a report dated 13 September 2011, Mr Lo described the appearances on the MRI scan as revealing “a posterior annular tear in the vertebral disc at the L4-5 level, as well as a posterior annular tear at the L5-S1 level”.[11] Mr Lo considered that the symptoms complained of by the plaintiff warranted surgical intervention. On 20 June 2011, he performed a decompressive lumbar laminectomy at L4-5 and L5-S1 and an L5-S1 microdiscectomy, rhizolysis and foraminotomy. It would appear that Mr Lo referred the plaintiff to have physiotherapy and hydrotherapy as part of his rehabilitation. He considered that the plaintiff had a capacity for modified duties.
[11]PCB 44-46
36 Mr Lo wrote to Dr Wegrzynowski on 12 October 2011,[12] 21 September 2011,[13] 23 November 2011[14] and 3 January 2012.[15] Mr Lo informed Dr Wegrzynowski, in October 2011, that the plaintiff could return to work six hours per day with a view to increasing to full hours. He placed a weight restriction on lifting of 20 kilograms at a maximum, with a possible increase to 25 kilograms. However, he did not want the plaintiff to bend or twist his back suddenly or excessively. He wanted him to avoid pushing or pulling heavy items and to avoid sitting for prolonged periods of time.[16] He provided the plaintiff with a letter dated 21 September 2011, which was to be given to Toll, outlining the work restrictions which Mr Lo considered to be reasonable.[17]
[12]PCB 50
[13]PCB 52
[14]PCB 53
[15]PCB 54
[16]PCB 50
[17]PCB 51
37 Mr Lo wrote to Dr Wegrzynowski on 23 November 2011 expressing his concern that the plaintiff was undertaking long-haul driving, which Mr Lo considered to include prolonged sitting. He noted that since the plaintiff had commenced doing that work, he experienced lower back discomfort, with radiation of pain into his right leg. He referred him to have a second MRI scan. It did not show any abnormality. He reiterated the work restrictions which he considered were reasonable. He added that the plaintiff should work for 45 minutes at a time and then have a 5-10-minute break.[18]
[18]PCB 54
38 Mr Lo provided a report dated 1 May 2014[19] in which he was asked to consider the question whether the injury to the plaintiff’s lower back and the surgery were a consequence of the transport accident. It would appear that Mr Lo was not informed of the symptoms resulting from the lifting tasks, the fall and the second transport accident by the plaintiff. In the letter of instruction, he was asked to consider the symptoms resulting from the fall. He was informed that the fall involved the plaintiff lifting boxes off a truck, and in the course of doing so, the plaintiff slipped off the back of a truck and landed on his feet. He subsequently experienced pain in his lower back.
[19]PCB 392-394
39 Mr Lo weighed up the importance or otherwise of the lifting tasks in giving the following opinion on the question of causation:
“ In my clinical opinion and on balance, there was a clear temporal correlation between the initial injury dated 22 May 2004 and the onset of Maselino Faalili’s back pain and subsequent leg symptoms. Indeed an initial CT scan on 3 December 2004 had revealed broad-based disc bulging at the L5/S1 and at the L4/5 levels. At that point, there was no protrusion. However, there was noted the aforesaid injuries at the correlating levels. As with any spinal injuries, with time, there is likely to be progression of pathologies owing to the fact that the lumbar spine is under constant strains and stresses. It is not uncommon to identify progression of disc bulges on subsequent scans after an initial injury. Unfortunately, there was no presenting investigative evidence from the enclosed material I can identify relating to the later alleged workplace injury on or around October 2006. Without radiological investigations or reports, I cannot comment on the impact or otherwise of the workplace injury dated October 2006.
Therefore, I must maintain that the requirement of surgery for this patient dated 20 June 2011, in my clinical opinion and on balance, is still as a long-term consequence of the initial motor vehicle accident on or around 22 May 2004. As I do not have any of the radiological evidence relating to the workplace injury dated October 2006, and based on all of the investigative findings and clinical assessment of this patient in the subsequent years since I first saw him on 8 July 2010, my opinion is that Maselino Faalili’s need for surgery on 20 June 2011 remains as a consequence of the motor vehicle accident on or around 22 May 2004.”[20]
[20]PCB 393
40 There is no need for me to return to the subsequent treatment provided by Dr Wegrzynowski after she referred the plaintiff to Mr Lowe, because it is of little consequence. What is important is what Dr Wegrzynowski understood about the symptoms resulting from the lifting tasks, the fall and the second transport accident.
41 The lifting tasks resulted in the plaintiff suffering symptoms of pain in his lower back produced by work the plaintiff performed with Toll between 2005 and April 2012. My impression of the chronology of the plaintiff’s treatment set out in Dr Wegrzynowski’s report dated 25 February 2012 is that the plaintiff attended for treatment when there was a real need to obtain treatment. The only occasion he attended for treatment relevant to lifting was on 15 October 2007. On that occasion, Dr Wegrzynowski recorded that the plaintiff “was experiencing back pain when lifting heavy loads”. She did not consider it necessary to investigate that complaint by referring the plaintiff to have any radiological investigations. It would appear that she considered that it was the transport accident which was responsible for the underlying lower back injury, and not the work the plaintiff was undertaking at that time. Whilst that is not expressly stated by her, it occurs to me that it is apparent by implication.
42 Dr Wegrzynowski did not obtain a history of the fall. Indeed, the plaintiff saw Dr Wegrzynowski before the fall, on 4 November 2005, and did not see her again until 15 October 2007. The fact that he did not attend strongly suggests that the fall was of little consequence in terms of any increase in symptoms in his lower back.
43 Dr Wegrzynowski obtained a history of the second transport accident. He told her that he was driving at 100 kilometres an hour along the Monash Freeway when he ran into the rear of four-wheel-drive vehicle which braked suddenly. Dr Wegrzynowski recorded that the plaintiff told her that he experienced “increased back pain and right-sided neck pain, but no paraesthesia”. On examination, the only abnormality detected in the plaintiff’s lower back was a reduction in lumbar flexion. The plaintiff was unable to extend his fingers beyond his knees. Straight leg raising was symmetrical and restricted to 70 degrees. However, it would appear that he had more significant symptoms in his neck, with a decreased range of movement and muscle spasm, together with pain on rotation in his thoracic spine. Her only treatment recommendation was massage and the provision of a certificate, presumably for the plaintiff to be off work on 27 and 28 September 2010.
44 What is very evident from the balance of Dr Wegrzynowski’s report of the occasions on which the plaintiff saw her from 16 December 2010 until he ceased seeing her on 26 September 2011, is that she was convinced that the plaintiff’s lower back injury was caused by the transport accident. She was asked to offer an opinion on causation. In a report dated 2 May 2014, she did just that. She repeated much of the chronology of medical treatment which I have summarised above. She said the following:
“With reference to Mr Maselino Faalili’s medical record entries, as noted above, since the motor vehicle accident on 27/05/2004, he had been noted to present for consultations persistently complaining of back and leg pain. Correspondence from Neurosurgeon Mr Patrick Lo and Rheumatologist Dr Alex Stockman also noted that he had reported the symptoms to the specialists consistently over a long period of time, and eventually required back surgery.”[21]
[21]PCB 397
45 Whilst it is not accurate to say that Dr Stockman treated the plaintiff over a long period of time, it would appear that Mr Lo certainly did. I do not accept that Dr Wegrzynowski was blind to the importance of the work tasks, the fall and the second transport accident as being implicated in the ultimate cause of the lower back injury which the plaintiff has ended up with. It would appear that she knew of the plaintiff’s history sufficiently to understand and accept that the transport accident was the real and substantial cause of the lower back injury for which she had treated the plaintiff.
The Plaintiff’s credit
46 The plaintiff was not an overly satisfactory witness. It was clear that he had a poor recollection of important facts. That was made obvious during cross-examination when his recollection of facts and their importance was tested by Mr Lewis. It is clear enough to me, however, that the plaintiff was making his best effort to answer questions. I watched him very carefully while he pondered over questions put to him during cross-examination. I was under the strong impression that he was giving his best consideration to the questions in order to give a truthful answer. So, my assessment of the plaintiff is that he was a creditworthy witness, but unreliable to a degree.
47 Mr Lewis, quite properly, undertook the forensic exercise of demonstrating that some aspects of what the plaintiff swore to in his affidavits, histories and the information he gave to examining medical practitioners, was inaccurate. I have considered all of that cross-examination. It has not impressed me as so undermining the reliability of the plaintiff that it should lead me to conclude I should dismiss the plaintiff’s proceeding.
48 Whilst I am reluctant to set out each and every aspect of that attack, I do so only to demonstrate that I think, in considering the whole of the evidence, that there is level of consistency in what the plaintiff swore to. Namely, that he suffered an injury to his lower back in the transport accident which has resulted in a number of consequences. Furthermore, I am fortified in reaching that conclusion because of the histories recorded by Dr Wegrzynowski, Mr Lo and Dr Stockman. I think those medical practitioners were armed with a sufficient understanding of the transport accident for me to be satisfied that I can accept their opinions. I should add at this point, that although Mr Lo was unaware of the work tasks, the second transport accident, and initially the fall, the importance of each of those events have been put to bed by Dr Wegrzynowski, who did not consider them to be of any real significance, and certainly not as intervening events which contributed materially to the injury to the plaintiff’s lower back and the consequences of that injury.
49 I will now set out a summary of the attack made by Mr Lewis on the plaintiff’s creditworthiness and reliability.
· The plaintiff was unable to recall what work he was undertaking both before and after the occurrence of the transport accident.[22] This is to be compared with what the plaintiff said in his first affidavit sworn 18 March 2012 which gives the impression that he was working both before and after the occurrence of the transport accident.[23]
[22]Transcript 19, and paragraphs 16-17 above
[23]PCB 8
· The plaintiff told Dr Hayman that he was not working at the time of the occurrence of the transport accident. He told him that he was between jobs.[24]
[24]PCB 72
· The plaintiff said that his wife was not working, and that he needed to work to produce income for his family, which is why he worked with Toll. However, in a schedule of income earned by the plaintiff and his wife, it is clear that in 2008, she earned $26,783; in 2010, $9726; in 2011, $31,894, and in 2012, $32,543. It should be remembered that the plaintiff ceased working with Toll in February 2012, and that in March 2012, he commenced working as a self-employed truck driver.
· The plaintiff’s delay in obtaining medical treatment is unexplained. He could not explain why he did not seek any medical treatment for a period of about seven weeks after the occurrence of the transport accident. [25]
[25]Transcript 20
· The plaintiff admitted that he lied in his pre-employment medical evaluation declared by him on 4 October 2005.[26] In answer to a question as to whether he had, at the time of the declaration, any “pain, or other problems affecting your back, or your neck?”, he answered “No”. He was unable to say whether the medical practitioner undertaking the evaluation performed an examination of his spine.[27]
[26]Transcript 32
[27]Transcript 32-33
· The plaintiff admitted that the work he undertook with Toll was hard work, and involved making an average of 30 to 35 deliveries per day and carrying boxes which might weigh 20 to 25 kilograms.[28]
[28]Transcript 26
· The plaintiff admitted that he experienced worsening lower back and left leg pain in 2007. He lodged a Worker’s Compensation Claim Form with Toll on 18 December 2007. He said he was given the form to fill out as part of Toll’s procedures.[29] He was treated by Dr Abdelmalak, general practitioner, who provided him with a Certificate of Capacity certifying that he was unfit for any duties from 17 to 21 December 2007 due to lower back pain.[30]
[29]DCB 65-66 and Transcript 35
[30]DCB 64
· The plaintiff was examined by Mr Francis, surgeon, with respect to the claim lodged on Toll on 18 December 2007. Mr Francis recorded a history of the fall only, that the plaintiff denied any past history of lower back problems, and that the lower back pain came on a month after the fall.[31]
[31]DCB 53 and 51
· A short clinical note, dated 14 December 2007, made by a treating physiotherapist, recorded that the plaintiff suffered “lower back pain from the lot of lifting at work, and sitting in truck”.[32]
[32]DCB 100
· The plaintiff did not inform Dr Wegrzynowski, Mr Lo, Dr Stockman or Dr Ong of the fall.
· Mr Kierce, orthopaedic surgeon, was not informed of the fall. He was of the opinion that it “would have aggravated his condition further”.[33]
· Dr Kenna, physician, recorded that the plaintiff told him that the pain in his left leg commenced five years after the occurrence of the transport accident.[34] Mr Dickens, orthopaedic surgeon appears to have been of the same understanding.[35]
[33]PCB 412. Mr Kierce was referring to an aggravation of the plaintiff's lower back
[34]DCB 2
[35]DCB 13
50 Mr Lewis emphasised that a full history of the lifting tasks, the fall, the second transport accident and their respective consequences, were glaring omissions in the plaintiff’s first affidavit and in many of the histories in the reports of the treating and medico-legal consultants. He submitted that the plaintiff’s second affidavit amounted to a vain attempt at a ‘patch-up job’ by the plaintiff, after he became aware of these serial omissions in his first affidavit and in the histories in the reports of the treating medico-legal consultants.
51 The plaintiff candidly acknowledged that he has poor recall of the lifting tasks, the fall in the second transport accident, and their respective consequences. In his second affidavit, he said that his serial omissions were not intentional. Essentially, he said that those other events were not significant, although the lifting tasks and the fall did produce some level of increase in the pain he was experiencing in his lower back.[36]
[36]PCB 15-16
Causation findings
52 I think many of the points made by Mr Lewis amount to an inability on the part of the plaintiff to remember simple facts and when events occurred. For example, whether he was working at the time of the transport accident, and whether his wife worked. The evidence discloses that he may have been working, but it also discloses that he had not worked very much. The evidence discloses that his wife was working.
53 The errant histories recorded by Dr Kenna and Mr Dickens fall into the same category. I think the plaintiff’s reference to the onset of left leg pain is clearly wrong, but stated by him mistakenly. That is so obvious when a comparison is made with the clinical notes of Dr Wegrzynowski she recorded that the plaintiff experienced the onset of right leg pain in November 2004 and left leg pain by August 2005.
54 Mr Lewis submitted that the plaintiff’s second affidavit amounts to an attempt to patch up serial errors in his first affidavit. What is evident is that the plaintiff was informed of errors he had made. He explained those errors in his second affidavit. I can see no reason why an attempt to give such an explanation amounts to a patch up.
55 In the end, I am satisfied that the plaintiff is a creditworthy witness, but unreliable. However unreliable the plaintiff might be, it was not my impression that he accepted what was put to him during cross-examination. For example, it was not my impression that when the histories recorded by Dr Kenna and Mr Dickens were put to him, that he agreed that what they recorded was factually correct. It was my impression that he responded in that way when other facts were put to him which were said to be in conflict with the facts upon which his application was based.
56 I think the most cogent and persuasive evidence is that of Dr Wegrzynowski. What I have drawn from my analysis of the occasions when the plaintiff saw her is that there is a consistent pattern of consultations, which appear to be for the injury suffered by the plaintiff to his lower back resulting from the transport accident. The only other evidence which suggests that the plaintiff might have suffered a further injury to his lower back is the Certificate of Capacity of Dr Abdelmalak. However, I am not persuaded that it proves that the plaintiff suffered a further injury, rather than an increase in pain which settled.
57 On the footing that I do not accept that the lifting tasks, the fall, and the second transport accident caused a further injury, then the opinions of Mr Lo and Dr Stockman become more persuasive in implicating the transport accident as the real and substantial cause of the plaintiff’s lower back injury.
58 In conclusion, I find that the plaintiff suffered an injury to his lower back which deteriorated to the point where he required surgery and that is the real and substantial cause of the impairment of function of the plaintiff’s lower back.
Consequences
59 I accept that the plaintiff has suffered the following consequences of the impairment of the function of his lower back:
· The need for invasive surgical treatment.
· Post surgically, a significant reduction in his capacity to work. The plaintiff was previously able to engage in moderate physical work. He is now struggling to work as a self-employed truck driver.
· Continuous lower back pain. Flare-ups of lower back pain, producing severe pain. Persisting left leg pain.
· The need for medication to treat the pain. The plaintiff is currently treated by Dr Ong, occupational physician. He is on a regime of medication, which includes Mobic, Gabapentin, Endep and Panadol.
· He has difficulty sleeping, obtaining less than a reasonable night’s sleep, resulting in him being tired during the day.
· He has difficulty sitting for long periods of time.
· After a day’s work, he needs to lie down on a couch to try to obtain relief from the pain in his lower back.
· He has difficulty assisting his partner and looking after their young children. He also has difficulty assisting her in undertaking routine domestic tasks and gardening.
· He played volleyball and billiards before he was injured. He has stopped each of those activities, although it would appear that he made attempts to return to both activities.
60 Much of what the plaintiff said about consequences in his affidavits and in his oral evidence was confirmed by Ms Sharon Morgan in her affidavit sworn 24 February 2012. Ms Morgan is the plaintiff’s partner.[37]
[37]PCB 18-19
61 The plaintiff has lost a great deal as a consequence of suffering the injury to his lower back when a comparison is made with what he was like before the transport accident occurred, and in particular, before he had the surgery performed by Mr Lo. In short, the plaintiff has a significantly reduced capacity for work. He has a level of pain and interference with his social, domestic and recreational pursuits which has reduced his capacity to engage in those activities to a rather modest level. Once a comparison is made with what he has retained, then the conclusion I reach is that what he has lost far outweighs what he has retained.
Conclusion
62 For the reasons set out above, I have concluded that the plaintiff suffered an injury to his lower back which has impaired the function of his lower back permanently to a very considerable degree.
63 Therefore, I propose to grant the plaintiff leave to bring a proceeding at common law to recover damages for the injuries he suffered resulting from the transport accident.
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