Farrugia v Transport Accident Commission
[2021] VCC 8
•2 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-20-02117
| JOSEPH FARRUGIA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 January 2021 | |
DATE OF JUDGMENT: | 2 February 2021 | |
CASE MAY BE CITED AS: | Farrugia v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 8 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMENSATION
Catchwords: Serious injury – back pain – cervical and lumbar pain – aggravation of pre-existing injury - degenerative
Legislation Cited: Transport Accident Act 1986 (Vic), s93(17)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC with Ms J Clark | Solicitor for the Transport Accident Commission |
HER HONOUR:
1 Joseph Farrugia is a sixty-six-year-old disability support pensioner. On 15 February 2016, he was driving his ute home from the supermarket along Lakes Boulevard, South Morang. He came to a stop at a zebra crossing. His ute was struck from behind by a Toyota Landcruiser.
2 Mr Farrugia was taken to the Royal Melbourne Hospital by ambulance. He was diagnosed with an un-displaced thoracic T9 fracture. According to the Discharge Summary, no cervical or lumbar spine tenderness was observed. He was discharged the following day to follow up with his general practitioner if required.
3 Mr Farrugia claims that, in addition to the T9 fracture, the accident resulted in an aggravation of his pre-existing cervical and lumbar spondylosis. He claims that this aggravation amounts to a serious injury.[1]
[1]In opening, counsel for Mr Farrugia also relied upon the T9 fracture although she said the “real issue” was the pain from the cervical and lumbar spine. I am not satisfied that this fracture had any significant long-term consequences in the absence of expert evidence to that effect, beyond perhaps some intermittent thoracic back pain and tenderness.
4 Reports have been tendered from (among others) four neurosurgeons, a neurologist and two orthopaedic surgeons. Each of these experts expresses the opinion that Mr Farrugia suffers from degenerative changes to his cervical and lumbar spine.
5 The critical issues in the case are:
(a)the extent to which Mr Farrugia’s pre-existing cervical and lumbar spondylosis was aggravated by the accident; and
(b)whether any such aggravation constitutes a serious injury within the meaning of paragraph (a) of the definition of serious injury in s93(17) of the Transport Accident Act 1986 (Vic).
Extent of aggravation
6 The parties agreed that this case requires a Petkovski v Galletti[2] comparison. I must compare the extent of impairment of Mr Farrugia’s spine before the injury with the extent of impairment of Mr Farrugia’s spine after the injury.[3]
[2][1994] 1 VR 436.
[3]Petkovski v Galletti [1994] 1 VR 436, [443]–[444] per Southwell and Teague JJA; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88 at paragraph [90].
7 In opening submissions, counsel for Mr Farrugia accepted that Mr Farrugia had longstanding, pre-existing cervical and lumbar spondylosis; that Mr Farrugia had attended his treating general practitioner for many years for regular acupuncture to his neck; and that there was a period in 2015 for a “few months” where Mr Farrugia also had some back complaints.
8 The nature and extent of these neck and back symptoms are of critical relevance to the questions to be determined in this proceeding.
9 Dr David Piekarski was Mr Farrugia’s treating general practitioner for many years. His clinical notes up to 18 February 2016 were tendered by the defendant. Between 13 July 2004 and 18 February 2016, Dr Piekarski saw Mr Farrugia over four hundred times, which is an average of roughly three times per month. Dr Piekarski frequently saw Mr Farrugia more than once per week.
10 These clinical notes record that many of Mr Farrugia’s visits to Dr Piekarski, often more than one per week, were in relation to neck pain. The neck pain appears from the notes to be of varying degrees of severity – sometimes notes such as “neck is not bad” are made, on other occasions there are references to neck being very tight, to migraines, temporal headaches and neck spasms. Dr Piekarski treated this neck pain principally with acupuncture, although on occasion there was also reference to prescription of Valium, and treatment by a physiotherapist or a chiropractor.
11 On 27 February 2015, there is a reference in the clinical notes to: “R hip pain… ?OA hip. Diagnostic Imaging requested: X-ray – spine – Lumbro-sacral, X-ray – Hip (R)…”.[4] On 2 March 2015 there is a reference to: “?Lumbar disc prolapse. Diagnostic Imaging requested: MRI – Spine – Lumbar…”.[5]
[4]Defendant’s Supplementary Court Book (“DSCB”) 52.
[5]DSCB 52.
12 No x-ray or MRI scans were in evidence from this period. Senior Counsel for the defendant submitted that it was apparent from these notes that scans were taken. While I accept that a referral was made, I am not satisfied from the clinical notes alone that the scans were actually performed. In any event, if they did exist, they were not in evidence.
13 Between 4 March 2015 and 17 July 2015, the clinical records contain reference to right lumbar radiculopathy or back pain in relation to at least twelve attendances. The last entry, on 17 July 2015, states “‘Coming good’ ‘Lot better’”.[6]
[6]DSCB 42.
14 In light of what is recorded in these clinical notes, it appears that Dr Piekarski would have been very well placed to give evidence as to the extent of impairment of Mr Farrugia’s spine before the injury with the extent of impairment of Mr Farrugia’s spine after the injury, and the existence and consequences of any unrelated conditions. Unfortunately, the evidence provided by him in this proceeding, on this issue, is limited to the assertion that Mr Farrugia “has had significant sequelae of that accident. He has chronic, severe neck and low back pain”.[7]
[7]Plaintiff’s Court Book (“PCB”) 34.
15 No explanation is provided by Dr Piekarski of the factual basis or path of reasoning for this conclusion. No comparison is made between the neck pain and back pain for which Dr Piekarski treated Mr Farrugia prior to the accident, with his post-accident condition. Senior Counsel for the defendant submitted that in these circumstances I should disregard Dr Piekarski’s expression of opinion, such as it is. I accept this submission.
16 None of the other relevant[8] medical experts saw Mr Farrugia prior to the accident. There was no pre-accident radiology in evidence and no evidence that any was provided to the medical experts. Necessarily, the opinions of the medical experts as to Mr Farrugia’s pre-accident impairment were significantly based upon Mr Farrugia’s self-reported history.
[8]I do not give significant weight to the psychologist or psychiatrists on this issue, aside from noting that his treating psychologist, Dr Lamers, records that he was experiencing chronic pain when he first consulted her on 26 March 2015, prior to the accident.
17 Taking each of the relevant experts in turn:
(a)Dr Tanya Yuen, a treating neurosurgeon said that “Mr Farrugia reported to me that he had not previously had any neck or back pain”,[9] she concluded that “it is conceivable”[10] that the accident exacerbated the degenerative changes in his spine;
[9]PCB 50.
[10]PCB 51.
(b)Mr Tony Goldschalger, a neurosurgeon who Mr Farrugia consulted for a second opinion, does not give evidence in relation to causation;
(c)Dr Jake Way, an osteopath, does not describe the history provided by Mr Farrugia in his report. He states:
“Without medical imaging prior to the accident it is not possible to ascertain that the bulges were definitively caused by the accident. However, from my understanding of the mechanism of injury, the injuries sustained are consistent with a motor vehicle collision. And it is my opinion that Mr Farrugia’s pain was primarily caused by the motor vehicle accident.”;[11]
[11]PCB 44.
(d)Mr Scott Sanders, a physiotherapist who treated Mr Farrugia between 9 October 2017 and 4 January 2018 reports that:
“Mr. Farrugia had not reported any low back pain or left leg pain prior to the injury and therefore it can be presumed that the MVA was the cause of his lumbar spine pain and without appropriate treatment it can be expected that this pain would remain persistent and result in chronic low back pain … .”;[12]
[12]PCB 47.
(e)Ms Anna Kennedy, a physiotherapist who treated Mr Farrugia between 4 September 2018 and 30 October 2018, reports:
“Joseph presented with persistent neck and lower back pain which originated from a MVA he was involved in prior. These injuries were consistent with the stated cause.”[13]
[13]PCB 53.
She does not describe the history she was provided;
(f) Dr Richard Sullivan, a treating pain specialist, reports that:
“Since the accident, he has reported pain in his neck and pain in his low back. He presents with sensory change in his left upper limb which is consistent with his pain and a C5 and C6 distribution. He complains of sensory change in his left lower limb which is also consistent with his pain area in an L3 and L4 distribution.”;
(g)Dr Hazeem Akil, a treating neurosurgeon who saw Mr Farrugia on one occasion on 2 November 2020, records that:
“Since [the accident], he has been complaining of significant neck pain that radiated to both sides of his shoulders and he also experienced significant lower back pain that intermittently radiates to both legs, but particularly towards the left leg all the way to the foot.
…
He does have a past medical history of Barrett’s oesophagus as well as sleep apnoea and hypertension. He has a previous rotator cuff syndrome.”;[14]
[14]PCB 57-58.
(h)Mr Rodney Simm, an orthopaedic surgeon jointly retained by Mr Farrugia and the defendant, records under the heading “Past History and General Health”:
“I was provided with a summary of his past history from Medical One.[15] His extensive past medical history includes longterm (sic) problems with anxiety, depression and a panic disorder. He was treated for fibromyalgia in the year 2000. He was treated for a rotator cuff injury of the left shoulder in 2012. He said today that he recovered fully from this injury and he had normal function in the left shoulder before he injured his left shoulder doing the exercises last year. He has a history of what he described as tension stiffness and discomfort in the neck, which he seemed to relate to his anxiety state. There was a note in his medical record of recurrent neck strain/spasm – tension in 2004. There was no past history of thoracic or lumbar back pain.
[15]This is described earlier in his report as having been dated 17 January 2018.
He could recall having a back injury at the age of 21 with ‘sciatica’, from which he recovered fully.”[16]
[16]PCB 70.
He concludes that Mr Farrugia’s persistent pain is probably due to unresolved aggravation of the pre-existing multilevel degenerative lumbar and cervical spine pathology by soft tissue injuries;
(i)Associate Professor Richard Stark, a neurologist jointly retained by Mr Farrugia and the defendant, reports that Mr Farrugia:
“…said that there had been no significant previous physical problems although he did sometimes report some tightness in his neck which he attributed to anxiety. Some thirty years ago there had been an episode of sciatica which settled and there was no ongoing problem with his lower back.
…
There is a past history of ill-defined neck stiffness which he attributed to anxiety and a distant past history of some sciatica which he says had resolved.
…
Although there is a mention of possible previous neck strain I do not have any firm evidence that there was any pre-existing spinal impairment and therefore apportionment is not relevant”.[17]
[17]PCB 79-80.
He concludes that Mr Farrugia has a 5 per cent whole person impairment of each of the cervicothoracic spine, lumbosacral spine and thoracolumbar spine. He says:
“The degree to which he is disabled by his symptoms is difficult to quantify in that the reported limitations relate to pain and this is difficult to estimate in any objective fashion. The demonstrative nature in which he gives the history makes such assessment event more difficult.
However, I have no reason to doubt that he is limited in his day to day activities in the way that he states.”;[18]
[18]PCB 80.
(j)Professor Richard Bittar, a neurosurgeon retained by Mr Farrugia, records that:
“His past medical history is significant for intermittent neck pain and headaches, particularly during periods of stress. He was diagnosed with fibromyalgia in around 2000. His treatment comprised of heat packs and occasional acupuncture or physiotherapy. He recalls experiencing lower back pain around 30 years ago, however this was a transient occurrence and he did not have any ongoing lower back related symptoms. Leading up to the subject transport accident, he denies experiencing any significant ongoing restriction of neck or back movement and had not experienced any significant pain radiating into his arms or legs.”[19]
[19]PCB 93.
Professor Bittar later describes Mr Farrugia’s cervical spine condition as “minimally symptomatic” pre-accident and his lumbar spine condition as “asymptomatic” pre-accident, and says that Mr Farrugia:
“…had no significant back pain for many years prior to the subject transport accident and no associated lower back related disability prior to the subject transport accident. He would experience intermittent neck pain prior to the transport accident … with these headaches being more frequent and more severe than they were previously … .”[20]
[20]PCB 98.
Professor Bittar concludes “In my opinion, the transport accident of February 15, 2016 has been the dominant contributing factor to his cervical and lumbar spine conditions”;[21] and
(k)Dr Peter Wilde was an orthopaedic surgeon called by the defendant. Significantly, in addition to the history provided by Mr Farrugia, he was provided with the clinical records of Dr Piekarski (see further below). Dr Wilde notes that Mr Farrugia “made light of the past history of neck pain and tightness, which referred into the low back”[22] and “denied any significant chronic lumbar back pain, only neck tightness which he attributed to stress”.[23]
He concludes:
“… I think he has aggravated pre-existing degenerative cervical lumbar spondylosis in the motor vehicle accident
…
[Mr Farrugia’s] leisure activities have been interfered with as he no longer can play golf and bowls or go fishing.”[24]
[21]PCB 96.
[22]Defendant’s Court Book (“DCB”) 15.
[23]DCB 15.
[24]DCB 19-20.
18 I turn then to consider Mr Farrugia’s self-reported history.
19 In Mr Farrugia’s first affidavit, sworn on 26 February 2020, he states:
“I have previously suffered from intermittent headaches and neck pain, particularly when I was stressed and tense….I would sometimes apply heat packs and occasionally undertook acupuncture or physiotherapy.”[25]
[25]PCB 8.
20 This statement is inconsistent with his numerous and regular attendances on Dr Piekarski for neck pain and regular treatment with acupuncture, as recorded in Dr Piekarski’s clinical notes. His acupuncture treatment, in particular, could not on any view be described as “occasional”. Indeed, in opening submissions, counsel for Mr Farrugia accepted that this treatment was “regular”. Nor could Mr Farrugia’s neck symptoms reasonably be dismissed as no more than neck “tightness” or “stiffness”, as it is described in the histories recorded as having been provided to, for example, Mr Simm and Associate Professor Stark. While tightness is recorded in the clinical notes on occasion, those notes also record frequent complaints of neck pain, spasm and headache, as well as occasions of sleep disturbance due to neck pain.
21 Mr Farrugia maintained in his second affidavit, sworn 12 November 2020, and under cross-examination, that he could not recall experiencing lower back pain for many years. He claims that any back pain must have been very brief and relatively mild, otherwise he would remember it. Again, this is contradicted by the clinical notes, which record at least twelve attendances in relation to this issue between March and July 2015.
22 In his oral testimony, Mr Farrugia sought to minimise his pre-accident condition. He described his neck pain as “more like a tension through my anxiety at work” or “come through stress at work” (notwithstanding the fact that this neck pain persisted for many years after his cessation of work in around 2009).
23 He could not remember details, such as a “cold coke can” exercise referred to in the clinical notes or treatment by a physiotherapist or chiropractor. On other occasions, his testimony directly conflicted with medical records. For example, the Royal Melbourne Hospital Discharge Summary records that he denied head strike and had no scalp tenderness or haematoma. In cross-examination, Mr Farrugia first claimed to have hit his head on the dashboard and there was “a bit of a bruise on my head”.[26] Subsequently, this became “[t]hey were taking glass out of my head and there was a bruise on the right-hand side of my head”.[27]
[26]Transcript (“T”) 30, Lines (“L”) 28-29.
[27]T31, L24-26.
24 Mr Farrugia maintained that he told all the doctors about his previous neck pain. He could not explain the lack of history of neck or back pain referred to in Dr Yuen’s recorded history. According to a letter from Dr Yuen which was tendered in evidence, he subsequently contacted her to correct another aspect of the history she recorded, in relation to a second accident he suffered. However, she does not record him correcting her recorded history of no previous neck or back pain. He maintained under cross-examination that he did. This was not credible in the circumstances.
25 He gave golfing and painting the house as examples of activities he could do pre-accident, but could no longer do, however, when questioned, it seemed the last time he painted was eleven years ago and he referred to golfing after work (having ceased work more than ten years ago). He did, however, also refer to golfing with his son-in-law and a friend.
26 Finally, throughout his testimony, Mr Farrugia appeared to perceive his role to be that of an advocate for his cause rather than a witness of fact, frequently giving non-responsive and argumentative answers, minimising his pre-accident condition and exaggerating the impact of the accident on his life.
27 Having regard to the above, and my general impressions of Mr Farrugia in the witness box, I have formed the view that Mr Farrugia is not a reliable historian and that, further, at times his testimony was not credible.
28 Mr Farrugia was clearly unsophisticated and at times confused. For example, prior to the luncheon adjournment I warned him not to speak to his wife about the case. In re-examination after the luncheon adjournment, he volunteered (without any apparent guile) that he had spoken to his wife about a particular matter that had arisen in his cross-examination. Although I find that he has persistently minimised his pre-accident condition, both to me and to the various medical practitioners, I do not find that he is a deliberate and calculated liar. For example, I do not believe he would have the sophistication to fake symptoms which were consistent with a diagnosis of cervical and lumbar spondylosis to the various medical experts. I accept that he genuinely believes his condition, particularly his back pain, to have significantly worsened since the accident.
29 The best evidence before me of Mr Farrugia’s pre-accident condition is the clinical notes of Dr Piekarski. I do not place reliance on Mr Farrugia’s evidence of his pre-accident condition unless corroborated by those notes, other objective observations of medical practitioners, or other witnesses. Senior Counsel for the defendant urged me to also reject the evidence of Mr Farrugia’s wife and daughter. I am not satisfied that I should reject this evidence in its entirety, however given my findings in relation to Mr Farrugia’s reliability and credibility, I treat it with some caution where it relays symptoms reported by Mr Farrugia or lacks specificity.
30 Having regard to Dr Piekarski’s clinical notes, I have concluded that, prior to the accident, Mr Farrugia suffered from chronic neck pain, neck spasm and headache of varying intensity and frequency. This was treated with regular acupuncture and occasionally with Valium, Nurofen, physiotherapy and chiropractic treatment. Dr Piekarski did not refer Mr Farrugia to a specialist in relation to this issue.
31 Mr Farrugia also had one incident of lower back or hip pain, consistent with lower back radiculopathy, between March and July 2015, which was treated with acupuncture and Prednisolone. Again, Dr Piekarski did not refer Mr Farrugia to a specialist in relation to this issue. I am satisfied that Mr Farrugia did not suffer from any other significant back pain in recent times. Given Mr Farrugia’s frequent visits to Dr Piekarski, had he done so, it would have been recorded in the clinical notes.
32 Mr Farrugia also suffered from numerous other medical conditions, including chronic depression with anxiety and panic disorder, irritable bowel syndrome, sleep apnoea, hypertension, Barrett’s oesophagus and fibromyalgia. He has been on a disability support pension since around 2009.
33 Notwithstanding these conditions, I accept that prior to the accident:
(a)Mr Farrugia and his wife were able to reside in a two-storey home in South Morang;
(b)Mr Farrugia was able to play golf and did so roughly every few weeks with his son-in-law and friends.[28] Mr Farrugia’s testimony in relation to this issue was somewhat confused, particularly because he kept referring to playing golf after work, which he had clearly not done for many years. However, his evidence of playing with his son-in-law is corroborated by his daughter. I am not of the view that there is a particularly significant difference between Mr Farrugia’s evidence of about once a month and his daughter’s evidence of every few weeks;
(c)Mr Farrugia was generally able to mow the lawn and do gardening[29] and could walk for up to about 4 kilometres.[30] His daughter also refers to other maintenance tasks such as building a pergola, and painting the house and servicing the car. However, without more specific evidence in relation to time periods, I am not satisfied that Mr Farrugia was capable of performing these tasks immediately prior to the accident. I am also not satisfied that Mr Farrugia could paint the house immediately prior to the accident, given he admitted he had not attempted to do so for some eleven years;
(d)Mr Farrugia was able to regularly travel on road trips, to places such as Echuca,[31] and also travelled overseas with his wife, particularly on cruises;[32] and
(e)Mr Farrugia was generally able to dress himself and engage in self-care. Had he not been able to do so, it would certainly have been reported to Dr Piekarski on one of his many visits and recorded in the clinical notes.
[28]Affidavit of Tracey Attard, sworn 14 November 2020, at paragraph [3].
[29]Affidavit of Mary Farrugia, sworn 14 November 2020, at paragraph [3]. An entry on 6 March 2015 of the clinical notes states “Avoid gardening etc for the moment” (which suggests at other times he does do gardening), DCB 51.
[30]Affidavit of Tracey Attard, sworn 14 November 2020, at paragraph [14]; an entry on 12 February 2016 of the clinical notes states “Did 4km walk with dog this morning”, DCB 33.
[31]See entries on 3 February 2015 and 23 July 2015 of the clinical notes, DCB 53 and 42.
[32]Affidavit of Mary Farrugia, sworn 14 November 2020, at paragraph [5]. See, for example, entries on 16 December 2014, 22 May 2012, 13 September 2011 and 23 December 2010 of clinical notes, DCB 55, 101, 111 and 126.
34 In the absence of evidence that Mr Farrugia had successfully engaged in bowling prior to the accident, I am not satisfied that he would have been able to do so in light of his pre-existing conditions.
Extent of impairment post-injury
35 I accept that Mr Farrugia now suffers significant constant neck and back pain which varies in severity and worsens with movement. None of the medical experts said that his reports of pain were inconsistent with their objective observations or the radiology. Associate Professor Stark also observed quite prominent paraspinal muscle spasm with various movements.
36 Although Mr Farrugia’s experience of pain may be amplified by his anxiety disorder, I am satisfied that it has a substantial organic basis.[33] As I have already observed, I am of the view Mr Farrugia lacks the sophistication to fake symptoms consistent with a diagnosis of cervical or lumbar spondylosis.
[33]Meadows v Lichmore Pty Ltd [2013] VSCA 201.
37 While he had an episode of back pain in 2015, which lasted for a number of months, the back pain that he now suffers is constant and intense, and highly restrictive of his activities. I am satisfied that this back pain is much worse in intensity and frequency than anything Mr Farrugia has experienced before.
38 I am also satisfied that the intensity and frequency of neck pain he has experienced since the accident is greater than the neck pain he experienced prior to the accident. However, given my concerns about Mr Farrugia’s reliability and credibility, I am not able to determine with precision the extent of the worsening of Mr Farrugia’s neck symptoms. This is particularly so given the inaccurate histories provided by Mr Farrugia to the medical experts.
39 Nevertheless, I accept that the totality of the spinal pain now suffered by Mr Farrugia is sufficiently serious for Mr Farrugia to be prescribed significant (and increasing) medication, including opioid medication. He currently takes the following medication for this pain: Lyrica 75 milligrams, twice per day; Palexia 100 milligrams, three times per day and Panadol Osteo, four to eight per day. This is of a different order to anything he has previously been prescribed.
40 It has also been deemed to be sufficiently serious to justify spinal surgery by his treating neurosurgeons, Dr Yuen and Dr Akil. Other medical experts expressed a different view, but it seems to me largely on the basis of the likely efficacy of the surgery, rather than the seriousness of Mr Farrugia’s condition.
41 Senior Counsel submitted that the onus was on Mr Farrugia to prove that Mr Farrugia’s worsening of his spinal impairment was due to the accident rather than the expected progression of his pre-existing cervical and lumbar spondylosis. There is some evidence that Mr Farrugia’s cervical and lumbar spondylosis would have progressed irrespective of the accident,[34] but no evidence as to the extent of such progression. However, I accept that there has been a distinct worsening of Mr Farrugia’s symptoms and restrictions on his activities, particularly in his lumbar spine, after the accident. In light of this, I am satisfied on the balance of probabilities that the worsening of Mr Farrugia’s symptoms was as a result of an aggravation of his cervical and lumbar spondylosis caused by the accident.
[34]PCB 63.
42 In coming to this conclusion, the only medical expert opinion upon which I have placed significant weight is that of Dr Wilde, the orthopaedic surgeon called by the defendant. The opinions of the other medical experts as to causation are not reliable in the context of Mr Farrugia’s inaccurate descriptions of his pre-accident history. Dr Wilde, however, was provided with the clinical records of Dr Piekarski and stated that he had read and reviewed them. Dr Wilde’s recorded history notes that Mr Farrugia “made light” of the past history of neck pain and tightness, indicating some (justifiable) scepticism about Mr Farrugia’s account. Nevertheless, Dr Wilde concluded that Mr Farrugia had aggravated pre-existing degenerative cervical lumbar spondylosis in the accident; that the neck and lower back pain persisted and that it interfered with his leisure activities such as golf, bowls and fishing.
43 The only reliance I place on the opinions as to causation given by the other medical experts is in a general sense that an accident of this kind may have aggravated cervical and lumbar spondylosis.
44 In light of the above, I am satisfied on the balance of probabilities that, as result of the aggravation of his cervical and lumbar spondylosis, Mr Farrugia:
(a) can no longer play golf;[35]
[35]Affidavit of Tracey Attard, sworn 14 November 2019, at paragraph [11].
(b) is less able to maintain the garden;[36]
[36]Affidavit of Tracey Attard, sworn 14 November 2019, at paragraph [9].
(c)can no longer comfortably take long road trips to places such as Echuca;[37]
[37]Mr Farrugia has been on one trip to Echuca after the accident however it required shared driving and frequent breaks.
(d)cannot engage in international travel, although he is able to engage in domestic travel;[38]
(e) has some difficulty putting on his shoes and socks;[39]
(f) can no longer go on long walks;[40]
(g)is unable to be as boisterous as he previously was with his grandchildren;[41]
(h)moved from South Morang to a retirement village earlier than he would otherwise have done; [42]
(i)gave up his beloved Maltese Pomeranian dog, Zoe, because he was unable to walk and care for her at the retirement village;[43] and
(j)is unable to care for his wife as she battles breast cancer in the manner he wishes.
[38]Mr Farrugia gave evidence that he was able to manage a trip, which involved flying to Adelaide and then taking a cruise from there.
[39]Mr Farrugia said in cross-examination that he could not put on his shoes and socks at all and his wife did this for him every day. If this were true, I would expect his wife to mention it in her affidavit. I accept that he has some difficulties with his shoes and socks on occasion but I am not satisfied that his wife always puts on his shoes and socks.
[40]Affidavit of Mary Farrugia, sworn 14 November 2020, at paragraph [12]; affidavit of Tracey Attard, sworn 14 November 2020, at paragraphs [13]-[14].
[41]Affidavit of Mary Farrugia, sworn 14 November 2020, at paragraph [7].
[42]Affidavit of Mary Farrugia, sworn 14 November 2020, at paragraph [10]; affidavit of Tracey Attard, sworn 14 November 2020, at paragraph [9].
[43]Affidavit of Tracey Attard, sworn 14 November 2020, paragraph [15].
Does this aggravation constitute a serious injury?
45 Mr Farrugia is a sixty-six-year-old disability pensioner with significant pre-existing medical conditions. His wife is undergoing a battle with breast cancer. His grandchildren are young. His capacity to travel, to care for his wife, to play with his grandchildren, to play golf with his friends and family, and to enjoy the company of a beloved pet have been significantly impacted by the increase in pain, particularly lumbar spine pain, suffered by him as a result of the accident. He is likely to continue to suffer these restrictions into the foreseeable future. He takes strong prescription pain medication (including opioids) on a daily basis, which provides him some relief from the pain, but not complete relief. His condition has, as a result of the accident, become serious enough for two neurosurgeons to recommend surgery.
46 Having regard to all of the above, I am satisfied that the aggravation of Mr Farrugia’s cervical and lumbar spondylosis resulting from the accident is a serious injury, in the sense that it is an impairment of Mr Farrugia’s spine which, when compared with other cases in the range of possible impairments, is “very considerable” and certainly “more than significant or marked”.
47 I will grant leave to bring common law proceedings and hear from the parties on the question of costs.
---
Certificate
I certify that these 16 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 2 February 2021.
Dated: 2 February 2021
Susan Thomas
Associate to her Honour Judge Tran
0
2
0