G v TAC
[2025] VCC 602
•14 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-02201
| A, G | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2025 | |
DATE OF RULING: | 14 May 2025 | |
CASE MAY BE CITED AS: | G v TAC | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 602 | |
JUDGMENT
DELIVERED EX TEMPORE
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – transport accident – pain and suffering – brain injury – spinal injury – disentanglement – employment capacity
Legislation Cited: Transport Accident Act 1986
Cases Cited:
Ruling: The plaintiff is granted leave to commence proceedings for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Plunkett Ms F Spencer | Robinson Gill |
| For the Defendant | Mr C Blanden Ms C Alden | Transport Accident Commission |
HER HONOUR:
1
The plaintiff seeks leave to issue proceedings for the recovery of damages of common law pursuant to s93(4)(d) of the Transport Accident Act. He claims he suffered an injury to his spine and a head injury on
21 February 2020 which meets the definition under s23(17)(a) of serious injury.
2To be granted that leave he must establish that the pain and suffering and loss of enjoyment life consequences, including any pecuniary disadvantage consequences, can be fairly described as at least very considerable and certainly more than significant or marked compared with other cases in the range of possible impairments or losses.
Issues
3The issues in this case are:
a. whether the motor vehicle accident caused a brain injury and/or a spine injury;
b. what the consequences of the injuries are that are attributable to the motor vehicle accident; and
c. whether those consequences that can be attributed to the motor vehicle accident meet the test of at least very considerable.
Background
4The plaintiff was born in 1979. He has two adult children and four grandchildren and has a young daughter who is in the care of his parents. He was educated to Year 10 and then worked as a deckhand on boats for about a year and then as a welder in construction. For about 20 years he has worked as a machinery operator, mainly operating front-end loaders. He last worked in a quarry in September 2019 and he was due to start work in March 2020 making trailers for a mechanic.
5He has a history of alcohol use from about 14 years old and lost his licence because of driving under the influence of alcohol in 2011.
6He says he used cannabis from his teens. From the age of about 25 until the age of about 30 he used methamphetamine. He was convicted of driving under the influence of methamphetamine and lost his licence in 2016 and again lost his licence in 2020 for drug driving offences that occurred in November 2019, August 2020, March 2021, July 2021 and August 2021.
7He has a past criminal history that includes a conviction in 2016 for offences that occurred in January 2015 for burglary, theft, trafficking methamphetamine and using methamphetamine. Part of the order he received on that conviction was for testing, treatment and rehabilitation for drug abuse.
8He says he was off drugs for about three years from that conviction in 2016 but relapsed into drug use in about 2019. He says this drug use was minimal and says that over about five or six months he used methamphetamine between 10 and 15 times. He said the period in which he was using methamphetamine was either just before he finished work or in the period after he had finished work. He says that he was pretty good at his work and he loved his job.
9He accepted that he had consumed methamphetamine shortly before the motor vehicle accident. After the motor vehicle accident he relapsed for a period of about 12 months into drug use. He said this was in part because he self-medicating. Due to the COVID lockdown he had difficulty seeing doctors and he was having headaches, neck and back pain. It was not until he saw a neuropsychologist that he was informed about an acquired brain injury and he says that “put things in perspective”.
10Since then he says he has occasionally relapsed into methamphetamine use. He describes that use as heavy when he is using it but intermittent and there have been extended periods where he has not used methamphetamine or other illicit drugs.
11Apart from his part history of drug and alcohol abuse which he attributes, in part, to self-medication following serious childhood sexual abuse, he has a history of psychological issues and has sought psychological treatment largely relating to the consequences of his sexual abuse.
12In 1998 he had a work-related injury on his left index finger which required surgical repair and some months off work. In July 2023 he was diagnosed with diabetes. He has been prescribed medication to treat this but he says he has not been compliant with that medication.
The Motor Vehicle Accident
13The plaintiff was the passenger in the vehicle when the car collided with a side barrier. He remembers standing in the middle of the road after the accident. He says he was wearing a seatbelt but his head hit the windshield and he sustained a large laceration to the right side of his forehead.
14The ambulance records note that he was found walking at the scene after self-extricating from the vehicle and he complained of nine out of 10 neck pain and headache. He was noted to have a laceration over his right eye. He complained of mild shoulder pain - the ambulance record has '? seatbelt', presumably a query as to whether the shoulder pain was caused by the seatbelt. He was noted to also have pain above the right knee. He was taken to Warrnambool Hospital.
15It is not entirely clear whether there was a loss of consciousness in the immediate aftermath of the accident. The ambulance report queries whether there was a loss of consciousness. The hospital discharge record says that there was no loss of consciousness but the hospital clinical notes say there was a loss of consciousness of a couple of minutes. Various medical experts have discussed their opinion as to whether there was a loss of consciousness or whether there was trauma related amnesia in the period immediately following the accident.
16The parties agree that loss of consciousness is not a precondition to a medical diagnosis of brain injury. A loss of consciousness can provide some indication of the severity of the head trauma. It is not contested that the plaintiff struck his head in the motor vehicle accident given the large laceration to his forehead.
17On admission to Warrnambool Hospital the plaintiff was noted to have central neck soreness. An hour after admission that pain was reported as five out of 10 neck pain and this was despite having been administered morphine and Panadol.
18In the progress notes during the hours after he was admitted to hospital he was noted on a number of occasions to be drowsy. For example, at 7.53 am he was noted to be ‘drowsy, easy to rouse’. At 10.36 am he was noted to be ‘drowsy on and off’ and later he was noted to have ‘ongoing drowsiness’. [1]
[1] Defendant Court Book 95-99
19He had a CT scan of the brain and the cervical spine and no abnormalities were detected. He discharged himself against medical advice later on the day of the accident.
Medical history after Motor Vehicle Accident
20About two to three weeks after the accident he reported the onset of severe chronic daily headaches and neck and back pain. I note here that there is no evidence from the plaintiff or from any medical record of any significant or ongoing headaches before the motor vehicle accident.
21
On 16 March 2020 he attended his general practitioner
Dr Bashir, who prescribed Tramal for pain. In July 2020 he was referred for physiotherapy. He says he had about 10 sessions of physiotherapy but they did not really help.
22He describes neck and back pain that was very severe in the initial months and lasted all day, that the back pain then became less severe but he woke with back pain most mornings. He said that he takes over the counter Panadol Osteo for the neck and back pain and he has had no other treatment aside from the physiotherapy.
23The plaintiff describes headaches which are variable but constant and which, when bad, cause blurred vision. He says that he takes up to 10 Panadol and Nurofen daily to manage them. He describes a period where things started to become worse in terms of his memory and he started hearing things. He said this was around the time of the COVID 19 pandemic when the community went into lockdown and he was unable to obtain any medical treatment.
24On 5 August 2020 he went to his usual GP, Dr Maina, who prescribed Tramadol for his neck and back. He understands that to be a medication for muscular pain. For his headaches and neurological difficulties he was referred to a neurologist Professor Peter Gates, who he saw on 15 December 2020. Professor Gates prescribed the plaintiff nortriptyline for the headaches. Professor Gates noted that the plaintiff reported a period of post-accident amnesia and a history of bilateral headache from about two to three weeks post-accident.[2] As a result Professor Gates recommended neuropsychological testing.
[2] Plaintiff Court Book 110
25In July 2021 the plaintiff attended Dr Yemin for neuropsychological testing and Dr Yemin diagnosed a minor brain injury with a mild cognitive impairment. She recommended treatment by a psychologist to assist him in managing his condition.
26In October 2021 the plaintiff began attending a psychologist, Dr Oberholzer, who he saw for about 12 months. He said he was told that he was going to have to learn to live with his headaches and he found that nortriptyline did not really help. Although he continues to take Panadol he said that is mostly for back pain.
27I note here that Dr Oberholzer queried a diagnosis of attention deficit hyperactivity disorder. This queried diagnosis appears to be based on a self-assessment questionnaire completed by the plaintiff. Other experts including the three neuropsychologists involved in this case have generally poured cold water on that diagnosis and I do not afford any weight to this suggested diagnosis as a possible pre-existing condition or as a factor to be disentangled from the consequences of the motor vehicle accident.
28In June 2023 the plaintiff was diagnosed with diabetes. As already set out, he is not compliant with his medication. He said he had no real reason for not being compliant but that he has had tests and wants to see “where it is all at”.
29His other relevant medical history since the motor vehicle accident includes an episode in January 2024 when he collapsed after using the drug GBH and was taken to Geelong Hospital and an episode in July 2024 where he woke up in Geelong Hospital with no recollection of how he got there. He was subsequently told that he had been in an altercation at the pub the night before where he had been hit in the head.
30The plaintiff says that since these two incidents he has had no change in his headaches or his memory or cognitive function. He has received significant painkillers from time to time which he says have not really impacted on his pain. At times he has resorted to self-medication, as set out earlier in relation to relapsing into illicit drug use. He said there was a “good 12 month” period where he had relapsed into illicit drug use. Since then it has been on an off. He said, 'After the GBH incident it sort of scared me a little bit, yeah. I continue with ice just a little bit and so, you know, at the moment we've got to do urine screens for the Department to get our daughter back and that's my priority now.'[3]
[3] Transcript 30-31
31His daughter has been out of his care for two years. He says that since then he has done about eight months without drugs and he would describe the period where he has not been using illicit drugs as longer than the periods where he has been using illicit drugs. He continues to use significant quantities of Panadol and Nurofen.
Work history
32In terms of his work history, he was working at a quarry in the 12 months before the motor vehicle accident, operating a frontend loader. He said he was operating the quarry largely by himself, crushing limestone. He agreed that the work required him to be in a seated position and the frontend loader was operated using hand controls. He finished that work about six months before the motor vehicle accident because the contract ended. He had been in that position as a permanent employee for about 18 months. He said depending on the season he might work shifts of around about 12 hours and did some Saturdays and weekend work. When it was a less busy season he would usually start work at seven and finish at three or four or five.
33Immediately prior to the motor vehicle accident he was on a Newstart Allowance as he had not found any work in the six months that preceded the accident. He was intending to start as a trade assistant at Gubbs Garage in Portland where a friend of his was hoping to get a trailer building workshop up and going.
34He has not returned to any work since the motor vehicle accident. He says that he could not operate machinery with the level of headaches that he has and with his cognitive impairment. He also says his back is stiff, particularly in the mornings and he is unreliable because some days he cannot get started until some hours after he wakes up because of back pain.
35He says he would not be able to do the work as a trade assistant. The possibility of that work was also interrupted by the onset of the COVID-19 pandemic, but he said once COVID lockdowns finished he discussed matters with his friend but the friend indicated that he needed someone who would be more reliable than the plaintiff. He also he would not be able to do the bending work under cars because of his back and that was something that he had not had difficulties with before the motor vehicle accident.
36He said he could not work because of his brain injury and his daily headaches. He says when his headaches are bad they cause blurred vision and nausea and his brain injury causes confusion, difficulties with organisation and forgetfulness. He said forgetfulness was 'a massive thing'. He gave as an example the fact that he has been cut off Centrelink many times because he has missed appointments. He said, 'In implementing little tasks stuff goes in but it doesn't come out.'
37He said he gets frustrated and angry, and said, 'You know how to do that initially but it just doesn't flow through. Yeah, it just sort of gets muddled up, all muddled up'[4]. He says he did not have those sorts of problems before the accident. He said before the accident he did not have daily headaches. He said his concentration and ability to complete tasks was pretty good and he did not have difficulties concentrating on the job as a quarry operator.
[4] Transcript 27
Credit
38In terms of the plaintiff's credit there was really no attack on his credit or the reliability of his evidence. He was able to delineate the consequences of his injuries, the type of pain and consequences that he said arose from his brain injury and separately from the spine and was able to identify the impact on his work of the brain injury and the spine.
39There are copious histories to doctors and the history given to doctors consistently marries up well both with his evidence and his diagnosis and also is supported by the evidence of his parents.
40There was no cross-examination of his parents and their evidence corroborates the seriousness of the effects that the plaintiff claims and corroborates his evidence that these are consequences that he did not have before the motor vehicle accident.
41Accordingly I have no difficulty accepting that the plaintiff was a truthful witness and I find that his evidence is reliable.
Did the motor vehicle accident cause a traumatic brain injury?
42This requires an assessment firstly of whether the plaintiff has a brain injury.
43The plaintiff relies on the opinions of Professor Gates and Doctors Mullaly and Yemin. There are two components to the brain injury: a cognitive impairment; and headaches.
Professor Gates
44Professor Gates, a neurologist, saw the plaintiff in 2021. He notes that the headaches came on after a head injury and noted a history that they are constant in nature, present virtually every day, all day, with some days worse and that blurry vision accompanies severe headaches. This history is consistent with the history given by the plaintiff to other doctors and is also consistent with his evidence.
45Professor Gates notes that the plaintiff's report of significant memory issues and queries whether they are related to a cognitive function issue or psychological issues and says that the only way to determine this is to have neurological testing. He referred him for neurological testing which was undertaken by Dr Yemin in July 2021.
Dr Yemin
46Dr Yemin’s neuropsychology testing of the plaintiff in 2021 demonstrated moderate dysfunction in qualitative and quantitative functioning.
47He was noted to have piecemeal planning when copying a complex visuospatial figure. He had some difficulty breaking tasks up into components. Problem solving was moderately reduced and he had difficulty finding solutions to more challenging and unstructured problems. He had severe reduced inhibition in relation to higher order attentional function and was unable to adequately divide his attention.
48He was diagnosed with a cognitive disability of mild to moderate severity which included deficits in memory and executive function. Dr Yemin opined that the aetiology of this was consistent with the deficits reported by the plaintiff and suggested that he had suffered a traumatic brain injury of at least mild severity. My understanding of this report is that the sorts of complaints that the plaintiff was making about the difficulties he was having post motor vehicle accident are consistent with the clinical findings on testing and that in turn those deficits are consistent with a traumatic brain injury caused by a motor vehicle accident.
Dr Mullaly
49He was also seen by a neuropsychologist, Dr Mullaly who, after testing, noted that most of the plaintiff’s scores fell within the low average range which would be consistent with his premorbid education and occupation. However, she noted deficits in new learning, recognition memory, abstract thinking and processing speed on testing. She noted his performance on a task involving mental rotation of spatial images fell within the very low range, well below his likely premorbid ability. Processing speed and accuracy were mildly below expectations.
50She diagnosed a mild to moderate impairment on tasks known to be sensitive to mild and moderate traumatic brain injury. She noted it would be difficult to exclude the traumatic brain injury as a cause of his cognitive disturbance and said that it is possibly not the only cause and noted his low mood, history of drug use, history of trauma and mental health disturbance, as possible contributing factors. She therefore concluded that approximately half of the deficits of his traumatic brain injury was likely to be caused by the motor vehicle accident. She cast doubt on the diagnosis of attention deficit hyperactivity disorder.
Dr Gibbs
51The plaintiff was also assessed by Dr Gibbs, another neuropsychologist, who, on testing, found that there was no gross executive impairment, that there were some features of reduced spatial construction, that the plaintiff performed very poorly on a timed pen and paper copying task but had adequate results in a time to visual scanning task and found no gross pervasive impairment of learning and retaining new verbal and spatial material, however might have a subtle lapse in the context of pain, headache and fatigue.
52Dr Gibbs said that it was likely that the plaintiff had a mild or minor concussion and head strike, “mild at most”. He based this conclusion on the following matters: the fact that the plaintiff was asleep at the time of collision but woke to the movement of the car; that he did not suffer any or any extended loss of consciousness; that he had normal Glasgow Coma scores; and that he was haemodynamically stable.
53He opined that substance use, and by this I assume he means methylamphetamine but perhaps also alcohol, prior to the motor vehicle accident and substance abuse post the motor vehicle accident can be associated with cognitive loss whilst intoxicated. I assume that means that at the time at which the drug is active in the system it can be associated with cognitive loss.
54He also noted unrelated head trauma in June 2024 and hospital attendance following the use of GBH in January 2024, as well as the plaintiff's diabetes as 'factors of a significant nature with respect to cognition and function'.[5]
[5] Defendant Court Book 48
55In opining on the severity of unrelated head trauma and cognitive impairment Dr Gibbs said that substance use can be associated with cognitive loss and that there were potential long-term effects with chronic use. He noted that cognitive state can fluctuate with blood sugar levels which is, presumably, a reference to the plaintiff’s diabetes which is not controlled through medication.
56The defendant submits that it is Dr Gibbs report that is the most comprehensive and should be preferred. The plaintiff says Dr Gibbs report is an outliner and that Dr Gibbs does not directly address matters such as the consequences of the head strike that he identifies. The plaintiff says I should draw an inference that he does not go into those matters because he does not want to give an opinion that is adverse to the defendant.
57Dr Gibbs says that he does not consider that there are any significant cognitive or personality change components related to the head injury that likely limit the plaintiff’s capacity to engage in some form of work.
58I note that this opinion appears to accept that there are cognitive or personality change components related to the head injury but Dr Gibbs does not consider they are significant or likely to limit his capacity to engage in some form of work.
Findings on cognitive impairment
59In terms of my findings on the neuropsychological assessments I prefer the opinions of Doctors Yemin and Mullaly for the following reasons:
(a) they each articulate the clear diagnosis, that is, of a mild to moderate cognitive impairment based on the results of their tests;
(b) their tests returned generally similar results;
(c) the tests results are consistent with the complaints made by the plaintiff since the accident and consistent with complaints to medical practitioners from that time.
(d) Dr Gibbs diagnosed a likely mild minor concussional head injury and/or non concussional head strike at most. It is not apparent whether with this finding Dr Gibbs is saying that the plaintiff does not have a cognitive impairment. However, if this diagnosis is intended to suggest that there is no cognitive impairment it is difficult to understand his response to the question of the nature and severity of any unrelated or pre-existing head injury or cognitive impairment. By identifying the significant nature of other factors with respect to cognition and function Dr Gibbs implicitly seems to agree that the plaintiff has a cognitive impairment.
(e) other than identifying factors that are significant with respect to cognition and function Dr Gibbs does not identify what, if any, role he says the motor vehicle accident had in that cognitive impairment.
60I am satisfied the experts have accepted that the plaintiff does have a cognitive impairment. This was not hotly contested.
61I am also satisfied that the headaches are a consequence of the brain injury, albeit that a mechanism for the headaches, is not identified.
62This is unsurprisingly, and in keeping with the general lack of medical understanding about the specific causes of and mechanisms contributing to migraine or headache. I accept Dr Tan's opinion that the headaches are post traumatic in nature.
What was the cause of the brain injury?
63Turning now to consider the cause of the brain injury. There are a number of putative causes identified at least in Mr Gibbs report.
Diabetes
64There is no evidence that the cognitive impairment is caused or contributed to diabetes. It was agreed between the parties that the plaintiff's diabetes was diagnosed in mid-2023. Even if I suppose that his diabetes predated that diagnosis by some period the neuropsychic assessment in 2021 demonstrated a cognitive impairment well prior to any diabetes diagnosis and likely onset.
65There is no endocrinology material before me suggesting that the diabetes is a cause or contributor to the plaintiff's cognitive impairment.
Psychiatric condition
66This is an aspect of the case that raises the question of whether the plaintiff’s psychiatric injuries are the cause of a cognitive impairment. I am aware, from other cases, that a psychiatric impairment can cause difficulties with, for example, memory and other cognitive functioning.
67In this case there are three psychiatric opinions from Doctors Paoletti, Dr Serry and Dr Shum who diagnosed various psychiatric conditions. None of those doctors diagnose a cognitive impairment caused by the psychological condition.
68Dr Paoletti does diagnose a mild neuro cognitive disorder and Dr Serry diagnoses a mild traumatic brain injury. None of the psychiatrists say that the cognitive problems are caused by the psychiatric impairment. I note that in Dr Mullaly's report she also considered that emotional distress could account for some of the results of the neuropsychological testing but in her opinion the consequence of this is that the motor vehicle accident is responsible for only a portion of the cognitive impairment. I take this to be that the emotional distress and education background, another factor that she identifies as contributing to the cognitive impairment, would not account for the entirety of the results she obtained.
Other head injuries
69I turn now to consider the other head injuries that the plaintiff has sustained as a possible cause of the cognitive impairment or brain injury. The plaintiff had a subsequent injury when he was assaulted in 2024. He has no memory of that incident. That might indicate that he had a loss of consciousness at that time.
70There was also the potential for a brain injury following the overdose of GBH when his Glasgow Coma score was three. I note that while I cannot rule out the possibility that each of these events caused additional cognitive impairment, any additional effects are denied by the plaintiff, and are not consistent with the neuropsychological results from Doctors Mullaly and Yemin which predate these events.
71Also I note that Dr Gibbs neuropsychological results, which postdate these events appear to be better results than those obtained from Doctors Mullaly and Yemin. It seems unlikely that either of these events would have resulted in an improvement of cognitive function.
72The cognitive impairment that I am satisfied has occurred after the motor vehicle accident predates either of these events. I am not satisfied that the effect of either of these events has displaced the impact of the brain injury that pre-dated those events.
Substance abuse
73In terms of drug use, there is no evidence that the plaintiff’s drug use has caused a cognitive impairment, although I accept that drug use may cause or contribute to cognitive impairment. The evidence suggests that the major periods of his drug use predated the motor vehicle accident and drug use since has not been as significant. Aside from Dr Gibbs who raises it as a factor but does not opine that drug use has in fact caused a cognitive impairment, there is no evidence that drug use accounts for the brain injury in its entirety.
Findings on the cause of the brain injury
74There is considerable evidence that the motor vehicle accident was at least a cause of the brain injury. The following factors support a conclusion that the motor vehicle accident was sufficient to cause a brain injury:
(a) the potential loss of consciousness
(b) post traumatic amnesia with a period of lost memory,
(c) the fact that there was a head strike that caused a large laceration,
(d) the records from the hospital notes of drowsiness,
(e) the speed of the car; and
(f) the impact of the collision.
75The plaintiff’s evidence about his before and after functioning which I have outlined briefly below and which is contained in detail in his affidavit material also support a finding that the motor vehicle accident was the cause of his brain injury.
76There was no serious cross-examination of his evidence about:
a. his headaches,
b. his concentration,
c. his memory; and
d. his cognitive difficulties.
77His parents’ evidence about the differences between the plaintiff before and after the motor vehicle accident was unchallenged.
78I am also persuaded by the opinions of:
a. Dr Mullaly that at least half the neuro cognitive impairment she identified can be attributed to the motor vehicle accident,
b. Dr Yemin, Dr Tan and Professor Davis that the brain injury can be attributed to the motor vehicle accident,
c. Dr Tan that the headaches are post traumatic and caused by the motor vehicle accident.
79I reject the opinion of Dr Gibbs who refers to Professor Gates opinion in relation to headaches and ascribes them to overuse of analgesia. It is not apparent to me that Professor Gates ascribes the cause of the plaintiff’s headaches to overuse of analgesia. Indeed if the cause of the headaches were overuse of analgesia then withdrawal of analgesia would presumably resolve the problem and there would have been no indication for Professor Gates to prescribe nortriptyline.
80Accordingly, I do not accept that the cause of the headaches is overuse of analgesia though overuse of such medication may have an impact on the headaches.
81Further, I am persuaded by the opinion of Dr Hunt that, although there are other factors relevant to the brain injury, when assessing the motor vehicle accident and looking at the nature of the accident, the speed of the collision, the complaint of chronic daily headaches, the impaired short term memory and the neuropsychological assessment, it is reasonable to attribute to his cognitive impairment in part to the accident.
82Implicitly she attributes the headaches to the motor vehicle accident when using the existence of the chronic daily headaches post the motor vehicle accident as a factor which causes her to consider that the cognitive impairment was caused, a least in part, by the motor vehicle accident.
83There is a temporal association between the motor vehicle accident and the headaches.
84I am therefore satisfied that the motor vehicle accident was a cause, albeit not necessarily the only cause, of the plaintiff’s brain injury which includes both a cognitive impairment and the onset of chronic headache or migraine.
What are the consequents of his brain injury attributable to the motor vehicle accident?
The claimed consequences
85The plaintiff claims the following consequences:
a.daily headache which can cause blurred vision. The plaintiff says he sometimes has nausea, that he has to lie in bed in a dark room and is sometimes in bed on a bad day. He says he is “pretty much unable to do anything at all when I have a bad headache” and that a day like that happens about twice a week. He says he sometimes has headaches when he wakes up and they sometimes come on at some other time during the day. When he has a headache that renders him bedridden, is in bed for at least two to four hours.
b.he says that as a result of the motor vehicle accident brain injury he has become forgetful, he is heavily reliant on his parents who support his evidence about becoming forgetful.
c.he struggles with his concentration. He is easily distracted and unable to finish projects.
d.he suffers from sexual dysfunction and is unable to maintain an erection about half the time.
e. he used to like fishing. He bought a second-hand boat which was lost in a fire and he also doesn't have a driver's licence which impacted on his capacity to take his boat out. Before the motor vehicle accident he used to go fishing from the rocks and also from his boat and he especially liked it from the rocks but this has become a bit hard because of his both spinal injury and the difficulty that this means in running up and down the rocks, but also has become more difficult during to his brain injury because of headaches and blurry vision.
f. he does not take any medication apart from Panadol Osteo about three times a day and sometimes a little more and he takes that for his headaches and his neck pain.
g. he last saw his general practitioner six months ago. Apart from that he estimates it was probably a few months before that and he does not say that he has any particular ongoing treatment for his brain injury.
86I note that Dr Tan says that his mood and his current circumstances have an impact on his headaches. I accept the submission that this does not negate that he is having severe daily chronic headaches but that other things such as mood can make those headaches worse.
Capacity for Work
87I note Dr Tan also identifies that the plaintiff’s capacity to return to work is likely to be affected by those daily headaches which are described as migraine.
88In terms of his capacity for work, Dr Mullaly identifies that the plaintiff is not capable of innovative or complex administration but considers that he could do some work which would need to involve a familiar routine. He does not have capacity for unrestricted work and he loses track of things.
89Dr Hunt expresses a guarded opinion noting that the plaintiff has expressed interest in returning to work and noting that this might help his self-esteem.
90Dr Yemin says there is a range of things that would need to be done to assist the plaintiff with work and the evidence is that his limitations would have a significant impact on his ability to work.
91Dr Mullaly also considers that a return to previous roles in quarry work or warehouse management would be difficult due to headaches, distress and cognitive issues.
92Professor Davis noted that the headaches that the plaintiff was suffering may present a challenge but considered he would otherwise be able to do work as a heavy machinery operator. I note that this opinion is in the context of an assessment prior to his neuropsychological assessments, and prior to the diagnosis of cognitive impairment and on this basis I give little weight to Professor Davis' view about his capacity to work as a heavy machinery operator.
93It is significant that even that long ago Professor Davis was acknowledging the difficulty that daily headaches would cause in a return to work.
94The plaintiff’s general practitioner and treating psychologist both consider he is unlikely to be able to return to employment because of his ongoing cognitive impairment.
95The defendant submits that there is no reason the plaintiff could not return to the sort of work he was doing in the quarry and that there is nothing in his presentation or injuries that would stop that.
My findings
96In relation to the consequences that are claimed, the defendant submits that the plaintiff has suffered at most a minor brain injury but that the effects or the consequences of it are insufficient to meet the test. The plaintiff says that there is a wealth of material that supports both the brain injury and the consequences of the brain injury and that it is telling that the defendant's case rests primarily on Dr Gibbs who is an outlier in respect of his opinion.
97I am satisfied on the basis of the medical material as set out above that the plaintiff's daily headaches and migraine and at least some part of the plaintiff's cognitive impairment are attributable to the motor vehicle accident. I am satisfied that the cognitive impairment caused by the motor vehicle accident is sufficient to mean that the plaintiff is no longer able to work in his former occupation as a machine operator, nor would he be able to undertake the work he did driving a frontend loader in a quarry.
98Whatever the exact nature and extent of his pre-existing cognitive impairment it was insufficient to preclude him from working on a full time and, at times, more than full time basis. Whatever the nature of any post motor vehicle accident impairment caused by some other factor, for example, further head injury or diabetes, I am satisfied that in the aftermath of the motor vehicle accident the plaintiff was already precluded from resuming the sort of prior employment he engaged in. This is because:
(a) I accept his evidence about the impact his cognitive impairment has had on him. In particular, his difficulties with memory and concentration.
(b) an ability to concentrate would be necessary to be a machine operator.
(c) I accept his evidence that he would not be able to do that sort of work anymore and that this was work that he really enjoyed.
(d) although the cognitive impairment is described variously as mild, minimal or moderate, even a mild cognitive impairment can have a significant impact.
(e) the presence of chronic daily headaches that are sometimes so severe he has blurred vison would preclude him from employment as a machine operator.
(f) I accept his evidence that he has headaches which render him largely unable to get out of bed for hours at a time which occur about two or three times a week and which are not susceptible to medication.
(g) I accept his evidence that he was unable to take up the opportunity to work as a trade assistant to a mechanic after the motor vehicle accident due at least in part to his unreliability because of his brain injury.
Does the plaintiff meet the test?
99Having regard to the consequences that I am satisfied that arise from the motor vehicle accident being:
(a), Chronic daily headaches.
(b), cognitive impairment.
(c), inability to work on his former employment and significant restrictions on his ability to work in any capacity at all;
and compared with the range of cases I am required to consider I am satisfied that
the plaintiff has sustained consequences that meet the test or at least very considerable. I am satisfied that his inability to resume employment because of his brain injury has resulted in a pecuniary disadvantage to him. Accordingly he has leave to bring common law proceedings for pain and suffering and pecuniary loss.
Impairment of the spine
100As I have made this finding in relation to the brain injury there is no need to consider the plaintiff's claim in relation to the impairment of his spine. I briefly note the opinions of Professor Bittar and Dr Doig who diagnose an aggravation of cervical spondylosis and a soft tissue injury respectively and Dr Sui who does not diagnose any spine injury.
101Though there is some medical support for the notion that at least some of his headaches are cervicogenic in origin and the plaintiff says his back pain would prevent him from, for example, getting under cars as a mechanic and has an impact on his capacity to fish, I am not satisfied on the material before me that the consequences of the spine injury would meet the test of at least very considerable having regard to the range of possible cases I must consider.
Orders
102I will make orders that the plaintiff have leave to bring common law proceedings for pain and suffering and loss of earning capacity for injuries sustained during his transport accident on 21 February 2020.
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