Gorman v TAC
[2017] VCC 1280
•20 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-16-02730
| DEAN GORMAN | Plaintiff |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 September 2017 | |
DATE OF JUDGMENT: | 20 September 2017 | |
CASE MAY BE CITED AS: | Gorman v TAC | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1280 | |
REASONS FOR JUDGMENT
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SubjectTRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to neck and lower back - pre-existing neck and lower back conditions – aggravation – whether consequences “very considerable”
Legislation Cited: Transport Accident Act 1986
Cases Cited:Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Ms K Burgess | Zaparas Lawyers |
| For the Defendant | Mr G Lewis QC with Ms V Nadj | Transport Accident Commission |
HER HONOUR:
Preliminary
1 Mr Gorman is a 47-year-old man who, during the course of his employment, was injured in a transport accident on 27 October 2011 when the car he was driving was struck from behind by a four-tonne truck (“the transport accident”). Mr Gorman claims that as a consequence of this accident he has suffered a serious injury to his neck and lower back.
2 In order for Mr Gorman to be entitled to claim common law damages, the impairment of his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s93(17) of the Transport Accident Act 1986.
3 Prior to the transport accident, Mr Gorman had suffered pre-existing neck and lower back pain. The Transport Accident Commission (“the TAC”) disputes both that the accident caused an aggravation of that pre-existing condition, and that the consequences which arise from that aggravation can be described as at least very considerable. In the alternative, the TAC alleges that any ongoing condition is non-organic and that such consequences are irrelevant to Mr Gorman’s claim for spinal impairment under part (a).
4 Only Mr Gorman was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other material, including an affidavit from his former de facto partner. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that the consequences from the aggravation to Mr Gorman’s pre-existing spinal injury can be described as at least very considerable, and that he should be granted leave to commence common law proceedings.
Mr Gorman’s life before the transport accident
6 Mr Gorman is a single man with a six-year-old daughter, for whom he cares on a full-time basis every alternate week.
7 Mr Gorman left school in Year 10 and subsequently obtained work as a farmhand. In 1987 he commenced employment with Drouin Pipe Sales, making concrete pipes.
8 On 1 November 1988, Mr Gorman was involved in a transport accident in which he suffered a fracture to his skull. Following this accident Mr Gorman had about three weeks off work, but said he then fully recovered.
9 On 12 December 1990, during the course of his employment with Drouin Pipe Sales, the plaintiff suffered an injury to his neck and lower back when he was struck by a trowel that had become stuck in a concrete spinning machine. Mr Gorman has suffered neck and lower back pain since that time.
10 Following this accident Mr Gorman initially had a few months off work, before attempting to return on light duties. Due to increased pain, however, he was forced to cease employment with Drouin Pipe Sales. Mr Gorman subsequently moved to Adelaide and then later to Queensland. Mr Gorman said that he received conservative medical treatment for his neck and lower back pain. He also suffered some anxiety at this time, for which he was prescribed medication. Mr Gorman said that there was an extensive period of time in which he did not work at all as a consequence of his lower back and neck pain. However, for approximately two years he worked for a fibreglass company laminating eskies.
11 Mr Gorman then returned to Melbourne, at which time he obtained employment making fibreglass water cooling towers. He said that such employment ended as he did not feel he had the experience needed to work as a manager for that company. He subsequently obtained jobs performing laminating work for two different companies, but ultimately stopped both jobs, as his back pain was getting worse and he felt the laminating work was too physically demanding.
12 In 1999, Mr Gorman obtained employment packing baby products for Aussie Nappies. In approximately 2000 or 2001 he obtained a general cleaning job for a car trading company in Dandenong, where he worked on a part-time basis for about six to eight months. Throughout this period Mr Gorman was rehabilitating himself, going to the gym and strengthening his core, whilst progressing to full-time work.
13 Following his return to Melbourne, Mr Gorman consulted general practitioner, Dr Helen Kouzmin. She prescribed steroid medication to improve his sperm count. She also referred Mr Gorman to psychologist Dr Brendan Howell, whom the plaintiff consulted for approximately six months.
14 In a report dated 8 October 2001, Dr Kouzmin stated that with appropriate interventions she considered Mr Gorman may improve sufficiently to return to the workforce.
15 From approximately 2002 until the time of the transport accident, Mr Gorman was employed full-time by Cambria Bodyshop as a car detailer/polisher. In the financial year ended 30 June 2011, Mr Gorman earned $36,406.00.
16 As a car detailer/polisher, Mr Gorman was required to perform heavy physical work, involving the repetitive use of his arms, as well as bending, twisting, lifting and squatting down. He was frequently required to work in an awkward position, as well as to carry drums of chemicals up to 20 litres in size.
17 Whilst employed at Cambria Bodyshop, Mr Gorman met Ms Anastasia Blinoff, who also worked at the Cambria Bodyshop as a car detailer. Mr Gorman and Ms Blinoff subsequently formed a relationship and commenced living together. At the time of the transport accident Ms Blinoff was pregnant with their daughter, who was born the following June.
18 In 2003, Mr Gorman stopped consulting Dr Kouzmin and commenced attending the Joseph Banks Medical Centre.
19 On 15 October 2004, a CT scan was taken of Mr Gorman’s lumbar spine. It demonstrated minimal annular disc bulges at the L3‑4 and L4‑5 levels, with no definite evidence of nerve root compression.
20 On 16 May 2008, a further CT scan was taken of Mr Gorman’s lumbar spine. It demonstrated bilateral multilevel mild facet joint osteoarthritis, together with a mild broad-based disc bulge at L4‑5, without evidence of nerve root compression.
21 Prior to the transport accident, Mr Gorman said that he continued to suffer from occasional lower back and neck pain, as well as anxiety. He said he had obtained occasional chiropractic treatment and had taken medications including Panadeine Forte, Tramal, Baclofen, Diazepam, Naprosyn and steroids. He had also taken Cipramil for depression and anxiety. Mr Gorman said that, at times, he had taken high doses of Diazepam and abused alcohol.
22 Mr Gorman said that prior to the time of the transport accident he had generally ceased medications, save for periodic prescriptions of Naprosyn, and other similar medications. I note that the last script of Naprosyn, prior to the transport accident, was given to Mr Gorman on 2 November 2006.
23 On 29 August 2011, Mr Gorman consulted Dr Ng with a complaint of neck pain. He was treated with acupuncture and given two days off work. No medication was prescribed. He did not re-attend the clinic until immediately after the transport accident.
24 Prior to the transport accident, Mr Gorman said that he managed his pain levels by regularly attending the gym, and that he was able to bench press approximately 120 kilograms.
25 Mr Gorman said that prior to the transport accident he enjoyed fishing at Hastings and at Frankston Pier, as well as motorbike riding. He had a four-wheel and two-wheel bike.
26 Mr Gorman suffers from osteoporosis, which was thought to be related to his steroid use, and for which he takes medication. He also had a pre-existing cardiac condition which, for a period of time, had been treated with a loop implant to monitor his heart rhythm.
The transport accident and its consequences to Mr Gorman
27 On 27 October 2011, during the course of his employment with Cambria Bodyshop, Mr Gorman was driving to Bunnings in Keysborough to purchase some items for his employer. Mr Gorman said that he was in the right-hand turning lane, but that part of his car was in the southbound lane of Cheltenham Road, as there were several stationary cars in front of him.
28 Mr Gorman said that just as he came to a stop behind the car in front of him he was hit in the rear by a four-tonne truck, causing his car to then hit the vehicle in front of him. He said the truck was then subsequently hit from behind by another vehicle, causing a further jolt to his own car.
29 Mr Gorman’s then partner Mr Blinoff, drove Mr Gorman to the Joseph Banks Medical Centre, where he was seen by general practitioner Dr Jayarajan. Mr Gorman complained of pain in his lower back, for which he was prescribed Diazepam and given time off work.
30 On 3 November 2011, Mr Gorman received ultrasound therapy to his lower back at the Joseph Banks Medical Centre. He said that he continued to have this treatment on a weekly basis for the next month, but that it did not really assist with his lower back pain.
31 On approximately 8 November 2011, Mr Gorman returned to his employment with Cambria Bodyshop for a short period of time, but was unable to continue due to his ongoing lower back pain.
32 On 15 November 2011, a CT scan was taken of Mr Gorman’s lower back. It demonstrated endplate depression at L2 level and minimal anterolateral osteophyte formation at L2-3 and L3-4.
33 In December 2011, Mr Gorman consulted chiropractor Tom Simms, whom he continued to consult on a weekly, then fortnightly basis. Mr Gorman said that such treatment provided some temporary relief for his lower back pain.
34 In approximately February 2012, Mr Gorman commenced hydrotherapy treatment at the Oasis Aquatic Centre in Dandenong, which he attended several times a week for the following 12 months.
35 In July 2012, general practitioner Dr Ivan Ng referred Mr Gorman to the Victorian Rehabilitation Centre in Glen Waverley. He was assessed as being likely to benefit from a pain-management course; however, the relevant WorkCover insurer did not approve the requisite funding.
36 In late November 2012, Mr Gorman obtained part-time employment delivering pizza materials to pizza shops, where he worked four hours a day, three days a week, on a light duties certificate. However, Mr Gorman said that he had to cease such work after a few months, as the weight of the goods he had to deliver increased and he felt a worsening of his lower back pain. In cross-examination, Mr Gorman said that he sometimes had to carry 25 kilograms of flour on his shoulder, which caused problems to both his neck and his shoulder.
37 By late 2012, Mr Gorman said that his relationship with Ms Blinoff had broken down. He attributed this breakdown in part to financial difficulties, as he had not worked for an extended period, and in part to his mood, which had deteriorated as a consequence of his increased physical pain. Mr Gorman subsequently came to an arrangement with Ms Blinoff whereby they would share custody of their daughter. Since that time, both parents have provided full-time care for their daughter on a rotating weekly basis.
38 In approximately July 2013, Mr Gorman obtained employment through his brother. His job involved driving a four-tonne truck to Frankston in order to collect bagged asbestos, which he then delivered to a dumping ground beyond Tullamarine. Mr Gorman said that he was only required to drive, and was not required to load the asbestos. He performed this role for two to three days a week, for approximately one month, during which time he experienced a worsening of his lower back pain. After approximately one month, there was no further work available to him.
39 On 14 August 2014, an MRI scan was taken of Mr Gorman’s lumbar spine. It was reported as showing nominal disc degenerative change at L3-4 and L4-5 and mild to moderate L5-S1 facet degeneration.
40 In early 2016, Mr Gorman obtained casual employment with Dalmatian Construction. He worked approximately 20 hours a week in those weeks in which he had full-time care of his daughter, and 30 hours a week in those weeks in which his daughter was with Ms Blinoff. Mr Gorman also said that the amount of work he did varied in part upon the availability of such work with Dalmatian Construction.
41 Mr Gorman said that his work with Dalmatian Construction initially involved cleaning up worksites, including taking rubbish and materials by trailer to a tip. However, in early 2017, Mr Gorman said the work became heavier and that he was required to operate a jackhammer. Mr Gorman said that he was no longer able to cope with the job due to increased neck, shoulder and lower back pain. He said he ceased such employment in May 2017.
42 Since that time, Mr Gorman has undertaken casual work at some of the properties owned by his landlord, including painting and sweeping. In exchange for this assistance, Mr Gorman’s landlord has reduced his rental payment by approximately one week’s worth over the last six weeks. Mr Gorman is grateful for this support, as he is struggling financially on the limited government resources that he receives.
43 Mr Gorman said that he is motivated to retrain so as to increase his employment prospects. He said that in 2015 he undertook a 10-week computer course, and is currently undertaking an additional 10-week computer course, three hours a day. Mr Gorman said he had previously enrolled in an online Diploma in Business and Management Course which he did not continue, as he felt it was beyond his capacity in circumstances where he had never worked in business or management.
44 Mr Gorman said that he continues to consult Dr Ng at least once a month. Dr Ng provides acupuncture treatment, which Mr Gorman said is particularly helpful with his neck pain. Mr Gorman is currently prescribed Tramadol;[1] 150 milligrams slow release and also 50 milligrams. However, Mr Gorman said that he tries to avoid taking such medication, due to his previous problems with addiction. He also said that he does not like taking it when his daughter is with him. However, Mr Gorman said that on average, he takes about one tablet of Tramadol every couple of days.
[1]In evidence in chief Mr Gorman said that he takes Naprosyn on a daily basis, but he later corrected this to say that he currently takes Tramadol
45 Mr Gorman said that he has constant lower back pain, and that it feels tight all the time. He said his pain worsens if he has to bend too far. He said that he gets a cramping feeling in his back about 10-15 times a week, which makes him feel like it is locking up.
46 In addition, Mr Gorman said that he has pain in his right leg above the knee and that he gets cramps every day in both legs, which are worse on the right. He said he has to avoid running or jumping, as that would aggravate his lower back and leg pain.
47 Mr Gorman said that he continues to have intermittent pain in his neck, which is worse in the cold weather. He also has pain in his right shoulder.
48 Mr Gorman said that if he sits for more than 30 minutes, he experiences increased lower back pain. He said he has similar difficulties if he has to stand for a prolonged period. Mr Gorman said that he suffers increased discomfort if he has to drive more than 15 minutes, and that if he drives for more than one hour he has to stop and take a regular break, to stretch and walk around
49 Mr Gorman said that his sleep is broken. He said that he wakes every hour or so, and that he needs to move around because of his lower back pain. He also referred to his neck and shoulder pain interfering with his sleep.
50 Mr Gorman said that he has a shower in the morning when he gets up to alleviate his lower back pain, and that he usually then has several more showers throughout the course of the day, as the heat helps with his discomfort.
51 In the weeks that Mr Gorman has his daughter, he performs all tasks associated with her care, including taking her to and from school, preparing meals and cleaning up after her. He said that if he was able to obtain full-time work, he would manage such care with the use of before and after-school care programs.
52 Mr Gorman said that his primary recreational activity is now spending time with his daughter. He said that he takes her to the playground, but that he is otherwise not able to participate in many activities with her, due to his ongoing neck and lower back pain.
53 Mr Gorman said that he has not gone fishing since the transport accident. He also said that he no longer rides his dirt bikes, as the vibration would cause him too much lower back pain.
54 Mr Gorman is still able to walk and ride a bicycle, both of which are encouraged by Dr Ng.
55 Mr Gorman’s ex-partner, Ms Blinoff, provided an affidavit in support of his claim. Ms Blinoff confirmed that prior to the transport accident she worked with Mr Gorman at Cambria Bodyshop, in what she described as physically demanding work. Ms Blinoff confirmed that she was aware of Mr Gorman’s pre-existing lower back and neck pain, but stated that he was able to work full-time and do many of the household chores. She did not recall Mr Gorman having any particular problems with sleep.
56 Subsequent to the transport accident, Ms Blinoff confirmed that Mr Gorman was not able to continue in his employment at Cambria Bodyshop, and said that he had struggled to obtain employment consistent with his ongoing back, neck and shoulder pain. Ms Blinoff confirmed that Mr Gorman’s sleep became quite disturbed after the accident. She also stated that their relationship had deteriorated following the accident, in part as Mr Gorman was moody due to his spinal pain and medication.
Mr Gorman’s medical evidence
57 Dr Ng has treated Mr Gorman since Dr Jayarajan left the Joseph Banks Medical Centre soon after the transport accident. In a report dated 10 July 2017, Dr Ng confirmed that he has treated Mr Gorman conservatively with pain relief medications and allied health treatment, which has included chiropractic treatment, physiotherapy and hydrotherapy.
58 Dr Ng considered that Mr Gorman had been compliant with his treatments and home exercise program. He also considered that Mr Gorman’s back pain was severe. Dr Ng was of the opinion that Mr Gorman suffered persistent pain and stiffness in his shoulders and back as a result of the transport accident in 2011. He stated that Mr Gorman was not able to return to any manual, laborious duties which require regular bending and lifting. Dr Ng also noted that due to the chronic nature of Mr Gorman’s physical injuries, he had been prone to depression and anxiety.
59 In offering this opinion, Dr Ng did not detail the manner in which the plaintiff’s shoulders were injured in the transport accident, nor the injury actually suffered by the plaintiff in relation to his ongoing shoulder pain.
60 Mr Gorman’s solicitors arranged for him to be examined by neurosurgeon Professor Richard Bittar in June 2017. In his report dated 30 June 2017 Professor Bittar referred to Mr Gorman’s pre-existing history, and noted that, prior to the transport accident, he was off all medications and was “a good 95 per cent better”. Professor Bittar then obtained a history regarding the transport accident and reviewed the relevant medical imaging.
61 Professor Bittar diagnosed Mr Gorman as suffering from aggravation of cervical spondylosis and aggravation of lumbar spondylosis as a consequence of the transport accident. Professor Bittar considered that Mr Gorman’s prognosis was poor, and recommended that he participate in a multidisciplinary outpatient pain-management program.
62 Professor Bittar was of the opinion that Mr Gorman was permanently incapacitated for full pre-injury duties as a car detailer. He considered that Mr Gorman had the capacity to undertake very sedentary work, four to six hours per day, five days per week.
63 I note that in this report, Professor Bittar referred to Mr Gorman’s complaints of right shoulder pain, and stated that the pain from Mr Gorman’s neck radiated into both shoulders. However, he did not diagnose a separate injury to Mr Gorman’s shoulders.
64 Mr Gorman’s solicitors also arranged for him to be assessed by psychiatrist Dr Albert Kaplan in August 2017. In his report dated 17 August 2017, Dr Kaplan detailed the impact which Mr Gorman’s physical limitations had upon his psychiatric condition. In his report, Dr Kaplan detailed that Mr Gorman experiences constant lower back and neck pain, together with pain in his shoulders, wrists and ankles.
65 Dr Kaplan considered that Mr Gorman was suffering an adjustment disorder with mixed anxiety and depressed mood as a consequence of the injuries he sustained in the transport accident, his chronic pain, his inability to work, and the other physical limitations imposed upon him by his pain.
The defendant’s medical evidence
66 The defendant arranged for Mr Gorman to be examined by orthopaedic surgeon Dr Peter Boys in July 2015. In his report dated 18 August 2015, Dr Boys referred to Mr Gorman’s pre-existing injuries and noted that, prior to the transport accident, he worked full-time, was off all medication associated with his spinal condition, regularly attended his gym, and was able to control his lower back pain through his exercise program.
67 Dr Boys then noted that, following the transport accident, Mr Gorman had suffered lower back pain, with a seated capacity of some 40 minutes and a walking tolerance of approximately 20 minutes.
68 Dr Boys was of the opinion that Mr Gorman suffered central lower back pain without radiculopathy. He considered Mr Gorman’s symptoms to be in the context of degenerative changes in the lower lumbar spine, and did not consider them to have been aggravated by the transport accident.
69 Dr Boys was of the opinion that Mr Gorman’s condition did not preclude him from undertaking employment, save for some limitations on repetitive bending or lifting. Dr Boys concluded that any work incapacity was a result of his long-standing pre-existing neck and back conditions, which would have existed notwithstanding the transport accident. However, in circumstances where I am satisfied that Mr Gorman’s lower back and neck pain have persisted since the transport accident, I do not accept Mr Boys’ opinion that the transport accident is no longer a cause of his current impairment.
70 The defendant also arranged for Mr Gorman to be assessed by physician Dr Robert Lefkovits in July 2017. In his report dated 4 July 2017, Dr Lefkovits detailed Mr Gorman’s pre-existing medical condition prior to the transport accident.
71 Dr Lefkovits examined Mr Gorman and reviewed the MRI scan of 14 August 2014. He was of the opinion that Mr Gorman was suffering a pain syndrome involving his neck, right shoulder and lower back, without radiculopathy. He noted that Mr Gorman had also developed generalised aches and pains, which he attributed to osteoporosis.
72 Dr Lefkovits was of the opinion that Mr Gorman demonstrated abnormal illness behaviour, and he considered that his predominant problem was non-organic. Dr Lefkovits concluded that Mr Gorman’s chronic pain syndrome was predominantly due to non-organic factors, as well as underlying constitutionally-based degenerative disease. He did not consider there to be an organic injury to Mr Gorman’s right shoulder, and thought that any right shoulder pain may be referred from his cervical spine injury.
Mr Gorman’s credibility
73 Mr Gorman gave evidence in a simple, straightforward and believable manner. He made appropriate concessions regarding his pre-existing lower back and neck injury, including his occasional need for medication, the fact that it had previously caused him to stop doing certain jobs, and the fact that he would need to rest his back at the end of a hard day’s work.
74 The TAC did not challenge Mr Gorman’s credibility.
75 I therefore have no hesitation in accepting Mr Gorman’s evidence in its entirety.
Is Mr Gorman’s shoulder pain related to the transport accident?
76 Mr Gorman stated that he suffers pain in his shoulders, such that he feels like they are collapsing on him. He acknowledged that his shoulder pain interferes with his sleep, makes it difficult for him to clean his floors, caused him to cease his job delivering pizza supplies, and is a contributing factor in his inability to go fishing.
77 I note that there was no record of Mr Gorman suffering shoulder pain prior to the transport accident. There has been no medical imaging performed on either shoulder. Dr Ng refers to Mr Gorman suffering ongoing shoulder pain since the transport accident, for which he has at times provided Mr Gorman with acupuncture. However, Dr Ng did not provide a diagnosis of Mr Gorman’s shoulder pain.
78 Professor Bittar did not offer a diagnosis either, but stated that Mr Gorman’s neck pain radiated into his shoulders. Mr Boys did not mention Mr Gorman’s shoulder pain at all.
79 I note that Dr Lefkovits is the only doctor to have expressly commented on the cause of Mr Gorman’s shoulder pain, which he considered is likely to be referred pain from his cervical spine injury.
80 Considering all of the above matters, I am satisfied that Mr Gorman’s shoulder pain is most likely related to the aggravation of cervical spondylosis in the transport accident.
81 Mr Lewis referred me to the Court of Appeal decisions of Peak Engineering Pty Ltd v McKenzie,[2] Poholke v Goldacres Trading Pty Ltd[3] and Meadows v Lichmore[4] as authorities for the need for a plaintiff to disentangle consequences arising from different impairments. However, those cases are distinguishable from the present one, in circumstances where I am satisfied that Mr Gorman’s shoulder pain is referred from his claimed cervical spine.
[2][2014] VSCA 67
[3][2016] VSCA 232
[4][2013] VSCA 201
Is Mr Gorman’s spinal injury organic or non-organic?
82 The medical imaging taken prior to and subsequent to the transport accident confirmed degenerative changes in Mr Gorman’s lumbar and cervical spine. The subsequent imaging shows very little progression; however, it does not report a normal spine.
83 The TAC relied upon the opinion of Dr Lefkovits that Mr Gorman suffers a chronic pain syndrome, which is substantially non-organic. I note, however, that Dr Lefkovits also acknowledged that Mr Gorman suffered an underlying constitutionally-based degenerative condition. Dr Boys and Professor Bittar offer the same diagnosis.
84 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[5] Maxwell ACJ identified a two-step process of analysis for cases in which a physical injury was present, as well as a pain syndrome:
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”[6]
[5]Ibid
[6][2013] VSCA 201 at [21]
85 The TAC submitted that Mr Gorman’s symptoms are inextricable in organic terms, and referred me to the Court of Appeal decision of Papamanos v Commonwealth Bank of Australia Pty Ltd.[7] That was a case in which the trial judge did not accept the accuracy and reliability of the plaintiff’s claim. It is distinguishable from this case, in that I am satisfied that there is an organic basis to Mr Gorman’s ongoing lower back and neck pain, and I accept as accurate and reliable his account of his consequences.
[7][2014]VSCA 167
Aggravation of Mr Gorman’s pre-existing condition
86 For Mr Gorman to succeed in his claim, he must satisfy me that he suffered an aggravation of his pre-existing lower back or neck injury in the transport accident. It is necessary for me to compare Mr Gorman’s pre-existing condition prior to the accident with the aggravated state, and to consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti.[8]
[8][1994] 1 VR 436
87 Chernov JA, in R J Gilbertsons Pty Ltd v Skorsis,[9] summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[10]
[9][2000] VSCA 51
[10]Ibid at [40]
88 Mr Gorman accepted that he had longstanding lower back and neck pain. He had been unemployed for the most part of a decade following the workplace accident in November 1990. During that time, he had at times been heavily dependent on medication and had abused alcohol. In the late 1990s and early 2000s, when he resumed work, there were some jobs he had to leave, as the work was too heavy for him and was inconsistent with his lower back condition.
89 However, prior to the transport accident, I am satisfied that the pain was not constant. At times, he took medication and received chiropractic treatment. However, there were extensive periods where he obtained no treatment at all. I am satisfied that his pain did not interfere with his sleep on an ongoing basis. Mr Gorman had worked full-time for 10 years prior to the transport accident, in what I accept was relatively physical work. I accept that after work some days he was sore, but that he continued in such employment in a reliable and consistent manner.
90 I accept that away for his work Mr Gorman was active at the gym, and that he enjoyed fishing and dirt bike riding. He was in a relationship and was expecting his first child.
91 I am satisfied that prior to the transport accident, Mr Gorman’s pre-existing spinal impairment caused him some occasional pain, restricted him from very heavy work, and that at times he required medication and chiropractic treatment. In assessing his claim in respect of this transport accident, I must disregard those pre-existing consequences.
Are the consequences of the aggravation serious?
92 Having considered the evidence of Mr Gorman and Ms Blinoff, as well as the medical evidence, I am satisfied that as a consequence of the aggravation of his pre-existing spinal condition, Mr Gorman suffers the following consequences:
· He has suffered considerable pecuniary disadvantage as a consequence of the aggravated spinal impairment. Notwithstanding his pre-existing lower back and neck pain, Mr Gorman had been in full-time employment for over 10 years. Since the transport accident, he has struggled to hold down part-time work. I accept that Mr Gorman’s pre-injury duties as a car detailer are no longer suitable.
I am satisfied that as a consequence of his aggravated spinal impairment, Mr Gorman is capable of undertaking alternate duties on a part-time basis. I note that he is currently completing a computer course to enhance his re‑employment prospects. I note, however, that he has only ever done physical-type employment. I accept that the ongoing pain and physical restrictions that Mr Gorman has sustained, as a consequence of the transport accident, are such that he has suffered, and will continue to suffer, pecuniary disadvantage.
· Mr Gorman now takes stronger painkilling medication, on a more frequent basis, than he did immediately prior to the transport accident. Such medication now includes Tramadol.
· His pain persists despite having received ongoing acupuncture and ultrasound therapy;
· He takes several showers a day to assist in alleviating his pain;
· His pain is aggravated by prolonged sitting and standing;
· His sleep is disrupted by his lower back, neck and right shoulder pain;
· He no longer goes fishing;
· He no longer goes dirt bike riding;
· He has also become anxious and depressed because of the persistent pain and the impact it has had on his ability to work, care for and play with his daughter.
93 I consider the consequences to Mr Gorman, as detailed above, when compared to other cases in the range of possible impairments or losses, are at least very considerable.
Conclusion
94 Mr Gorman has satisfied me that he suffers a serious injury as a consequence of the aggravation to his spinal injury, and I therefore grant him leave to commence his common law claim for damages.
95 I shall make the consequent orders.
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