Hamilton v Transport Accident Commission

[2021] VCC 938

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-04421

JORDAN RICHARD HAMILTON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

---

JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2021
DATE OF JUDGMENT:	13 July 2021 (ex-tempore)
CASE MAY BE CITED AS:	Hamilton v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2021] VCC 938

REASONS FOR JUDGMENT
---

Subject:TRANSPORT ACCIDENT

Catchwords:              Serious injury application – injury to the spine – whether the plaintiff continues to have symptoms which are “very considerable”

Legislation Cited:      Transport Accident Act 1986

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Demmler v Transport Accident Commission [2018] VSCA 284

Judgment:                  Leave granted to the plaintiff to bring a proceeding at common law.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N J Dunstan with Ms P Prossor	Shine Lawyers
For the Defendant	Mr C J Blanden QC with Mr P V Bourke	Solicitor to the Transport Accident Commission

HIS HONOUR:

1The plaintiff in this proceeding, Jordan Hamilton, is now 25 years of age.  He was involved in a transport accident on 22 November 2017.  When he presented at the Sunshine Hospital,[1] it was recorded that he had been T‑boned by a car while riding his pushbike.  He had been moving around 30 kilometres an hour, the car at around 40; head strike against the car and ground and presented with back pain and headache.

[1]Plaintiff’s Court Book (“PCB”) 80

2There is no argument that that accident occurred and indeed, there is no argument that the plaintiff suffered injury in that accident.  He claims as a consequence to have suffered a “serious injury”, namely a serious long-term impairment or loss of body function by way of injury to the spine.

3This is a serious injury application brought pursuant to s93 of the Transport Accident Act 1986 (“the Act”). It proceeded in the usual way; that is, the plaintiff tendered affidavits and medical reports, the defendant tendered medical reports and clinical records, and the plaintiff was otherwise cross-examined as to the contents of his affidavits. The cross-examination was swift, efficient and appropriately conducted, bearing in mind effectively the only issue in the case is whether or not the plaintiff continues to have symptoms which are very considerable and will continue in the sense that one of the doctors has expressed a more optimistic opinion.

4It is convenient to record that the injury that is not in dispute, in my view, is accurately summarised by Dr Peter Wilde, orthopaedic surgeon, who examined the plaintiff at the request of the defendant.   In a report of 8 June 2021,[2] he says, in response to a question about injury and diagnosis, that the plaintiff –

“… sustained significant soft tissue injuries to the mid-lumbar spine when he was knocked off his pushbike on 22 November 2017.  An immediate CT scan performed on the day of injury showed a right transverse process (the lateral tip) was fractured without displacement.  Subsequent MRI scan does not demonstrate this fracture, suggesting it has healed in an anatomical position.”[3]

[2]Defendant’s Court Book (“DCB”) 12

[3]        DCB 16

5Really, the balance of medical opinion is ad idem about that injury; that is, there was trauma to the mid-lumbar spine with a right transverse process fracture that has healed in its anatomical position.

6As has frequently been said in these types of applications, the credit of the plaintiff is a relevant factor, particularly when it comes to an assessment of seriousness, in that whether or not the Court accepts what the plaintiff has had to say about the accident and his impairment and consequences is a highly relevant factor in the outcome; see as an example of that legal proposition Johns v Oaktech Pty Ltd.[4]

[4][2020] VSCA 10

7In this case, appropriately, there is no challenge to the plaintiff’s credit.  Having seen him in the witness box, he struck me as a direct, straightforward and reliable young man.  I accept his affidavit evidence as to the accident and the impairment consequences in the broad sense.

8Pausing here, some injuries and some applications are clearly serious injuries and some are clearly not.  Bearing in mind that I must take into account the broad range of impairments and impairment consequences, not just those that come before the Courts, there are some applications that sit somewhere in the middle that is more finely balanced and, in my view, this is one of those applications.

9Having said that, I take into account that the plaintiff was a young man at the time of the accident, only 21 years of age, and he is now only 25 years of age and, as has been said in cases such as Stijepic v One Force Group Aust Pty Ltd[5] and more recently in Demmler v Transport Accident Commission,[6] a plaintiff’s age and the time that they will have to put up with injury and impairment consequences is a relevant factor.

[5][2009] VSCA 181

[6][2018] VSCA 284

10I will deal briefly with the medical evidence before dealing with the analysis of the application.  It seems to me there is not a great deal in the medical evidence. 

11Starting first with the treating practitioners, leaving out the treating general practitioner, who really apart from the initial assessment appears to have been a conduit for referrals, the plaintiff has had physiotherapy treatment with Ms Abby Speakman.  That treatment was initially through into 2018 before the plaintiff was discharged to self manage.

12More recently after a flare-up, he has returned to see Ms Speakman.  In a report of 12 January 2021,[7] she notes that the plaintiff had been managing independently for nearly two years, but mentioned that in this time, he was never pain free and would often get spasms through his back.  She notes a return to formal physiotherapy in October 2020 with increased pain and that the plaintiff was getting more frequent spasms.  She noted that his pain was aggravated by extension as well as repetitive bending.

[7]PCB 47

13Pausing there, most medical examiners find the plaintiff has effectively a full range of movement, perhaps some limitation on extension, and that was the plaintiff’s evidence in the witness box.

14In any event, Ms Speakman notes that treatment has been exercise rehabilitation focusing on improving his strength through the spine and education on pain management strategies.  She opines that the plaintiff will need to manage his pain long into the future and will need ongoing gym work.

15With respect to specific impairments she said:

“Jordan will be able to complete all of the listed tasks (repetitive lifting, twisting, bending, lifting, prolonged standing and sitting) but may need to take regular breaks and closely monitor his symptoms to ensure that he is not aggravating his symptoms.  During flare ups of his pain these movements should be minimised.  Jordan will be able to do some light to medium weightlifting including dead lifts but will need to avoid heavy weights.  Due to the high irritability of his pain any contact sports such as football should be avoided ...”[8]

[8]        PCB 47

16Ms Speakman notes:

“He would be able to do general domestic chores but anything more strenuous would need to be done in small doses only.  Future treatment for Jordan will include ongoing physiotherapy support and gym work...”[9]

[9]        PCB 47

17She suspected that he would need ongoing support long term.

18The plaintiff was otherwise referred for treatment to Dr C Malcolm Ong at Advance Healthcare.  Amongst his qualifications are a qualification in pain management and rehabilitation.  Similar to Ms Speakman, Dr Ong treated the plaintiff into 2018, including an arrangement for a multidisciplinary pain management program which the plaintiff undertook and completed.

19By November 2018, when he was discharged from Dr Ong’s care at that stage, the expectation from Dr Ong’s reporting was that the plaintiff would be able to manage most day-to-day activity, that he would be able to self manage, and was reasonably optimistic.

20However, more recently, the plaintiff has returned to see Dr Ong following the flare-up discussed earlier, for which he has also returned to see Ms Speakman.  In a report of 2 July 2021,[10] Dr Ong deals with that return for this recent flare-up.

[10]PCB 81

21At Plaintiff’s Court Book 87, he provides a current diagnosis.  It is a little difficult to follow, but I accept the submission on the plaintiff’s behalf that Dr Ong has diagnosed an organic chronic lumbar pain syndrome with various damage to underlying structures, including the L2 right side transverse process fracture.  In other words, he has diagnosed an ongoing organic condition, albeit he notes secondary depressive and anxiety disorder and the like.

22Relevantly, he says, however:

“Re-exacerbations are not uncommon and can happen at any time and may continue to come and go over time.  Return to work is important, job modification and/or vocational rehabilitation may be necessary.”[11]

[11]        PCB 88

23Further, Dr Ong said:

“As mentioned earlier, it was recognised that this patient required all the modalities of pain management for his chronic conditions ...  He returns to see me due to aggravation of lower back pain.”[12]

[12]        PCB 88

24Dr Ong opines that the plaintiff, in respect to his capacity:

“… should avoid overly demanding heavy manual duties for the longer term if possible.  He is unfit for full pre-injury duties longer term as he is likely to flare up more with advancing age.”[13] 

[13]PCB 89

25He also notes broadly, restriction for day-to-day activity similar to those set out by the plaintiff in his affidavits, which I will come to in due course.  He notes that his aim is to discharge the plaintiff once the current flare-up has settled over the next few months.

26He says, however:

“He may still get some low back pain but this is likely to be the case for the long term.  He needs to learn to manage and pace and avoid triggers and be careful not to have a re-injury.”[14]  

[14]PCB 91

27He described the prognosis in July this year as guarded.[15]

[15]PCB 91

28Turning briefly then to the medico-legal material.

29Mr Roger West, orthopaedic surgeon, provided a report on 6 April of this year.  Relevantly,[16] he notes the accident and injury to the lumbar spine and that the CT scan revealed a possible minimally impacted fracture of the tip of the right transverse process of L2.

[16]PCB 93

30Mr West says:

“Mr Hamilton received appropriate conservative management including pain management with improvement in his overall condition.  He does however have ongoing particularly activity related low back pain and he is restricted in a number of activities.”[17]

[17]        PCB 93

31He then said further:

“The injury to his back is likely to restrict him from undertaking his full duties as an electrician now and in the future.  He is restricted in heavy lifting and also working in awkward positions.”[18] 

[18]PCB 93

32It seems to me that Mr West there is talking about an injury to the lumbar spine, a traumatic injury, including the right transverse process fracture which, as mentioned earlier, appears to have healed in its anatomical position.

33Next, the plaintiff was referred to Professor Richard Bittar, neurosurgeon.  His first report is dated 25 May 2020.  He provides the following diagnosis:

“In my opinion Jordan Hamilton presents with ongoing lower back pain as a result of the trauma to his lumbar spine/L2 transverse process fracture.”[19]

[19]PCB 99

34That diagnosis is repeated in his more recent report of 24 April this year.[20]  Again, he gives the diagnosis as:

“… ongoing lower back pain as a result of the trauma to his lumbar spine/L2 transverse process fracture.”[21]

[20]PCB 118

[21]PCB 121

35In my opinion, Mr West and Professor Bittar are really describing the same injury; that is, trauma to the lumbar spine, including the L2 transverse process fracture.

36Professor Bittar notes a description earlier this year from the plaintiff that the lower back pain is constant with frequent flare-ups.[22]  He describes there the plaintiff’s description of pain and restrictions.

[22]PCB 119

37Professor Bittar says:

“In my opinion he does have some impairment of long-term work capacity as a result of the transport accident injury.  He would be ill-advised to engage in heavy lifting or repetitive extension of his lumbar spine as his symptoms would likely deteriorate if he did.  He would also be advised to avoid sitting for more than 45 minutes continuously.  These general restrictions are permanent. In my opinion his partial incapacity for work is permanent.”[23]

[23]        PCB 121

38The other relevant recent medical opinion is that of Dr Peter Wilde, who I have already mentioned briefly.

39In many respects Dr Wilde’s opinion is not dissimilar from Mr West and Professor Bittar, save that Dr Wilde is more optimistic.

40Dr Wilde describes the plaintiff’s current symptoms as a low grade aching pain from time to time which he says is 2 to 4 out of 10.[24]  He took the history as:

“The pain never completely goes away, but when it is low grade he lives quite comfortably with it.  It is situated on the left side in the flank exactly over the L2 transverse process on the left.” 

[24]DCB 14

41He then further noted that “…Acute flare-ups of pain occur once every two weeks and in this setting the pain is 7 or 8 out of 10.”[25]

[25]        Ibid

42In summary, Dr Wilde opined that what he described as significant soft tissue injuries would improve.  In particular, he said:

“The prognosis is good and in the longer term he should make a complete recovery from symptoms.  The injury occurred at moderate velocity, so the soft tissue injuries sustained in both flanks are significant, hence the slow resolution of symptoms.  Nevertheless, after five years he should be symptom free.”[26]

[26]        DCB 16

43At the end of the day I prefer the opinions from Mr West, Professor Bittar, Dr Ong and Ms Speakman; namely, that the plaintiff will be symptomatic going forward.  Of course I can accept some of Dr Wilde’s opinion without accepting all of it.  In the sense that he is more optimistic about the future, I do not accept his opinion.

44That brings me back to the plaintiff’s affidavits. I note the consequences described by him in his first affidavit sworn 10 May 2020,[27] and his more recent descriptions in his affidavit sworn 22 June this year.[28]

[27]PCB 8-9

[28]PCB 13-15

45Turning to where I was earlier, that this application is finely balanced, in the end what tips it over the line to a serious injury is the plaintiff’s young age; his evidence, which I accept, that he has been dealing with the pain from it now for over four years and is likely to continue for many years, bearing in mind that he is very young; to suffer ongoing fluctuating pain generally speaking at a low grade but with flare-up from time to time said by him to Dr Wilde to occur every two weeks or so and produce symptoms at 7 or 8 out of 10.

46I accept his evidence that he cannot enjoy a range of activities that he previously engaged in.  The impression from the material is of a young man who is sporting and active.  To his credit, he still does what he can, but sensibly he limits activity at times because of pain.  I accept the description of symptoms as set out in his affidavit material.

47I also accept his evidence, not challenged, that he is in an enjoyable vocation as an electrician in the second year of his apprenticeship but with an employer that is aware of his limitations and, in essence, he uses his common sense and avoids heavy activity that he knows will flare up his condition, and he is fortunate in that he has an accommodating employer.

48The pain and suffering consequences in combination with what seems to be an impact on his potential career, namely that he will have to limit himself to aspects of work as an electrician that are lighter, in combination, I am satisfied that those restrictions are a very considerable consequence to this young man.

49Accordingly, for those reasons, I am on this occasion satisfied that the plaintiff has suffered a very considerable consequence from his low back injury.

- - -