Harding v Transport Accident Commission
[2014] VCC 85
•14 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05055
| GEOFF HARDING | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7-10 February 2014 | |
DATE OF JUDGMENT: | 14 February 2014 | |
CASE MAY BE CITED AS: | Harding v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 85 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – transport accident – 2005 and 2007 motorcycle accidents – serious injury – injury to the pelvis and low back
Legislation Cited: Transport Accident Act 1986
Cases Cited: A G Staff Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of damages
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr P Bourke | Slater & Gordon |
| For the Defendant | Mr P Elliott QC with Mr A Newman | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 The plaintiff was involved in two motorcycle accidents. The first accident occurred on 15 November 2005 (“the 2005 accident”). The second accident occurred on 27 September 2007 (“the 2007 accident”).
2 Leave to bring proceedings to recover damages for injuries arising out of the 2005 accident is sought. No application is made with respect to the 2007 accident.
3 Not surprisingly, the plaintiff suffered a number of injuries in the 2005 accident given the forces involved. This application relied on an injury to his pelvis and sacroiliac joints and structures in that area and the impairment of body function thereof. Counsel agreed this is the “low back” area of the body. The 2007 accident principally involved an injury higher up the spine that included a fracture at the level of T8. Counsel agreed this is the “mid back” area of the body.[1]
[1]Transcript (“T”) T113, 125
4 The single issue for determination is whether or not the consequences caused by the injury in the 2005 accident reach the level of “serious”. In other words, are those consequences fairly described in the range of impairments as being “at least very considerable”.
5 I found the plaintiff a frank witness. He candidly answered questions about his addiction to narcotic painkillers, his overuse of them in the face of doctors’ warnings, as well as the self administration intravenously that he has undertaken.
6 The plaintiff was a witness of credit. He spoke of his clearly very severe chronic pain in a way that contained no embellishment. I accept his evidence about the main source of this pain is in his pelvic, sacroiliac and low-back region. I also accept his evidence that he has endured this pain for a period now of almost eight and a half years since the 2005 accident.[2] I also find he needs the large dosages of narcotic medication principally for the pelvic/low back pain and to a lesser extent the mid back pain.[3] I accept the unchallenged evidence of two lay witnesses whose affidavits clearly record that it is the pelvic area about which complaints of pain are made.[4]
[2]Plaintiff’s Court Book (“PCB”) PCB 13; T48, 77-78, 89
[3]PCB 12, 18; T90–91
[4]PCB 23, 27‑28
7 No doctor seriously queries the genuineness of this man. Credit is really not in issue. Mr R Simm, orthopaedic surgeon, was the last doctor to see him for the defendant. He stated, in 2012, that: “He presented in a straightforward and cooperative manner”.[5] He presented that way in the witness box where he was extensively cross-examined by Senior Counsel for the defendant. The defendant argued that credit was questionable in the sense that the narcotic addiction led to an exaggeration of symptoms. I do not accept that. In any event, I find the addiction is a consequence of the injuries suffered in the 2005 accident.
[5]Defendant’s Court Book (“DCB”) DCB 31
8 The plaintiff is now thirty-seven years of age and he had just turned twenty-nine when the 2005 accident occurred. It was clearly a very violent and forceful collision in terms of the insult to his body.[6] He said he was in intensive care for some three days and the open book fracture to one of the major bony structures of the body speaks of the level of those forces.
[6]T83
9 I accept the plaintiff’s evidence that he has never had the same capacity for work that he had before the 2005 accident. He has never been able to return to a job that was the heaviest work at the Kenworth Truck factory.[7] Furthermore, he has never been able to successfully return to the heavy work involved in working as a chef. I accept that a job as a chef requires very demanding hours.[8] I find also that standing and walking have been a major problem since 2005 as a result of the impairment of his pelvic/low back and sacroiliac areas.[9] This translates into a very considerable incapacity for work I accept is long term as well as in regard to enjoyment of life.
[7]T39 and 88
[8]T66
[9]T89; PCB 11-12, 16-17
10 I find that the 2007 accident was of much less force than the 2005 accident.[10] After the 2007 accident, the plaintiff was able to go back and check on his bike on the mountain where the mishap occurred.[11] I accept that there was some aggravation of his pelvic and low-back pain in 2007 but on the evidence, I find that it was only temporary.[12] I accept, on balance, that the 2007 temporary aggravation has played no part in the ongoing pelvic/low back pain for some years now. Thus, I find it plays no part at the present time. This is of course when I must evaluate the consequences of the subject injury.
[10]T83
[11]T40, 83
[12]T78-79, 83
11 One of the problems in this application, which I raised with counsel several times, is the looseness of the expression “back pain” in some medical reports.[13] No doctor was called unfortunately, so I am left with the unenviable task of trying to understand just what is meant by that expression when it is used. However, I accept that when the plaintiff speaks of low back pain he means sacral pain and vice versa.[14] He does not mean mid back or thoracic pain. He means pain “mainly just below the belt”.[15]
[13]T113
[14]T48, 77–78, 91
[15]T91
12 I accept as a probability that the expression “low back pain” where used by the doctors is a reference to the 2005 injuries. I accept that low back pain is a consequence of those injuries suffered in the 2005 accident. The thoracic spine at T8 is higher up and in a different segment of the spinal column. It is described continuously by doctors in this jurisdiction as one of the three levels of the spine. These are the cervical spine or neck, the thoracic spine or mid back and the lumbar/lumbosacral spine or low back.[16] Without hearing from any of these doctors, I accept the probabilities are that their reference in reports to low-back pain is a reference to the pelvic/low-back injuries. These were suffered in the 2005 accident. Where “back pain” is used, it is a much more difficult exercise to conclude what area they are speaking of, unless of course they use it in the context of the pelvis or hip.
[16]T113
13 Counsel have agreed that I must determine the application in the manner laid down in A G Staff Pty Ltd v Filipowicz.[17]
[17][2012] VSCA 60 at paragraphs 31-35
14 I find the plaintiff has identified the injury suffered in the 2005 accident. It is quite independent of the mid-back injury suffered in the 2007 accident. The 2005 injury is the diastasis of the pelvic bones, strain of the sacroiliac joints and the soft tissues in the pelvic and lumbosacral or low back region. The relevant impairment is that of the pelvis and the low back. The injury now includes spurring and multiple ossification that has developed in that area as shown radiologically.[18] In the 2007 accident, the plaintiff suffered a distinct injury higher up in the spine in the mid back or thoracic segment that was essentially a T8 fracture.
[18]PCB 30–32, 48, 90, 123, 132, 136, 145, 184, 186, 191A; DCB 1, 11–13, 32, 58
15 The impairment consequences of the 2005 injuries have to be delineated.
16 The plaintiff lost his unimpaired capacity for any type of manual work, including heavy work, in the 2005 accident. Whereas previously he could perform factory work of the heaviest nature, as well as work involving very prolonged standing required of a chef, that capacity is now lost since 2005.[19] He is a qualified chef, having done an apprenticeship, who I accept has lost his capacity to follow that vocation in any full time role. It is his only qualification. He can no longer fall back on that work.[20]
[19]PCB 11–12; T66
[20]PCB 13
17 He has also lost the capacity to stand and sit for long periods of time, as well as to walk unimpeded.[21] He lost this at age twenty nine years in November 2005. That in itself is a very considerable consequence in terms of loss of earning capacity and enjoyment of life.
[21]PCB 11–12, 16–17, 23, 26–27; T89
18 I accept also that the need for the plaintiff’s narcotic medication was caused by the 2005 accident. He needed Endone and OxyContin for pain in the pelvic/low back area from the start. These prescriptions started in the same month of the accident and went into 2006 in spite of concerns his doctor had about this narcotic ingestion.[22]
[22]PCB 58, 60–62
19 The plaintiff has tried to go off drugs he takes for pain. However, he found he was suffering unacceptable levels of pain and was never free of pain.[23] I find he still needs narcotics for pelvic pain in particular[24] to get any real relief. This has led to dire consequences. The plaintiff has become addicted to OxyContin. Pain is in the pelvic/low back area as well as the mid back. However, I find the pelvic/low back pain is the greater and his need and the unfortunate addiction is, on the probabilities, a consequence of that greater pain.[25] This is another consequence that is very considerable in terms of work and enjoying life.
[23]T29, 32, 38, 48, 77-78
[24]PCB 12, 17–18
[25]PCB 18-19; T59
20 These consequences I have described I accept are sufficiently delineated as impairment consequences of the 2005 injury. They can fairly be described as “serious” for this young man when looked at singly or in combination.
21 Turning to the medical evidence, it is unnecessary to repeat in great detail the opinions of the doctors. They virtually all diagnose the pelvic and sacroiliac injuries suffered in 2005 and the thoracic fracture in 2007 in the same or similar terms.
22 The plaintiff’s treaters start with Dr J Easton, who reported in December 2010, and his clinical notes were also tendered. The need for narcotic medication for pain relief was evident from the start.[26] Clearly, the doctor had reservations about OxyContin’s addictive qualities but considered the plaintiff needed it and Endone, such was his pelvic/low-back pain. He diagnosed the pelvic bones being forced apart, the diastasis, as well as a lot of bruising of the pubic area.[27] He noted the return to work attempts. He prescribed Temaze for sleep in May 2006.[28] His notes indicated walking difficulties[29] and pain over the lower back.[30] Tenderness on examination and scripts are noted until June 2006. Only other minor health issues are recorded between March 2007 and the 2007 accident.
[26]DCB 58
[27]PCB 42; DCB 58
[28]T65
[29]DCB 60 and 63
[30]DCB 62
23 This material indicated difficulties with return to work duties. While the expression “normal” duties is referred to, I accept the plaintiff got back on the truck assembly line but only in very light work. He operated a handheld console with buttons that operated a crane used to enable inspection. He never got back to the heavy manual work he did pre the 2005 accident.[31] That capacity was lost. This doctor does not assist in evaluating the consequences now in 2014, not having seen him for four years. At the last visit in February 2010, the doctor’s concern about OxyContin was apparent. As to pain, he noted it in this order:
“L pubic area and dorsal spine is said to be the sites of pain.”[32]
[31]T87
[32]DCB 70
24 This is consistent with the plaintiff’s evidence, about the comparative sites of pain which I accept. I find the greater and more significant pain this man was then suffering was in the pelvic/low back area. I find on the evidence that is still the case. I accept the mid back is a dull pain and not as severe.[33]
[33]T18-19, 59, 77
25 Dr Chan first saw the plaintiff in 2009. His opinion in 2010 was that he suffered from chronic back pain. The 2005 accident resulted in pelvic fracture and the 2007 accident resulted in the T8 fracture.[34] Dr Chan last saw the plaintiff in 2011. He prescribed OxyContin. I accept he is prescribing it for both the pelvic/low back pain and the mid back pain. It is not inconsistent with my finding that a consequence of the 2005 accident is the ongoing need for narcotics.
[34]PCB 48
26 The plaintiff saw Dr Morice when in Queensland in May 2009. He noted chronic back pain stemming from prior orthopaedic injuries and pelvic fracture.[35] OxyContin and Panadeine Forte, as well as other medications were prescribed. Work difficulties and sleeping problems were recorded. Other treatments were tried but the six months or so toward the end of 2009 and into 2010 reflected a patient having great problems with pain from the pelvic and “back” conditions. I read him there as probably meaning the mid back. However, again, not hearing from him, it is not certain. The last note of precise complaint about the area of pain was on 5 January 2010:
“Patient was complaining of persistent difficulties with groin pain from his pelvic injury.”[36]
[35]PCB 34, 38
[36]PCB 40
27 I accept this doctor’s evidence as supporting the plaintiff’s description of the pelvic/low back pain as being a greater problem than the mid back. I also read his material as evidence that the need for very strong narcotic medication is primarily for the greater pelvic/low back.
28 The 2010 Epworth Health Care assessment for pain management organised by Dr Chan’s clinic recorded the 2005 and 2007 accidents. It contained the following history:
“On enquiring about his pain symptoms, he tells me that his pain is predominantly in his lower back and bilateral hip which appears to be dull, aching, constant, aggravated with any positioning and prolonged sitting, and relieved with medication. He reports that the pain is certainly interfering with his sleep … .”[37]
[37]PCB 191A
29 The scripts for OxyContin and sleeping tablets are recorded. The opinion was he was suffering from chronic low back pain and different efforts to wean him off OxyContin was discussed. The side effects of anti-inflammatories by way of reflux were noted and this is consistent with the prescription for Nexium in the clinical records.
30 This report is consistent with a consequence of the pelvic/low back being serious drug use issues. However, it is a report that records “low back” in relation to the 2007 accident so it would appear to have both accidents contributing to pain. I read the reference to “bilateral hip” as clearly relating to the 2005 accident and not the mid back.
31 Dr J Addis is the plaintiff’s current local doctor and he first saw him on the return to Melbourne in 2010. He described chronic pain and a sleep disorder following the accidents and the overuse by the plaintiff of narcotic pain relief. Dosage reached a frightening 240 milligrams daily of OxyContin when Dr Easton was concerned back in 2005-2006 with 20 milligram dosages.[38]
[38]PCB 52, DCB 61
32 In his last report, the doctor is answering questions directed to him by the plaintiff’s solicitors. Solicitors’ letters containing certain questions directed to some doctors have been tendered[39] but not the letter to this doctor.
[39]Exhibit 2
33 It is not entirely clear what accident the doctor is speaking about in his paragraph numbered 17 in the January 2013 report.[40] While I cannot be certain, it is probable he is speaking of the 2005 accident as he refers to a degenerative condition. The radiology does not refer to degenerative changes in the thoracic spine while the pelvis is noted to have prominent bony spurring and multiple ossifications referred to.[41]
[40]PCB 56
[41]PCB 30
34 Again, the deficiencies in a jurisdiction where the doctors are not called is apparent. In paragraph 17, I accept it is probably the pelvic injury that is degenerative and the motorcycle accident is the 2005 accident. The chronic pain described and hence the multiple narcotic scripts are for the pelvic condition but it is by no means certain especially without the solicitor’s letter.
35 A report from the treating psychologist, Lois Craig, was tendered. It was not referred to by either counsel. There is no argument that has been advanced that the plaintiff’s pelvic/low back pain is not organically based. The report does not assist in the task before the Court. Similarly, the Cairn’s physiotherapist, Jared Harris, was treating pain from both levels of the spine and his report of 2009 does not advance the matter one way or the other. The Melbourne physiologist, Alexis Wicks, reported in June 2010 and due to the plaintiff’s solicitor not indicating clearly what accident the physiotherapist was asked to comment on, concluded, probably erroneously, that it was the 2007 accident.[42]
[42]PCB 80
36 She recorded there was some aggravation of a pelvic injury. I accept that, but I find it was a short lived aggravation. Accordingly, the report does not assist in determining the consequences flowing from the 2005 accident. The last attendance was nearly six years ago now. The report does not help decide the issue.
37 Similarly, the reports of Dr N Serry, consultant psychiatrist, are of limited assistance. He reported on the psychological effects of both accidents.[43] The plaintiff was a cooperative and straightforward historian.[44] He thought the 2005 accident was a cause of the plaintiff’s chronic depression but there is no argument this application should be under paragraph (c).
[43]PCB 100
[44]PCB 98, 106, 117
38 The medico-legal opinions of Mr S Doig, orthopaedic surgeon, are contained in five documents. He conducted two examinations in 2011 and 2013. He described the significant deformity in the pelvic bones. There was displacement of the pubic symphysis which was fairly significant and symptomatic with ongoing pain there and around the sacroiliac joint.[45]
[45]PCB 130
39 He noted the plaintiff stated the pelvis was causing considerably more troubles than the mid back which is consistent with the plaintiff’s evidence. Mr Doig was quite clear in stating:
“In particular I do believe that the transport accident of 15/11/05 is the cause of his current symptoms, restriction and the subsequent consequences.”[46]
[46]PCB 132
40 He reported ongoing pain around the sacroiliac joint. I accept Mr Doig’s opinions referred to above. They follow careful analysis of further radiology and materials sent to him. He commented on five occasions about this plaintiff from his specialist orthopaedic viewpoint.[47]
[47]PCB 122-133
41 Associate Professor R Stark, neurologist, also reported on five occasions between 2010 and 2013. He recorded the pelvic fracture pain restricting activities and reported the pain was mostly in the sacroiliac region.[48] The main restriction related to his orthopaedic injuries involving the pelvis.[49] He provided the opinion that it was doubtful the plaintiff could perform his pre injury duties. The report reads like it is more for an orthopaedic specialist than a neurologist in Professor Stark’s view.
[48]PCB 145
[49]PCB 146
42 Dr H Sutcliffe reported in December 2013 and her qualifications are not set out. She diagnosed the injuries in similar terms as pubic symphysis separation and also external and internal pelvic bruising including haematoma of the right adrenal gland.[50] She thought there was increased probability of pelvic osteoarthritis in the future.[51] She believed he had persisting pain related to this external and internal pelvic trauma suffered in 2005.[52] He had gone on to develop depression and medication abuse due to groin pain from the 2005 accident and back pain from the 2007 accident.[53]
[50]PCB 186
[51]PCB 190
[52]PCB 188
[53]PCB 187
43 Her evidence is somewhat equivocal on impairment of earning capacity. She thought he could work as a chef but as a result of the medication abuse he had no current work capacity.[54]
[54]PCB 187 and 189
44 The doctors engaged by the defendant include Mr R Marshall, surgeon, who only once saw the plaintiff. This was very early on in March 2006[55] so the opinion is quite dated now in relation to evaluating consequences in 2014. Mr Marshall, in those very early days, thought the plaintiff should be back to normal within a few weeks. Time has proved that opinion was very optimistic. Seeing the plaintiff as he did only a few months after the trauma, it is clear on the evidence, that extensive treatment was ongoing well past the time that Mr Marshall thought the plaintiff would make a full recovery from his serious pelvic diastasis and associated injuries. I am not assisted by Mr Marshall’s over optimism.
[55]DCB 2
45 Dr C Baker, specialist in occupational medicine, saw the plaintiff in April 2006 and June 2010. He is not really qualified to the same extent as the orthopaedic surgeons dealing with trauma of this type. He thought, in 2006, that the plaintiff should make a full recovery.[56] Again, I do not accept this very hopeful opinion expressed less than four months after the plaintiff came off his motorbike. It is worthwhile noting that this doctor did record symptoms in the plaintiff’s “lower back” at that early stage.[57]
[56]DCB 13
[57]DCB 10
46 After the 2007 accident, Dr Baker recorded that he found the plaintiff a motivated man.[58] He reported the plaintiff had chronic pain. The cause of this seemed to be expressed as follows:
“I would consider that he had prior ongoing symptoms from the first accident relating to the pelvis on the left side. I would consider the combination of the two accidents has resulted in his current presentation.”[59]
[58]DCB 19
[59]DCB 20
47 The current presentation as recorded by the doctor was that the plaintiff was suffering chronic pain requiring strong painkilling medication. He stated in relation to pain that it was mainly associated with the lower back, left sacroiliac region and left groin.[60]
[60]DCB 19
48 He advised a number of treatment options that should be followed. He said the plaintiff could not go back to the previous heavy work that he did prior to 2005. The thoracic spine impairment, he thought, was “a small permanent” impairment.[61] He thought the lower back and sacroiliac regions and left groin would improve. However, he did not say it would go away and he is reporting in 2010, some five years after those injuries were sustained.
[61]DCB 20
49 I read the report of Dr Baker in 2010 as saying the plaintiff still has ongoing pelvic/low back pain caused by the 2005 accident. He considered the plaintiff still needed treatment for it. He thought the plaintiff’s earning capacity was impaired in regard to heavy work. For a young man this is a very considerable impairment when one takes into account that the only work history he has is as a qualified chef and performing heavy factory work.
50 Mr R Simm, orthopaedic surgeon, saw the plaintiff once in November 2012. He recorded the pelvic disruption and the persisting symptoms in the sacroiliac region and into the groin. He recorded the later T8 fracture.
51 While his adjectival description is not relevant to my task, he stated:
“The two injuries detailed above are serious injuries and residual symptoms are consistent with the injuries.”[62]
[62]DCB 33
52 He obviously thought there were two distinct areas of pain at different levels of the spine when one reads the totality of his report. He reported that ongoing treatment was required for the chronic pain, which Mr Simm clearly thought was related to both “injuries”.
53 He stated, as to earning capacity:
“His injuries do interfere with his ability to work. It is reasonable to accept that this man cannot undertake unrestricted heavy manual work, and that both injuries contribute to this incapacity.”[63]
He cannot undertake unrestricted heavy manual work, which includes some of the work he was performing prior to the accidents. He could undertake suitably modified work which had only moderate physical demands. I expect him to be limited in his ability to undertake physically demanding employment for an indefinite period of time.”[64]
[63]DCB 33
[64]DCB 34
54 In addition, he accepted the injuries impacted on certain home activities. More importantly he said:
“He could not go back to physically demanding running, jumping and contact sporting activities.”[65]
This is a very considerable limitation on a man injured in his late twenties.
[65]DCB 34
55 The key to these views is clearly the use of the plural “injuries”. The 2005 accident is causatively related to the chronic pain and the limitations on his work capacity and activities outside work.
56 Looking at the defendant’s most up to date evidence, I find that it supports very considerable consequences with respect to impaired earning capacity for the plaintiff in being prevented long term from unrestricted work. Also, the consequences in relation to loss of enjoyment of life are very considerable. I accept on this body of evidence that the pelvic/low-back pain is the cause of these consequences. A lesser, dull, mid back pain simply adds to his pain.
57 I accept the pelvic/low back pain suffered as a result of the 2005 accident has led to the consequence that narcotic drugs were required and the unfortunate addiction. The 2007 accident has also caused dull mid back pain that has contributed to the addiction. I accept the impaired earning capacity is a consequence of the 2005 accident absent the 2007 accident. The later accident has added a further need for narcotics that was there anyway since 2005 and would still be there if the 2007 accident had never occurred.
58 I reject the defendant’s argument that the break in treatments for six months prior to the 2007 accident and the return to full hours, albeit on light duties, should lead to a conclusion that the consequences of the 2005 accident are not serious. The plaintiff was never free of pain in that period. He was trying to put up with it without narcotics. I accept his response to this argument the defendant was maintaining was accurate when he said:
“I’ve told you that I put up with a lot of pain through some periods, and I was doing much lighter duties ever since that first accident, making it a bit easier to cope, but far from perfect.”[66]
He found the level of pain unacceptable.
[66]T80, L7-10
59 For the reasons set out I grant leave to the plaintiff to bring proceedings for the recovery of damages.
- - -
0
1
0