Hawkins v Celotti
[2012] VCC 525
•8 May 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06178
| ANTHONY HAWKINS | Plaintiff |
| v | |
| MATTHEW CELOTTI | First Defendant |
| and | |
| TRANSPORT ACCIDENT COMMISSION | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24 and 26 April 2012 | |
DATE OF JUDGMENT: | 8 May 2012 (Revised) | |
CASE MAY BE CITED AS: | Hawkins v Celotti & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 525 | |
REASONS FOR JUDGMENT
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SUBJECT: TRANSPORT ACCIDENT
Catchwords: Serious injury – consequences of injury – aggravation of pre-existing injury – whether the consequences of the injury were at least very considerable.
LEGISLATION CITED – Transport Accident Act 1986
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT – Leave to the plaintiff to issue proceedings claiming damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Robinson Gill |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr W R Middleton SC and Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
1 On 18 September 2005, in the course of his employment, Anthony Hawkins was knocked off his feet when a motor vehicle towed a long hose across his path (“the accident”). He was knocked over, landing face down. He alleges that he suffered injuries to his lumbar spine and consequential psychiatric and/or psychological injuries as a consequence.
2 He seeks the leave of the Court to issue a proceeding to recover damages in respect of those injuries.
3 His right to do so is governed by the provisions of s.93 of the Transport Accident Act 1986 (“the Act”). In order to obtain such leave, Mr Hawkins must satisfy the Court that his injuries are serious.[1]
[1]Section 93(6) of the Act.
4 The term “serious injury” is defined in s.93 (17) of the Act (insofar as is relevant to this application) as:
“(a) serious long-term impairment or loss of a body function.”
5 In order to succeed in his application, Mr Hawkins must satisfy the Court that the consequences of his injury are serious. In order that an injury be considered to be serious:
(a) the consequences of the injury must be serious to him;
(b)those consequences may relate to pecuniary disadvantage and/or pain and suffering; and
(c)in forming a judgment as to whether, having regard to such consequences, an injury is to be held to be serious, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as “very considerable” and certainly more than merely significant or marked?[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
6 Mr Hawkins alleges that the consequences of his injury satisfy the threshold test as being at least very considerable. The second defendant denies this is so.
7 The matters to be determined in this application are:
(a)What is the nature of the physical injury suffered by Mr Hawkins in the accident?
(b)What are the consequences for him of that injury?
(c)Whether the injury is “serious” as defined in the Act.
Background
8 Mr Hawkins is aged fifty-nine years. He completed his Higher School Certificate in about 1970. Since then he has been involved in a number of different areas of employment. He worked with the Public Service in Perth. He later became a partner in and manager of an indoor cricket centre. He then moved to New South Wales and commenced an indoor cricket consultancy business. He later moved back to Western Australia and worked for a time in Norseman. Later, in Perth, he worked at the Burswood Casino. He moved back and forth between Perth and Melbourne on a number of occasions. He was a car salesman for some four years in Melbourne. In Perth he again worked installing netting and artificial grass surfaces at cricket venues.
9 In about 1998, in Melbourne, Mr Hawkins was employed full time at Crown Casino where he worked as a croupier and supervisor. In addition, he established a business relationship with Colin Maddocks, who ran a business installing cricket pitches. Such pitches were installed at the commencement of the cricket season in spring and needed to be covered over or removed at the end of the cricket season, before the football season could commence. He initially worked on an ad hoc basis and combined such work with his full time job at the Casino.
10 In late 2002, he resigned from the Casino and from that time worked on a full time basis installing and removing cricket pitches. Most of his work was performed as a contractor for a company operated by Colin Maddocks. Mr Hawkins established his own business which traded as ‘Tony Hawkins Sports Services’. The busy seasons were in autumn and spring of each year, although there was work in between.
11 In about 2005, Mr Hawkins developed a new type of cricket pitch known as an ‘All Seasons Pitch’. This proved popular and resulted in a good deal of work from municipal councils in relation to council owned sporting grounds. With Mr Hawkins’ consent, the All Seasons Pitch was patented by Mr Maddocks.
12 Mr Hawkins has always been a keen cricketer. He was mainly a medium fast bowler. From time to time, going back to the late seventies, he has had a degree of low back pain. Initially this did not concern him much. He described himself as being very fit and athletic. When younger, in addition to cricket, he played football. He continued playing cricket in one grade or another, until quite recently.
13 In 1981, he had a fall through a ceiling at work and struck his lower back on a roof beam. This caused a lot of pain for a couple of weeks. X-rays showed no major damage and he continued working.
14 Through the 1980s, Mr Hawkins suffered from intermittent pain in his low back. His work installing indoor cricket facilities was quite heavy and involved him unpacking large containers of cricket nets which were heavy and were required to be tensioned to the ceiling and walls of stadiums. He was also required to handle large rolls of Astroturf. His back condition did not prevent him from carrying out that work.
15 From time to time, he went to a chiropractor for low back soreness. However, he states, and I accept, that it was nothing that he worried about and nothing that stopped him from working. From the late 1990s, his work at Crown Casino involved him standing a lot, looking down at tables, which caused his back to become sore at times. It did not prevent him from working in either of his jobs.
16 Since at least as far back as 1995, Mr Hawkins has been a patient at the Kew General Practice and has remained a patient at that clinic until the present time. He has seen a number of different doctors at the clinic but principally, he has seen Dr Andrew Broad. The clinical notes of the Kew General Practice were tendered in evidence.[3] On the earliest attendance at the clinic, on 10 January 1995, Dr Broad recorded a history of past “chronic back pain”.[4]
[3]DCB 37-79
[4]DCB 38
17 The clinical notes disclose that Mr Hawkins attended from time to time thereafter with low back pain and/or complaints of hamstring difficulties. He attended in relation to his low back in February 1997, May 1997, December 1998, May 2000, March 2001, November 2001 and September 2002. In addition, he appears to have complained of hamstring problems of one sort or another in February 1998, April 1998, December 1998 and January 1999. He attended at the clinic on two occasions in 2003 for unrelated matters. He did not attend the clinic at all in 2004. In January 2005, he attended for an unrelated matter but also made reference to having torn his hamstring at cricket the previous day but wanting to self-care in respect of it. He attended the clinic in February 2005 for unrelated matters and did not attend the clinic again until 24 April 2006, approximately seven months after the accident in question.
The Accident
18 On 18 September 2005, Mr Hawkins was working at the Montmorency Park where he was required to remove a cricket pitch cover. His car and trailer were on the cricket oval at the time. Attached to the back of the vehicle was a pump together with a hose of about 100 metres in length. Nearby, there was a Montmorency Football Club function in progress, apparently celebrating the end of the football season. Without his permission, a person who Mr Hawkins identified as the first defendant (who was attending the football club function), jumped into Mr Hawkins’ car and drove it around the oval. In doing so, the car dragged the hose so that it contacted Mr Hawkins, causing him to trip and fall forwards, quite heavily, onto his face and front. He alleges, and I accept, that he became immediately aware of severe back pain, worse than anything he had previously experienced.[5]
[5]PCB 13
Aftermath of the Accident
19 Immediately following the accident, Mr Hawkins telephoned 000 requesting police to attend. An ambulance was offered but he declined that offer. Police attended and he advised them as to what had happened. Enquiries were made as to the person who was driving the car at the time.
20 Mr Hawkins managed to finish off the job but was suffering from back pain.
21 That night, Mr Hawkins prepared a document described as an Incident Report[6] which he provided to Mr Maddocks and sent to the President of the Montmorency Football Club that evening. It contained a description of the incident and a demand for an apology. In the Incident Report, Mr Hawkins stated:
“My back is severely jarred and while this will not stop me from working, it will certainly hinder my activities for the next few days. But what if my being tripped by the hose and striking my face on the ground had have caused debilitating injuries [back/neck], concussion or even death?”
[6]PCB 20
22 September and October was one of the busiest times of the year for Mr Hawkins in relation to his cricket pitch activities. He deposed that he did not believe that he could stop work for financial reasons. He pressed on as best he could. He did not attend a doctor or any other person for treatment. He describes his pain as often bad. He could feel it every day. It was not like before. He was hoping that it was just a flare-up and would go away.[7] At the time he did not appreciate that he might have an entitlement to WorkCover or Transport Accident Commission benefits. He did not regard himself as being an employee of Mr Maddocks’ company.
[7]PCB 13
23 He continued on at work. He had difficulty with most of the heavier tasks such as shovelling and sweeping. Applying glue whilst on his hands and knees did not cause him problems. When doing so, his back was straight. Driving a motor vehicle became most uncomfortable for him. He had assistance performing the heavier aspects of work from his son, Christopher, who worked with him through until December 2005 when work started to ease off a little. He found at that point that he could manage his back pain better. When work associated with the installation of pitch covers picked up again in March 2006, he had increased low back problems.
24 He continued playing cricket for a veterans’ team over the summer of the 2005/2006 cricket season. He deposed that he really struggled to do so. He reduced his bowling run up to only three paces which he found not very effective. He found it hard to run between wickets when batting. He put himself down the batting order and would only bat if he was required to do so. He had difficulty running at more than a light jog.
25 He continued at work after September 2005 with assistance from others. His son, Christopher, had come across from Western Australia and worked with him, doing most of the heavy jobs. Over the years that followed, others, including Kale Foley, Andrew King, Robyn Foote and Lee Hopner, provided assistance. On some occasions Mr Hawkins paid those persons directly. On other occasions those persons were employed by Mr Maddocks to work with Mr Hawkins.
26 Mr Hawkins sought no treatment in respect of his back between 18 September 2005 and 24 April 2006.
27 In April 2006, Mr Hawkins, whilst sitting in a chair, bent forward to tie his shoelace and he experienced acute low back pain. He describes the pain as excruciating. He could barely move.[8] He did not go to work that day or the next. He saw Dr Broad on 24 April 2006. Dr Broad noted that he was tender across the L5-S1 area, walking stiffly with a golf stick, but with no true sciatica symptoms or signs. Dr Broad asked him to return if his back did not fall into the normal pattern of getting better in three days. Mr Hawkins returned to Dr Broad on 12 May 2006 with a history that his back pain was not really any better and that he could not work. A sickness certificate was provided and Prednisolone medication was prescribed. By May 26 2006, Mr Hawkins reported to Dr Broad that his back pain was better but not right. The pain could go down into both legs but the left was worse. He had ceased Prednisolone by that date.
[8]PCB 14
28 Mr Hawkins attended Dr Broad on 7 August 2006. The doctor’s note states:
“Back is OK. Managing to work and getting by. Very protective of it.”
29 In October 2006, Mr Hawkins was camping near the Murray River when he fell about two metres. He landed on his feet and fell to his right side. He attended on Dr Flood at the Kew General Practice about three weeks later. It would seem from the doctor’s notes that he was complaining of groin and leg pain. There is no record of increased low back pain.[9] He took no time off work at that time.
[9]DCB 54
30 In November 2007, Mr Hawkins completed and lodged a WorkSafe claim in respect of injuries claimed to have been suffered by him in the accident of September 2005. The claim was, in due course, accepted.
31 Mr Hawkins’ evidence was that initially, he did not consider that he would be entitled to WorkCover benefits. He considered himself to be an independent contractor rather than an employee. In fact, it appears that he was a deemed an employee pursuant to the provisions of the Accident Compensation Act 1985. He received legal advice during 2007 to this effect. He may also have been advised by his solicitors at that time that he was likely to be entitled to benefits under the Transport Accident Act 1986 because his injuries were caused by the driving of a motor vehicle.
32 In late November 2007, he ceased to operate his business, Tony Hawkins Sports Services. He became an employee of Mr Maddock’s company. On 30 November 2007, he made a Statutory Declaration which he forwarded to the Australian Taxation Office indicating that this cessation of his business was a result of debilitating back pain which had made the operation of his business extremely difficult.[10] As an employee, he reduced his hours of work.
[10]PCB 108
33 In June 2008, Mr Hawkins was referred to Dr David Vivian, a specialist in pain management. Dr Vivian treated Mr Hawkins until the early part of 2011. During the course of that period, Dr Vivian performed bilateral L3, L4 and L5 medial branch blocks in September and October 2008. In November 2008, he carried out a lumbar radiofrequency neurotomy (denervation) procedure which was repeated in January 2010, and again in April 2011. Mr Hawkins reported that he suffered considerable relief from pain as a consequence of the first neurotomy, less following the second, and that the third provided him with little, if any, relief. In addition, Dr Vivian treated him with injections of local anaesthetic and cortisone in February and June 2009. These provided some temporary relief.
34 Mr Hawkins ceased all cricket activities as a consequence of back pain in early 2008.[11]
[11]PCB 38
35 He continued working for Mr Maddocks until about August 2011. His hours of work had decreased. By 2009 he had been certified fit to work twenty five hours per week only. By 2011, he could work no more than three hours per day and he considered that even this involved pushing himself beyond his physical limitations.
36 He has not worked since ceasing his employment with Mr Maddocks in August 2011.
37 He resides on a bush block near Newbury. He lives alone. His lifestyle involves a need to chop wood, cart buckets of water and, from time to time, to clear blackberries. He is able to perform these tasks but limits himself to about one hour of exertion per day in order to avoid greater pain.
38 He is currently taking Celebrex, an anti-inflammatory medication, intermittently. He is unable to take it more often because of its side-effects.[12]
[12]PCB 24
Diagnosis of Injury and Causation
39 A CT scan of Mr Hawkins’ lumbosacral spine was performed in December 1998 and reported as being normal.[13]
[13]PCB 42
40 A CT scan of the lumbar spine was apparently taken on 16 May 2006 and showed disc degeneration at L4-5 more so than L5-S1. There was disc bulging at those levels.[14] The radiologist’s report of that scan was not tendered.
[14]PCB 73
41 An MRI scan performed in December 2007 was reported as showing degenerative changes at the lowest two lumbar levels with small, non-compressive posterior disc bulges resulting in mild flattening of the thecal sac. There was no overt canal stenosis, foraminal narrowing or focal nerve root compression. There were mild bilateral facet joint degenerative changes at L5-S1.
42 The medical evidence was that these radiological findings have no relevance to Mr Hawkins’s complaints of back pain. Nor did they indicate the occurrence of any particular injury to his lumbar spine in September 2005, or at any other time.[15]
[15]Dr Broad at T 125; Dr Vivian at PCB 81; Mr King at T 236
43 Dr Vivian has had access to the clinical notes from the Kew Medical Practice. He noted Mr Hawkins’ long history of back pain but accepted the history that such back pain was controllable and no significant problem for him before September 2005. The history that he obtained from Mr Hawkins was that from 2005, his back pain became much worse and has remained worse ever since. He noted the nature of the accident as being relatively violent and one in which some joint and/or disc damage could have been incurred, to the point where it could either permanently aggravate a pre-existing condition, or develop a new condition.[16] He accepted that since the 2005 accident, Mr Hawkins has not been able to function at anything like the capacity that he could before. He considered that injury had occurred to one or more structures of the back and that these injuries were likely to be a permanent factor in Mr Hawkins’ long-term disability.[17]
[16]PCB 81
[17]PCB 87
44 Dr Vivian pointed out that the facet radiofrequency neurotomies performed by him were procedures that led to temporary improvement. He further opined that back pain does not always recover.[18] He considered that Mr Hawkins had developed a degree of permanent incapacity relating to the accident.
[18]PCB 89
45 Plainly, in reaching his conclusions, Dr Vivian is reliant on the history given to him by Mr Hawkins concerning exacerbation of pain following the September 2005 accident.
46 Mr Hawkins was seen at the request of his solicitors by Mr Kevin King, orthopaedic surgeon, in November 2011. Mr King also gave oral evidence.
47 Mr King had been given a history of Mr Hawkins’ back problems pre-dating 2005 and also had reports from Dr Broad and Dr Vivian. Mr King concluded that Mr Hawkins had suffered mild intermittent lumbosacral back discomfort from the late 1970s onward which had not interfered with his capacity to play a high level of competitive cricket. He considered that the degree of trauma suffered by Mr Hawkins in the September 2005 accident would have resulted in damage to lumbar discs and associated ligamentous structures at multiple levels, the trauma presumably being superimposed upon mild, pre-existing but only very mildly symptomatic degenerative changes in his lumbar spine, consistent with age and occupation. Since September 2005, Mr King concluded that he had been chronically and quite severely disabled ever since and that his symptoms and clinical state had slowly deteriorated as a result of that significant trauma, particularly to the two lower lumbar discs and associated ligamentous structures.[19]
[19]PCB 99
48 Mr King considered that Mr Hawkins was genuinely disabled by back pain with what is almost certainly discogenic pain radiating into both buttocks and thighs. He accepted that Mr Hawkins could no longer manage his heavy job installing artificial cricket pitches and that he would never be fit to go back to that sort of heavy manual work in the foreseeable future. Further, he thought that the constant standing and stooping associated with his previous Casino job would almost certainly aggravate his back pain further. He considered that he was chronically and quite severely disabled as a consequence of the injury to his low back which occurred in September 2005.
49 Mr King considered that, had Mr Hawkins not suffered further injury, it was unlikely that his prior condition would have deteriorated.[20]
[20]T 260
50 Dr Broad had been the plaintiff’s treating general practitioner since at least 1995. It follows that he has seen Mr Hawkins on numerous occasions before and after September 2005. He described the pain suffered by Mr Hawkins as being central and spreading across his lower back and into his legs. He reported that it was considered to be primarily facet joint in origin with some discogenic pain as well.[21] He confirmed that Dr Vivian’s radiofrequency neurotomies had had the most positive impact upon Mr Hawkins’ pain and ability to work. However, he noted the diminishing effect of such treatment and in particular, that the last treatment in May 2011 had had minimal impact on his back pain. He confirmed that Mr Hawkins had had to cease work due to pain in August 2011. He did not believe that his back pain would improve considerably. He thought that he was currently stable since ceasing to work in a physical environment but was subject to flare-ups if he engaged in physical labour type work or any work that involved prolonged sitting, standing or lifting. He thought he was totally incapacitated to partake in work tasks involved with his previous employment due to his back pain. He noted that Mr Hawkins was frustrated and somewhat depressed about his back pain and inability to return to his employment.
[21]PCB 53
51 Dr Broad was not consulted by Mr Hawkins immediately following the September 2005 accident and did not see him until 24 April 2006. As a consequence, he found it difficult to comment on the contribution made by the September 2005 accident to Mr Hawkins’ current condition.
52 In addition to reports tendered, Dr Broad gave oral evidence that:
(a)Prior to September 2005, Mr Hawkins had last complained of back pain in September 2002, some three years before.[22]
[22]T 112
(b)Dr Broad had no particular recollection of the conversation he had with Mr Hawkins on 24 April 2006. He was not able to be adamant that he was not told of the earlier September 2005 trauma.[23] However, his evidence was that there had been an escalation of his pain.[24]
(c)It is very likely that a traumatic fall such as that described in the accident would increase his symptoms. It could very well aggravate and markedly increase his back pain.[25] Some acute exacerbations do recover, but others do not. It is a mixed picture.[26]
(d)Where a person does not seek treatment following an incident or accident, it does not necessarily mean that their pain is not severe.[27] Similarly, where a person does not seek treatment over a period of time, this does not necessarily mean that they are not suffering any pain.
(e)Facet joint degeneration can radiate pain into the hamstring area.[28]
(f)The findings of the 2007 MRI scan could be considered as normal for someone of Mr Hawkins’ age.[29] The MRI findings did not suggest radiculopathy or nerve root involvement. They do not assist the diagnosis one way or the other.[30]
(g)A fall such as that described in the accident is a type of injury that would typically flare-up facet joints.[31]
(h)Based on the history provided by Mr Hawkins, one would have to assume that the accident of 2005 would have a bigger impact on his chronic low back pain than the shoe lace incident.[32]
(i)In relation to the connection between the September 2005 accident and Mr Hawkins’s current symptoms, Dr Broad found it difficult to make a connection because he was not involved with Mr Hawkins during the initial months following the accident. However, if it were accepted that Mr Hawkins suffered considerable back pain following the September 2005 accident, that it improved somewhat as he did less work and relied on others to do the heavier work, that his condition was exacerbated in April 2006 when he bent to tie his shoe lace, and that he was never able to work as independently or as much after September 2005 as he was able to do before, he considered the connection between the two was significant. He accepted that what appear to be fairly significant injuries such as those that occurred in 2005 could be the start of an increase in his chronic back pain. His pain was ramped up, ultimately leading to his demise in not being able to work in the job that he wanted to do.[33]
(j)In the years that he had treated Mr Hawkins since 1995, Dr Broad had never formed the belief that Mr Hawkins was an exaggerator of symptoms or had been anything other than genuine in relation to his symptoms.[34]
[23]T 114
[24]T 115
[25]T 116
[26]T 116-117
[27]T 119
[28]T 120
[29]T 123
[30]T 125
[31]T 143
[32]T 144
[33]T 151-152
[34]T 154
53 Mr Michael Shannon, orthopaedic surgeon, saw Mr Hawkins in September 2010 and November 2011 at the request of the second defendant. Mr Shannon obtained a history which was broadly consistent with the evidence of Mr Hawkins. He considered that Mr Hawkins was suffering from mechanical back pain associated with disc degenerative changes at the lowest two lumbar levels. He considered that the incident in September 2005 would certainly have been consistent with aggravation of degenerative changes. However, taking into account that it was about seven months before Mr Hawkins sought treatment, Mr Shannon stated that he was:
“… unable to confirm that the accident as described to me was a significant contributing factor to the flare-up of symptoms which subsequently led to the current claim. In any event, he does have mechanical back pain associated with degenerative change and he does not have evidence of radiculopathy.”
54 In November 2011, Mr Shannon found little change in Mr Hawkins’s condition since his previous examination. He repeated the opinions referred to above. He referred to his then current complaints as being essentially of mechanical back pain without significant radicular symptoms, that is, he was suffering from mechanical back pain associated with disc degeneration and facet joint arthritis. He said:
“His incapacity relates to degenerative change, but I am unable to say that it relates to the claimed TAC injury.”
55 Specifically, Mr Shannon does not state that there is no relationship, but merely that he is unable to say there is one. Mr Shannon’s reluctance to accept that Mr Hawkins’ problems relate to the September 2005 accident appears largely to be based on his non-attendance upon a doctor for some seven months afterwards.
56 Dr Michael Bloom, occupational physician, examined Mr Hawkins at the request of the WorkCover claims agent in January 2009. He thought that Mr Hawkins had suffered an aggravation of his pre-existing condition in the September 2005 accident but that he was now fully recovered from it.[35] However, I note that Dr Bloom examined Mr Hawkins approximately six weeks after Dr Vivian had performed a radiofrequency neurotomy and two nerve blocks. The procedure had resulted in immediate resolution of symptoms in the hamstrings but with some residual pain in the middle of his back. Mr Hawkins had described the procedure as being very effective in resolving his pain but only temporarily. Accordingly, I consider that Dr Bloom examined Mr Hawkins at a time when he was still receiving the benefit of those earlier procedures which regrettably were only of a temporary nature. Accordingly, I place little weight on Dr Bloom’s opinions concerning Mr Hawkins’ recovery.
[35]D 5
57 The claims agent arranged for Mr Hawkins to be examined by Dr Chris Baker, specialist in occupational medicine, in May 2009. The defendant did not tender his report.
58 Dr Michael Bowles, specialist in occupational medicine, examined Mr Hawkins in February 2011 at the request of the claims agent. He found no evidence of non-organic features, abnormal pain behaviour, or any inconsistencies in presentation. He considered Mr Hawkins’ complaints to be constitutional, noting a long history of back and neck complaints. He considered that the April 2006 shoe lace incident was more substantial than the September 2005 accident. He thought it was unlikely that Mr Hawkins’ employment was still a cause of ongoing mechanical backache and that, on the balance of probabilities, it was highly likely he would be in his present state irrespective of the event in 2005.[36] He considered that manual work would make mechanical pain worse, that is, undertaking physical activity would be problematic for Mr Hawkins. He considered that he was unfit to return to pre-injury duties and hours. Dr Bloom appears to take no account of the fact that, notwithstanding prior complaints of back pain, Mr Hawkins had rarely consulted a doctor regarding that condition, and had missed virtually no time from work as a consequence of low back problems. I am unable to understand how he could conclude that Mr Hawkins would be in the same condition today regardless of the accident.
[36]DCB 17E
59 On the basis of the medical evidence referred to, I accept that Mr Hawkins has suffered an aggravation of pre-existing soft tissue injuries to his lumbar spine. I accept that these were present for many years, probably back as far as the 1970s. However, I accept that in the years leading to September 2005, those symptoms were intermittent and relatively mild. He was able to work virtually unrestricted in occupations involving considerable physical activity and significant periods on his feet. I accept that there has been a major deterioration in his condition.
60 The real issue to be determined in this case is whether:
(a) the injury suffered in the September 2005 accident has been a material contributing factor in that deterioration; or
(b) whether that deterioration relates to the later April 2006 incident; or
(c) whether that deterioration is a natural progression of the pre-existing condition.
61 The Court and every doctor who has provided an opinion in this matter is, to a large degree, dependant on the history provided by Mr Hawkins concerning the degree of impairment of his lumbar spine prior to the September 2005 accident and the impairment following that accident. It follows that I am required to make an assessment of the reliability and honesty of his evidence concerning this.
62 I had the opportunity of observing Mr Hawkins give his evidence. I consider that he did so in a frank and open manner. I do not consider that he exaggerated his symptoms. I am satisfied that he gave his evidence honestly.
63 Counsel for the second defendant submitted that I should not be satisfied that the September 2005 accident was causative of an ongoing aggravation of symptoms that could amount to a “serious injury” as defined in the Act. He conceded that if I accepted that his injury was such that it prevented him working, then that would be sufficient to meet the “more than considerable” consequences test laid down in Humphries v Poljak.[37] As I understood his submission, it was not that Mr Hawkins’ current condition would not amount to a “serious injury” as defined in the Act; it was that the September 2005 accident had not caused it.
[37](supra)
64 Taking all of the evidence into account, and in particular that of Mr Hawkins, I am satisfied, that as a consequence of the accident, the symptoms of pain suffered by him increased substantially. I am satisfied that whereas prior thereto, he was able to perform a wide range of physical employment duties with mild symptoms and little time off work, thereafter his level of pain and suffering increased substantially and his condition gradually deteriorated to the point where he was unable to continue working.
65 I note that in the many years prior to September 2005, although there had been relatively isolated complaints to his general practitioner concerning low back pain, these had not caused him to miss any time from work or miss his cricket. His treatment had been minimal to say the least. I note that in the years since September 2005, Mr Hawkins has undergone a number of invasive procedures which have temporarily been beneficial to him. I consider that his preparedness to undergo such procedures is indicative of the pain and suffering he was enduring over that period between 2005 and the present time.
66 I accept the evidence of Mr King, Dr Vivian and Dr Broad that the September 2005 accident resulted in an aggravation of consequences of his low back symptoms. I am satisfied this aggravation was sufficient to constitute a “serious injury” as defined in the Act.
67 I consider that a comparison in his condition before and after the accident demonstrates that the consequences of that accident are such that they can fairly be described as more than significant or marked and as being at least very considerable.[38] In particular, I consider that that accident led to deterioration in the condition of his low back which has resulted in him being unable to continue in employment and as a consequence, suffering significant loss of income.
[38]See Petkovski v Galletti [1994] 1 VR 436 at 443
68 I accept the evidence of Mr King, Dr Vivian and Dr Broad that the April 2006 incident where the plaintiff merely bent to tie a shoe lace, was unlikely to have been causative of a long-term exacerbation or aggravation of his condition.
69 Senior counsel for the second defendant submitted that there are a number of objective evidentiary matters which countered Mr Hawkins’ evidence concerning the timing and extent of exacerbation of his symptoms and hence, countered the suggestion that the accident was the cause of any significant aggravation of symptoms:
(a)Mr Hawkins had not attended for treatment for his back for approximately seven months after the accident;
(b)There was no evidence of Mr Hawkins taking medication or increased medication between September 2005 and April 2006;
(c)Mr Hawkins continued playing cricket in the 2005/2006 cricket season and in later years;
(d)Following the September 2005 accident, Mr Hawkins had taken no time off work. Following the April 2006 incident, he had had about five weeks off work.
(e)As recently as October 2008, Mr Hawkins had reportedly been working up to seventy hours per week, apparently alone, performing his pre-September 2005 duties;
(f)In the incident report prepared by Mr Hawkins, on the evening of 18 September 2005, the mention by Mr Hawkins of his back was merely that it had been severely jarred and it was obvious that, at that time, he considered the effect of that jarring was likely to be temporary;
(g)The summary of wages earned indicated that Mr Hawkins continued to earn relatively substantial sums in the years that followed September 2005.
70 I consider that each of those points is relevant to the issues before me, but that none of them are decisive or conclusive.
71 Mr Hawkins’ failure to promptly attend for medical treatment is surprising. However, I accept that he believed he had no WorkCover entitlements, and that it was a particularly busy time of the year for him, and that he simply could not afford to take time off work. He had his son to help him with the heavy parts of the work. I accept that he had hoped that his exacerbation of symptoms might be temporary. I accept that his symptoms did improve somewhat when work eased at the conclusion of that busy period. I formed the view that Mr Hawkins was a relatively stoic person, likely to work on if he possibly could.
72 I accept that although Mr Hawkins continued to play cricket for the veterans’ team, he genuinely struggled to do so. He did not bat unless he had to. He could not run. He reduced his bowling run up to one of three paces. He had previously been a successful opening bowler, bowling off a run up of 15 paces. In 2004, he had been selected to represent the district association.[39] I accept that he was a passionate cricket player. I note the evidence of Mr White that he continued to play but in obvious pain and with significantly reduced success. Eventually his back pain caused him to cease playing altogether.
[39]PCB 37
73 I note the reference in the Kew General Practice clinical notes on 3 October 2008 that he was working 70 hours per week. However, I also note that Mr Hawkins underwent bilateral medial branch blocks at the L3, 4 and 5 levels on 17 September and 15 October of that year.[40] I consider it highly unlikely that these procedures would have been carried out unless Mr Hawkins was complaining of considerable pain and that Dr Vivian had accepted that such complaints were genuine.
[40]PCB 67 and 69
74 I do not consider the contents of the incident report are of significance other than demonstrating that, on that date, Mr Hawkins was optimistic that his injury would prove to be temporary.
75 I consider that the consequences of the accident for Mr Hawkins are substantial.
(a) I am satisfied that he has suffered greatly increased levels of pain as a result of the accident and that these are unlikely to improve in the foreseeable future.
(b) His ability to play cricket has been severely reduced from the time of the accident and he has been unable to play at all for some years. I consider the cricket was a passion for him and that he was, but for the injury, likely to have continued to play for a considerable time in the veterans’ competition.
(c) He is unable to work in his chosen field. Given his passion for cricket, his choice to work in the cricket pitch area is not surprising. It is unlikely he would cope with work of the type performed by him prior to 2002 at the Crown Casino, on his feet and stooping to look down on tables. Theoretically, there might be sedentary administrative work that he could perform but, given his age and work history, I consider it is unlikely he would be successful in obtaining such work.
(d) He was a keen social golfer before the accident, but has been unable to continue playing. He tried on one occasion and was very sore afterwards.[41]
[41]PCB 16
(e) Climbing steps causes an increase in pain. He has difficulty bush walking.[42]
[42]PCB 16
(f) He is limited now to about an hour of exertion per day because of back pain.
(g) He has been unable to kayak, an activity that he previously engaged in.[43]
(h) His sleep is adversely affected by back pain.[44]
[43]PCB 16
[44]PCB 17
76 In summary, I accept that prior to the accident, Mr Hawkins, despite intermittent flare ups of back pain, led a full and active lifestyle in both employment and recreation. As a consequence of the injury to his back, his ability to participate in employment and recreational activities has been dramatically reduced.
Conclusion
77 I am satisfied that the consequences of the back injury sustained by Mr Hawkins in the accident are such that they can fairly be described as more than marked or significant and at least very considerable. Accordingly, I am satisfied that Mr Hawkins has suffered a “serious injury” as defined in the Act.
78 There will be leave to Mr Hawkins to commence proceedings to recover damages in respect of the injury to his back suffered on or about 18 September 2005.
79 I shall hear the parties as to costs.
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