Hewitt v TAC

[2018] VCC 1504

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

 Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-18-00806

JAMES HEWITT	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	17,18 September 2018
DATE OF JUDGMENT:	19 September 2018
CASE MAY BE CITED AS:	Hewitt v TAC
MEDIUM NEUTRAL CITATION:	[2018] VCC 1504

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury-function of spine
Legislation Cited: Transport Accident Act 1986
Cases Cited:            
Judgment:                Leave to bring proceedings for the recovery of damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr J Valiotis	Arnold Thomas Becker
For the Defendant	Mr A Moulds QC with Ms F Spencer	Solicitor to TAC

HIS HONOUR:

1       While driving his garbage truck for Cleanaway on the Northern Ring Road the plaintiff was involved in a very heavy collision between his skip truck and another vehicle. This occurred on 6 October 2015. He was taken to the Austin Hospital by ambulance and was an inpatient there for a week. Not surprising he had a number of injuries and scans performed on his head, spine and right shoulder. He has no real recollection of the accident.[1]

[1]Plaintiff’s Court Book(PCB)7

2       In time it is the impairment of the body function of the spine that is now relied on as being the “serious injury” under the Act. Damage at the cervical and the lumbar levels both contributing to the impairment of the spine as a whole is how the plaintiff put  the case.

3       On 4 December 2017 he suffered another work injury. He suffered a further aggravating injury to his back when his foot slipped on the truck step as he was backing out of his truck. He did not fall but took his weight on his arms as he was holding onto the bars while backing  down. The plaintiff is a motivated man who took no time off work after this slip. He then went to the physiotherapy clinic in Tullamarine which is in the same street as his employer’s depot. He also went to a local medical clinic in the adjoining suburb of Gladstone Park where his employer Cleanaway sends injured workers. I am satisfied it was not a major aggravation. [2]

[2]PCB7-8

4       He has had two children with his former wife. She has had a problem with “ice” and for twelve months around 2014 he looked after the children while she was in rehabilitation. He was working full time and lived in Wallan where his father and stepmother live and they could assist. The children are eight and five   years of age respectively and are back with their mother. The plaintiff is 34 years old (DOB 15 August 1984). His last completed year at school was year eight.  

5       The defendant said the issues for determination were twofold. Firstly there was one of causation, namely, that there was no longer any material contribution proved by the plaintiff between the transport accident and his current spinal impairment condition and any consequences of it. Secondly if I  determined causation in favour of the plaintiff, the consequences could not be fairly described as at least very considerable when judged by comparison with other cases in the range of possible impairments of the spine. [3] The Act speaks of  the impairment being required to be “as a result of “ the transport accident in dealing with the causation issue.[4]

[3]Transcript(T)25-27

[4]S93(1)

6       A good deal of time was spent exploring the extent of the aggravation to his back that he suffered in the slip on the steps of the truck. The first thing that needs to be considered is there is a very great difference between the violence to the spine between the trauma of a collision between vehicles at speed and a slip on a step when he did not even fall and hit anything let alone fall the ground. There is evidence his vehicle was doing 100kph at time of collision. [5]

[5]PCB25

7       From the outset his affidavit evidence has been that after about five months or so his back was in the same state as it was prior to that slip. It was not a major aggravation.[6] In his affidavit only last week he repeated “my back is at the same level that it was prior to the slip in December 2017 when I wrenched reached my back at that time.”[7]

[6]PCB7

[7]PCB12

8       The key to this case is my assessment of the plaintiff as a witness. He is in the best position to judge what the slip did to the level of symptoms in his back after the major transport accident in 2015. His truck hit a stationary vehicle while he was at great speed. He has  endured symptoms from the time he was taken by ambulance to hospital and he can best describe what occurred in the slip and whether or not it is still resulting in any different symptomology when compared with what occurred after the Ring Road collision.

9       It is an advantage to both see and hear the plaintiff give evidence. He is a young man with very limited education but one who is highly motivated in regard to work. He is also very motivated towards recovering his health as best he can in relation to the impairment of his spine both in the neck and low back that has now been with him for just on three years. It is important to note his genuineness has not been questioned by doctors on either side.

10      There was very little attack on credit. He was challenged about some differences in what was recorded about medications he was taking but in the end this did not go very far. I accept the plaintiff was referring to prescription medications when he said to doctors he did not take any. He still has a need for constant over the counter pain killers. That need was there before the slip and it is still there. He mentioned the need for Nurofen to Dr Elder in August 2018 for TAC and to Dr Seneviratne who saw him for Workcover purposes in August 2017.[8] These were not doctors engaged by the plaintiff’s solicitors.[9]  I have not heard from any doctors but his credit was not impugned by some of the statements and histories attributed to him. [10]

[8]PCB65,49

[9]PCB65,DCB21

[10]DCB9,21,PCB57,65

11      This plaintiff has as limited an education as is seen in these courts for  a person in his thirties who has lived all his life in Victoria and whose first language is English.  He has a job as a garbage truck driver. He was “rapt’ to get back on the truck, to borrow his words.[11] He is a simple unsophisticated man with a very limited memory. It is no surprise then that  his interests are entirely physical. It should also be said that he was a very matter of fact fellow who understated his problems in life generally as well as his spinal injury. He had a stoical attitude.

[11]T54

12      Some challenge was also made about histories recorded by doctors regarding his motor bike riding. That interest started when he was a boy.[12] Involvement with both dirt bikes and road machines has been a lifelong interest. I accept his old Harley Davidson had a more difficult suspension so he bought a new one after he injured his spine. I also accept the new one has a better suspension but he has had to give up motor bike riding due to the impairment of his spine as a result of the transport accident. For him it has been a major interest.

[12]PCB9

13      The evidence is unchallenged that he sold his dirt bikes as a consequence of the spinal impairment suffered as a result of the transport accident. He sold them before the slip that aggravated his low back. [13] He  had his last ride on his  Harley Davidson and gave up riding before the slip.[14] For this young motor cyclist it is  a very considerable long term consequence for him to have lost that interest in motor bike riding.

[13]T31-32

[14]T63

14      That original or old Harley is a thing that means a lot for this man. He obviously had looked  forward to his son getting involved with motor bikes and said “I  won’t sell the old one, it’s a sentimental thing, which will one day go to my son.”[15]

[15]PCB62

15      His sale of a large speedboat and cessation of enjoyment from it with respect to  water-skiing  and wake boarding are very considerable consequences for Mr Hewitt flowing from his injured spine. The boat was sold before he suffered the slip.[16] He was a young man active in these sports who used go as far as Lake Eppalock, Echuca and Greens Lake at Rochester.[17]

[16]T31

[17]PCB9,13,14

16      He described in his own uncontested way the importance of this recreation in his life. “I have not returned to wake boarding which I loved and I sold my boat, I have not returned to water-skiing and the more physical aspects of working and tinkering with engines including lifting and removing heavier parts which would now be very difficult for me. I’ve not returned to trial bike riding. In terms of riding my Harley, since the accident, I had tried to do this on several occasions but found it very painful on both my back and my neck.” [18]

[18]PCB13

17      He went further when describing what these recreations  meant to him. “I miss the fact that I have now gone several summers without water-skiing, wake boarding and trial bike riding. Being in trucks all day or doing labouring work, the weekend meant everything and especially in summer, time on the lake meant time on a boat. I’ve lost this now and my ability to be able to show my kids the fun of water sports has also been impacted.” [19]

[19]PCB14

18      He is even now only thirty four years and to lose this interest in water sports is a very considerable consequence for a participant who had taken the step of acquiring his  own boat and towed it these long distances to participate. It is a particular loss that he cannot look forward to enjoying these activities with his children who remain a big part of his thinking into the future.[20]  

[20]PCB14,15

19      Experience of life shows that people whose major interests are physical as opposed to cultural or intellectual, often have recreations that are like passions whether it be jogging, cycling, walking their dog,  playing tennis or golf or whatever. His passions have been motor bikes and water sports. I am satisfied he has lost both as a result of the spinal impairment the transport accident caused.  These losses, taken together and individually, are very considerable in terms of his enjoyment of life and when judged by comparison with other cases in the range of possible spinal impairments and losses.   

20      As to work he was off for three months and then started a gradual return to work that has been in stages. He went to a non-tarping lighter night time truck driving job using a front lift pickup truck and by 2017 he was on day shift starting at 3.00 AM. He said he had to take a lot of breaks and there was some manoeuvring of bins. Then after the slip aggravation of his back on 4 December 2017 he was in the office while on WorkCover. This sounds more like it was a “made up” job but he gradually got back to driving this year.[21]

[21]PCB13

21      He started with a jockey in the truck then worked up from one to  two and then three days. He has now  been driving four days per week for about a month with Wednesdays in the office. He still starts at 3.00AM and does driving shifts for ten to twelve hours depending on the run of industrial premises he is allocated. But he does work with limitations for a young man.

22      He needs to take a two hour break during his shift when one hour is the allotted usual break. He takes Nurofen  and has done ever since the transport accident. He takes a lot of it with two in the morning, two or three in the middle of the day and two at night.[22] He does not take any prescription medication although there have been several prescriptions given according to the clinical notes in December 2017 with the last being in February 2018.[23] His employer  Cleanaway would not allow him to drive their trucks if he was on prescription drugs.

[22]T61

[23]Defendant’s Court Book(DCB)54-58

23      Across the two court books there is limited medical debate. Medical reports and documents are somewhat unusual in that the plaintiff has suffered two injuries in the course of his employment being the transport accident and the slip. This means there are medical reports to the WorkCover insurer, to TAC and doctors have directed their attention at times to just the transport accident or just the slip for WorkCover purposes. This also applies to some of the treaters’ reports. Thus there are reports that at times did not even comment on one or other of the two workplace incidents. They are of limited help in assessing the impairment he has suffered as a result of the transport accident.

24      The only medico-legal practitioner who saw the plaintiff after the transport accident and before the slip and then saw him again after the slip was Mr D Elder. He reported in August 2017 to the WorkCover insurer, Allianz Workers Compensation. As the slip occurred in December 2017 he was only reporting about the transport accident in 2015 and the neck and lower back injuries suffered as a result of it. Then after the slip occurred, he was apparently engaged by the defendant as he reported to TAC in August 2018 following that second incident. Accordingly I find his reports more helpful than the others.

25      The reports start with the Austin Hospital report covering the week or so he was an inpatient. While the potential head injury with significant amnesia was the major concern early, it is obvious his neck area suffered major insult in the collision and was also requiring attention in the form of scanning and a cervical collar. He had occipital skull lacerations, bruising and tenderness from C4 to T1. There was also apparent lumbar back pain.[24] I accept neck and low back pain have been with him ever since.

[24]PCB25-26

26      Fortunately after specialist attention and investigation he has been said to be free of any major ongoing head injury. Basically his ongoing treatment has been with local doctors and physiotherapists and includes radiological investigations. His local doctors have been mostly at the Mediq Clinic in Wallan although he has recently moved to Kilmore. Dr Loh and then Dr Shubbar have been his practitioners at Wallan. Local treatment at the Complete Care Physiotherapy Centre in Wallan is where most of his spinal treatment has taken place.

27      Before dealing with these treaters the radiology includes a head and neck MRI/A on 13 October 2015 but it seems to be directed to possible arterial injury.[25] After some “toing and froing” with counsel and eventually avoiding some unnecessary duplication of the same radiology reports in the court books, there have been four more  radiology reports involving plain x-ray, CT and MRI scanning that have taken place.[26] In fact an MRI of the right shoulder and lumbar spine on 1 August 2018 has not even been tendered in the form of the radiology report and I can only pick up the conclusions in relation to that by relying on a report of Mr Russell Miller on 17 August 2018.[27]

[25]PCB73-74

[26]PCB87,77-78,79-80,44

[27]PCB44

28      Is not necessary to describe the radiology  in any detail except to say it does not demonstrate any gross or frank pathology in either the neck or lower back for a man engaged in labouring employment. On the other hand the spinal injury to be assessed here is essentially a musculo-ligamentous one at two levels  and the absence of significant pathology does not really take the matter further. Accordingly this case essentially involves an assessment of soft tissues and that turns very largely on the plaintiff’s evidence.

29      He has had an enormous amount of physiotherapy treatments numbering seventy two visits up to the slip on 4 December last year[28]. Due to an assessment of his spinal impairment being required now, the more recent reports are more helpful. The 2016 physiotherapy report stated “…it is clear that he continues to suffer some pain and functional limitation’ from the spinal injuries being treated.” [29]

[28]Exhibit B

[29]PCB23

30      One report from Complete Care is undated but is probably the most recent. It says little but it seems to be 4 May this year that he re-attended for more therapy and it was noted “After a few months of not having physiotherapy, James reports to suffering more pain and discomfort from the lack of treatment”.[30]

[30]PCB24

31      There is a report from Complete Care dated 16 July 2018, although a typo says 2016, and it stated he has been treated with manual therapy techniques and home strengthening exercises for lower back and neck problems. There had been good and persistent improvement but ongoing physiotherapy was advised as well effective self-management strategies. [31] Clearly the spinal impairment was causing ongoing concerns.

[31]PCB47.

32      Dr Loh in her 2016 report details the extensive early treatments and investigations and the last word from the Wallan general practitioners was Dr Shubbar in 2018. However while the report was in August it is not clear when  the last visit occurred when the doctor saw the patient. It really just dealt with the aggravation suffered in the slip in December 2017 and he was described as suffering chronic back pain secondary to that slip.

33      It is true there has been conservative treatment only but that is no surprise. He has had a great deal of physical therapy as well as daily medication for his condition. The absence of referral to orthopaedic surgeons for spinal treatment is really neither here nor there as it must be kept in mind that there is no medical suggestion that any other treatment in addition to sensible self-management that is really open for this young man.

34      He has taken and continues to take the appropriate steps to keep working at his demanding job with its long hours and uses the weekend to recover so he can go back to work on Monday.[32] More importantly in this application he manages his condition by cutting out a number of recreations that he formerly enjoyed with great enthusiasm.

[32]T61

35      I must assess any impairment suffered as a result of the transport accident  now.  I accept the plaintiff’s consistent evidence he is now back to the same level of pain and other symptoms he had before the slip.[33] Other comments from doctors refer to some shoulder symptoms and psychological issues surrounding upcoming court matters and custody issues concerning his children but there is a clear organic basis for spinal injury. The better view is that right shoulder symptoms are referred pain coming from cervical spine injury.

[33]PCB9,12

36      The defendant responsibly conceded there was spinal injury by way of a  musculo-ligamentous strain or aggravation of minor spondylosis suffered as a result of the transport accident.[34]

[34]T95

37      The medico-legal reports can be dealt with more briefly than is usual. The plaintiff tendered two reports from Mr Russell Miller, orthopaedic surgeon, which were in 2018 and so after the slip as well as the transport accident. He diagnosed musculo-ligamentous strain and aggravation of degenerative disease in the cervical and lumbar spine with some radiation into shoulder. The prognosis for the spine was only fair.[35]

[35]PCB40

38      He viewed MRI scanning of 1 August 2018 and he repeated his diagnosis of a musculo-ligamentous strain and aggravation of degenerative disease in the cervical spine and lumbar spine. He thought the right shoulder pain was referred from the cervical spine. The prognosis for the shoulder itself was good as opposed to the prognosis for the spinal impairment at both levels.

39      I read Mr Miller’s opinions as supporting a finding that as a result of the transport accident the plaintiff has suffered an impairment of his spine two levels and it is a long term condition. He found the plaintiff was co-operative at clinical examination. He did not offer any suggestions as to further treatment other than what the plaintiff had been doing. He  supported the reduced capacity for pre-injury leisure and recreational activities and specifically mentioned the motorbike riding, water-skiing and playing sport with his children. [36] I accept his evidence that the spinal impairment is productive of pain and has effectively put him out of his two major recreations.

[36]PCB42

40      Dr Elder had no criticism of the worker at clinical examination when he saw him in August  2017 on behalf of Allianz insurance. He thought the worker had mechanical low back pain and cervical pain and said “I do believe there is sufficient documentation that confirms he injured his neck and low back in this motor vehicle accident.”[37] The conditions were stable and he found AMA  percentage impairment with respect to the spine that was permanent. While the percentage is not important, he  clearly supports the “long-term” requirement under the Act.

[37]PCB58

41      He was asked to see the plaintiff again in August 2018 at the request of TAC. He did not think much if anything had happened in the slip in December 2017 and called it a “minor exacerbation of his low back when he slipped”.[38] his opinion was really the same and he said “He essentially presents in the same fashion as he did. There was no inconsistency on his response.”[39]

[38]PCB66

[39]PCB67

42      Less there was any doubt at all about his opinion in regard to the slip not being relevant, his very last sentence was “I do not think the most recent episode is contributing to his current presentation as that exacerbation has resolved.”[40] This opinion from the only medico-legal expert doctor to have seen him before and after the slip is entirely consistent with what the plaintiff has said about being back to the state of symptomology that he was prior to that second workplace  event. I accept Dr Elder’s opinions.

[40]PCB67

43      The reports tendered by the defendant really only comprised a couple of extracted pages that were used as criticism of Mr Hewitt’s credit. These were from Professor  Simon Crowe, neuropsychologist and from Dr Dharwadkar, psychiatrist.[41] As mentioned these did not impugn credit.

[41]DCB7,9,41

44      Apart from the clinical notes from the Wallan clinic which also do not take the matter any further, a report from Dr J Slesenger, occupational physician, dated 7 September 2017 was tendered by the defendant. It was a report to the Work Cover agent. This was of course before the slip in December 2017. He was obviously also impressed at clinical examination and said “He interacted well. He gave a clear and consistent account of his injuries.”[42]

[42]DCB23

45      Dr Slesenger thought further investigations were required when he saw Mr Hewitt but nevertheless he diagnosed mechanical injury to the cervical spine and mechanical injury to the lumbar spine. He also thought there was possible aggravation of pre-existing degenerative disease. He also seemed to think that this young  man was probably working beyond his capacities so in that regard there was clearly no issue with respect to his genuineness and motivation.[43] He was not asked as Dr Elder was to see the plaintiff again.

[43]DCB26,27

46      Dr Slesenger’ opinion, as far as it goes being impeded by only seeing him once and before the slip, supports the diagnosis of injury to the neck and low back as a result of the transport accident. I accept that diagnosis is accurate. I also accept that impairment is a long-term one that is still ongoing causing pain and the sensible disqualification from his two major recreations.

47      For the reasons mentioned I consider he has suffered very considerable consequences as a result of the impairment of the spine caused in the heavy collision on 6 October 2015.

48      I agreed to leave to bring proceedings for the recovery of damages.