Hibbens v Transport Accident Commission
[2019] VCC 1445
•12 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04784
ROBERT HIBBENS
| Plaintiff | |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 & 12 June 2019 | |
DATE OF JUDGMENT: | 12 September 2019 | |
CASE MAY BE CITED AS: | HIBBENS V TRANSPORT ACCIDENT COMMISSION | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1445 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury– whether injuries caused by transport accident – whether consequences of transport accident “serious” – relevant principles
Legislation Cited: Transport Accident Act 1986, s93(4)
Cases Cited:Richards v Wylie [2001] 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Noonan v State of Victoria [2013] VSCA 289; Katanas v Transport Accident Commission [2016] VSCA 140; Petkovski v Galletti [1994] 1 VR 436; Demmler v Transport Accident Commission [2018] VSCA 284; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Haden Engineering v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Dr J C Plunkett | Slater & Gordon Ltd |
| For the Defendant | Mr W R Middleton QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.93(4) of the Transport Accident Act 1986 (“the Act”) for injury suffered by the plaintiff in a motor vehicle accident on 31 May 2016 (“the accident”).
Relevant legal principles
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The definition of “serious injury” as set out in s.93(17) of the Act is, relevantly, as follows:
“Serious injury’ means –
(a) serious long-term impairment or loss of a body function … .”
…
(c) severe long-term mental or severe long-term behavioural disturbance or disorder…”
4 The application was brought pursuant to subsection (a) only of the definition of “serious injury.” During the opening, Senior Counsel for the plaintiff abandoned the claim in relation to subsection (c), stating “we rely on that for the Richards v Wylie[1] component, but not as a separate basis.”
[1]Richards v Wylie [2000] 1 VR 79.
5 The plaintiff’s case as put during the hearing of the application is that by reason of the motor vehicle accident, he has suffered the following injuries:
(a) injury to his cervical spine;
(b) alternatively, injury to the shoulders and both upper limbs.
6 In forming a judgment as to whether the consequences of an injury are “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, fairly be described at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked.’ ”[2] It has been held that the relevant consequences to a plaintiff will relate to pecuniary disadvantage and/or pain and suffering.[3]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140.
[3]Humphries & Anor v Poljak (ibid); see also Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [52] and [56]-[57].
7 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury”, as set out in s.93(17), the relevant injury must also be long-term.
8 The plaintiff bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
9 The Court must assess whether the injury is “serious” for the purposes of the Act, as at the time the application is heard.[4] In assessing the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the transport accident.[5] The task of assessing the pain and suffering consequences of an injury, has been held to be largely a question of impression and value judgment. [6]
[4]See s.93(6) of the Act, which states that leave must not be given by a Court unless the Court “is satisfied that the injury is a serious injury.” I take that expression to mean that the injury is “at the time at which the application is heard,” a serious injury for the purposes of the Act.
[5]Petkovski v Galletti [1994] 436 at 442; Demmler v Transport Accident Commission [2018] VSCA 284 at [52].
[6]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67].
10In determining the application, the Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
11It is well understood that a person who is injured is to be compensated only for such injuries as are proven to have resulted from the relevant accident.[8]
12Applying the principles set out in Petkovski v Galletti,[9] in an application like this, where it is alleged that the plaintiff may have had a relevant pre-existing condition, it is the consequences of the aggravation of that injury which must be assessed. To undertake this task, the application must establish what injury was caused by the accident. I must then determine the consequences of that injury to the plaintiff, by comparing the plaintiff’s condition before and after that injury.[10] If I am satisfied that the additional impairment is “serious” and long term, then the applicant will have demonstrated that he is suffering from a “serious injury” under the Act.[11]
[7] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
[8]Petkovski v Galletti, supra.
[9]Ibid, at 443.
[10]Supra, at 444.
[11]Supra.
13 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit sworn by his sister, Kathie Stokes.
14 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[12] The defendant did not require any of the plaintiff’s treating medical practitioners, medico-legal experts or Ms Stokes to attend for cross examination.
[12]The plaintiff’s Court Book was marked as Ex P1; the defendant’s Court Book was marked as Ex D1.
15 I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
and medical historyThe plaintiff’s background
16 The plaintiff was born on 28 June 1959.[13] He is 60 years of age.[14] He currently shares rented accommodation with a co-tenant. He is not presently in any relationship.[15]
[13]Ex P1, p 10.
[14]Ex P1, p 10.
[15]Ex P1, p 18.
17 The plaintiff completed Year 10 at secondary school. After leaving school, he worked as a farrier and blacksmith. He also worked at a cannery.[16] In his early twenties, he moved to Melbourne and has worked in the security industry ever since.[17] In 2006, he was employed as a security guard performing gatehouse security at a factory near Frankston for a company called Robuck Security.[18]
[16]Ex P1, p 11.
[17]Ex P1, p 11.
[18]Ex P1, p 11.
18 Prior to the accident he used to enjoy riding and shoeing horses. When he was younger he used to ride horses a lot. At the time of the accident, he was riding horses about once every couple of months. He used to go riding up at his brother’s property in Broadford. He would also shoe horses occasionally on the weekends.[19]
[19]Ex P1, p 15; see also the affidavit of Kathie Stokes, Ex P1, p 94.
19 He deposed to the following medical history in his first affidavit:[20]
“6. I have had some treatment for anxiety in the past. Since around 2006 I have taken Diazepam. I have seen my GP intermittently regarding stress and anxiety. In 2010 I had a CT scan of my brain as I was experiencing numbness in my right arm and leg for a couple of days. I made a full recovery from this episode. I had bilateral hernia repairs performed in around 2000. More recently, in 2015 I had an inguinal hernia repair, following which I made a good recovery.”
[20]Ex P1, pp 11-12.
The accident
20 The plaintiff described the accident in the following terms:
“…on 31 May 2016…I was driving home from work on my own. I was stationary at traffic lights on Flemington Road, Parkville. I was rear ended with significant force by another vehicle. I was severely jolted by the impact.
…Immediately following the accident, I was in shock…My car was towed away and was written off as a consequence of the damage caused by the accident.
…Very shortly after the accident, I developed increasing neck pain. My partner came to the accident scene and picked me up and took me to a GP.
…Dr Ibrahim certified me unfit for work for a couple of days and sent me for an x-ray of my spine…”[21]
[21]Ex P1, p 12.
21 On 2 June 2016, the plaintiff attended his usual GP, Dr Khoury. He was put off work for a couple of weeks. He was sent for a CT scan of his neck.[22]
[22]Ex P1, p 12.
22 He was referred for physiotherapy treatment with Mr Jamie Diab. He attended approximately five sessions with Mr Diab. He found those sessions very painful. In August 2016, he was referred by Dr Khoury to neurosurgeon, Mr Paul D’Urso. He did not see Mr D’Urso.[23] In about October 2016, he returned to his work as a security guard.[24]
[23]Ex P1, p 7.
[24]Ex P1, p 12.
Evidence of the plaintiff
23 As referred to above, the plaintiff swore three affidavits. He also gave a small amount of evidence in chief and was re-examined.
24 The relevant evidence as to the pain and suffering consequences which the plaintiff experiences as a result of the transport accident, is as follows:
Experience of pain and treatment
(a) he continues to suffer constant fluctuating neck pain, which is aggravated by activity.[25]
[25]Ex P1, pges 14 & 18
(b) he has restricted movement in his neck. His neck is generally stiff and “locks up” at times;[26]
[26]Ex P1, pge 14
(c) some days he has flare ups of severe neck pain. On those occasions he needs to rest and wait for the pain to settle;[27]
[27]Ex P1, pge 14
(d) he experiences pain radiating from his neck into both shoulders and upper arms. He experiences an ongoing ache in his shoulders. He has a throbbing pain and restricted movement in both shoulders;[28]
[28]Ex P1, pge 14
(e) he suffers constant throbbing headaches at the back of his head. These headaches can be so bad at times that they affect his balance when he is walking. He has fallen on multiple occasions due to problems with his balance arising from these headaches;[29]
[29]Ex P1, pge 14
(f) the level of pain he experiences in his neck varies on a scale of 1 to 10, from 4 to 8, depending upon his level of activity. He finds that the more severe the level of pain, the more likely it is to extend into his left and right shoulders and to radiate into his head, which causes the headaches that he has suffered extensively since the accident;[30]
[30]Ex P1, pge 18
(g) when he suffers from headaches, he finds it easiest to rest in the dark to try and relieve some of the symptoms;[31]
[31]Ex P1, p 18.
(h) he also experiences pain and tightness in his jaw which can make it painful to eat at times;[32]
[32]Ex P1, pp 14 & 18.
(i) for treatment he continues to see his GP Dr Khoury on a regular basis.[33] He now sees a physiotherapist, Dr Hahne, on a twice weekly basis.[34] He does exercises at home that Dr Hahne has taught him. He also goes walking to keep fit. He uses heat packs on his neck at home;[35]
[33]Ex P1, pp 14 & 19; T101-102.
[34]Ex P1, p 19; T101-102.
[35]Ex P1, pp 14 & 19.
Medication
(j) he tries to avoid taking medication as he worries about the side effects. He continues to take Diazepam as required. He has been taking this medication since about 2006;[36]
[36]Ex P1, p 14.
(k) in 2017 he saw Professor Bittar, neurosurgeon, who recommended an injection into his spine. He declined to have this treatment as his GP advised him not to do it;[37]
[37]T23, Lines (L) 20-28.
(l) at some stage he was prescribed some medication by his GP, but it made him sick, so he stopped taking it;[38]
[38]T23-24.
(m) in an effort to try and control his anger and anxiety problems, he has accepted from Dr Khoury a prescription of an anti-anxiety medication called Dalpam (5mgs), which he takes once or twice per fortnight;[39]
[39]Ex P1, p 18.
(n) other than that, he “puts up with the pain” as best he can;[40]
[40]Ex P1, p 18.
Ability to sleep
(o) he has disrupted sleep every night due to neck pain and headaches. He struggles to sleep for more than two to three hours each night as a consequence of pain;[41]
[41]Ex P1, p 15.
(p) he is unable to sleep on his back as his neck tends to “lock up” and he is woken by the pain. When he is awoken, he generally gets up and has a hot shower. Usually he then stays up and watches television with a hot water bottle across his neck and shoulders;[42]
[42]Ex P1, pp 15-16.
(q) he generally feels tired during the day due to his inability to obtain deep and refreshing sleep;[43]
[43]Ex P1, pp 16 & 20.
Activities of daily living
(r) he was never a very sociable person before the accident, but because of the consequences of his injuries, in particular his altered mood, he has become more isolated and reclusive than before;[44]
[44]Ex P1, p 15.
(s) he has not been horse riding since the accident as it would be too painful. He has not been able to shoe horses as a result of the neck pain. It upsets him a lot that because of his injuries, he is not able to participate in these activities anymore;[45]
[45]Ex P1, pp 15 & 20.
(t) he experiences increased neck pain as a consequence of driving for long periods. He finds that holding his arms in a fixed position on the steering wheel for long periods causes increased pain. He needs to drive to get to and from work. On some occasions, his headaches get so bad that he needs to pull over to the side of the road and have a break.[46] He uses his reversing camera in the car so that he can avoid turning his neck.[47] Since the accident his body tends to “lock up”, which makes it awkward to get into the car;[48]
[46]Ex P1, pp 16 & 20.
[47]T103, L 5-16.
[48]T103, L17-30.
Psychological illness
(u) since the accident he is generally more irritable and short tempered as a consequence of the constant pain and headaches that he experiences;[49]
[49]Ex P1, p 14.
(v) he feels angry and frustrated due to his neck pain, headaches and shoulder pain;[50]
[50]Ex P1, p 13.
(w) he worries about his neck condition deteriorating in the future. He also worries about his ability to continue working in the future in the event that his condition deteriorates;[51]
[51]Ex P1, p 15.
(x) his mood has deteriorated since the accident.[52] His altered mood had a significant effect on his relationship with his de facto partner. Eventually his irritability caused the relationship to breakdown because he was difficult to live with.[53] The irritability was caused by the constant pain in his neck;[54]
[52]Ex P1, p 15.
[53]Ex P1, p 18.
[54]Ex P1, p 18.
Pecuniary disadvantage
(y) he works with constant pain whenever he works. He does his best to act professionally at all times, despite being in pain;[55]
[55]Ex P1, p 15.
(z) he believes that his employment with Robuck Security was terminated in large part because of his issues with anger and frustration due to his pain symptoms.[56] Those issues led to an argument with his boss “which ended badly.”[57] In re-examination, the link between the dispute with his boss and the symptoms of the transport accident were less clear;[58]
[56]Ex P1, p 13.
[57]T24, L 16-21.
[58]T95-101.
(aa) in 2018, he obtained some work with a company called Monjon, who are located in Fitzroy.[59] When he started he was getting 38 hours per week. He “put up with the pain…I just wanted the job…”. He said that he “soldiered on” and tried to do his best to keep the job.[60] Over time those hours reduced for operational reasons;[61]
[59]T23-24.
[60]T94, L17-19.
[61]T25, L 1-21
(bb) his capacity for employment has been significantly adversely impacted by reason of his injuries;[62]
[62]Ex P1, p 19
(cc) he has continued to look for work in the security field, but having regard to his persisting neck condition which has failed to improve over such as long period of time, his prospects of obtaining employment are becoming increasingly remote;[63]
[63]Ex P1, p 19
(dd) he has been able to procure short term casual positions but struggles to secure long term employment. When performing this work he has been aware of persisting neck and shoulder symptoms;[64]
[64]Ex P1, p 19
(ee) having regard to his age and his injuries, he believes that he would not be able to engage reliably in full-time employment in the security industry.[65] He says that this is because he has less capacity to deal with dangerous situations as a security guard than he had before the accident. He agreed that he would have the capacity to do the type of gatehouse work he used to do and could have kept going in the type of work he was performing at the Victoria Market, which had flexibility in terms of being able to move around and sit and stand as he pleased. He thought that he would now only be able to work limited hours “because I just don’t feel well enough;”[66]
(ff) in his third affidavit, he set out the details of the applications for employment which he had made during 2018. Each of these applications have been without success.[67] Even as recently as April 2019 he has been looking for work. He has been thinking of moving to Albury to try and get security work;[68]
[65]Ex P1, p 21A
[66]T108, L3-31
[67]Ex P1, pp 21-22
[68]T105-106
25 Under cross-examination the plaintiff gave the following evidence:
(a)when he got the job with Monjon he just presented himself to the company.[69] It was a job at a bus depot;[70]
[69]T25, L 24-30.
[70]T26, L 25-27.
(b)he started work at approximately 6.30pm[71] and worked about 10 hours, three to four days per week.[72] He also did many 12 hour shifts.[73] He told Mr Doig that before his hours were cut, he would work 60 hour weeks;[74]
[71]T26, L 28-31.
[72]T27, L 1-10.
[73]T28, L 26-30.
[74]T30-31.
(c) he had to check 12 points around the depot. He would walk between each point. They were about 10 minutes apart.[75] It was a pretty big block;[76]
[75]T26-27.
[76]T28, L 3-10.
(d) it was just him onsite during his shift;[77]
[77]T28, L 16-17.
(e) he was able to cope with that job provided he got a break;[78]
[78]T29, L 16-21.
(f)he was with Monjon for about 6 or 7 months;[79]
[79]T29, L 22-24.
(g)when he was asked about how he had been able to cope with 60 hour working weeks, he said: “Well, I was struggling with the accident and I was pushing on. I tried to make the best effort I could make to get back to work, but it was just wearing me down;”[80]
[80]T31, L 3-7.
(h)he agreed that he told Mr Doig that he left Monjon because he couldn’t live on the reduced wages, not because he couldn’t do that work;[81]
[81]T31, L 8-14.
(i)it was put to the plaintiff that if the hours had not been cut, he would still be in the Monjon job now. To this proposition, the plaintiff said “I think I would be struggling now…the pain has [become] so bad”;[82]
[82]T31, L 25-31.
(j)he said that his headaches are “pretty well” 24 hours per day.[83] On a good day they are about a 4 out of 10. On a bad day, they are 8 out of 10;[84]
[83]T33, L 12-17.
[84]T33, L 18-22
(k)he said the neck pain was “about the same” as the headaches in terms of the frequency and intensity of the pain;[85]
[85]T33, L 23-31
(l)since the accident, the jobs he has applied for have been in the security industry. He believed that he could do those jobs when he applied for them;[86]
[86]T35, L 12-16
(m)he doesn’t believe that he could do full time work now.[87] He said that this was “because of the injury. It’s a danger to people if I was looking after people on a site;”[88]
[87]T35, L 24-27
[88]T35, L 26-29
(n)when he worked for Robuck, he worked on the exit gate, 6.30am-4.30pm, five days per week;[89]
[89]T37, L 30-31
(o)part of the disagreement with his supervisor at Robuck was about whether or not he should have to lift the boom gate up. He refused to do it before the accident. This was an ongoing dispute that would arise about once per week;[90]
[90]T38-40
(p)he denied that the reason he lost his job with Robuck was because of this ongoing dispute: “No, I was liked very well on that site…;”[91]
[91]T40, L 17-27
(q)he never had any neck problems prior to the accident;[92]
[92]T43, L 3-5
(r) he began taking Diazepam from 19 August 2006, when he reported to his then general practitioner, Dr Mark Attalia, that he had been “getting violent outbursts all his life;”[93]
[93]T43, L10-14
(s)he cannot remember seeing a psychiatrist at that time.[94] He continued taking Diazepam right up until the transport accident and still takes that medication now;[95]
[94]T43, L17-18
[95]T43, L21-23
(t)he agreed that in 2011 he was waking up a lot and “not sleeping properly”.[96] He agreed that at that time, that was a recurrent problem;[97]
[96]T44, L29-30
[97]T45, L1-7
(u)in August 2013, he was experiencing stress from his boss at work. That was at Bosch. It had nothing to do with the boom gate;[98]
[98]T45-46
(v)all of the issues to do with panic attacks, poor sleep and early morning wakening, were to do with his boss, James;[99]
[99]T46, L19-27
(w)Dr Khoury provided him with counselling during this time;[100]
[100]T47, L1-4
(x)he experienced migraine headaches in 2014, but did not take any medication;[101]
[101]T47, L7-13
(y)he has not taken any Diazepam for the last two months;[102]
[102]T47, L22-23
(z)he refused a Cortisone injection which had been recommended by Professor Bittar because “it’s my body and I didn’t want that injected in”;[103]
[103]T47-48
(aa)he attended physiotherapist, Jamie Diab, on five occasions, but chose not to go back to him;[104]
[104]T49, L1-10
(bb)he now attends Dr Hahne, and has been doing so for approximately eighteen months. He sees Dr Hahne twice a week. Dr Hahne’s treatment is “hands free”. He said that the reason he goes back to Dr Hahne once he has been shown particular exercises is “I’m in constant pain. I’ve got to try and get better”. He said that Dr Hahne has helped a lot, although he has not got better. He agreed that there is no lasting value in anything Dr Hahne does for him, but that he gets temporary relief when he goes to see him: “it does help in that stage”;[105]
[105]T49-50
(cc)he agreed that if he had been offered surgery he would not have taken it. He agreed that he had been offered Botox injections, but rejected those. He agreed that he does not take any medication apart from Diazepam;[106]
[106]T51, L14-30
(dd)he agreed that he goes to see Dr Khoury for prescriptions of Diazepam. He agreed that Dr Khoury is not treating him in relation to the transport accident injury, or making any referrals to other practitioners;[107]
[107]T53, L3-20
(ee)he agreed that it would be accurate to say that the reason he goes to see Dr Khoury now is because of his longstanding stress and the need for Diazepam. When it was put to him that this had nothing to do with the injury arising out of the accident, he disagreed, saying: “Well, it has because it’s put an effect on my life”;[108]
[108]T53, L21-25
(ff)he was cross-examined regarding the movement of his body when his car was struck from behind. It was put to him that when his car was hit from behind his first body movement would have been backwards. He maintained that his first body movement was forward and that his head struck the dashboard;[109]
[109]T56-57
(gg)he got back to work full time at Robuck after the accident in October 2016. His hours were Monday to Friday, 6.30am to 4.30pm. He continued working these hours at Robuck until November 2017;[110]
[110]T58, L18-25
(hh)he was terminated from Robuck because of the dispute at work;[111]
[111]T58, L28-30
(ii) he said that he was able to work upwards of fifty hours a week doing normal duties with his injury because:
“I needed money at the time. Everyone’s got bills of course. I struggled with the issue … I had the pain and everything … I just tried my best to get back at work and rehabilitate myself, tried to work on”;[112]
[112]T59, L17-25
(jj)he agreed that if the raising of the boom gate had not become an issue after the transport accident, he would still be working with Robuck today, full-time hours;[113]
[113]T65, L11-13
(kk)he agreed that in the year after the accident his weekly income before tax went up from $839.20 per week to $1,047.80 per week. He said that the explanation for this was that he had an extra part-time job at the Victoria Market as a nightwatchman. He agreed that this fact was not in any of his affidavits. He said that he had told his solicitor about that matter “the other day;”[114]
[114]T68-69
(ll)he said he worked the nightwatchman job at the Victoria Market on Friday and Saturday nights, starting at 6.00pm. He would finish at approximately four o’clock in the morning. He said that he started this job about two years ago and would do it most Friday and Saturday nights. He agreed that on a Friday he would go to work at Robuck from 6.30am to 4.30pm and then would have a couple of hours off and go to his job as a security guard at the Victoria Market and do a seven-hour stint. This meant that on some occasions, the plaintiff would work a 17 hour day. When asked how he managed that job with his injury, he said “… We could sit down, stand”;[115]
[115]T69-70
(mm)he said the explanation for why he got a second job was that he had bills to pay;[116]
[116]T71, L8-13
(nn)he said that he finished working at the Victoria Market job because they cut down the number of guards from three to two. He agreed that if the guard timetable had not been cut down he would still be working there;[117]
[117]T73-74
(oo)he agreed that in December 2017, the TAC approved the cost of a pain-management program for him. He agreed that the application for approval for the pain-management program had been made by one of his medical practitioners, who had recommended that he participate in such a program. He agreed that he did not know what a pain-management program was and did not make any effort to find out what was involved before he said no to it. He could not offer an explanation for why he did not find out what the program involved before refusing it;[118]
[118]T77-79
(pp)he denied that he had been told what was involved in the pain-management program before it was applied for on his behalf;[119]
[119]T81, L9-16
(qq)he said that the longest drive he has undertaken since 31 May 2016 is to Albury, “but I stop approximately every hour to two hours and pull over and rest.”;[120]
[120]T84, L14-16
(rr)the plaintiff was shown three video clips of activities which he was undertaking in March and April 2019. He agreed that he was the person who was depicted in each of those videos.[121] He agreed that he was depicted turning his head quickly to the right in one of the video clips. He said that it hurt when he did that. He said he did not know why he turned: “If I turned it would have been something that made me jolt”;[122]
[121]T86, L12-13
[122]T86-87
(ss)he denied that there was nothing in the March videos which suggested that he had a problem with his neck:
“I think it was pretty straightforward. When I was turning, I think you can see the whole body was turning. I wasn’t turning my head. The whole body was turning around when I was turning”;[123]
(tt)he said that he has a problem with his lower back “when I tend to walk long distances”;[124]
(uu)it was put to him that he would be capable of doing something like a small parcel courier-type driving job or a blood courier-type driving job. He said that he was not sure that he could do that because he is illiterate;[125]
(vv)it was put to the plaintiff that in the video taken on 4 April 2019, he demonstrated much more ability to move his neck than he did when he saw Dr Middleton on the same day and was only able to turn his neck to the extent of 25 degrees. He said that when he saw Dr Middleton, he was asked to tell the doctor when he began to feel pain, and that is where he stopped turning.[126]
[123]T87, L5-11
[124]T87, L26-27
[125]T87-88
[126]T89-90
Evidence of the plaintiff’s sister
26 The plaintiff’s sister, Ms Kathie Stokes, swore one affidavit dated 2 June 2019. Ms Stokes deposed to the following relevant matters:
(a) she is in frequent contact with the plaintiff and has knowledge of the injuries which he sustained in the accident;[127]
[127]Ex P1, p 94.
(b) since the accident, the plaintiff has regularly complained of neck pain and referred symptoms from that neck pain. He describes constant but variable levels of pain. She has noticed that the neck and referred pain has also caused the plaintiff to become short tempered and irritable;[128]
[128]Ex P1, p 94.
(c) the plaintiff has explained that the pain is a throbbing type of pain, which in times of greater severity, can extend into his shoulder regions and up into his head, causing headaches. The pain also spreads into the plaintiff’s jaw region, causing pain;[129]
[129]Ex P1, p 94.
(d) the plaintiff has complained of suffering frequent headaches since the accident;[130]
[130]Ex P1, p 94.
(e) prior to the accident, one of the plaintiff’s greatest enjoyments was involvement with horses. The plaintiff grew up in brumby country and used to round up brumbies to break them in. He has always been a good horseman. He also enjoyed shoeing horses. By reason of the injuries he sustained in the accident, the plaintiff is no longer able to pursue these activities. She knows that this loss has meant a great deal to the plaintiff;[131]
[131]Ex P1, p 94.
(f) she is aware that the plaintiff’s sleep is constantly disturbed by the pain from which he suffers, leaving him tired and lethargic. This has been an ongoing problem which is of concern to the plaintiff;[132]
(g) the plaintiff’s pain has impacted upon his work capacity. Ever since she was little and their father left the family, the plaintiff has worked to support the household. He has always been a good worker. Given the fact that the plaintiff has always enjoyed working hard, his ongoing work restrictions have constituted a significant impact on his lifestyle.[133]
[132]Ex P1, p 94.
[133]Ex P1, p 95.
Medical evidence
27 There were numerous medical reports contained in the tendered material.
28 Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
Pre-accident presentation
29 Relevant medical records in the defendant’s Court Book address the plaintiff’s pre-accident presentation.[134] From those records, the following matters are evident:
[134]Ex D1, pp 18-28.
(a) the plaintiff was first prescribed Diazepam on 19 August 2006 in the context of seeking advice in relation to psychological issues including violent outbursts. He has been taking Diazepam regularly since that time;
(b) on 6 July 2010, the plaintiff consulted his GP in relation to numbness and pain in his right arm and leg. A CT scan of his brain was ordered at this time. There is no evidence of any ongoing issue arising from this consultation;
(c) on 24 January 2011, the plaintiff consulted his GP in relation to a headache. There is no evidence of any treatment or ongoing issue arising from this consultation;
(d) beginning on 1 April 2011, the plaintiff consulted his GP in relation to “Poor sleep, Early morning wakening and depressed mood” on several occasions.[135] In an entry dated 6 August 2013, the plaintiff is recorded as telling his GP that he has suffered “stress from his boss at work for over 2 years with verbal abuse…”[136] These issues were referenced again in an entry dated 23 October 2013;
(e) on 24 November 2014, the plaintiff consulted his GP in relation to a migrane headache. There is no evidence of any treatment or ongoing issue arising from this consultation.
[135]Ex D1, pp 19-23.
[136]Ex D1, p 21.
30 Under cross examination, the plaintiff acknowledged that all of these issues had arisen in the past as recorded. Apart from the ongoing need to take diazepam as referred to above, no evidence was elicited from the plaintiff or otherwise put before the Court, which indicated that any of these matters led to consequences for the plaintiff which were persisting at the time of the transport accident.
Post-accident presentation
Plaintiff’s medical reports
31 Following the accident, the plaintiff saw his general practitioner, Dr Youssef Khoury, regularly. Dr Khoury has provided numerous reports in relation to the plaintiff, the most recent of which is dated 4 March 2019. In Dr Khoury’s opinion, the plaintiff suffered the following injuries in the accident:[137]
[137]Ex P1, p 127A.
(a) mild broad-based disc osteophyte complex at C5-6;
(b) mild broad-based disc bulge and minimal canal stenosis;
(c) subacromial and subdeltoid bursitis with impingement on abduction.
32Dr Khoury’s findings were based on the diagnostic test results and his assessment of the plaintiff.[138]
[138]Ex P1, p 127A.
33In 2017, the plaintiff saw Dr Meena Mittal, anaesthetist, for chronic pain management arising out of the injuries he sustained in the accident. Dr Mittal said that the plaintiff reported pain in his neck in the midline, as well as on either side. The pain then radiated to the interscapular region, as well as to both shoulders. The pain extended below the shoulders to the upper arm. The plaintiff described the pain to be constantly present, but said that it was worse on certain movements. In addition, the plaintiff reported experiencing shooting radiating pains, accompanied by pins and needles in the occipital scalp region in the midline. The pain was constant, but was also accompanied by a sharp stabbing-like pain, particularly in his shoulders. The plaintiff did not report any sensory changes in his upper limbs.[139]
[139]Ex P1, p 131.
34In Dr Mittal’s opinion, the plaintiff presented ten months’ post “whiplash injury”. She said that the main sources of his pain included:
“(i) overlying myofascial pain due to muscle spasm;
(ii) underlying facet joint pain was possible;
(iii) occipital neuralgia.” [140]
[140]Ex P1, p 132.
35Dr Mittal noted that the plaintiff was also showing signs of “spreading of pain or central sensitisation.”[141]
[141]Ex P1, p 132.
36Dr Mittal saw the plaintiff a second time in March 2017 and noted that at that time he reported ongoing neck pain, which was “… also now radiating to his jaw bilaterally...”[142]
[142]Ex P1, p 132.
37Dr Mittal saw the plaintiff again in May 2017. At that time, she noted that he was complaining of loss balance, and had had four falls since she had last seen him “due to vertigo”. The plaintiff was also reporting occipital headaches and memory loss.[143]
[143]Ex P1, p 133.
38Dr Mittal noted that the plaintiff was reviewed by Dr Swee Tan on 7 September 2017 and that Dr Tan believed the plaintiff’s clinical features were consistent with cervical whiplash injury resulting in neck pain and cervicogenic headaches. Dr Tan noted that the headache did have some migrainous features, and there was no evidence of cervical radiculopathy or any other peripheral lesions in the upper limbs. Dr Tan suggested the use of medications as well as Botox treatment, but the plaintiff had declined that treatment. It was suggested that the plaintiff continue with physiotherapy and hydrotherapy.[144]
[144]Ex P1, p 133.
39Mr Andrew Hahne, physiotherapist, began seeing the plaintiff in May 2017 and has continued to see him regularly since then. In a report dated 13 December 2017, Mr Hahne noted that as a result of the accident, the plaintiff had described pain over the posterior and bilateral aspects of the cervical spine, spreading down into the upper thoracic spine and across the shoulders bilaterally. He noted that the plaintiff had reported that the pain extends down into the upper arms bilaterally down to the elbows, but not below the elbows. The plaintiff’s neck pain extends up to the posterior aspect of the skull. The plaintiff described severe, constant, throbbing headaches over the posterior aspect to his head, posterior aspect of his ears, and up over the top of his head. There is also pain around his jaw bilaterally.
40In a report dated 21 September 2018, Mr Hahne noted that the plaintiff continued to describe pain in his cervical spine as before, causing constant throbbing headaches, as previously reported. In addition, he noted that the plaintiff reported:
“… considerable weakness in his arms and shoulders. He also continues to describe that his lower limb strength and steadiness on his feet have been negatively impacted by his injuries. He feels unsteady on his feet … [the plaintiff’s] sleep remains severely disturbed since the accident. He reports that he currently gets only two to three hours per night due to pain, restlessness and difficulty getting comfortable in bed… ”[145]
[145]Ex P1, p 104.
41In Mr Hahne’s opinion, the plaintiff:
“… presents with whiplash associated disorders as a result of his motor vehicle accident. His MRI scan shows C5/6 spinal stenosis, and this is consistent with [the plaintiff’s] symptoms including neck pain, referred pain into the shoulders and upper arms and headaches …”[146]
[146]Ex P1, p 105.
42In a report dated 7 June 2019, Mr Hahne noted that the plaintiff had presented reporting “escalated symptoms that can be indicative of cervical myelopathy (compression of the cervical spine spinal cord)”.[147] The symptoms reported included unsteady gait and regular falling, with the frequency of falls increasing from about November 2018 onwards and intermittent numbness, weakness and shaking of the plaintiff’s hands (bilaterally), causing the plaintiff to drop water bottles, cups of tea and other items on a regular basis.[148] At this time, Mr Hahne’s diagnosis remained the same. He also postulated that the regular falls and numbness/weakness/shaking in the plaintiff’s hands were neurological symptoms that may be indicative of nerve damage in the cervical spine.[149] He said that the plaintiff continues to “display symptoms of emotional and psychological distress such as frustration, irritability, angry outbursts and disturbed sleep”.[150] Mr Hahne said that he would defer to experts in the psychological field to comment on these matters further.[151]
[147]Ex P1, p 108.
[148]Ex P1, p 108.
[149]Ex P1, p 109.
[150]Ex P1, p 109.
[151]Ex P1, p 109.
43In a report dated 4 November 2017, Professor Richard Bittar, consultant neurosurgeon, noted that on examination, the plaintiff had “bilateral cervical and upper thoracic paravertebral muscle tenderness with mild restriction of neck movement in all planes”.[152] Professor Bittar noted that “flexion and extension of [the plaintiff’s] neck exacerbated the pain radiating into his shoulders”. He also said that the plaintiff did not “have any evidence of radiculopathy or myelopathy”.[153] In Professor Bittar’s opinion, the plaintiff presented with an aggravation of cervical spondylosis. It was his view that the motor vehicle accident was the “dominant contributing factor” to the plaintiff’s presentation.[154]
[152]Ex P1, p 96.
[153]Ex P1, p 96.
[154]Ex P1, p 97.
44Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff for medico-legal purposes on behalf of the plaintiff in about May 2019.[155] He said that as a result of the accident, the plaintiff complained about pain:
[155]Ex P1, p 154.
“..to the cranio-cervical junction and lower thoracic area. He still has pain at the lower cervical area. He also has constant headaches. [These] occur in the back part of his head. It then causes pain into his shoulders and arms. He scores the intensity of his pain or headaches on a good day as 4/10. On a bad day it is 8/10 and he doesn’t feel like going anywhere on those days. The pain affects his ability to eat as the pain causes his jaw to lock up. This happens about once a fortnight but can happen at any time. He also complains about [a] tremble in both his hands and dropping things. He loses dexterity and has shaking in both hands. It affects his ability to do [up his] buttons. He struggles using cutlery because he drops [his] knife and fork. He finds that when he walks, he is isn’t walking in a straight line and drifts more to the right. He finds that a hot water bottle or a string of hot beads on his necks helps reduce the pain along with a hot shower … As a result of his ongoing pain [the plaintiff] is limited in his domestic social and recreational activities. He is still doing light duties of cooking, cleaning, laundry and shopping. He is still able to vacuum. When shopping he follows the advice from his physiotherapist not to lift more than 6 or 7 kilograms. He also uses a trolley. He is able to look after his hygiene. He finds that reaching to put on socks is a struggle. When he tried to put on his pants, he got wobbles and fell. Other days this can be fine. He avoids walking for more than 20 minutes at a time. He can stand for about the same duration. After about 20 minutes of sitting he will stand to release the pressure on his back. He can drive for up to 2 hours and then has a rest. Prior to his injury, he enjoyed being a farrier and breaking in…horses. He hasn’t returned to this since the motor vehicle accident. Prior to this accident he was a quiet, stay at home person. This remains the same.”[156]
[156]Ex P1, p 154.
45Dr Aliashkevich expressed the opinion that the plaintiff’s diagnoses included “chronic and intractable neck pain, chronic back pain, chronic cervicogenic headache, whiplash associated disorder…central sensitisation”.[157] Dr Aliashkevich suspected a number of other possible causes of the plaintiff’s pain, including myofascial pain syndrome, cervical facet joint dysfunction, occipital neuralgia and possible cervical myelopathy.[158]
[157]Ex P1, p 158.
[158]Ex P1, p 158.
46Professor Stephen Davis, neurologist, provided two reports on behalf of the plaintiff for medico-legal purposes. The most recent of those reports is dated 12 April 2019. Professor Davis noted that the plaintiff reported that as a result of the accident:
“…[he] still has chronic low cervical pain, pointing to the dorsal cervical spine, going up the back of the neck to the head, then radiating into both shoulder regions and the shoulder blades. It radiates down into the thoracic region …”[159]
[159]Ex P1, p 169.
47Professor Davis also noted that the plaintiff reported that “he still has chronic daily headache radiating up from the back of the neck into the head. This goes back up behind the ears and also around to the anterior cervical region”.[160] Professor Davis said that in the “context of very severe headaches [the plaintiff’s] balance becomes affected and he has had some falls.”[161] Professor Davis noted that the plaintiff’s sleep is poor and “he feels somewhat depressed”.[162]
[160]Ex P1, p 169.
[161]Ex P1, p 170.
[162]Ex P1, p 170.
48Professor Davis was of the opinion that the plaintiff suffers from “a cluster of symptoms” that he postulated “are substantially functional.” Despite this, he accepted that the symptoms radiating from the plaintiff’s cervical spine injury are organic in nature: “he undoubtedly sustained a very forcible rear-end collision, with a whiplash-type injury to the cervical spine involving jolting injuries of a soft tissue nature. He may well have had some shoulder impact as well…”[163] He accepted that the pain in the thoracic region appears to be referred from the cervical spine. He thought that the shoulders may have been a separate injury.[164]
[163]Ex P1, p 171.
[164]Ex P1, p 171.
49Mr Stephen Doig, orthopaedic surgeon, has provided numerous reports on behalf of the plaintiff for medico-legal purposes. He noted the plaintiff’s history concerning neck pain and significant constant pain in the cervical spine arising from the accident.[165] He also noted the plaintiff’s report of pain in both shoulders.[166] In a report dated 22 May 2018, Mr Doig said that in addition to the pain previously reported, the plaintiff said that the pain he was experiencing was also “radiating down to the thoracic spine”.[167] Mr Doig observed that there are notes from the local doctor dated 2 June 2016, which is contemporaneous with the accident, which allude to back pain and neck pain, as well as shoulder pain.[168] In Mr Doig’s view, the appropriate diagnoses are as follows:
[165]Ex P1, p 174.
[166]Ex P1, p 175.
[167]Ex P1, p 177.
[168]Ex P1, p 177.
“1. Soft-tissue injury the cervical spine
2. probable soft-tissue injury to the thoracic spine
3. possible tissue injury to both shoulders.”[169]
[169]Ex P1, p 178.
50In Mr Doig’s opinion, the injuries listed above are consistent with the accident. At that time, Mr Doig recommended further investigation of the plaintiff’s shoulders.[170]
[170]Ex P1, p 178.
51Dr David Middleton, an occupational health and rehabilitation consultant engaged on behalf of the plaintiff for medico-legal purposes, examined the plaintiff on 4 April 2019. Having considered all of the medical reports with which he had been supplied, and after examining the plaintiff, Dr Middleton considered that:
“… as a result of a significant motor vehicle accident … [the plaintiff suffered] an aggravation of his previously asymptomatic, age-related degenerative disease of the cervical spine affecting, in particular, his C5/6 intervertebral disc, resulting in the onset of cervical spine instability causing radiating pains into the upper trapezius and into the upper arm as well as into the upper thoracic paravertebral muscles. The disc injury resulted in the onset of cervicogenic headaches that developed into vascular/migrainous headaches, being disabling and severe.”[171]
[171]Ex P1, p 218.
52Dr Middleton considered that as a result of the accident, the plaintiff was also likely to have “suffered bilateral shoulder injuries resulting in the onset of subacromial subdeltoid bursitis with impingement, which has never been adequately treated”.[172]
[172]Ex P1, p 219.
53On 29 January 2018, the plaintiff was assessed by Mr Robert Webb, otolaryngologist, who noted that the plaintiff “continues to have problems with severe pain in his neck, which radiates into both shoulders, particularly the left. He also gets severe headaches, which begin in his neck and then spread up into the back of his head”.[173] Mr Webb said that the plaintiff reported:
[173]Ex P1, p 222.
“Sometimes when he is eating, the pain seems to come from his neck and into his jaw. He then becomes unable to move his jaw and chew. He then has problems swallowing. This can last for several minutes and then the pressure eases and he can chew again. It happens several times a week”.[174]
[174]Ex P1, p 222.
54In Mr Webb’s view, the relevant diagnosis was “intermittent spasm of the pterygoid muscles, which can temporarily affect his ability to chew”.[175] Mr Webb noted that as the plaintiff’s jaw and other facial structures were not injured in the accident, this phenomenon is related to the injury to the plaintiff’s neck.[176]
[175]Ex P1, p 223.
[176]Ex P1, p 223.
55Dr Brendan Hayman, consultant psychiatrist, provided a joint report dated 5 July 2017, and a further report dated 29 March 2019, on behalf of the plaintiff, in relation to the plaintiff’s psychiatric presentation. In both reports, Dr Hayman expressed the view that the plaintiff was a “stoic and robust man who had no prior psychiatric history. He had some mild Post-Traumatic anxiety following the accident”.[177] In 2019, Dr Hayman was of the view that diagnostically, the plaintiff continues to have a degree of mild post-traumatic anxiety and some mild dysphoric symptoms, consequent upon the accident and its sequelae. Dr Hayman was of the opinion that these symptoms were not of “sufficient severity to warrant a diagnosis of an Adjustment Disorder.”[178]
[177]Ex P1, p 198.
[178]Ex P1, p 198.
Defendant’s medical reports
56Dr Timothy Entwisle, consultant psychiatrist, examined the plaintiff on behalf of the defendant on 28 March 2019. In a report dated 4 April 2019, Dr Entwisle described the plaintiff as appearing “highly tense and pre-occupied...” Dr Entwisle reported that the plaintiff said he was “struggling with his pain and previously had been happy and outgoing describing a highly regulated routine which he said had been his way of living since he was young”.[179] He observed that “despite high levels of pain, [the plaintiff] did not report symptoms consistent with a psychiatric condition”.[180] When asked about his spirits, the plaintiff said that he was “on top of the world…10/10…nothing worries me [apart from the pain].”[181] Dr Entwisle was of the opinion that there is “no psychiatric diagnosis in [the plaintiff’s] case occurring in the context of the accident.”[182]
[179]Ex D1, p 7.
[180]Ex D1, p 7.
[181]Ex D1, p 6.
[182]Ex D1, p 8.
57Dr Ian Dickinson, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 28 March 2019. In a report dated 8 April 2019, Dr Dickinson reported that the plaintiff told him that as a result of the accident:
“He continues to have pain in the back of his neck radiating up to his head. He said that when he is walking, he has a feeling of pressure in both the back of his neck and in his lower back…as well as his neck, his lower back hurts and this started about four months ago. He describes pins and needles all along the line of the spine from the occiput to his sacrum. He also has some tingling in his left arm to the elbow”.[183]
[183]Ex D1, p 12.
58In Dr Dickinson’s view, the plaintiff displayed “inconsistent clinical findings.”[184] It was Dr Dickinson’s view that the plaintiff presents with “ongoing symptoms where there is no objective evidence of any physical cause for these symptoms.”[185] Dr Dickinson expressed this view, despite referring to the radiological investigations which disclosed what he described as “cervical spondylosis” at C5-6 and C6-7. Dr Dickinson was also supplied with and referred to the ultrasound report which recorded subacromial bursitis in both shoulders.[186] I note that Dr Dickinson is alone in expressing the opinion that there is no organic basis for the plaintiff’s cervical spine symptoms.
[184]Ex D1, p 14.
[185]Ex D1, p 15.
[186]Ex D1, p 14.
The issues
The plaintiff’s credit
59 The plaintiff’s credit was tested thoroughly during the hearing of this matter.
60 For example, questions were put to the plaintiff during cross examination that suggested that he had been less than open and honest with the Court in relation to his current presentation, especially as that related to his work capacity. It was also put to the plaintiff that various treatment modalities had been suggested and made available to him, but that he had failed to take these up. My understanding of the way in which these questions were put was to demonstrate that the plaintiff’s failure to take up these opportunities demonstrated that he did not in fact need this treatment to manage his pain.
61 The plaintiff was cross examined at length about the relationship between the accident and the loss of his gatehouse security job. Despite the fact that in his affidavit material, the plaintiff had sought to link the loss of this job to the consequences of the accident, namely anger and frustration due to neck and shoulder pain and headaches, under cross-examination, it became clear that the plaintiff had experienced difficulties with his supervisor in that job, even prior to the accident.
62 In addition, the plaintiff agreed that he had omitted to include in his affidavits, the information about his job at the Victoria Market as a nightwatchman. He said that he had told his solicitor about that matter “the other day”. The plaintiff’s solicitor was not called for cross-examination.
63 Lastly, the plaintiff was shown three video clips of various activities he was undertaking during March and April 2019.[187] He agreed that he was the person depicted in each of those video clips. It was suggested to him that the video footage did not demonstrate the activities of a person who had a problem with his neck. He rejected this proposition.
[187]Ex D2.
64 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness, who did his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and made appropriate concessions which at times were against his interests.
65 Having observed the video clips which were played to the Court, I formed the view that the activities depicted therein did not demonstrate any level of physical capacity or mobility which differed greatly from that which the plaintiff acknowledged he possessed.
66 Furthermore, I find that the plaintiff’s account of events has remained fairly constant throughout the period during which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
67 I have considered the contrast between the evidence in the plaintiff’s affidavit about the link between the accident and the loss of his gatehouse security job and the evidence as it emerged under cross examination. I have also considered the failure by the plaintiff to refer in his affidavits to his additional job at Victoria Market. The manner in which the evidence in relation to both of these issues emerged during the running of the trial, was most unsatisfactory.
68 Despite these difficulties, I am unable to conclude that the plaintiff deliberately misled the Court in relation to these or any other matters. After a consideration of all the evidence and in particular, the evidence of the plaintiff as corroborated by the affidavit of his sister, Ms Stokes, I consider that overall, he was a credible witness in the sense of being a truthful person.
Stoic plaintiff
69 Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff is extremely stoic in relation to his condition.
70 Despite the pain that he has suffered constantly since the accident, he has continued to work where he can and until recently, has taken on additional work where it is available. I accept that this has occurred even though the plaintiff is often unable to avoid activities which cause him pain.
Compensable injury
71 The details and occurrence of the accident are not in dispute.
72 Counsel for the defendant argued that in the absence of a specific diagnosis, it is not open to this Court to be satisfied that the plaintiff is suffering from an organic injury as a result of the accident. In support of this argument, a table of the various diagnoses that had been made from time to time, was handed to the Court as an “aide memoir.”
73 It is self evident from the analysis of the medical reports set out above, that there has been a less than consistent diagnosis of the cause of the plaintiff’s neck and back symptoms. However, this fact alone is not fatal to the plaintiff’s application if it can be established that the plaintiff has suffered an injury resulting in an impairment which is organically based, the consequences of which are serious.
74 Having considered all of the medical evidence from both treating professional and medico-legal experts from both sides, the weight of the evidence satisfies me that as a result of the accident, the plaintiff presently suffers from an injury to his cervical spine,[188] being the result of a “whiplash-type” injury which occurred as a result of the accident.
[188]I note that out of the 10 medical experts who expressed an opinion in relation to this matter, there is only one, Mr Dickenson, who expressed an opinion which was contrary to the majority.
75 I am also satisfied to the requisite standard, that as a result of the accident, the plaintiff suffered a soft tissue injury to his shoulders, namely subacromial and subdeltoidbursitis.[189]
[189]see opinions from Drs Khoury (at Ex P1, pp 113-118 & 127A), Middleton (Ex P1, p 219) & Doig (Ex P1, p 183).
76 The weight of the medical evidence satisfies me that both injuries sustained by the plaintiff in the accident, are organic in nature.
Is the compensable injury permanent for the purposes of the Act?
77 Having considered the relevant reports, in particular from Dr Khoury,[190] Dr Aliashkevich,[191] Dr Davis,[192] Mr Doig,[193] Professor Bittar[194] and Dr Middleton,[195] I find that the plaintiff is likely to continue to suffer from the injuries sustained in the transport accident as set out above, for the foreseeable future. Given this, I find that the injuries to the cervical spine and shoulders suffered by the plaintiff as a result of the accident, are permanent for the purposes of the Act.
[190]Ex P1, p 129.
[191]Ex P1, p 158.
[192]Ex P1, p 172.
[193]Ex P1, p 183.
[194]Ex P1, p 98.
[195]Ex P1, p 218.
Are the consequences to the plaintiff of the transport accident “serious”?
78Having had regard to all of the relevant evidence, I find that prior to the transport accident, the plaintiff suffered from mood problems and intermittent depression, in part arising from a workplace dispute. These issues necessitated visits to his treating GP for intermittent counselling and the regular prescription of diazepam, beginning in 2006 and continuing up until the date of the accident.
79I find that prior to the accident, the plaintiff did not suffer from any back, neck or shoulder injuries which were causing him any adverse symptoms or other consequences at the time of the accident.
80I am satisfied on the basis of the medical evidence, that the plaintiff suffered a separate injury to his shoulders in the accident. I am also satisfied that the injury to the plaintiff’s cervical spine, produces some referred pain to the plaintiff’s shoulders. Given the state of the evidence, it is not possible to disentangle which of the plaintiff’s shoulder symptoms are due to the soft tissue injury to his shoulders and which are due to referred pain into the shoulders but which originate from the injury to the cervical spine. Thus, I will exclude any shoulder symptoms from my assessment of the consequences to the plaintiff of the injury to his cervical spine. If necessary, the consequences of the injury to the plaintiff’s shoulders must be assessed separately.
Consequences of the injury to the Cervical Spine
81Having considered all of the evidence, I find that as a result of the injury to his cervical spine alone, the plaintiff suffers from the following consequences:
(a) constant fluctuating neck pain, which is aggravated by activity. The pain travels up from his neck into his head and also down into his thoracic spine;
(b) intermittent flare ups of severe neck pain. On those occasions he needs to rest and wait for the pain to settle;
(c) restricted movement in his neck, with his neck generally being stiff and locking up at times;
(d) constant throbbing headaches at the back of his head. These headaches can be so bad at times that they affect his balance when he is walking. He has fallen on multiple occasions due to problems with his balance arising from these headaches;
(e) nightly disrupted sleep, due to neck pain and headaches. He struggles to sleep for more than two to three hours each night as a consequence of pain. He generally feels tired during the day due to his inability to obtain deep and refreshing sleep;
(f) inability to drive for long periods due to increased neck pain and headaches. He finds that holding his arms in a fixed position on the steering wheel for long periods causes increased neck pain;
(g) intermittent spasm of the pterygoid muscles, causing pain and tightness in his jaw. When these spasms occur, it can make it painful for the plaintiff to eat;
(h) the need to take some medication (see sub-paragraph (j) below), even though he would prefer not to. He tries to avoid taking medication as he worries about the side effects. Because of this, he “puts up with the pain” as best he can;”
(i) further deterioration in his mood, as a consequence of the constant pain in his neck and the headaches that he experiences. The deterioration in the plaintiff’s mood has had a significant effect on his relationship with his de facto partner. Eventually his increased irritability caused the relationship to break down;
(j) feelings of anger and frustration due to his neck pain and headaches. In an effort to try and control his anger and anxiety problems, he has accepted from Dr Khoury a prescription of an anti-anxiety medication called Dalpam (5mgs), which he takes once or twice per fortnight. He was not required to take this medication prior to the accident. He continues to take Diazepam as required;
(k) social isolation. He was never a very sociable person before the accident, but because of his altered mood in particular, he has become more isolated and reclusive than before;
(l) an inability to engage in horse riding and shoeing horses. These are both activities which the plaintiff enjoyed prior to the accident. It upsets him a lot that he is not able to participate in these activities anymore;
(m) needing to work with constant pain. He does his best to behave professionally at work at all times, despite being in pain. He worries about his neck condition deteriorating in the future. He also worries about his ability to continue working in the future, in the event that his condition deteriorates. He does not think he has a present capacity to engage in full time work.
82In Haden Engineering Pty Ltd v McKinnon,[196] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[197] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement.
[196](2010) 31 VR 1.
[197]Supra at paragraph [9].
83The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[198]
[198]Supra at paragraph [12].
84I have already made observations about the plaintiff’s demeanour and presentation in Court and in particular, I have found that the plaintiff was a truthful witness.
85An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injury to his cervical spine, which he suffered in the accident.
86In particular, the plaintiff endures permanent, daily neck pain, which causes significant discomfort and restrictions in numerous aspects of his life. This pain causes interrupted sleep and has impacted on his relationships and also on his ability to engage in recreational activities which he used to enjoy. It has caused him significant pecuniary disadvantage, in that the neck pain interferes with his ability to work full time hours. He has recently been applying for jobs without success.
87The fact that after the accident, the plaintiff was prepared to keep working as a security guard and to take on extra work where possible, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[199] “it would be unfortunate, and in [our] view wrongheaded, if…such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.” Indeed, I find that for the plaintiff, who has always enjoyed being a hard worker and has very little in the way of social interaction with others, the prospect of being unable to work in the future is a very significant consequence in and of itself.
[199][2008] VSCA 260, at [3].
88Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s cervical spine alone are “very considerable” and certainly more than “significant” or “marked,” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
Consequences of the injury to the shoulders
89In those circumstances, I am not required to decide whether the plaintiff’s injury to his shoulders is a “serious injury” for the purposes of the Act.
Conclusion
90 As set out above, I am satisfied that as a consequence of the transport accident which occurred on 31 May 2016, the plaintiff has suffered a “serious injury” to his cervical spine, as that term is defined in the Act. The application is granted.
91 I will hear the parties on the question of costs.
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