Hibbert v Transport Accident Commission
[2013] VCC 625
•15 May 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04355
| GRAHAM HIBBERT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 6 and 7 May 2013 | |
DATE OF JUDGMENT: | 15 May 2013 | |
CASE MAY BE CITED AS: | Hibbert v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 625 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the lumbar spine
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260.
JUDGMENT: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr E Delaney | Maurice Blackburn Lawyers |
| For the Defendant | Mr J Batten with Mr A Saunders | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 28 April 2005 (“the said date”).
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” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the spine and also the head, in terms of the plaintiff’s headaches.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
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 be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak.[2]
[2](1992) 2 VR 129 at 140-1
7 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s wife, Donna, swore an affidavit on 28 April 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is aged forty four, having been born in March 1969. He is married with two adult children.
9 The plaintiff left school midway through Form 3 at the age of sixteen. He then engaged in a range of manual work. He worked as a sandblaster for about two years, before commencing work with Willaton Transport Pty Ltd (“Willatons”) in Morwell as a driver. He enjoyed that job, driving semitrailers within Victoria.
10 In cross-examination, the plaintiff agreed he worked a five to six day week if there was overtime. He did not have a clue how many hours he was working in 2005.[3]
[3]Transcript (“T”) 23
11 On the said date, the plaintiff was driving his semitrailer to a steel manufacturer in Morwell. When executing a left hand turn, another semitrailer travelling behind collided with the nearside of the plaintiff’s vehicle (“the accident”).
12 The plaintiff has no recollection of the actual circumstances of the accident. He did not know whether or not his vehicle was driveable after the accident.[4]
[4]T24
13 The first thing the plaintiff could recall was waking in the ambulance and being taken to hospital in Traralgon. He was not aware of the length of loss of consciousness, but by the time he was admitted to hospital, he had a severe headache and felt his head was about to explode. He also had pain in his back and neck. The plaintiff was an inpatient for one or two days and underwent tests including an x-ray and CT scan.
14 On 2 May 2005, the plaintiff consulted his general practitioner, Dr Kee. At that time, the plaintiff had persistent headaches and some blurring of vision and also ongoing neck and back pain.
15 Over the following days, the plaintiff’s headaches persisted, and Dr Kee arranged for a CT scan of his brain, which the plaintiff understood to be normal. Dr Kee diagnosed continuing headaches resulting from a whiplash injury.
16 The plaintiff received anti-inflammatory medication and painkillers from Dr Kee and returned to work on restricted duties on 17 May 2005 with non-manual labour and no driving.
17 The plaintiff deposed that on the first day back at work he aggravated his back injury whilst performing trades assistant duties. He again consulted Dr Kee, who increased his medication to include slow release Tramal. Unfortunately, the plaintiff suffered from side effects from that medication and he resumed his original medication.
18 The plaintiff then remained off work due to persistent headaches and neck and low back pain, and was referred for physiotherapy, which he had twice weekly.
19 The plaintiff was subsequently certified as fit for return to light work on 10 June 2005 but a return to work plan was not available until 8 August 2005, when he started working two hours a day, three days a week.
20 The plaintiff’s duties involved local driving only but with restrictions as to spinal movement. He was also required to drive forklifts for about half of his total working hours. He found the bouncing of the forklifts aggravated his back symptoms and he continued to require twice weekly physiotherapy.
21 By early October 2005, the plaintiff had returned to normal working hours but still on modified duties. That month, he commenced a trial of normal duties but continued to suffer from persistent and recurring headaches, which seemed to radiate into his jaw and ears, and he also had problems with sleep and concentration.
22 The plaintiff agreed that after a trial, he returned to full time normal duties.[5] He continued working full time but avoided heavy manual labour.
[5]T27
23 In cross examination, the plaintiff agreed the main problem during that time was persisting headaches. The main problem was his head and neck.[6]
[6]T27
24 As his headaches appeared to be worsening, the plaintiff was referred to Dr Joubert, neurologist, for a specialist opinion in mid November 2005 and was diagnosed as suffering from post-traumatic headaches. Dr Joubert prescribed a combination of medication including Epilim, Endep, Naprosyn and Solone.
25 As he was concerned with ongoing headaches, the plaintiff requested a further referral to Mr Tomlinson in about March 2006. Dr Joubert’s diagnosis was confirmed and Mr Tomlinson recommended increasing the plaintiff’s Endep dosage to 30 milligrams nightly and suggested that the plaintiff should continue with physiotherapy, adding relaxation therapy to the plaintiff’s treatment regime.
26 In July 2006, the plaintiff was referred to Cedar Court for treatment, which he commenced in August that year. That program went for a couple of months and it helped the plaintiff to control his anger and understand his pain. It also taught him how to relax.[7]
[7]T60
27 The plaintiff agreed he continued his pre-injury duties until he was sent to Cedar Court.[8] He lifted normal freight by hand.[9] He refused to lift heavy things. If he could not lift something, he would not lift it.[10] He would get help from another worker or a forklift would be used.[11]
[8]T32
[9]T35
[10]T36
[11]T37
28 The plaintiff missed quite a lot of work with Willatons as a result of his condition and the requirement to attend medical examinations and treatment.
29 One of the reasons the plaintiff left Willatons in December 2006 was because they were getting “shitty” with him taking time off to attend Cedar Court. The plaintiff lost out on a fair bit of overtime after the accident.[12]
[12]T34
30 The plaintiff left Willatons when offered work as a driver with Bill Holdsworth (“Holdsworths”) in Morwell. It was a better paid job and less strenuous work. The plaintiff did not have to lift anything and it was a generally better job.[13] He was required to drive a semitrailer at APM in Morwell six days a week, carting paper. It was also one of his jobs to tighten the ratchets.
[13]T35
31 During 2007, the plaintiff continued physiotherapy and also began using a TENS machine. Again, due to persisting headaches, he was referred to Dr Joubert for review. Dr Joubert prescribed various changes to the plaintiff’s medication but there was no improvement in the frequency and nature of his headaches.
32 The plaintiff was advised by a neurologist who examined him on behalf of Willatons, Associate Professor Balla that his headaches were caused by a trauma to his neck.
33 On 9 December 2008, Dr Kee referred the plaintiff to Dr David Vivian, musculoskeletal physician, at the Metro Spinal Clinic. Willatons accepted liability for cervical medial branch block procedures which Dr Vivian suggested.
34 After the first procedure on 28 January 2009, a bilateral third occipital nerve C3-4 medial branch block, the plaintiff did not have headaches for the rest of the day. They returned less severe for a short period of time but later returned to their previous level.
35 The plaintiff described how the first injection relieved his neck and pain “severely” for a couple of months.[14]
[14]T12
36 The plaintiff deposed further procedures in February 2009 involving bilateral C5-6 medial branch blocks and a similar procedure at C4-5 did not provide any relief to the level of his neck pain.
37 On 8 April 2009, the plaintiff had a right L3-4-5 medial branch block, and the following month underwent a right third occipital nerve and C4-5 frequency neurotomy.
38 When the plaintiff saw Dr Vivian in June 2009, there had been a marginal improvement in the frequency and severity of his headaches but they persisted and had unfortunately, by that time, reverted to the level and frequency prior to the procedures.
Progress
39 The plaintiff deposed in March 2011 that in addition to his physical condition, he often felt depressed because of his medical problems and became easily irritable. He then suffered from constant headaches, which started off early in the day as a dull persistent headache, and gradually built up in severity.
40 The plaintiff then did not take any medication at work because of his driving duties and he simply had to put up with his situation.
41 When he arrived home from work, the plaintiff used to take two Mersyndol Forte or Panadeine Forte tablets. Before he went to bed, he took one 30-milligram OxyContin tablet. He used to take Stilnox to assist with sleeping but then started on a different sleeping tablet, Inderal, which he took about once or twice a week.
42 The plaintiff had then stopped taking other medication as he found it affected his general mood and he was concerned his marriage was being affected and he was becoming impossible to live with.
43 The plaintiff’s main problem then continued to be headaches, and sometimes he got to the point when he felt like cutting his head off. He also continued to suffer from upper and lower back and neck pain.
44 The plaintiff then continued physiotherapy, which had been reduced by Willaton’s insurer to one treatment a fortnight. He continued to use a TENS machine three to four times a week on his shoulders and neck. During 2009, the plaintiff’s physiotherapist undertook a treatment of acupuncture to his upper and lower spine from which the plaintiff did not obtain any relief.
45 The plaintiff deposed in April 2012 that he continued to suffer from head, neck and lower back injuries. The headaches were continuous and seemed to be getting worse. He rated them as seven to eight out of ten and relied on Mersyndol Forte to partially alleviate them. He could not take stronger medication because of his driving duties.
46 The plaintiff had reached the stage where just had to live with his headaches. He only got about four to five hours’ sleep a night and woke on most nights but could usually get back to sleep after some delay. He took three to four Mersyndol Forte every day and also a sleeping tablet, Imovane, between one to three times a week. He did not take Imovane every night as he did not want to become addicted.
47 When at home not working on the weekend, the plaintiff usually took six to eight Mersyndol Forte tablets a day, which took a slight edge off his headaches but they were still constantly present.
48 The plaintiff then continued to suffer pain in the bottom and central area of his neck. He had restricted lateral and forward movements of his neck and any extended movements aggravated his pain. He no longer took nightly OxyContin as he was concerned about addiction. He was having weekly physiotherapy in Moe.
49 The plaintiff continued to suffer from a constant level of low back pain aggravated by certain movements, such as lifting up the catcher after lawn mowing. He was careful with all movements so as not to aggravate his spinal pain and was particularly careful getting in and out of the truck or any motor vehicle. If he did a job like trimming the hedge, he could only do it for a short period and then had to take a break. He continued to use a TENS machine, which gave him short term relief.
50 The plaintiff then managed with driving at his current level but became frustrated a lot on the road coping with traffic, and was also worried about his load possibly moving.
51 The plaintiff had become very moody and short tempered as a consequence of his ongoing pain and in particular, his headaches and neck pain.
52 The plaintiff’s wife and youngest daughter, then aged nineteen, had been affected and concerned by his intermittent angry outbursts and bad moods, and they advised him to seek treatment. The plaintiff was referred to a psychologist, Ms Lee Minton, in Morwell, whom he saw on about six occasions and from whom he believed he received some benefit.
53 The plaintiff deposed on 28 March 2013, that the severity and nature of his headaches are about the same as a year ago. They resulted in a feeling like someone having a band around his head just above eye and ear level.
54 In evidence in chief, the plaintiff described constant headaches above the top of his eyes which go around the rim of his head to the back of his neck.[15] They were of a throbbing nature and made worse by loud noises, bright lights and sharp movements. Medication and weekly physiotherapy helped. After work, the plaintiff lies down, and doing so just takes the edge off.[16]
[15]T 9
[16]T10
55 The plaintiff continues to have constant pain in the top of his neck into the centre of the back of his neck which is made worse by sharp turning or jolting his neck. To cope with driving, he uses his body and the mirrors.[17]
[17]T10
56 The plaintiff has lower back pain along the belt line made worse by jolting and sharp movements. His neck and back pain is improved by medication and physiotherapy.[18]
[18]T11
Medication
57 The plaintiff deposed he continues to take Mersyndol Forte. He has reduced his intake of Imovane to about one tablet on average a week as he has concerns about addiction. The plaintiff has trouble sleeping on a nightly basis.[19]
[19]T14
58 In evidence-in-chief, the plaintiff confirmed he did not take Mersyndol Forte when he was working. He took up to four to six tablets after work and on the weekend when he was not working, taking up to eight tablets on a Sunday. When working, the plaintiff takes Panadol Osteo to “try to keep the edge down” off his headaches, back and neck pain.[20] Dr Kee suggested this medication because the plaintiff asked for some pain relief for his head, neck and back whilst he was driving not being permitted to take Mersyndol Forte.[21]
[20]T14
[21]T29
59 The plaintiff has been told by Dr Kee that Mersyndol Forte, which is codeine based, can cause constipation. The plaintiff could not recall any doctor telling him to stop taking that medication. It may have been discussed with the plaintiff that he had a codeine headache but the plaintiff could not recall.[22] The plaintiff may have been told that Mersyndol Forte was addictive but he could not recall.[23]
[22]T20
[23]T58
60 The plaintiff confirmed an accredited pharmacist had attended his home on three occasions, most recently last year, to see if he was taking the right tablets. The pharmacist advised the plaintiff to lose weight and to take medication within the prescribed limits.
61 The plaintiff does not have any plans as to his medication regime when his litigation is finalised.[24]
[24]T59
Current treatment
62 The plaintiff deposed he continues physiotherapy on a weekly basis with Ms Muir, who has been treating him for some years. She concentrates on the area of his neck and lower back, and some years ago she tried acupuncture; however, the plaintiff received no benefit from that treatment.
63 The plaintiff advised WorkCover had recently stopped paying for physiotherapy and he had paid for one visit himself and organised for weekly visits from now on.[25] Treatment involves his neck and back. When the plaintiff had a break from physiotherapy, his back, neck and head just got worse.[26]
[25]T11
[26]T15
64 The plaintiff, although still moody and short tempered at various times, believes he is now more in control of his temper than was previously the case. Anger management had become a problem for him since the accident.
65 The plaintiff agreed his irritability was previously a very big problem until Lee Minton sort of helped him realise the things he was doing and to think about things before he would actually do something.[27] The plaintiff’s situation at home had improved a little bit but he still becomes irritable because he is so tired and his head “is just pounding”.[28]
[27]T61
[28]T69
66 Before the counselling with Lee Minton, the plaintiff used to lie on the couch and do very little on a Sunday and just veg out.[29] Now he attempts to go out virtually every Sunday with his wife or family.
[29]T72
67 The plaintiff continues to see Dr Kee regularly, and about two months ago the plaintiff requested a referral to Dr Vivian to see if he was able to assist in neck and head pain. Dr Kee had helped the plaintiff with tablets and the referral to physiotherapy.[30]
[30]T24
68 Dr Vivian subsequently performed further medial branch blocks under general anaesthetic but the plaintiff did not gain any benefit from that procedure. Dr Vivian asked the plaintiff to consider undergoing the insertion of a spinal cord stimulator but he was not anxious to undergo that procedure.
69 The plaintiff confirmed that the recent injection took the edge off and helped a bit for a little while. The last lot of injections had not done a great deal.[31]
[31]T12
70 In cross-examination, the plaintiff said he had some relief from the last injection but not as good as from the first. It helped slightly for a little bit at the start and then went back to how it is now.[32] He still has pain in his neck and always has a headache. He has never said he has had full pain relief.
[32]T16
Other conditions
71 The plaintiff could recall having gall bladder surgery. After that surgery by Mr Burke in 2009, the plaintiff could have told him he felt fit enough to return to work the day after the surgery but he was in fact off for two weeks.
72 The plaintiff could not recall attending Latrobe Regional Hospital eight or nine times over 2008-2009.
73 The plaintiff denied he had ever had treatment for sleep apnoea. He did recall Dr Sasse giving him some literature about snoring and suggested he lose weight.[33]
[33]T49
74 The plaintiff agreed he made a claim for a lacerated head when working at Willatons in 2006, following which he had a couple of days off work.[34]
[34]T51
Work
75 In mid 2010, the plaintiff left work with Holdsworths and obtained a job with Roche Thiess Linfox (“RTL”) driving semitrailers carting coal from Loy Yang Power Station to Energy Bricks in Morwell. Like his previous job, he was not required to do any lifting but he had to work twelve hour shifts six days a week.
76 The plaintiff left Holdsworths because the RTL job was better paid. He agreed that in 2010-2011, he earned $82,000 – much more than the $40,000 he earned at Willatons in the year before the accident.[35] The plaintiff disagreed he was working twice as hard at RTL but agreed he was working a lot more hours, but not twice the hours.
[35]T39
77 The plaintiff’s earnings in 2010-2011 were so high because he was initially employed as a casual. He became a permanent employee the following year and his earnings decreased to $62,467.00.
78 When he swore his second affidavit on 23 April 2012, the plaintiff was working for RTL carrying out general freight in the Warragul/Traralgon area, working five days a week, eight to ten hours a day, earning $900 to $1,000 a week gross. He had been transferred to that job after a dispute with his boss.
79 The plaintiff still became tired with work but found his current job was not as mind draining as his previous job coal carting and he was not as exhausted as he previously had been at the end of the day. He still no longer had to engage in any heavy lifting.
80 In about November 2012, the plaintiff resumed driving a semitrailer, carting coal for RTL, working six days a week, normally twelve hours a day. At various intervals, his hours are reduced depending on various work related problems, including the quality of the coal. If there is no work, he is sent home. He is not required to do any heavy lifting and is able to handle the job and has a good attendance record.
81 The plaintiff was put back on coal carting after asking to be given full time work when RTL could not find anyone else to do this job.[36]
[36]T43
82 The plaintiff is required to transport the coal twenty to thirty kilometres. He takes the usual breaks in the working day for lunch and morning and afternoon tea. At present, the plaintiff does not work many twelve hour days, maybe two to three per week.[37]
[37]T13
83 The plaintiff can work out a full shift without Mersyndol Forte but he suffers. No doctor has told him to stop work[38] He has taken days off work because of his head but could not recall the number of days.[39] The plaintiff has learned to live with his constant headache. At work, he listens to the radio[40]
[38]T52
[39]T34
[40]T41
84 When the plaintiff gets home from work he is tired and worn out. He usually relaxes and watches television on the couch. Sometimes, maybe two to three times per week, if not a bit more frequently, depending on how he feels, he goes straight to bed.[41]
[41]T14
85 The plaintiff feels better when he is working because he is kept busy and just generally feels a little bit better because he is constantly doing something. If he sits around he just starts deteriorating. He wants to continue working to keep him active. If he stopped, he would “just go stupid”. It would send him around the twist and he would sit around and mope.[42]
[42]T15
86 The plaintiff is happy to be working all the time and it takes his mind off everything.[43]
[43]T44
Activities and hobbies
87 Prior to the accident, the plaintiff was in good health and not suffering from the effects of any injuries or illness. He used to exercise, walking with his brother-in-law every day for about ten kilometres after work, walking from Newbury to Moe and back for years.
88 The plaintiff walked to keep fit and it was his main exercise as he was sitting all day at work. Since the accident, walking plays up with his back really badly and he has a lot of trouble the next day. He no longer is able to go on walks of this kind.
89 Prior to the accident, the plaintiff also used to go to the gymnasium three days a week doing weight training. Since the accident, he has tried to return to the gym but he cannot lift anything heavy as it just puts too much strain on his back and his head.[44] The plaintiff had put on about twenty kilograms since the accident.
[44]T72
90 Doctors have told the plaintiff to exercise, which he does. He has a walking machine at home which he uses for five to ten minutes a night after work. He also does some core strengthening exercises, most of the time for a couple of minutes but not religiously.[45]
[45]T54
91 The plaintiff continues to see friends from time to time; however, the frequency of social outings has greatly diminished since the accident. Previously the plaintiff and his family, on average a couple of times a month, had barbecues at their place, with a lot of friends and family attending. He enjoyed these occasions. He had a drink and guests could stay as long as they could.
92 Since the accident, that has not been the case and the plaintiff might have only had two or three barbecues. He cannot handle people being around and becomes annoyed really quickly, and he does not feel like being there because he gets tired so easily from working all the time.[46]
[46]T68
93 Although the plaintiff went to his brother’s wedding two or three years ago, he did not stay long. The plaintiff has a problem with functions, in that noise gets to him, and he does not like being around big crowds because he gets annoyed and he cannot handle it. When he goes to functions he does not dance or drink. He is worried that if he drinks he will fall over and hurt himself.[47]
[47]T68
94 When the plaintiff had stayed at social functions since the accident it was mainly because of his wife and he just put up with it.[48]
[48]T69
95 The plaintiff agreed he had been on a holiday in the last year but did not seem sure whether it was to New South Wales or South Australia. He did not drive there and did not go camping or fishing on that trip.
96 The plaintiff tries to do an activity with his family every Sunday. He agreed working six days a week he really did not have much other time for a social life.[49] He sometimes goes to hear his daughter sing.[50]
[49]T47
[50]T57
97 Before the accident, the plaintiff was in the process of building a hotrod but had to sell it because the grinding and banging required, working on it, aggravated his headaches.
98 The plaintiff had done a fair bit of work on the vehicle before the accident but had yet to install the engine. He sold it not long after the accident as he was getting into financial trouble and it was his most valuable asset.[51]
[51]T48
99 In re-examination, the plaintiff identified a photograph of his 1949 hotrod. He did not know when the photograph was taken. He bought the vehicle a couple of years before the accident. He intended to restore it and race it.[52] Prior to the accident, the plaintiff also helped his brother with his cars.
[52]T66
100 Prior to the accident, the plaintiff could do much more than just change the oil and he could do a full service. Before he saw the psychologist, the plaintiff would get so frustrated with his limitations, such as his inability to work on cars, that he would throw tantrums and become annoyed with everything.[53]
[53]T74
101 The plaintiff went on a few trips to race meetings before the accident and used to enjoy going away to Canberra almost every year with his brother to the Summer Nationals for hotrods. The plaintiff frequently went to “the drags” in Bairnsdale and attended a couple in Melbourne and different places. Since the accident, the plaintiff had not been to the Nationals or other drag events because all the noise played up with his head.[54]
[54]T67
102 In the year or so before the accident, the plaintiff, with the help of a friend, rebuilt the plaintiff’s kitchen and garage. Because of his problems since the accident, the plaintiff is no longer able to carry out any significant home maintenance work.
103 Before the accident, the plaintiff had a vegetable garden and liked growing tomatoes, capsicums and other vegetables. Since then, he has not had a garden and only has the bare essentials, such as long lasting shrubs. He mows the lawn in stages with an electric mower and he trims the hedges.
Lay evidence
104 The plaintiff’s wife, Donna, swore an affidavit on 28 April 2012.
105 Mrs Hibbert deposed that over the years since the accident, the plaintiff had suffered and continued to suffer severe headaches, as well as neck and lower back pain. The headaches were particularly debilitating, and from time to time the plaintiff goes to bed at about 4.30pm after a day’s work and often stays in bed for the night. On average, two to three times a week, his headaches are particularly severe.
106 The plaintiff tends to rest a lot at weekends, spending a lot of time on the couch. He has reached the stage where he is unable to cope with mixing with a lot of people whereas previously he was very sociable.
107 Prior to the accident, they used to enjoy having people over on a regular basis for barbecues and general socialising. The plaintiff also used to enjoy going out to socialise with friends.
108 In recent years, if the plaintiff does come on a social outing, he does not like to stay and they often have to go home early. He also used to enjoy drag race meetings but no longer attends.
109 On the occasion of their daughter’s eighteenth birthday, the plaintiff was unable to cope with the number of people present and the noise of the party and went to bed early.
110 In recent years, the plaintiff has become extremely moody and bad tempered, which she believes is caused by the continuing nature and severity of his headaches and general neck pain. He becomes very frustrated and is prone to lose his temper. Six months ago during a visit to his brother’s house, the plaintiff lost his temper and got into a serious argument with his brother which nearly ended in a physical fight.
111 At about that time, it became difficult for Mrs Hibbert and her daughter to live with the plaintiff because of his temperament and the way he generally spoke to them and treated them. Mrs Hibbert reached the stage where she seriously contemplated separating from the plaintiff and warned him of that situation.
112 Mrs Hibbert had been asking the plaintiff over quite a few years to obtain professional help for his anger outbursts and finally, after the incident with his brother, the plaintiff obtained a referral to Ms Minton. At that time, it was also difficult for their daughter to continue living in the same house as the plaintiff as she was often alone with him while Mrs Hibbert was at work.
113 Mrs Hibbert has spoken to Dr Kee about the plaintiff’s level of medication and that it did not seem to be helping him. She described how the plaintiff took Inderal for blood pressure, Movan, one to three nights a week for sleep, about two OxyContin each day and Mersyndol Forte after work and at the weekends.
114 Mrs Hibbert had noticed an improvement in the plaintiff’s anger management since seeing Ms Minton and she thought the plaintiff has reached the stage where he seems to be making an effort to remain calmer in the house than he previously did.
The Plaintiff’s medical evidence
115 The plaintiff first saw Dr Kee on 2 May 2005 after the accident.
116 The plaintiff was then complaining of persistent bilateral headaches, intermittent blurry vision, neck and back pain and stiffness.
117 Examination found the plaintiff to be suffering concussion, cervical strain injury and thoracolumbar strain injury. Dr Kee certified him unfit for work and ordered a repeat x-ray, which was free of fracture.
118 Because of persisting headaches, Dr Kee organised a repeat CT scan of the plaintiff’s brain. It was normal. Dr Kee diagnosed recurrent headaches to be coming from the cervical strain injury.
119 Dr Kee confirmed treating the plaintiff with anti-inflammatories and analgesics and returning him to work on 17 May 2005 with no driving and restriction mainly to non manual work. He noted the plaintiff had problems, having been at work only for five hours, and had aggravated his back injury when sitting in the truck. On examination, Dr Kee found restriction of movement and more tenderness and spasm.
120 As the plaintiff’s pains were difficult to control, he was prescribed stronger medication in the form of slow release Tramal, but he could not cope with that. The plaintiff was unable to return to work due to persistent headaches, cervical and lumbosacral back pain and loss of function. These problems continued, although the plaintiff was referred for physiotherapy.
121 A lumbosacral spine x‑ray was organised. It was normal and Dr Kee noted it confirmed the plaintiff’s back pain was only a soft tissue injury.
122 Dr Kee certified the plaintiff fit to return to alternative duties from 10 June 2005, but the plaintiff did not return until 8 August 2005, commencing two hours, three days a week with back and cervical restrictions on his truck driving duties. The plaintiff however reported problems bouncing on the forklifts aggravating his back symptoms.
123 Dr Kee organised a further CT scan of the plaintiff’s lumbosacral spine, which was reported to be normal.
124 Dr Kee noted that by 5 October 2005, the plaintiff was back to normal duties but modified hours and certified fit for a trial of normal duties from 22 October 2005.
125 The plaintiff was then continuing to suffer with persistent and recurrent headaches and also cervical and lower back pain. He had problems sleeping and with concentration; however, his unremitting headaches were his biggest problem. Dr Kee referred the plaintiff to Dr Joubert, a neurologist, who diagnosed post-traumatic headache.
126 Dr Kee noted the plaintiff improved with Dr Joubert’s treatment but his headaches persisted and took over his back pain as the predominant residual symptom of his accident injuries.
127 Dr Kee noted the referral to Mr Tomlinson for a second opinion in early 2006. Mr Tomlinson confirmed Dr Joubert’s diagnosis.
128 Dr Kee noted the plaintiff’s headaches worsened, such that he was finding it difficult to stay at work for the full day, and reduced his hours to forty a week, and avoiding activities which caused his headaches to worsen.
129 Dr Kee noted that the treatment at Cedar Court started on 21 August 2006.
130 Dr Kee noted the plaintiff suffered from harassment from his employers, which was nothing short of bullying, as a result of his repeated trips to the doctor.
131 Dr Kee noted that in December 2006, the plaintiff managed to change to a new job and settled well and his depression improved somewhat, but he continued to be troubled by headaches, as a result of which he was referred back to Dr Joubert.
132 In December 2007, the plaintiff was started on Topamax for his headaches. By February 2008, he was working full time but still troubled by daily headaches. He was tried on analgesic patches or Norspan in April 2008 but these had side effects and he was changed back to Mersyndol Forte.
133 By the end of September 2008, the plaintiff’s headaches were getting more severe so he was referred to Dr David Vivian, whom the plaintiff saw in December 2008.
134 Dr Vivian agreed the plaintiff suffered chronic severe headaches and suggested branch blocks. However, the headaches recurred by March 2009 to the pre injection level. The plaintiff was referred back to Dr Vivian, who repeated the blocks in May 2009 but the pain only decreased to a small extent.
135 In October 2009, the plaintiff was treated with OxyContin and Endone with the aim of replacing Mersyndol Forte with slow release narcotic analgesia. The plaintiff was then also referred to Mr Wilde, orthopaedic surgeon, for review of his cervical and lumbosacral spine.
136 By December 2009, the plaintiff was stabilised on 20 milligrams of OxyContin twice a day with Mersyndol Forte and Panadol Osteo for breakthrough pain. Dr Kee confirmed Mr Wilde organised an MRI scan of the plaintiff’s spine and suggested conservative treatment.
137 Dr Kee noted physiotherapy had allowed the plaintiff increased mobility and pain relief and that he was also using a TENS machine. Dr Kee saw the plaintiff regularly through 2011. The plaintiff was managed with regular physiotherapy and analgesics and also required regular and frequent Imovane for insomnia, which the plaintiff had developed secondary to his chronic pain.
138 By November 2011, the plaintiff was still suffering ongoing headaches and cervical pain. Due to lack of improvement, Dr Kee referred him to Dr Vivian.
139 Dr Kee noted the plaintiff’s entitlement to all treatments was terminated by WorkCover on 28 March 2012, with the exception of his general practitioner, although he thought the plaintiff still required physiotherapy.
140 Dr Kee considered the prognosis was guarded as the plaintiff continued to remain at work even though he was suffering with regular headaches. He noted the plaintiff was managing to work full time because he was compliant with all prescribed medications and the degree of analgesia was adequate. Physiotherapy also allowed him to remain at work and the plaintiff required that on a continuing basis, as Mr Wilde agreed.
141 Dr Kee reported that when he saw the plaintiff on 16 April 2012, the plaintiff continued to suffer with unremitting headaches. He noted the plaintiff had been fully compliant with all modalities of treatment but to no avail. Dr Kee considered the prognosis for a full recovery was uncertain, noting that progress had been slow due to persistent recurrent headaches and disability.
142 Dr Kee thought that physiotherapy and narcotic analgesia were the only modalities of treatment that seemed to provide any pain relief, which in turn enabled and facilitated the plaintiff’s ongoing work capacity. He was concerned the plaintiff’s symptoms would deteriorate on ceasing physiotherapy.
143 Dr Kee most recently reported in April 2013.
144 Dr Kee noted on 23 May 2012, the plaintiff attended suffering very severe headaches. Examination revealed a severe aggravation of cervical headaches with no obvious precipitating cause.
145 Dr Kee suspected the cessation of physiotherapy may have caused the episode and noted the pains were so severe the plaintiff was unable to work.
146 Dr Kee reported the plaintiff continued to suffer with daily recurrent headaches, requiring analgesics, and he was then waiting review by Dr Vivian.
147 On 11 September 2012, the plaintiff suffered a similar bout of severe headaches that prevented him from going to work, and he was finally seen by Dr Vivian on 3 October 2012 and a radio-frequency neurotomy was recommended.
148 On 30 November 2012, the plaintiff underwent a cervical radio-frequency neurotomy of his right third occipital nerve C3, 4, 5 branch. Dr Kee noted the plaintiff improved after that treatment but continued to suffer with pain and dysfunction, and he managed to continue working in spite of his recurrent headaches.
149 Dr Kee last saw the plaintiff at the end of March 2013, when he was still suffering continued cervical stiffness, ongoing neck and shoulder pains associated with his recurrent and troublesome headaches. Dr Kee noted the plaintiff required a review by Dr Vivian for further treatment options.
150 Dr Kee considered the plaintiff’s prognosis was guarded as he continued to remain at work even though suffering with regular headaches. He noted the plaintiff was managing to work full time because he was compliant with all prescribed medications and the degree of analgesia was adequate.
151 Dr Kee thought physiotherapy was also contributing in alleviating the plaintiff’s symptoms and this also allowed him to remain at work. Thus he considered the plaintiff requires ongoing physiotherapy, as suggested by Mr Wilde.
152 Dr Kee thought the plaintiff’s prognosis for a full recovery was uncertain, noting his progress had been slow due to persistent recurrent headaches and disability.
153 In summary, Dr Kee concluded the plaintiff was injured in a serious motor vehicle accident, following which he had been plagued by his injuries. He had had pain management reviews by a multitude of specialists, including neurologists, a pain management specialist and orthopaedic surgeon and had no success with their treatments.
154 Mr Tomlinson, neurologist, reported to Dr Kee in February 2008.
155 At that time the plaintiff described to Mr Tomlinson central to the right side cervical pain, less severe lumbar pain, a central throbbing headache constantly present and dizzy spells. He also reported great difficulty sleeping at night, and mood change.
156 On examination, Mr Tomlinson noted tenderness over the cervical spine, with neck stiffness and a limited range of movement. There was mild tenderness of the lower lumbar vertebra and some limitation of flexion and extension. Cranial nerve examination was normal.
157 Mr Tomlinson’s impression was the problem was really that of a Pain Syndrome brought on by trauma. He suspected that patients, after significant trauma, develop neck pain because they can no longer rotate muscle contraction through the various muscle groups as a normal person does. He thought continuous contraction was painful on the basis of the plaintiff’s symptoms.
158 Mr Tomlinson suggested migraine tablets be removed, the plaintiff should be tried on medication such as Endep, continue physiotherapy and try and increase the range of painless neck movement. He also thought Mersyndol should be withdrawn.
159 Mr Tomlinson concluded the plaintiff, in the nature of things, would improve, and he thought it important to try and hurry this along but also to support him, as Dr Kee had been doing.
160 Dr Joubert wrote to Dr Kee in March 2006, having seen the plaintiff that day. He advised there had been no improvement in the plaintiff’s condition and the Sandomigran had not alleviated his headaches at all. Dr Joubert noted whilst neurological examination was normal, there was mild tenderness on palpation of the central part of the neck.
161 Dr Joubert advised the plaintiff’s condition looked more and more like a rheumatological one and not neurological, and he would seek the experience of a rheumatologist. Dr Joubert suggested the plaintiff cease the medication. He advised he regretted there was nothing he could do to help the plaintiff and would like him to return to Dr Kee’s care.
162 The plaintiff underwent an Epworth Rehabilitation Program at Camberwell with a post discharge review on 18 January 2007.
163 It was then noted the plaintiff was independent, utilising pacing strategies and adaptive techniques to perform all previous daily activities. He presented with improved mood and reduced levels of pain; however, he continued to experience constant frontal headache that flared approximately once a month with no specific trigger. The plaintiff was walking for up to sixty minutes a day. His report of pain had improved to six out of ten from seven to eight out of ten.
164 Mr John Pompei, physiotherapist at the Gippsland Physiotherapy Group, reported to Allianz in July 2007, seeking approval for the use of a TENS machine and describing the treatment to that stage.
165 Dr David Vivian saw the plaintiff on referral from Dr Kee in December 2008. The plaintiff was then complaining of headaches, neck ache and low back ache. Dr Vivian advised Allianz that the plaintiff required cervical medial branch blocks, and sought authorisation for that procedure.
166 In March 2009, Dr Vivian sought authorisation for up to three diagnostic medial branch blocks starting at the right at L3-4-5.
167 Following examination on 29 June 2009, Dr Vivian concluded that since the accident, the plaintiff had persistent neck pain, headaches and low back pain which was intrusive and disabling, but he got on with life despite it all.
168 Dr Vivian advised that he had attempted to do some procedures, including radio-frequency neurotomy, and only time would tell whether that had made a significant difference. He noted the effect appeared somewhat marginal initially, although overall the plaintiff had noted that with the treatment, his headaches were less severe than they were in the past.
169 Dr Vivian advised the procedure may need to be repeated if it had made a significant difference.
170 Dr Vivian advised his suspicion was the plaintiff would have persistent longstanding disability to the extent it would significantly impact on his life and the pursuit of normal goals of life such as happiness. He thought the pain would impact on the plaintiff’s work and may at some stage prevent him from working. It may also affect his ability to interact with family and perform normal household duties.
171 Dr Vivian noted he had always found the plaintiff to be a straightforward person who did very well to cope with the prominent pain he had, noting other people of less stoic character would display far greater disability.
172 Dr Vivian reported to Allianz on 3 October 2012 having seen the plaintiff that day. He noted that the plaintiff underwent a right third occipital nerve and C3-4 radio-frequency neurotomy on 8 May 2009, which gave him three to four months of relief, reducing his severe pain by fifty per cent.
173 Dr Vivian sought a repeat of that procedure including an extra level doing a right third occipital nerve and C3-4-5 radio-frequency neurotomy to see if he could get better relief by extending the procedure to cover the extra level.
174 Dr Vivian reported on 3 October 2012 to Dr Kee, noting that the plaintiff had continued to work but had significant pain, particularly in relation to the right sided headaches, similar to what they were before, except he did not get the exploding feeling at the top of his head.
175 Dr Vivian confirmed the plaintiff complained the headaches ran in a ring like band around his head from the occiput through to the eyebrows, with the right frontal pain being the worst.
176 The plaintiff complained he still woke during the night because of back and neck pain, with the back less significant than the headache at about five out of ten, but could flare up if he sat or walked for long periods.
177 The plaintiff advised Dr Vivian he obtained minimal relief from medication.
178 Dr Vivian diagnosed chronic occipitofrontal headaches and chronic low back pain.
179 Dr Vivian noted he had requested Allianz fund further procedures.
180 Dr Vivian wrote to the plaintiff’s solicitors on 8 April 2013, having reviewed the plaintiff on 3 October 2012. He confirmed the earlier diagnosis and the suggested treatment trials. He noted on 30 November 2012, he performed a right third occipital nerve C3-4-5 medial branch radio-frequency neurotomy, adding an extra nerve to the array he had performed earlier. He had not seen the plaintiff since.
181 Dr Vivian confirmed the contents and opinion set out in his first report. He thought the plaintiff’s pain remained significantly incapacitating. If the recent procedure helped for a protracted period, more than six to nine months, he advised it could be performed intermittently over the years. If not, it should not be repeated.
182 Dr Vivian advised the plaintiff may have to be managed with general pain management, including information, medication et cetera. However, that would not help the plaintiff’s pain however. He noted the plaintiff already functions despite the pain and that is what pain management would aim to get him doing. He noted neuromodulation was an option and that peripheral nerve stimulation often relieves headaches by about six out of ten on a pain scale. Spinal surgery was never out of the question, noting that the plaintiff may have disc pain and discs in the back or neck may deteriorate and cause nerve root pain for which surgery is possible.
183 Dr Vivian thought the plaintiff should work despite the pain. He concluded the plaintiff’s condition is permanent, substantial and intrusive.
184 Mr Peter Wilde, orthopaedic surgeon, first saw the plaintiff on referral from Dr Kee on 2 February 2010. Neurological examination was then normal. There was restriction of lumbar and cervical spine movements due to pain.
185 Mr Wilde, noting the plain x-ray of 28 April 2005 and the CT scan of the lumbar spine of 12 July 2007, recommended an MRI scan.
186 Prior to receipt of that investigation, Mr Wilde was uncertain about the plaintiff’s diagnosis. He noted when the plaintiff attended, his cervical and lumbar symptoms were non-specific and there was no clinical evidence of radiculopathy affecting his upper or lower limbs.
187 Mr Wilde then thought the plaintiff was unable to return to full pre injury work or other forms of physical and manual work.
188 Mr Wilde considered the accident was likely to have aggravated pre-existing minor degenerative cervical and lumbar spondylosis. He could see no reason why the plaintiff could not continue to do modified duties on a full time basis.
189 Mr Wilde reported having received the MRI scan taken on 5 March 2010, which he noted demonstrated degenerative changes of the neck and low back. He noted, at C6-7, there was a small bulging disc protrusion contacting the left C7 nerve root. There was bulging of the left L4-5 disc contacting but not compressing the left L4 nerve root.
190 As there was no evidence of a significant neural compressive lesion either in the back or neck, Mr Wilde thought the plaintiff would not benefit from surgery. He explained to the plaintiff that he must battle on as best as he could with conservative measures based around analgesic medication, gentle physiotherapy, bracing and time, which could be twelve to eighteen months for things to settle.
191 Mr Wilde diagnosed aggravation of lumbar spondylosis and cervical spondylosis without radiculopathy. He thought the conditions had stabilised and confirmed his views as to the capacity for modified work but unfitness for pre-injury employment.
192 Ms Muir, physiotherapist from Gippsland Physiotherapy Group, reported in April 2012, summarising treatment at that practice from May 2005, having taken over the plaintiff’s care in August 2008.
193 Ms Muir thought, in order to continue with full work duties and hours, the plaintiff would continue to require physiotherapy and that in the past his condition had deteriorated significantly without that ongoing treatment. She therefore recommended weekly physiotherapy be reinstated immediately to assist in managing the plaintiff’s symptoms and allowing him to remain in his current job.
194 Ms Lee Minton, psychologist, saw the plaintiff on referral from Dr Kee for conditions of chronic pain, anxiety and depression and anger management.
195 In April 2012, Mr Minton reported that the plaintiff had attended four times, seeing her in June, July, August and October 2011.
196 Inter alia, the plaintiff described symptoms of anger outbursts, difficulty with complex tasks, rigidity of thinking and an irritability to let irritations pass. In Ms Minton’s view, the plaintiff’s performance on assessment indicated symptoms of impaired impulse control due to acquired brain injury. She noted the plaintiff’s symptoms of chronic pain contributed to his symptoms of depression and poor mood control, and he was provided with some pain management therapy.
197 Ms Minton understood the symptom of chronic pain was unlikely to be resolved. In her opinion, the plaintiff would continue to experience symptoms of mild mood disorder which would require ongoing management.
Medico-legal evidence
198 Dr Hjorth, consultant neurologist, saw the plaintiff on 8 March 2012.
199 The plaintiff then complained of low back and neck pain and headaches. On examination, neck movements were quite restricted and there was some tenderness at the back of the neck. There was no suggestion of radiculopathy. There was moderate restriction of mobility in the lumbar spine.
200 Dr Hjorth noted the plaintiff was currently holding down his job as a truck driver but he could not do manual heavy work at all. Dr Hjorth provided an impairment rating in relation to the neck and back. He noted there were some features on presentation which suggested possibly a form of dyslexia.
201 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in February 2012, at which time the plaintiff continued to complain of headaches and pain in his cervical and lumbar spine.
202 Mr Kossmann diagnosed discogenic back pain in the cervical and lumbar spine and post-traumatic headache.
203 Mr Kossmann thought there was a considerable chance the plaintiff would suffer from headaches and spinal pain for the rest of his life. He noted all investigations had indicated the plaintiff suffered from a mild to moderate head trauma causing ongoing headaches. He thought the plaintiff may also have injured his neck and back in the accident which had now manifested as disc prolapses in the cervical, as well as lumbar spine.
204 In Mr Kossmann’s view, the plaintiff should undergo a neuropsychological evaluation to determine whether he is suffering from the effects of a mild to moderate head trauma, and in particular, if specific treatment could be offered by a neuropsychologist.
205 Mr Kossmann also thought the plaintiff should undergo maintenance therapies for his neck and back in the form of physiotherapy, hydrotherapy and possibly acupuncture. He did not think surgery was appropriate but he could not totally exclude that, particularly if the plaintiff suffers from a catastrophic disc prolapse compressing the spinal cord. He thought the plaintiff may have to undergo acupuncture for his headaches.
206 Mr Kossmann thought the plaintiff may have difficulties in a competitive job market, in particular, if the employer was intolerant towards a person with spinal injury and ongoing headaches. He thought further conservative treatment was appropriate. He considered the injuries had had a significant effect on the plaintiff’s social, domestic, recreational and sporting activities.
207 Mr Kossmann thought there was a considerable chance the plaintiff’s spinal condition would become degenerative and then have increased pain in those areas and possibly movement restrictions which would impact on his employment and life generally. He thought the plaintiff may suffer from headaches for the rest of his life; however, he deferred to a neuropsychological opinion.
The Defendant’s medical evidence
208 Dr Joubert reported to Dr Kee on 18 February 2008, having seen the plaintiff that day.
209 Dr Joubert advised there had never been symptoms related to the plaintiff’s neck, and on two occasions Professor Joubert had examined the plaintiff’s neck, he could find no evidence of a cervicogenic cause.
210 Dr Joubert advised the phenomenology of the headaches was that of tension type headache. He advised he had tried a variety of usual and other medications including Epilim, Endep, Sandomigran with absolutely no response. At that point, he suggested the plaintiff obtain a second opinion from Professor Richard Stark or Mr John Heywood.
211 Dr Joubert advised Dr Kee he would like to return the plaintiff to his care and had not made arrangements to see him again.
212 Dr Sasse, respiratory and sleep physician, reported to Dr Kee in April 2009, having seen the plaintiff with potential sleep apnoea.
213 Dr Sasse explained sleep apnoea to the plaintiff and gave him some literature, emphasising the value of weight loss as being the first and best treatment. He also gave the plaintiff a low GI diet. He showed the plaintiff a dental device and warned that surgical options were unreliable and could be very painful.
214 Dr Sasse noted the plaintiff agreed to start with weight loss and exercise and would return and see him in three months. If he had not improved he would have a sleep test before further treatment.
215 Mr Peter Burke, consultant surgeon, wrote to Dr Kee in August and September 2009.
216 Mr Burke advised that the plaintiff was recently admitted to Latrobe Regional Hospital between 28 July and 31 July 2009. Having witnessed an attack of colic, Mr Burke was convinced the plaintiff was suffering with some form of renal or ureteric colic as the pain was incredibly severe.
217 Mr Burke strongly recommended the plaintiff be referred to a urologist, particularly in view of the asymmetry of his kidneys. As he was very concerned about the plaintiff and concerned he may have future attacks of colic, Mr Burke advised the situation must be resolved.
218 Mr Burke wrote again to Dr Kee in September 2009, advising he was able to undertake an uncomplicated laparoscopic cholecystectomy on 15 September 2009.
219 Mr Burke advised that the plaintiff had not looked back since that procedure and told him he was fit enough to return to work as a truck driver one day post-operatively.
220 On review on 30 September 2009, Mr Burke was delighted with the plaintiff; all wounds had healed well and the histopathology of the resected gallbladder did confirm mild chronic inflammatory changes.
221 Mr Burke advised hopefully the plaintiff should have no further problems, but as always, a diagnosis of this nature proved difficult and he thought the right thing had been done by a matter of trial and error and now had its rewards. He had made no further arrangements to review the plaintiff.
222 Mr Burke again wrote to Dr Kee in February 2010 thanking him for the referral of the plaintiff who he was pleased to say had made a spectacular recovery from his cholecystectomy.
223 Mr Burke noted the plaintiff looked better than ever and was hard at work driving trucks but, of course, that was considerably hampered by his significant ingrown toenail problems. Mr Burke noted a procedure in relation thereto would be undertaken under digital block.
224 Dr Fitzgerald, gastroenterologist, wrote to Dr Kee in December 2009 thanking him for referring the plaintiff in relation to PR bleeding.
225 On examination on that date, only small haemorrhoids were found. Dr Fitzgerald noted the plaintiff was on Mersyndol Forte and used a lot of Panadeine Forte because of headaches. He had explained to the plaintiff it was very likely he had a Codeine headache as he developed pains just straight after he had both Midazolam and Fentanyl. He thought the plaintiff should try and get off anything containing Codeine to see if that would make his headache better.
226 A Home Medicine Review report was compiled by an accredited pharmacist, Kaye McIntyre, in August 2010 following an interview of the plaintiff at his home on 28 July 2010 with previous home medicine reviews in April 2008 and May 2009.
227 Ms McIntyre suggested a reduction in body weight, encouragement of the plaintiff to maintain his exercise activity, continue regular observation of his blood factors, consider an increase in the dose of Rosuvastatin to promote an increase in his HDL/chol to keep the plaintiff’s IGT situation under review and keep his pain management under review.
228 Ms McIntyre noted the plaintiff was taking up to eight tablets of Mersyndol Forte during the day and 30 milligrams of OxyContin at night. He reported to her his sleep was interrupted by pain during the night. He had had some relief from a recent block and was scheduled for a further procedure.
229 A summary of admissions to Latrobe Regional Hospital set out five attendances during 2009 involving gastric and diabetes problems, abdominal pain and colic.
Medico-legal Evidence
230 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in July 2007 for Allianz and provided an AMA assessment.
231 Mr O’Brien then thought physical findings certainly would suggest the plaintiff continued to experience symptoms associated with extensive soft tissue injury to both the cervical and lumbar spine consistent with the stated cause. He was then very guarded in relation to the prognosis, as he commented it appeared likely the plaintiff’s symptoms would persist.
232 Mr O’Brien thought the plaintiff appeared to be moderately disabled, and would suggest he was not capable of unrestricted employment, noting he had been able fortunately to obtain modified duties. Nevertheless, Mr O’Brien thought the plaintiff continued to have restriction of his overall general activities, and that was no doubt having a definite effect on his ability to pursue domestic, social and recreational tasks.
233 Associate Professor John Balla, consultant neurologist, examined the plaintiff on behalf of Allianz in November 2007.
234 Professor Balla noted on examination, back movements were generally reduced by about thirty per cent and neck movement was full. Neurological examination was normal.
235 Professor Balla regarded the plaintiff’s headaches as being from the cervical spine, consistent with the location of pain and its constancy. He did not believe there were sufficient grounds for also diagnosing migraine. He thought the headaches were partly related to the neck injury and its consequences and partly related to psychological factors.
236 Professor Balla noted the plaintiff described himself as very moody and irritable, and he thought the plaintiff required a psychiatric assessment.
237 Professor Balla noted in general, one found that following a twisting injury to the neck, some degree of neck ache could persist indefinitely but the significant problems persisting in the plaintiff’s case were, in his opinion, to a large extent related to associated non-organic factors and therefore a psychiatric assessment was indicated.
238 Professor Balla believed it would be reasonable to accept liability for the head injury as being work related. He did not believe the head injury was of sufficient severity to cause a sleep disturbance and thought that related to persisting pain and psychological matters. He allocated fifty per cent of the ongoing pain in the head and neck to the original injury. He found no physical abnormalities directly attributable to radiculopathy, and noted, as far as the neck was concerned, symptoms of pain and stiffness persisted and the plaintiff was guarding.
239 Dr Sedal, neurologist, examined the plaintiff, initially in July 2005 and re examined him in January 2006 and most recently in July 2008.
240 On all examinations, Dr Sedal did not find any neurological abnormality.
241 Dr Sedal thought the plaintiff suffered a significant head injury and that he lost consciousness; however, his period of post-traumatic amnesia was short, and Dr Sedal did not believe he sustained any brain damage.
242 Dr Sedal considered the plaintiff had suffered from a post-concussional syndrome with headache and a degree of depression and irritability, plus musculoligamentous strain of his neck and lower back. Dr Sedal thought complaints of memory and concentration problems were persisting parts of the plaintiff’s post-concussional syndrome, possibly perpetuated by his poor sleep and mood changes rather than depression.
243 On the last examination, Dr Sedal thought it was appropriate for the plaintiff to continue seeing a physiotherapist and use Norspan patches. He believed the withdrawal of those treatments would be likely to impair the plaintiff’s ability to continue to work and if symptoms persisted, it may be worthwhile referring him to a pain clinic.
244 Dr Sedal noted the plaintiff was then working fifty or fifty five hours a week as a truck driver, with work that did not involve heavy lifting and was not stressful, and he thought he was fit to continue it. He believed the plaintiff was able to carry out very basic activities of daily living.
245 Associate Professor Michael Saling of the Heidelberg Neuropsychological Group assessed the plaintiff at the request of Allianz in January 2008.
246 Professor Saling concluded that the plaintiff sustained a concessional head injury in the accident as evidenced by a loss of consciousness and/or post-traumatic amnesia – acute. Acute and follow up brain imaging was normal.
247 Professor Saling noted, apart from a mild attention dysfunction, the plaintiff’s neuropsychological function was now within normal limits, including speed of information processing; a good general marker of recovery. He noted the plaintiff had a reading impairment which was clearly of developmental origin and unrelated to his injury.
248 Professor Saling concluded, while concessional head injuries of this type were initially associated with cerebral dysfunction, it was unlikely the plaintiff sustained permanent brain damage. He considered, at that stage, the plaintiff’s difficulties with concentration were more likely related to ongoing pain, depression and associated sleeplessness.
249 Professor Saling thought the neuro-cognitive function had now substantially stabilised and that the plaintiff’s concentration difficulties however were likely to fluctuate with pain and feelings of depression and his outcome in this respect was dependent on effective relief of his headaches and management of depression.
250 The plaintiff was examined on two occasions by Mr Michael Dooley, orthopaedic surgeon, initially in February 2012, and more recently in April 2013.
251 On both occasions, there was some restriction of cervical spine movement and tenderness along the dorsum of the cervical spine. The upper limbs were intact neurologically. There was some tenderness of the lower lumbar region and restriction of lumbar movement with normal power, tone and sensation.
252 On re-examination, Mr Dooley thought the situation remained basically as outlined previously, in that the plaintiff sustained soft tissue injuries to the neck and spine that involved musculoligamentous damage and some aggravation of naturally occurring, underlying degenerative disc disease. There was moderate restriction of spinal motion but no evidence of objective neurological deficit affecting the upper and lower limbs.
253 Mr Dooley remained of the view that the constancy and intensity of the plaintiff’s ongoing pain and the described disability were greater than he would expect to see for the condition. Mr Dooley believed that that was as a result of a psychological reaction to the plaintiff’s situation.
254 Mr Dooley remained of the view that appropriate treatment was maintaining general activity and undertaking a regular low impact exercise and fitness program. He thought it important for the plaintiff to walk regularly and do stretching exercises as he worked long hours. He did not think improvement would result from treatment such as nerve blocks, and did not think the use of a spinal cord stimulator would be appropriate.
255 From an orthopaedic point of view, Mr Dooley believed the plaintiff would continue to note intermittent neck and back pain and he would not expect his orthopaedic condition to deteriorate in time. He considered the plaintiff’s condition could be improved by increasing his activity and undertaking regular low impact exercise.
256 Mr Dooley thought the plaintiff would not be able to carry out heavy physical work or work that involved a lot of bending, lifting and twisting, and he would not be able to carry out work that involved a lot of activity at and above shoulder level.
Summary of the Plaintiff’s individual income tax returns
Financial Year Taxable Income 2001 $33,771.00 2002 $34,375.00 2003 $36,496.00 2004 $39,346.05 2005 $40,960.00 2006 $39,808.00 2007 $46,643.00 2008 $46,479.00 2009 $49,375.00 2010 $48,490.00 2011 $82,871.00 2012 $62,467.00
Overview
257 It is not disputed that the plaintiff suffered injury to his cervical and lumbar spine diagnosed as soft tissue or musculoligamentous in nature described by orthopaedic surgeons, Mr Dooley and Mr Wilde, as aggravation of underlying degenerative pre existing spondylosis or disc disease at the cervical and lumbar level [55]
[55]T77
258 Further, the defendant accepts the plaintiff has some consequences which itself were sufficient to cause unconsciousness or brief loss of consciousness, and the plaintiff had some head injury. Whilst it was submitted the cause thereof is unclear, the defendant accepted that the plaintiff continues to suffer headaches.[56]
[56]T83
259 Counsel for the defendant submitted however the consequences of the plaintiff’s injuries did not meet the test of seriousness set out in Humphries v Poljak [57] when one considered what had been retained.[58]
[57]Supra
[58]Dwyer v Calco Timbers (No 2) (2008) VSCA 260 per Ashley JA at paragraph [27]
260 The consensus of medical opinion is that the plaintiff’s spinal condition and headaches are predominantly organically based - a view not really challenged by the defendant.[59]
[59]T83
261 Whilst Dr Tomlinson diagnosed a pain syndrome he suggested a trial of Endep and continuing physiotherapy. Professor Balla found a significant psychological response but found an organic basis to the plaintiff’s ongoing headaches. Although Mr Dooley thought the plaintiff’s complaints were out of proportion to the nature of his spinal injury, he accepted the plaintiff had ongoing pain and restriction that was organically based, Mr Dooley finding an aggravation of pre existing degenerative conditions of the two areas of the spine.
262 I accept that since the accident, the plaintiff has suffered from persisting headaches in relation to which he has required extensive treatment, including medication, physiotherapy and various procedures carried out by Dr Vivian, which have been funded by the defendant.
263 Headaches continue to be the plaintiff’s predominant problem as Dr Kee confirmed.
264 I accept that there is no support for a neurological explanation for the headaches with no abnormality being found on any examination in that regard.
265 Dr Sedal and Mr Kossmann thought the headaches are post concussive in nature whilst Dr Joubert was of the view they had a rheumatological basis.
266 I accept the submission by the plaintiff’s counsel that at the end of the day the better view is the plaintiff’s headaches are cervicogenic as Professor Balla and Dr Kee opined, consistent with the location of the pain and its constancy as professor Balla explained. The focus of Dr Vivian’s treatment has been on the plaintiff’s neck and he has achieved varying success with his procedures at reducing the plaintiff’s headaches and neck complaints at different times.
Credit
267 As Maxwell P stated in Haden Engineering Pty Ltd v McKinnon:[60]
“The weight to be attached to the plaintiff’s account of the pain will of course depend upon an assessment of the plaintiff’s credit.”
[60]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [12]
268 I found the plaintiff to be an honest, truthful witness who readily answered questions put to him and did not overstate the level of his pain and disability. There is no suggestion by any medical practitioner that the plaintiff was not co operative on examination or embellished his symptoms.
269 There was no lay evidence or video surveillance challenging the plaintiff’s claimed level of restriction and disability. Further the plaintiff’s wife who corroborated the plaintiff’s various complaints was not cross examined.
270 I accept the submission by counsel for the plaintiff that the plaintiff is a stoic and his continuation of full time work and limited resumption of some pre accident activities does not detract from the fact he has ongoing spinal problems and headaches which require continuing medication and treatment.
271 Dr Vivian noted he had always found the plaintiff to be a straightforward person who did very well to cope with the prominent pain he had, noting other people of less stoic character would display far greater disability.
272 As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2),[61] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[61](Supra) at paragraph [4]
273 In Haden Engineering Pty Ltd v McKinnon,[62] Buchanan JA found in favour of the plaintiff who was able to work and maintain the pastimes he enjoyed before he was injured where –
“… the evidence as a whole establishes that the respondent suffers pain which is properly described as very considerable. The respondent’s stoicism cannot hide the fact that pain is a major component in the respondent’s life.
[62]Supra
274 This is a similar situation to the present case.
Pain and restriction
275 The plaintiff’s detailed description was not really challenged in relation to his continuing complaints in relation to his head, neck and back.
276 The plaintiff described constant headaches above the top of his eyes which go around the rim of his head to the back of his neck [63] feeling like someone had put a band around his head. The headaches are of throbbing nature and made worse by loud noises, bright lights and sharp movements.
[63]T9
277 The plaintiff continues to have constant pain in the top of his neck into the centre of the back of his neck which is made worse by sharp turning or jolting his neck.
278 The plaintiff has lower back pain along the belt line made worse by jolting and sharp movements.
279 As a result of his spinal injuries, the plaintiff is limited in his ability to lift and his movement is restricted.
Treatment
280 The plaintiff has required a large amount of ongoing hands on therapy, including acupuncture and physiotherapy. He has been referred to neurologists and an orthopaedic surgeon. He has also attended pain management and received psychological counselling.
281 The plaintiff continues to require physiotherapy to keep him fit to work and has taken on the cost of it himself and committed to further treatment since extended funding was recently ceased.
282 Numerous procedures have been undertaken, with varying success by Dr Vivian, who has recently suggested a spinal cord stimulator, which the plaintiff is not eager to undertake.
Medication
283 The plaintiff has required significant levels of medication, at times to the upper range, including OxyContin and the use of Norspan patches in mid 2006.
284 The plaintiff presently takes large quantities of Mersyndol Forte when he is not working. This medication continues to be prescribed by Dr Kee despite the matters raised in cross examination by the defendants counsel as to the risk of addiction and the connection of that medication to the plaintiff’s headaches.
285 Further the plaintiff takes Panadol Osteo to cope with working during the day and to help him sleep at night, he takes Imovane.
286 Despite the various treatment modalities, the plaintiff’s condition has not improved significantly.
Work
287 Whilst the plaintiff has continued in full time work and presently earns much more than he did at the time of the accident, he has never returned to the unrestricted heavy physical manual level he was capable of performing prior to the accident.
288 Although counsel for the defendant relied upon the plaintiff’s lifting of kegs on his return to work with Willatons, he accepted the plaintiff did not concede he has returned to unrestricted duties involving heavy lifting.
289 Counsel for the defendant submitted the reality of the plaintiff’s work situation following the accident and to date had to be considered in line with comments made in Dwyer v Calco Timbers Pty Ltd (No 2)[64] by the Court of Appeal as to the relevance of what had been retained having to be taken into account when considering whether the present consequences of an impairment are serious.
[64](Supra) at paragraph [27]
290 Counsel for the defendant relied upon the level of the plaintiff’s present work- working up to six twelve hour shifts as week and having worked full time in essentially normal duties since a trial in October 2005.
291 However, the plaintiff continues to work with lifting restrictions and his inability to pursue unrestricted heavy manual work is supported by Mr Dooley and Mr. Wilde.
292 I do not accept the submission by counsel for the defendant that there was really no evidence of work incapacity because of headaches and that it was of some significance that the plaintiff could go eighty hours week without Mersyndol Forte.
293 Although the plaintiff could not specify the amount of time he had had off work in recent times due to headaches, his problems in this regard were confirmed by Dr Kee who also noted difficulties the plaintiff has had performing his work duties since the accident date.
294 I accept the plaintiff is only able to work his present hours, which he does with some difficulty, with the assistance of medication, rest at home and continuing maintenance physiotherapy as Dr Kee confirmed. It is apparent from Dr Kee’s reports that the plaintiff was really driven to change jobs and he was having a very hard time at work.
295 When he comes home from work, the plaintiff is very tired and has rest, often going to bed for the night in the afternoon - a situation confirmed by his wife.
296 I accept that the plaintiff’s comments that work helps and makes him feel better; he is doing something useful and getting paid rather than sitting at home moping.[65]
[65]T92
Activities
297 I accept the submission made on the plaintiff’s behalf that there is a very significant gap between the sort of person he was before the accident and the sort of person he has become as a consequence of his injuries.[66]
[66]T94
298 Whilst his family interaction has increased somewhat since Ms Minton’s counselling, the plaintiff continues, due to headaches and frustration and pain with his spinal condition, to be irritable and less sociable than prior to the accident when he led an active social and family life.
299 The plaintiff no longer entertains at home not being able to deal with the noise and crowds of people. His attendances as social functions is limited and even when attending, the plaintiff does not stay for long, he is unable to dance and he no longer drinks for fear of falling and suffering further injury.
300 Prior to the accident, the plaintiff enjoyed walking ten kilometres a day on a daily basis and attending the gym three days a week for weight training. He is no longer able to participate in these activities due to spinal pain and headaches and he has accordingly put on a considerable amount of weight.
301 The plaintiff is no longer capable of undertaking his favourite activities involving hot rods. He had to sell the vehicle he was rebuilding before the accident because he could no longer work on it due to his frustration and headaches. He can no longer work on his brother’s vehicles.
302 The plaintiff is only able to change the oil on his current car and not capable of doing a full service as was previously the case.
303 The plaintiff no longer attends drag racing locally and in Canberra because the meets are too noisy.
304 The plaintiff was obviously an active, competent handyman, having carried out extensive renovations, including building a kitchen and a garage not long before the accident. He has done no work of that nature since that time. Further, his gardening activities are now very limited having previously enjoyed planting and tending a vegetable garden.
305 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[67]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[67](Supra) at paragraph [45]
306 I accept that the plaintiff has problems sleeping being woken regularly by spinal pain. Dr Kee confirmed this is an ongoing problem and prescribes Imovane in that regard.
Emotional
307 In this application, I am entitled to take into account, as Winneke P stated in Richards v Wylie,[68] the expected emotional consequences of the physical injuries and restrictions experienced by the plaintiff as a result of the accident. These have been noted by the plaintiff’s psychologist and also confirmed by his wife, whose evidence was unchallenged.
[68]Supra
308 There is a consistent theme of irritability and mood disturbance noted by the plaintiff’s psychologist and also detailed in his wife’s affidavit which was unchallenged which I accept is an expected emotional consequence of the restrictions placed on this previously active man’s work and domestic and social life.
309 Whilst there has been some improvement since Ms Linton’s treatment, some irritability continues.
310 As the plaintiff’s spinal condition and headaches have persisted for in excess of eight years, without any significant, sustained improvement, I am satisfied that his condition is long term.
311 Taking into account all the evidence, I am satisfied that the plaintiff’s injury satisfies the definition of “serious” as set out in Humphries v Poljak.[69]
[69]Supra
312 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to the spinal injuries and headaches suffered in the transport accident.
- - -
0
5
0