Hill v Transport Accident Commission
[2015] VCC 1814
•14 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-04504
| THOMAS (TOM) JAMES HILL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 October 2015 | |
DATE OF JUDGMENT: | 14 December 2015 | |
CASE MAY BE CITED AS: | Hill v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1814 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Damages – serious injury – injury to the neck and right elbow
Legislation Cited: Transport Accident Act 1986, s93(4)(d), s93(6), s93(17)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to injuries sustained in the transport accident on 28 August 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr A E Hill | Slater & Gordon Ltd |
| For the Defendant | Mr D J Myers | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by the plaintiff 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 the plaintiff arising out of a transport accident which occurred on 28 August 2013 (“the transport accident injury”).
2 Section 93(6) of the Act provides:
“A court must not give leave under subsection (4)(d) unless it is satisfied that the injury is a serious injury.”
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s93(17) of the Act. There –
“‘Serious injury’ means—
(a) serious long-term impairment or loss of a body function.”
4 The loss of body functions relied upon in this application are the neck and the right elbow.
5 The plaintiff seeks leave to issue proceedings at common law.
6 The plaintiff relied upon four affidavits: two affidavits sworn by the plaintiff on 5 August 2014 and 5 September 2015, one sworn by his wife, Amy Hill, on 9 January 2015, and one sworn by a work colleague, Luke Sinnatt, on 23 September 2015.
7 The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8 The plaintiff is a thirty-one-year-old plumber. At the time of the transport accident, he lived and worked full time as a commercial plumber in Melbourne. In 2015, the plaintiff and his wife relocated to Ocean Grove to live. He has continued working in Melbourne, commuting each day. Their first child was born approximately three months before the hearing.
Relevant legal principles
9 The founding legal principles for serious injury applications are discussed in the many well-known case authorities.[1] I will only refer specifically to case authorities as required on particular issues in contention.
[1]See for instance Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 and Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592.
The issues
10 Counsel for the defendant submitted that the impairment in respect to the neck and the right elbow do not meet the test of “serious injury”. Further, Counsel for the defendant submitted the plaintiff’s credit was in issue.
Credit
11 The plaintiff gave his evidence in a measured manner. He answered questions directly in a clear and forthright manner. He made concessions. He did not overstate his injuries. If anything, he understated his injuries. In forming that opinion, I rely upon the comments made by medical witnesses and the plaintiff’s presentation in Court. No medical witness suggested the plaintiff exaggerated his symptoms. Dr Serry said the plaintiff “presented information in an uncomplaining fashion”[2] and was “a clear and straight forward historian”.[3] He was described by Mr Dooley as a sensible and genuine historian.[4]
[2]Plaintiff’s Court Book (“PCB) 78
[3]PCB 78
[4]PCB 97
12 Also, I accept the plaintiff presented as a man who was keen to return to work. He returned to work with physical restrictions after the transport accident. His employment was terminated on 10 February 2014. He then obtained alternative employment and requested the physical restrictions be removed, as he would not have maintained employment with a new employer with the restrictions in place. He reported to medical witnesses that he felt he returned to work prematurely because of financial reasons.[5]
[5]PCB 76
13 Counsel for the defendant submitted the plaintiff’s credit was in issue. Counsel raised a number of issues in respect to the plaintiff’s credit, particularly:
· The plaintiff’s prior health conditions
· The plaintiff has no or minimal continuing symptoms and treatment; and
· Furthermore, the plaintiff submitted a written insurance application containing representations inconsistent with his claimed serious injury.
14 I accept the plaintiff disclosed his prior health conditions. In both affidavits,[6] he referred to undergoing bilateral arthroscopies of his hips following injuries he suffered while playing cricket. This is confirmed by the treating physiotherapy notes.[7] In the plaintiff’s second affidavit, he deposed that in about 2012, he experienced joint pain (not related to his cervical spine or elbows).
[6]PCB 13, paragraph [21] and PCB 26, paragraph [41]
[7]PCB 41O
15 In cross-examination, the plaintiff’s evidence was that the prior symptoms affecting his hips and ankles were of stiffness, and not pain.[8] There was no evidence that this condition was painful. It was not put to the plaintiff that whatever was causing the stiffness was persisting at the time of the accident. It was not put to him that the stiffness was impairing his activities, other than that he ceased playing cricket because of the hips. I accept there is no evidence that a prior condition of the hips and ankles was impairing his function or causing pain.
[8]Transcript (“T”) 10, L17
16 In addition to the affidavit evidence, in cross-examination, the plaintiff was asked about his attendances on the physiotherapist, and an attendance on his general practitioner twelve months before the transport accident.
17 The physiotherapist’s records were before the Court. The records between May 2012 and January 2013, prior to the transport accident, do not refer to neck symptoms. There is a passing reference to elbow symptoms bilaterally. I take the view that not much turns upon this, taking into account the evidence as a whole.
18 The general practitioner’s notes queried whether the plaintiff was suffering polyarthralgia. However, the plaintiff’s evidence is that a blood test excluded the condition, and it is not a condition from which he suffers. The general practitioner’s notes confirm this.[9] There was an option of the plaintiff being referred to a rheumatologist, which he did not follow up. The plaintiff disclosed the suspected condition in his second affidavit. I accept the plaintiff disclosed his prior health conditions.
[9]PCB 41A
19 Counsel for the defendant submitted that the plaintiff has no or minimal continuing symptoms and treatment, and this reflects adversely on his credit. Counsel submitted that the plaintiff was not continuing to receive treatment from medical practitioners. In addition, Counsel relied upon the plaintiff’s responses to a questionnaire he submitted for an increase in insurance cover with CBus.
20 In respect to medical treatment, the plaintiff’s evidence is that Mr Rogers, neurosurgeon, was last seen in November 2013 when he removed the neck brace and referred the plaintiff to a physiotherapist for further treatment. I accept the lack of treatment from a neurosurgeon is understandable given the nature of the injury, the fact that the fracture was treated conservatively, and there was no further role for the neurosurgeon.
21 The plaintiff received physiotherapy treatment on a regular basis from early December 2013 through to May 2015.
22 In late 2014, the plaintiff was referred by his general practitioner to a musculoskeletal physician, Dr Victor Wilk, for treatment of his neck and elbow. Dr Wilk recommended working on end-range mobility exercises.
23 The plaintiff’s current evidence as to medical treatment is that he needs ongoing treatment from an osteopath, physiotherapist, and/or general practitioner. He found it too difficult to attend those appointments in Melbourne since he had relocated to Ocean Grove. He is currently receiving treatment from an osteopath in Ocean Grove and is in the process of locating new local practitioners who may be able to assist.
24 The medical opinions of the orthopaedic surgeons, Mr Kossmann and Mr Dooley, are that the plaintiff is likely to have a level of ongoing symptoms, and require medication and treatment from time to time. There was no suggestion that his current treatment was inappropriate.
25 I accept the treatment the plaintiff received, and is currently receiving, is appropriate and in accordance with the expert medical evidence. I accept there was no successful attack made as to the plaintiff’s credit based on the treatment he is currently receiving. I accept the plaintiff’s treatment is for the purpose of managing continuing symptoms of the transport accident injury.
26 Counsel for the defendant also relied upon the plaintiff’s written responses to an insurance questionnaire. Counsel submitted that based on his responses in the questionnaire, the plaintiff is not suffering current symptoms, and this reflects on his credit.
27 In May 2015, the plaintiff made application to increase his insurance cover through the Construction and Building Industry Super by completing a Back/Neck Disorder Questionnaire. The plaintiff answered that he experienced symptoms of pain in his back/neck from 28 August 2013 for a period of three months (Answer to Question 3). He had continued to consult a health professional for his back/neck (Question 8). He had lodged a Claim for Compensation or insurance benefits in regard to this disorder which was ongoing (Answer to Question 12). He advised the name and address of all health professionals consulted and the date of the last visit, confirming that he last received physiotherapy five days before completing the document.
28 Counsel for the defendant submitted, based upon the answers in the completed document, the plaintiff is not suffering current symptoms. As to that submission, the document must be read as a whole. The plaintiff disclosed medical history relevant to his state of health and treatment on the CBus form. Ultimately, his application was rejected by CBus on the basis that he is claiming risk for Total and Permanent Disability. Based on the evidence as a whole, I do not accept that the CBus application shows the plaintiff lacks continuing symptoms.
29 I accept that, based upon the answers to Questions 3, 8 and 12, a reasonable insurer assessing the plaintiff’s application would readily infer that he has a condition which requires ongoing treatment because it produces symptoms.
30 Accordingly, I accept that at the time the plaintiff completed the Cbus insurance application, he had a neck condition for which he experienced symptoms and was receiving ongoing treatment.
31 Counsel for the defendant submitted that the plaintiff returned to plumbing work after the accident, and he has no or minimal restrictions. Again, the submission is that he is not a credible plaintiff.
32 The evidence is that when the plaintiff was certified to return to work, he returned with physical restrictions. I accept the plaintiff’s evidence that he actively sought the removal of the restrictions in the context of losing his job and seeking to maintain new employment. I accept the plaintiff expressed a clear concern about his ability to retain his current job in the event that he demonstrates restrictions at work. I further take the view that the fact the plaintiff was cleared for work without formal restrictions does not equate to him being able to perform the work without any difficulty. I accept that the plaintiff experiences continued physical limitations at work. This is consistent with his evidence as to limitations outside of work, for example in responding to cross-examination, the plaintiff answered that there were activities he was not able to avoid, such as the lawn mowing, although he experienced pain after the activity.
33 Based on all of the above, I formed the view the plaintiff was a credible witness.
Analysis of the evidence
The injury – the neck
34 Based on the medical evidence, I am satisfied the plaintiff suffered a compensable injury to the neck arising out of the transport accident. All of the medical witnesses accepted that the plaintiff suffered a neck injury as a result of the transport accident. The medical evidence is that the plaintiff suffered a fracture of the C7 vertebra.[10] Both Mr Dooley and Mr Kossman, orthopaedic surgeons, said the plaintiff suffered musculoligamentous damage to the cervical spine.
[10]General practitioner – PCB 38; Mr Kossman – PCB 72 and Mr Dooley – PCB 97
35 I turn to consider the evidence as to the consequences to the plaintiff of the transport accident injury.
Pain
36 The plaintiff’s evidence is that he experiences constant daily neck pain and stiffness. He frequently stretches his neck to try to relieve the discomfort. The neck is more painful in colder weather and it is aggravated by overhead work, or when his neck is held in one position for too long, such as while driving and watching television. He said, at the end of the day, his neck is very stiff and sore, particularly if he has undertaken overhead work which currently he undertakes frequently. He must bear the pain and discomfort, otherwise he is at risk of losing his job. He currently commutes from Ocean Grove to Melbourne daily for work. The long drive causes his neck to become increasingly sore and stiff.
37 The plaintiff reported neck pain to Mr Kossman and Mr Dooley. He told Mr Kossman he continues to experience pain in his cervical spine, which has not improved since he was last seen in May 2014. He told Mr Kossman that the pain in his neck makes it hard for him to work. Mr Kossman said the plaintiff’s prognosis was guarded. The plaintiff reported some intermittent pain and some stiffness in the cervical spine which Mr Dooley said will continue and is a consequence of the trauma. Mr Dooley said, with a lot of activity at or above head level, the plaintiff will note neck pain.
38 All doctors accepted the plaintiff suffered neck pain as a result of the transport accident injury. The plaintiff’s evidence is that at least once or twice a week, the pain on the lower left side of the neck becomes so significant it triggers a painful headache. This was confirmed by his wife, Amy. The plaintiff reported ongoing neck pain since the accident two years ago.
39 I accept the plaintiff has ongoing neck pain which varies in intensity and depends upon his activities. I accept that the experience of pain for the plaintiff over the period of approximately two years is a consequence that I can take into account. No medical witness said that it would improve or abate.
Treatment
40 The plaintiff’s evidence is that he takes medication and/or analgesics (usually Voltaren and Nurofen) a couple of times a week on average. He is limited in how often he can take medication as it causes him gastroenterological problems if he takes medication more than approximately two days in a row. On the days that his pain or inflammation is bad, he takes a number of tablets throughout the day. He rarely requires just one tablet. He does stretching exercises of the neck to relieve the pain.
41 The plaintiff has undergone physiotherapy treatment and is currently receiving osteopathic treatment on an intermittent basis. He continues to derive benefit from this treatment, although it fails to resolve his symptoms. He also undertakes Pilates.
42 The plaintiff’s evidence is that he requires ongoing treatment from his general practitioner and physiotherapist, but has found it too difficult to attend appointments in Melbourne since he has relocated. He is in the process of finding local practitioners in the Ocean Grove area who can assist him.
43 The medical evidence is the plaintiff will require maintenance treatment with pain medication, anti-inflammatories, physiotherapy and hydrotherapy.[11] Mr Kossman reported that he did not expect the plaintiff to require surgery for his cervical spine condition. Mr Dooley said his treatment was appropriate, and noted that the plaintiff performs his own Pilates exercises.
[11]Mr Kossmann
44 I accept the level of treatment the plaintiff has is appropriate and is in the middle of the range. This is a consequence I can take into account.
Work
45 The plaintiff’s evidence is that prior to the transport accident, he worked full time as a commercial plumber, from which he gained substantial satisfaction and enjoyment. After the transport accident, he was off work for five months. He returned to work on restrictions. The plaintiff’s evidence is that he returned to work prematurely due to financial constraints, he struggles with pain and stiffness and some restriction on a daily basis at work.
46 The plaintiff’s neck injury makes it difficult for him to manage his day-to-day work activities. He must modify the way he undertakes his duties, such as taking short breaks to rest his neck, move around and stretch. He attempts to move from one task to another so he is not in the same position, or stressing the one injured body part for an extended period. The plaintiff’s neck is particularly painful and stiff if he is required to undertake overhead work, which currently, he undertakes frequently.
47 The plaintiff’s evidence is that it now takes him longer to complete jobs. He is not as quick in completing tasks as he was prior to the transport accident, and he feels the need to double check work that he has completed. This concerns him, as there are elements of his job which are not only physical, but are also mentally demanding. He is frustrated and disappointed that he is limited by his neck injury.
48 The plaintiff’s evidence is that he is reluctant to refuse to undertake tasks at work which aggravate his neck injury as he would be likely to lose his job.
49 The plaintiff is greatly concerned that he will not be able to continue in his physical role indefinitely, even on a part-time basis. This causes him stress and disappointment, as before the transport accident, he enjoyed his work. He enjoyed the physicality of the work, the challenge of taking on new tasks and fixing issues, and the social aspect of meeting people and working with others. The plaintiff’s evidence is that he is not suited to more sedentary roles like an office job, as he has no training or experience in that field and he believes he would not enjoy the work.
50 The plaintiff’s aspiration was to start his own plumbing business so that he could work for himself and receive the bulk of payments from the work that he was performing. The plaintiff had the capacity to work pain free, quickly and for long hours on any type of job. Due to the plaintiff’s injuries, he no longer aspires to running his own business, as he feels it would not be a financially sound decision given his restrictions. Mr Sinnatt, a friend and work colleague, deposed that prior to the transport accident, he and the plaintiff frequently discussed the plaintiff’s intention to open his own business.
51 The evidence from the plaintiff’s wife confirmed that the plaintiff holds grave concerns regarding his capacity to continue in the role of a plumber, given the impact his work has on his injuries. He worries about the future, about his capacity to continue working in a physical job, about the extent to which his injuries will deteriorate and about his capacity to provide for the family.
52 The plaintiff’s evidence is that prior to the transport accident, he sought extra work (usually on rostered days off or weekends) with Mr Sinnatt, his friend who operates a domestic plumbing business in Ocean Grove. The plaintiff’s evidence is that prior to the transport accident, he was actively seeking out extra work. Since the transport accident, the plaintiff agreed he has worked for Mr Sinnatt a handful of times, probably two to three times.[12] The plaintiff said that Mr Sinnatt understands his limitations and he undertakes lighter work with Mr Sinnatt than before the transport accident.
[12]T15, L11 – 16
53 Mr Sinnatt confirmed that prior to the transport accident, the plaintiff sought extra work with him, above his usual employment. Mr Sinnatt’s evidence is that the plaintiff was fit and active and he was quick and good with his work. The plaintiff could perform any plumbing task, such as climbing ladders, working on scaffolding and roofs, and undertaking overhead work without restrictions. Since the transport accident, the plaintiff has assisted Mr Sinnatt, but is limited in the type of work he can perform, and how often he can work, because he must rest his neck. Mr Sinnatt said that he has observed that at work, the plaintiff has difficulty getting into small spaces as it involves twisting his neck. Mr Sinnatt deposed that the plaintiff attempted to assist with a spouting job which required overhead work. Mr Sinnatt observed the plaintiff found the task awkward and uncomfortable and took longer to perform the task. Since the transport accident, Mr Sinnatt telephoned the plaintiff offering extra work, which the plaintiff has declined because of his neck injury.
54 After relocating to Ocean Grove, the plaintiff planned to seek out commercial plumbing work in nearby Geelong. However, the plaintiff’s evidence is that the commercial work he currently performs in Melbourne is not available in the Geelong area. His evidence is that domestic plumbing work is more readily available in the Geelong area. The plaintiff’s evidence is that domestic plumbing work involves heavier physical work such as lifting, digging and working in confined spaces, which he would struggle to do. This was in part supported by the evidence of Mr Sinnatt.
55 Mr Kossman noted the plaintiff reported experiencing pain in his cervical spine at work, and described the plaintiff’s work as physically demanding, with frequent twisting, turning and working in confined spaces and overhead. Mr Kossman said the prognosis for the plaintiff’s cervical spine was guarded. If his cervical spine condition deteriorates, he may become incapacitated partially or fully.
56 Mr Dooley reported that the plaintiff notes neck pain with activities of overhead drilling. Mr Dooley said, if he continues to undertake regular low-impact exercise and sensibly modifies his activities at times, then his condition will remain under control.
57 I accept that, on the basis of the defendant’s medical evidence, the plaintiff has an injury in his neck which is expected to produce pain with particular activities that the plaintiff confronts at work on a regular basis. To maintain control of those activities, Mr Dooley said the plaintiff must exercise and modify his activity. The plaintiff’s evidence to the Court is that he is doing both of those things to the best of his ability. Currently, he is undergoing osteopathic treatment to manage the symptoms, and has been receiving physiotherapy treatment. He undertakes his own Pilates exercises. I infer from the report of Mr Dooley that the level of symptoms the plaintiff suffers is likely to increase if he is unable to control the work that he does. I accept that, because of the consequences of his injury, there is a narrowing of opportunities within the field for which he is trained, and this is a consequence which I can take into account.
58 I accept the plaintiff’s work is affected in respect to the nature of work he does, the tasks performed, and the avoidance of extra work. The plaintiff expressed a clear enjoyment of his line of work, and the physicality of it. The impact on his work is a consequence that I take into account.
Social life
59 The plaintiff’s evidence is that prior to the transport accident, he was a very social person and enjoyed going out regularly with friends. Since the transport accident, he has been reluctant to socialise because of the neck pain. This was confirmed by his wife’s evidence that he has become more socially subdued and less confident. I accept this is a consequence I can take into account.
Domestic duties
60 The plaintiff’s evidence is that the injury to his neck causes restrictions in the domestic duties he performs. The plaintiff struggles to mow the lawn. He performs gardening duties as there is no one else to undertake those duties, but suffers with increased pain and stiffness in his neck as a result. Recently, he and his wife moved to Ocean Gove. He had to employ a removalist and engage friends to assist him with the move. He had not employed removalists before. Although he assisted with the move, as a result, he suffered pain and stiffness in his neck which required him to take anti-inflammatory and pain medication to reduce the pain.
61 I accept the plaintiff can perform his domestic duties, but he performs them with increased pain and stiffness. I accept this is a consequence I can take into account.
Sport and recreational activities
62 The plaintiff’s evidence was that before the transport accident, he was fit and strong and enjoyed a range of physical activities. He has always been proud of his fitness and physicality.
63 Prior to the transport accident, the plaintiff enjoyed attending the gym at least twice per week, where he lifted weights. The plaintiff’s wife confirmed this.
64 The plaintiff attempted to return to the gym after the transport accident, but it caused too much pain and inflammation to his neck. Lifting weights of 10 kilograms resulted in pain and stiffness to his neck for some days afterwards. He has not returned to the gym as he does not want to aggravate his neck. As a result, he has lost fitness, strength and muscle tone, which he finds disappointing. Counsel for the defendant suggested to the plaintiff that there were other activities he could perform at the gym. The plaintiff’s evidence was that the lifting of weights at the gym was of particular interest to him, which he now cannot perform. The plaintiff’s wife deposed that his exercise is now limited to activity to treat his injuries, such as Pilates, and the exercises prescribed by his physiotherapist. His wife’s evidence is that losing the outlet of going to the gym has had a negative impact on his fitness, confidence and mood.
65 The plaintiff’s evidence is that prior to the transport accident, he enjoyed bicycle riding of approximately one hour, three times per week. On occasions, he would bike ride with his wife, an activity which they enjoyed together.
66 Since the transport accident, the plaintiff has only attempted to bike ride two or three times, and then on a designated bicycle track. The plaintiff’s evidence was that his physical injuries are aggravated by bike riding. Holding his neck in a sustained position during a ride causes it to become increasingly stiff and painful. The evidence of the plaintiff’s wife confirmed the plaintiff’s evidence in respect to bike riding.
67 The plaintiff’s evidence is that prior to the transport accident, he was a keen golfer. He enjoyed the game but also enjoyed the social aspect of playing with a group of friends. Previously, he played golf every four weeks or so. Since the transport accident, he no longer enjoys playing golf, as it significantly aggravates his neck injury, with the result that he suffers increased pain and stiffness in his neck.
68 The plaintiff’s evidence is that he enjoyed playing football as a teenager. He expressed an enjoyment of the social and physical aspect of the game. Mr Sinnatt deposed that he and the plaintiff used to kick a football around approximately twice per week. They have not done this since the transport accident.
69 The plaintiff’s evidence is that the transport accident injury precludes him from body contact sports, because playing such sports would significantly aggravate his neck and put him at risk of injuring himself further.
70 I accept that, as a consequence of the transport accident, the plaintiff’s sporting and recreational activities have been affected. I accept the plaintiff’s evidence that since the transport accident, he has been unable to participate in his sporting and recreational activity of gym training, bicycle riding, golf and kicking a football. I accept this is a significant consequence for this plaintiff, given his history of sporting and recreational activities, and it is at the high end of the scale.
Personal relationships
71 The plaintiff’s evidence is that he must be mindful of his injuries when relaxing with his wife. The evidence from the plaintiff’s wife is that prior to the transport accident, the plaintiff would sit with her on the couch and watch a movie to relax. Since the transport accident, the plaintiff has needed to place support under his head or neck, otherwise he will develop significant pain and stiffness. Frequently, the plaintiff sits on the floor on a beanbag rather than on the couch to provide his cervical spine with more support. As a result, he and his wife are no longer able to sit together while enjoying a movie at home.
72 It upsets him to think that he may have to avoid partaking in normal family activities with his family in the future because of his injuries.
73 The plaintiff’s evidence is that he tires more easily and also suffers from a loss of libido, which in turn has affected his relationship with his wife. I accept that the loss of intimacy with his wife is a consequence which I can take into account.
Insurance application
74 The plaintiff’s evidence is that recently, as a result of purchasing a house and the birth of his son, he attempted to increase his insurance through CBus Insurance. However, the insurer refused to increase his total and permanent disability (“TPD”) cover on the grounds that his neck injury is already likely to make him a candidate for a TPD claim. I accept this is a consequence which I can take into account.
Stoicism
75 I accept that the plaintiff is stoical. In May 2014, Dr Serry, said the plaintiff “… presents as a rather stoic individual who has tried to push on despite discomfort”.[13] In May 2015, he said “as was the case at my original assessment, he is stoic in nature and has attempted to function to the best of his abilities thereafter”.[14] He described him as an “uncomplaining individual who is managing his accident-related injuries to the best of his abilities”.[15]
[13]PCB 79
[14]PCB 79
[15]PCB 88
76 The plaintiff’s wife deposed that “Tom is a very stoic and uncomplaining person by nature, and tries to ‘get on’ with things”.[16]
[16]PCB 17
77 Mr Sinnatt deposed that “Tom is a stoic man and is not someone who would complain if he was in pain or discomfort”.[17]
[17]PCB 29
78 It was my view that the plaintiff presented as stoical. He was not prone to exaggeration and he gave his evidence in a most uncomplaining way. I took the view that he was prepared to endure a fair amount of pain as he went about his work and everyday activities. I base my impression on the way he presented in the witness box and the comments of Dr Serry, the plaintiff’s wife and Mr Sinnatt.
79 I accept the injury suffered by a stoical plaintiff is not to be viewed any less seriously merely because he manages to remain more active than might have been expected given the level of pain.[18]
[18]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Sleep
80 The plaintiff’s evidence is that his sleep is affected by the transport accident injury. He must sleep with a special pillow to manage the neck pain and stiffness. He tends to wake two or three times every night due to pain, stiffness or discomfort. He changes positions to relieve the pressure on his neck. If he sleeps without his special-purpose pillow, his neck is very stiff in the morning and the prospects of developing a headache are increased.
81 The evidence as to sleep is supported by the plaintiff’s wife. Her evidence is that the plaintiff is often kept awake at night due to pain and discomfort in his neck. He frequently repositions himself at night in an attempt to seek more comfortable positions for his neck. He requires a supportive pillow and takes it with him if they go on holidays. If he does not sleep with his supportive pillow, his sleep will be interrupted due to pain and discomfort in the neck and he is likely to have significant pain and stiffness in the neck the following day. Further, he is likely to develop a headache due to neck pain.
82 I accept the evidence of the plaintiff and his wife that the plaintiff’s sleep is affected. This is a consequence which I can take into account.
Richards v Wylie[19]
[19]Richards v Wylie (2000) 1 VR 79
83 The plaintiff gave evidence of consequences of stress, anxiety and frustration, due to the pain and limitation he experiences after the transport accident injury. These consequences were confirmed by the evidence of the plaintiff’s wife and the evidence of Dr Serry, psychiatrist. I accept that those are consequences I can take into account in accordance with the case authority of Richards v Wylie.[20]
[20]Supra
Conclusion
84 I accept the plaintiff has suffered the above-mentioned consequences. Those consequences are supported by the evidence of the plaintiff, the medical evidence, the evidence of his wife and Mr Sinnatt. I accept the plaintiff has had a physically active life, and to all intents and purposes, lives with his situation and gets on with it. His treatment is continuing and appropriate. I accept that he has continued working but has modified his work activities to accommodate the neck pain.
85 The plaintiff has suffered for two years and the medical evidence is guarded as to the future. I accept that the plaintiff’s neck injury is long-term.
86 I am satisfied the plaintiff was involved in a transport accident injury which, to this plaintiff, resulted in him experiencing symptoms of a physical nature to his neck.
87 For the foregoing reasons, I am satisfied the plaintiff has established that the consequences to him of his impairment can reasonably be described as “serious”. I accept the neck injury has consequences to the plaintiff that, when judged by a comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable and certainly more than significant or marked”. The consequences of his neck injury have impacted upon his life as he knew it before the accident. In considering the consequences, I have not treated each consequence as equal, but rather attributed appropriate weight to each consequence in the light of the evidence. In my experience, the consequences measure up well against other serious injury applications where plaintiffs have been successful.
88 I accept that the neck injury has consequences to the plaintiff that, when judged by a comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as “at least very considerable” and certainly “more than significant or marked”.[21]
[21]Humphries & Anor v Poljak [1992] 2 VR 129
89 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for the injuries suffered in the transport accident on 28 August 2013.
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