Hunt v TAC
[2014] VCC 2025
•5 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04559
ANDREW HUNT
| Plaintiff | |
| V | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 October 2014 | |
DATE OF JUDGMENT: | 5 December 2014 | |
CASE MAY BE CITED AS: | Hunt v TAC | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2025 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave to recover damages – whether permanent serious impairment of the spine due to transport accident - whether pain and suffering and loss of enjoyment of life consequences serious
Legislation Cited: Transport Accident Act 1986
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Humphries v Poljak [1992] 2 VR 129, Richards v Wylie [2000] VSCA 50, Transport Accident Commission v Kamel [2011] VSCA 110, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Mazevskav Transport Accident Commission [2014] VSCA 176, Croppv Transport Accident Commission [1998] 3 VR 357
Judgment: Plaintiff’s application for leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie with Mr S Loftus | Henry Carus Lawyers |
| For the Defendant | Mr J Batten with | Hall & Wilcox |
HER HONOUR:
Introduction
1 The plaintiff, Andrew Hunt, is 34 years of age. He currently resides in Queensland.
2 The plaintiff was educated up to Year 12 level in Melbourne. He completed a printing traineeship and, in September 2011, a 4WD driver training course. Since leaving school the plaintiff has worked in various roles as: a printer, a logistics systems administrator, an accounts service coordinator and a fibre optic splicing technician. Currently, the plaintiff lives in Queensland. He has been employed full-time by Corearth Australia, as a telecommunications draftsman/electromagnetic emissions technician, since July 2013.
3 On 16 April 2010, the plaintiff was injured in a transport accident. He was a back seat passenger in a taxi involved in a head-on-collision with another car (the transport accident).[1] At the time, the plaintiff was living at home in suburban Melbourne, he was in a relationship and employed full-time by Communications Connect Pty Ltd as a fibre optic splicing technician.
[1] Exhibit P1, Plaintiff’s Court Book (PCB) 5
4 The plaintiff recalled that following the transport accident, he experienced some pain in his neck and lower back. When pain persisted and worsened, in approximately mid-June 2010, the plaintiff sought medical treatment from his then general practitioner, Dr Praszkier.
5 CT imaging of the cervical spine obtained in June 2010 reported a small central disc protrusion at the C5-6 level.[2] MRI imaging of the cervical spine ordered some three years after the transport accident in April 2013, identified a shallow focal central disc protrusion at the C3/4 level, minimal disc bulge but no protrusion at the C4/5 level, and a focal left paracentral/subarticular disc protrusion at the C5/6 level. The radiologist’s conclusion was reported as follows:[3]
“Multilevel cervical disc disease at the C3/C4 to C5/C6, most pronounced at the C5/C6 level where there is a left paracentral/subarticular disc protrusion, without evidence of significant neural compromise or spinal canal stenosis. No evidence of any ligamentous injury.
[2] PCB 82
[3] PCB 83 -84
6 The general practitioner referred the plaintiff for physiotherapy.
7 The plaintiff’s counsel, Mr McCredie, relied on the radiological results as evidence of soft tissue injury in the neck but acknowledged the complaint of back pain had not been similarly investigated.[4]
[4] Transcript (TN) 162
8 The plaintiff claimed that, as a result of the soft tissue injury suffered, he continued to experience daily neck and lower back pain, the level and intensity of which varied depending on the treatment received and the extent of his daily activities.[5] At hearing, the plaintiff indicated that, at times, one region of the spine was worse than the other, yet neck pain, sharp pain not just tightness, was the primary problem.[6]
[5] PCB 12
[6] TN 50 and 129
The application
9 The plaintiff sought leave to commence common law proceedings pursuant to section 93 of the Transport Accident Act 1986 (the Act). He was required to satisfy the Court that injury to his spine caused by the transport accident was serious as at the date of determination of the application for leave.
10 The application was made under paragraph (a) of the definition of “serious injury”. Sub-section 93(17)(a) of the Act defines this as: “serious long-term impairment or loss of a body function”. Serious injury is determined by considering the consequences of an injury-related impairment or loss of body function.
Under paragraph (a) the pain and suffering and pecuniary disadvantage consequences of injury to the spine must be both long-term and serious to the plaintiff. The test is whether the consequences, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[7]
[7]Humphries v Poljak [1992] 2 VR 129, 140
11 The long-term and serious consequences of allegedly soft tissue injury to the plaintiff’s spine with resultant chronic pain were broadly articulated as:
a) significantly restricted capacity to obtain or maintain employment for which the plaintiff was most suited by reason of his prior education, training and employment experience;
b) resultant loss of income;
c) restrictions in social, recreational and domestic activities;
d) the need for prescription medication;
e) interference with sleep;
f) endurance of permanent daily pain; and
g) psychological reaction to physical injury.
12 In June 2013, medico-legal specialist, psychiatrist, Dr Weissman, diagnosed a mild to moderate, chronic Adjustment Disorder with Depressed and Anxious Mood as well as mild post-traumatic stress and anxiety symptoms and traumatisation features without there being evidence of a full-blown Post-Traumatic Stress Disorder.[8] Whilst at hearing the plaintiff did not also rely on psychiatric injury under section 93(17)(c) of the Act, he, nonetheless, relied on the evidence of the psychological sequelae in response to chronic pain, as a factor in assessing the seriousness of physical impairment of his spine.[9]
[8] PCB 55-67
[9] Richards v Wylie [2000] VSCA 50 and Transport Accident Commission v Kamel [2011] VSCA 110 [80] and TN 5 and 171-173
13 Leaving to one side for the moment the radiological evidence of multilevel degenerative disease affecting the cervical spine, doctors and health professionals, whether treating or retained as medico-legal experts by the plaintiff, have expressed opinions supporting a causal relationship between the plaintiff’s current symptoms and likely soft tissue injury to particularly the cervical spine. They reported in the following terms:
· on 7 June 2013 and 5 September 2014, the plaintiff’s treating general practitioner since 27 January 2012, Dr Paterson, indicated acceptance of the plaintiff’s earlier report that the transport accident had resulted in soft tissue injuries to his neck and back with persistent pain and reduced mobility of the cervical, thoracic and lumbar spine;[10]
[10] PCB 42-43b
· on 18 September 2014, a treating muscular-skeletal pain specialist, Dr Homan from the clinic, Physical Medicine, advised the plaintiff was being treated for: “Whiplash associated disorder – soft tissue injuries particularly involving posterior neck and shoulder girdle musculature”;[11]
[11] PCB 43c
· on 12 June 2013, having examined the plaintiff on two occasions, orthopaedic surgeon, Mr Brearley diagnosed soft tissue injury of the neck comprising intradisc rupture of the C5/6 disc in particular with resultant disc protrusion and soft tissue injury of the lower back involving the ligamentous structures of the lumbosacral spine and lumbar discs;[12]
· on 28 August 2013, having examined the plaintiff on the same day, orthopaedic surgeon, Mr Carey diagnosed soft tissue injury to the cervical and lumbar spine producing cervical and low back pain in the absence of radiculopathy;[13]
· on 14 September 2014, having examined the plaintiff on 26 August 2014, orthopaedic surgeon, Mr O’Brien diagnosed chronic non-specific cervical and lumbar pain consistent with the mechanism of the transport accident.[14]
[12] PCB 44-53
[13] PCB 68-81
[14] PCB 81a-81e
14 The Transport Accident Commission (TAC) has accepted that the plaintiff suffered pain in the neck and lower back following the transport accident and, further, that injury sustained in the transport accident probably involved soft tissue injury to the spine.[15] Initially, the TAC funded both physiotherapy and Pilates exercise programs. The TAC currently funds physiotherapy treatment and, from early 2014, TAC has funded a gymnasium program involving exercises set by the physiotherapist.[16]
[15] Exhibit D1, Defendant’s Court Book (DCB) 10 and 15
[16] TN 58
15 At hearing, the TAC relied principally on the opinion expressed by orthopaedic surgeon, Dr Morris, in reports dated 5 June 2013 and 10 September 2014. He concluded that soft tissue injury suffered as a result of the transport accident had resolved and the plaintiff’s symptoms were now caused by multilevel constitutional degenerative changes in the cervical spine.[17]
[17] DCB 1-11L
16 The issues in dispute in this application were:
(i) whether the plaintiff suffered any residual soft tissue injury to the spine as a result of the transport accident; and
(ii) if yes to (i), whether the consequences of soft tissue injury met the narrative test for serious injury under the Act.
17 Having conceded the plaintiff was: “a credible young man who’s got on with his life”,[18] the TAC, nevertheless, argued the plaintiff had not been entirely forthright under cross-examination, such that the weight afforded his account of his pain experience should be less. I will revisit this issue during my discussion of the evidence. My impression, however, having heard the evidence and read the material tendered, was that the plaintiff was straightforward in giving his evidence. He made many concessions along-the-way and did not present in Court, or it seems to doctors on both sides, as an individual who exaggerated or embellished his symptoms and limitations.
[18] TN 139-140
The evidence
18 The plaintiff deposed to the accuracy of three affidavits sworn on 19 February 2013, 28 August 2013 and 16 September 2014. He was cross-examined in some detail.
19 On 3 March 2014 the plaintiff’s mother, Lynette Ann Hunt, swore an affidavit in support. By agreement only paragraphs 1, 2 and 17 to 19 inclusive were admitted as evidence. The latter drew attention to the change Ms Hunt had observed in her son since the transport accident. She was not required for cross-examination.
20 In addition to the affidavit material, the plaintiff tendered from his Court Book multiple medical reports prepared by treating practitioners and medico-legal experts, the reports of the radiological investigations, to the content of which I have already referred, a document containing his Summary of Tax Returns dated 16 September 2014 and a copy of a statement obtained by the TAC on 18 September 2012 from Steve Wilson, the managing director of Communications Connect Pty Ltd, the plaintiff’s employer between 2007 and December 2011.
21 The TAC tendered extracts from its Court Book, which included the reports of Dr Morris, a copy of the General claim for compensation form dated 28 August 2010 and clinical notes made by physiotherapist, Marcus Bowler, Karen Kelleher and Busby Burfield. A clinical note dated 16 January 2014, kept by the plaintiff’s current physiotherapist, Steven Mahoney from Teneriffe physiotherapy, was tendered separately.[19]
[19] Exhibit D2
Treatment and employment following the transport accident
22 Based on his employer’s record, the plaintiff took three days off work following the transport accident. Among other things, Mr Wilson’s statement confirmed that, in the three years preceding the transport accident, the plaintiff presented at work without any health concerns and he was a very well regarded employee. Mr Wilson, however, recalled the plaintiff’s capacity to perform his duties changed after the transport accident, such that he could no longer perform physically demanding tasks and his employer had been obliged to purchase a “Slide Out Rack Mounted Shelf” to ease pressure on the plaintiff’s back when he was connecting fibre optic cables and to accommodate the plaintiff’s physiotherapy treatments by adjusting his start and finishing times.
23 As mentioned, the plaintiff was referred for physiotherapy. The clinical notes kept by the physiotherapists working at Glen Eira Physio and tendered by the TAC established that, between 8 July 2010 and December 2011, as claimed by the plaintiff, he underwent regular physiotherapy and engaged in Pilates programs in the treatment of fluctuating levels of neck and/or back pain.
24 As I understood the evidence given, before moving to Queensland in January 2012, all up, the plaintiff probably attended 50 sessions of physiotherapy and Pilates. Under cross-examination, the plaintiff was equivocal as to whether the Pilates exercises had improved his condition, yet acknowledged physiotherapy had helped him.[20]
[20] TN 48-49
25 The plaintiff was cross-examined extensively about the record of reports made by him during attendances for physiotherapy treatment and Pilates exercises to December 2011.
26 It was put to the plaintiff that his work as a fibre optic technician had been physically demanding and repetitive and, from time to time, involved long hours of work and travel in regional locations or interstate. The thrust of this line of cross-examination, which the plaintiff rejected, was that work, not injury suffered as a result of the transport accident, was responsible for the complaints of neck and/or back pain and the flare-ups in pain reported to treating physiotherapists from time to time.
27 The plaintiff’s evidence that he had no problems with his neck or back prior to the transport accident was not challenged.[21] More specifically, in the three years before the transport accident, the plaintiff said he had not experienced any problems at all with his spine in his work as a fibre optic technician. He rejected the suggestion that his job splicing and testing cables was physically demanding and repetitive, although the plaintiff acknowledged that, from time to time, he had worked longer hours and had travelled and worked both interstate and in regional areas. The plaintiff, nonetheless, reiterated his evidence that his duties had required modification to accommodate his injury.[22] Further to the various matters already mentioned, this point was well made by both the plaintiff and the employer agreeing that, following injury, the plaintiff was no longer capable of assisting in the hauling of cables.
[21] TN 153
[22] TN 20
28 Based on the evidence of the employer and the plaintiff as well as the records kept by three physiotherapists, I was satisfied the complaints recorded were indicative of 18 months of treatment for unresolved neck and back injury. I was further satisfied the injury was likely frequently exacerbated by the performance of the plaintiff’s then work duties and, at times, longer working hours or changed working locations, despite the various accommodations made by a sympathetic employer following the transport accident.
29 For instance, in about September 2011 the plaintiff undertook a one day 4WD driver training course, preparatory to working in Queensland on a temporary assignment for his employer. The course, the plaintiff said, worsened lower back pain.[23]
[23] TN 79
30 The plaintiff further indicated he had suffered a flare-up in pain whilst on assignment, brought on by driving a 4WD vehicle and sleeping rough in a swag, albeit in a Telstra exchange hut, over a three week period. Under cross-examination, the plaintiff explained sleeping in the swag had caused problems, despite using a swag with a thick base especially purchased for him by the employer.[24]
[24] TN 79-80
31 According to the plaintiff, on his return from Queensland, a general practitioner had prescribed a range of medications: Panadeine Forte, Valium, Voltaren and Temaze.[25] Notes made subsequently by a physiotherapist in October 2011, lend weight to this evidence, among other things, by providing a contemporaneous record of the plaintiff’s complaint of increased pain in association with his working conditions in Queensland.
[25] PCB 11
32 In late 2011 the plaintiff’s then partner relocated to Queensland. He continued working with Communications Connect until he resigned in December 2011. In January 2012, the plaintiff, who said he wanted a change of scenery and pace, joined his partner in Brisbane. He found work as a fibre optic splicing technician with Ventel.[26]
[26] TN 6
33 The plaintiff has attended general practitioner, Dr Paterson at the Teneriffe Family Doctor’s clinic for treatment of his injury, since 27 January 2012. Currently, he attends regularly for renewal of prescription medication. According to Dr Paterson, his new patient initially reported soft tissue injuries to his neck and back as a result of the transport accident and gave a history of persistent and fluctuating back and neck pain.[27]
[27] PCB 42-43
34 In the first of two reports, among other things, Dr Paterson confirmed the plaintiff’s treatment modalities had involved physiotherapy, attendance on a musculoskeletal physician, Dr Jones, as well as a medication regime comprising Diazepam, taken as a muscle relaxant, Temazepam, taken to aid sleep, Diclofenac, taken for both its painkilling and anti-inflammatory qualities and Panadeine Forte, taken as needed in the treatment of severe pain.[28] In a second report, dated 5 September 2014, Dr Paterson relevantly noted the plaintiff’s analgesic requirements had remained steady, with an average dose of 2 to 4 Panadeine Forte tablets per day and 3 to 4 Diazepam tablets per week.[29]
[28] PCB 11 and 42
[29] PCB 43a
35 After commencing employment with Ventel, the plaintiff said he again experienced difficulties in performing duties as a fibre optic technician. The plaintiff deposed more repetitive work and increased driving exacerbated his pain levels. He had not, he said, been able to perform as much overtime as was available. By September 2012, the plaintiff resigned in the belief that persistent neck and back pain ruled out this type of work as a viable career option.[30]
[30] PCB 16
36 The plaintiff next commenced a three year Bachelor of Security and Terrorism course with Murdoch University on a full time basis. The course was online. His goal was to secure employment in the future as a Security Analyst for either a charity or the Australian Government. The plaintiff was able to undertake this course because his partner had agreed to fund all their living expenses while the plaintiff studied full-time. The plaintiff estimated he completed about a year of the online course full time (about three semesters attaining credits and one high distinction) but said that, whilst he enjoyed the course, he had struggled largely due to neck and back pain.
37 The plaintiff deposed that a friend, a specialist in rheumatology, recommended he seek treatment from manual manipulative therapist, Mr Comerford.[31] In a short report dated 30 April 2013, Mr Comerford advised the TAC he had examined the plaintiff once, on 3 April 2013. Clinically, the plaintiff presented with neck spasms at the C3/C5 levels. Mr Comerford referred the plaintiff for the MRI imaging (the results of which were summarised earlier) and to musculoskeletal physician, Dr Jones.[32]
[31] PCB 11
[32] PCB 41
38 Another musculoskeletal specialist working from the same clinic, Dr Homan, reported the plaintiff was treated at the clinic on eight occasions between 24 April 2013 and 14 January 2014. Dr Homan said, six treatments were administered by his colleague, Dr Jones, between 24 April 2013 and 21 August 2013 and two by him on 27 September 2013 and 14 January 2014.
39 In a report dated 18 September 2014, Dr Homan, who was not required for cross-examination, indicated he wrote his report having considered the clinic’s full record of treatment of reportedly persistent neck pain and stiffness and chronic lower sacral pain as a result of the transport accident. I infer from this evidence that, in the process, Dr Homan also accessed Dr Jones’ records. In these circumstances, in my view, the submission by the TAC that an inference adverse to the plaintiff should be drawn from the failure to explain why no report had been obtained from a treating doctor, Dr Jones, was entirely without merit.[33]
[33] TN 145-148 and 190-191
40 Based on the evidence contained in Dr Homan’s report and the plaintiff’s affidavits, the treatment received between April 2013 and January 2014, involved injections (deep and shallow) and neuromuscular releases. The photographs taken on 30 September 2013 (Attachment “AH1” to the plaintiff’s final affidavit), indicated extensive bruising the plaintiff deposed was caused by multiple injections, presumably those administered by Dr Homan on 27 September 2013.[34]
[34] PCB 16b
41 At hearing, the plaintiff confirmed earlier affidavit evidence when he told the Court the injections (into the area of the trapezius muscle, his neck, his lower back and across his chest and shoulders) in conjunction with physiotherapy, had provided immediate but temporary pain relief (that is reduction in the level of his pain) for a period of about two weeks.[35]
[35] PCB 11 and TN 98 and 110
42 Notably, in his recent report, Dr Homan recommended a further series of six treatments (at a cost of $200 plus GST each) over the course of three months in the treatment of ongoing soft tissue pain, he understood from the plaintiff, significantly interfered with his ability to study and work.[36] In his final affidavit, the plaintiff deposed this treatment had been discontinued due to a lack of funds.
[36] PCB 43c
43 The plaintiff separated from his partner in June 2013.[37] The plaintiff said he put his studies on hold after the breakdown of the relationship. He could not afford to fund full-time study and, having in late July 2013 commenced full-time employment as a telecommunications draftsman/electromagnetic emissions technician with Corearth Australia, the plaintiff said he was not physically capable of undertaking part-time study in conjunction with full-time work.[38]
[37] PCB 16 and TN 30-31
[38] PCB 16b and TN 31
44 One matter noted by Mr Wilson in his statement, was that the plaintiff’s potential for promotion with Communications Connect had been damaged by ongoing impairment of his spine (“The only thing that got in the way of Andrew’s potential to get promoted and grow as an employee was the physical limitations placed on him from his injuries”[39]). Whilst acknowledging that his former employer had been very understanding and accommodating of his impairment, the plaintiff rejected the suggestion made under cross-examination that he could still return to fibre optic splicing work. Allowing for Mr Wilson’s statement and most of the medical opinion (the latter discussed in more detail shortly), I was satisfied the plaintiff’s concern that a return to working as an fibre optic technician would aggravate the problems in his neck and back, was probably well-founded.[40] In short, I have accepted a return to the plaintiff’s earlier career was both inadvisable and improbable.
[39] PCB 89
[40] TN 126 - 127
45 In contrast to his former work, the position with Corearth position requires use of a computer to examine radiation patterns at locations across Australia and giving advice to clients on safety levels for specific sites. This position apparently better accommodates the plaintiff’s condition because it is sedentary. The plaintiff sits at a desk in a well-designed chair with a wide screen computer monitor (the latter equipment especially supplied for the plaintiff). He takes breaks at will and he is allowed to leave work early to attend appointments for treatment.[41]
[41] PCB 16 and 16b and TN 31-32 and 104
46 Nevertheless, my understanding of both the oral and documentary evidence, was that, as compared with the earlier fibre optic splicing role, working as an electromagnetic emissions technician was less well remunerated and less enjoyable, the latter because it was not as intellectually stimulating and, this particular job involved working in an unpleasant interpersonal work environment. The plaintiff expressed pessimism about his prospects of promotion in this job in the future due to the nature of his injury.[42]
[42] TN 32
The medico-legal evidence
47 Mr Brearley first examined the plaintiff in August 2011, some months prior to the plaintiff relocating to Brisbane.[43] At the time, the plaintiff reported symptoms involving aching discomfort and pain in the neck (this was his primary problem) and aching pain in the lower back, difficulty in sleeping due to neck pain, avoiding heavy lifting and repetitive work with his head and neck held in a fixed position, an inability to run or play indoor soccer, difficulty in driving due to pain on turning his neck, difficulty in mowing the lawn and performing house maintenance and an inability to do the heavier aspects of house work.
[43] PCB 44-49
48 On review in June 2013, Mr Brearley was informed there had been little if any change in the plaintiff’s condition. At the time, the plaintiff was still a full-time student, having by then decided he could no longer work as a fibre optic technician due to his unresolved symptoms.
49 As mentioned, based on the plaintiff’s history, the results of the clinical examination and his assessment of the radiology, which included the results of the MRI imaging, Mr Brearley diagnosed soft tissue injury of the neck, namely intradisc rupture of the C5/6 disc in particular with resultant disc protrusion and soft tissue injury of the lower back involving the ligamentous structures of the lumbosacral spine and lumbar discs.[44] Notably, Mr Brearley concluded the plaintiff was not fit to continue his former work as a fibre optic technician over the long-term. In 2013, he predicted the plaintiff could need some further physiotherapy during periods of exacerbation of his symptoms and, probably over the next 2 to 3 years, prescription medication from his general practitioner.
[44] PCB 52
50 The plaintiff was first examined by the defendant’s medico-legal specialist, Dr Morris on 5 June 2013.[45] Among other things, he recorded that reading in particular caused neck pain, walking for 15 or 20 minutes caused lower back pain, sometimes when the plaintiff pulled on his trousers he experienced pain in the lower part of his cervical spine or in the lower back, vacuuming caused pain in the neck and lower back and driving for long distances caused pain.
[45] DCB 1-11
51 On reviewing the radiology, Dr Morris had observed, in his words: “quite marked degenerative changes in the cervical spine” as revealed by the MRI imaging, which he noted was: “minimally present when (the plaintiff) had his Computed Tomography (CT) Scan performed on 18 June 2010”.[46]
[46] DCB 9
52 Based on the plaintiff’s history, the clinical examination and his interpretation of the radiology (there was marked desiccation additional to a central to left disc bulge at the C5/6 level), Dr Morris diagnosed an initial soft tissue injury to the cervical spine and lumbar spine, from which he believed the plaintiff should have recovered within three months, such that he then believed cervical spine symptoms reported by the plaintiff were being generated by multilevel degeneration.
53 On clinical examination, Dr Morris said he found a full range of movement in a lumbar spine, of which there had been no radiological investigation. Notably, Dr Morris failed to discuss or diagnose the likely cause of the persistent pain reported by the plaintiff in the region of his lumbar spine (in association with, for example, walking or performing chores such as vacuuming).
54 In Dr Morris’s opinion, with the passage of time, degenerative disease affecting the cervical spine would cause problems working in some occupations. Dr Morris also appeared to attribute the neck pain reported by the plaintiff towards the end of his employment as a fibre optic technician to this degenerative disease.[47] Again, this scenario failed to address the likely cause or causes of persistent, albeit less problematic pain, affecting the plaintiff’s lower back.
[47] DCB 11
55 Having re-examined the plaintiff on 8 September 2014, apart from reiterating his earlier diagnosis, without explaining the reason for this, Dr Morris revised the period over which he had expected settlement of the plaintiff’s symptoms following the transport accident from three months to: “four or five months and certainly within a year”.[48]
[48] DCB 11J
56 I accept that later radiology has reported multilevel degenerative disease affecting the plaintiff’s cervical spine. I was not satisfied, however, that Dr Morris’s evidence adequately explained the basis of his opinion that a degenerative disease process had overtaken the initial injury suffered as a result of the transport accident, such that, even before the plaintiff ceased working as a fibre optic technician, degenerative disease accounted for persistent symptoms in a previously asymptomatic spine.
57 Dr Morris opined there was no incapacity for employment arising from compensable injury because the plaintiff was working as a technical officer. This evidence did not, however, address the clear differences in the requirements of the positions or, if the injury suffered was unresolved, whether the transport accident had given rise to a pecuniary disadvantage consequence constituting serious injury. I will explain the role of evidence of pecuniary disadvantage in assessing the consequences of injury to the plaintiff’s spine shortly.
58 By the time Mr Carey examined the plaintiff in August 2013, the plaintiff had separated from his partner, his studies were on hold, he had commenced full-time employment as an electromagnetic emissions technical officer with Ventel and he had completed six treatment sessions with musculoskeletal specialist, Dr Jones. The arrangement with the latter was for the plaintiff to resume physiotherapy once the injection program ceased.[49]
[49] PCB 68-81
59 On this occasion, the plaintiff described constant cervical spine pain which varied in intensity. Pain was aggravated by studying, using a computer and activities such as heavier home duties, as well as driving. The plaintiff reported medication reduced the level of his neck and back pain, as did exercises (for the neck) and the injection program. Whilst the focus of the plaintiff’s complaint was directed to his neck, the plaintiff also reported chronic discomfort in the lumbosacral area, which varied in intensity and was aggravated by standing for more than 10 minutes, by walking for more than 20 minutes and by heavier home duties.
60 Apparently, activities such as leaning, bending, lifting, sudden movements, coughing and sneezing could aggravate pain and the plaintiff reported his sleep was disrupted by both neck and back pain. As to the performance of other activities, the plaintiff reported most of these were undertaken by his housemate.
61 As mentioned, based on the plaintiff’s history, the results of the clinical examination and his assessment of the radiology, Mr Carey diagnosed soft tissue injury to the cervical and lumbar spine producing cervical and low back pain in the absence of radiculopathy. He attributed the plaintiff’s residual dysfunction to the transport accident and predicted continued discomfort and disability into the foreseeable future, possibly modified by further pain management strategies. Notably, Mr Carey was content for the plaintiff to continue in his mainly office-based alternative employment. I infer from this evidence, that Mr Carey probably would not have supported a return to the plaintiff’s former position if, as the plaintiff indicated, this involved holding his neck in a fixed position for extended periods.
62 Mr O’Brien was the last specialist to examine the plaintiff prior to hearing. When examined by Mr O’Brien on 26 August 2014, the plaintiff reported constant neck and low back pain. At the date of the examination the plaintiff reported pain levels at each site of 6/7 out of 10 on the Visual Analogue Scale. Neck pain was, he reported, aggravated by looking down, prolonged sitting and carrying of weights and pain caused difficulty with any domestic duties and significant sleep disturbance. Back pain was aggravated by sitting, walking more than 20 minutes and by standing still. [50]
[50] PCB 81b
63 In his current house sharing arrangement, the plaintiff reported problems undertaking any heavy domestic duties. He reported an inability to pursue any sport, although he was still working full-time with Ventrel.
64 Clinically the plaintiff presented with, for example, some reduction in cervical flexion and extension and he complained of posterior lower cervical pain.[51] Having considered the results of the MRI investigation of the cervical spine (he too noted, this showed multilevel degenerative change) and the results of his clinical examination, among other things, Mr O’Brien assessed the plaintiff’s physical signs as: “very mild and subjective” with no current evidence of nerve root compromise or radiculopathy associated with either the cervical or lumbar spines.
[51] PCB 81c
65 As mentioned, Mr O’Brien advised the plaintiff now presented with chronic non-specific cervical and lumbar pain caused by the transport accident. I understood this diagnosis to indicate that Mr O’Brien had not been able to identify the specific pathology for chronic pain, the nature, distribution and severity of which he noted was unchanged over some years. He envisaged a conservative pain management regime over the longer term with permanent restrictions on employment involving manual duties and some permanent restriction on the plaintiff’s general domestic, social and recreational activities.
66 I infer from Mr O’Brien’s report that had he considered the initial injury to the plaintiff’s spine to have involved aggravation of any pre-existing pathology in the cervical spine he would have indicated this.
67 The defendant was very critical of particularly Mr O’Brien’s evidence, mostly because, having seen Dr Morris’s earliest report, he had not also undertaken an analysis of, or commented on, the expected duration of the initial injury, which other doctors have specifically identified as a soft tissue injury caused by the transport accident (whiplash, intradisc rupture at the C5/6 disc level and so forth). There was no evidence to suggest that any of these doctors, including Mr O’Brien, were asked to comment on Dr Morris’s findings or opinion.
68 I did not, however, find remarkable that, having accessed the more recent radiological evidence of multilevel degenerative disc disease in the cervical spine, specialists, other than Dr Morris, had not discussed or considered this condition a potential cause of the plaintiff’s persistent symptoms since the date of the transport accident.
69 As my discussion of both the plaintiff’s evidence and the medical evidence has demonstrated, I was satisfied the plaintiff had established the causal link between chronic pain, particularly pain affecting his neck and injury suffered as a result of the transport accident. I based this conclusion, in part, on the consistency of the plaintiff’s account regarding the onset and duration of symptoms and pain and the disabling effect of his condition (which, so far as it related to his cervical spine, was not challenged by Dr Morris) and, in part, on the findings reported following medical examinations to the present time. In short, this evidence tended to contradict Dr Morris’s premise that soft tissue injury suffered in the transport accident should have resolved between three months and a year following the transport accident.
70 I infer from their reports, that, like Dr Morris, Mr Brearley, Mr Carey, Dr Homan and Mr O’Brien had not been satisfied that the initial injury to the cervical and lumbar spines involved aggravation of pre-existing degenerative disease in a previously asymptomatic spine. However, unlike Dr Morris, these specialists and the current treating general practitioner have accepted the reported history of chronic pain and disability. This history and the evidence as a whole was consistent with a finding that likely soft tissue injury to the cervical and lumbar spine caused by the transport accident was unresolved and likely to endure over the longer term.
71 The evidence of specialists other than Dr Morris, supported an additional finding to the effect that the compensable injury probably also caused domestic, recreational, social and pecuniary disadvantage consequences, which are discussed in more detail in due course.
Pain and suffering consequences
72 I now turn to consider the pain and suffering and loss of enjoyment of life consequence.
73 As the Court of Appeal has explained in Haden Engineering Pty Ltd v McKinnon,[52] the pain and suffering consequence encompasses both the plaintiff’s experience of pain and the disabling effect of pain on his physical capabilities (including his capacity for work) and enjoyment of life.
[52] [2010] VSCA 69 [9]-[17]
74 As to the plaintiff’s experience of pain, the plaintiff described this in both his affidavit and oral evidence. In his affidavit evidence this was articulated in the following way:
In his first affidavit –[53]
[53] PCB 5–7
“14. I continue to experience a lot of pain in my neck and lower back..
16. My neck and lower back pain fluctuates but is constant to some degree.”
In his second affidavit –[54]
[54] PCB 8–16
“27. I continue to suffer from neck and back pain. The level and intensity of the pain varies from day to day generally depending on when I last received treatment and the level of my activities during the day.
28. I generally wake up with back and neck pain everyday. It is difficult to assess how often I wake with pain and how moderate or severe it is because I have had periods of good pain relief and then periods of virtually no relief…
29. Despite the fluctuating level of my pain I would say that it on waking my pain is usually mild to moderate but it increases throughout the day as I become more active and can be severe by the end of the day…
30. The pain to my neck is around the middle of my neck and radiates down around my shoulders and causes my muscles to tense up so much that even my chest muscles are tight.”
In his third and final affidavit –[55]
“19. I do not have a day when I am pain free. There are times when pain isn’t an issue but after ten to fifteen minutes in the same posture the pain returns and I have to change posture for relief.”
[55] PCB 16a–16g
75 Under cross-examination, among other things, the plaintiff agreed he had good and bad days but emphasised that pain was constant (“I’m always aware and I can always feel the injury”[56]).
[56] TN 35 and 85
76 Under further cross-examination, it was suggested that the level and frequency of lower back pain was experienced to a lesser degree in the three years preceding the hearing.[57] This line of questioning was based on the physiotherapist’s record of an attendance on 28 September 2011. Whilst indicating that the plaintiff had reported a burning sensation on the left suboccipital side of the neck, among other things, the record made on this occasion further indicated that: “back feeling good, only discomfort when try lift something heavy”.[58]
[57] TN 77-78
[58] DCB 31
77 As I understood the responses given, the plaintiff believed the record made represented how he felt when he presented to the physiotherapist on 28 September 2011, but rejected the suggestion that the condition of his lower back had changed and remained as recorded on that visit (“I think it’s probably been the same as it has been the whole time”[59]).
[59] TN 78
78 I have accepted the plaintiff’s evidence in this regard. Firstly, the plaintiff was a credible witness. Secondly, within weeks of this entry being made the physiotherapist recorded treatment for exacerbation of lower back pain reported by the plaintiff in conjunction with the work assignment undertaken in Queensland and, thirdly, as recently as January 2014, the plaintiff was receiving injections in the treatment of both cervical and lower back pain.
79 Dealing with the spine as a whole, over a period of some 4 ½ years the plaintiff has consistently reported fluctuating spinal pain (at times described as severe), yet he readily acknowledged neck pain and impairment was the greater problem.
80 As to the treatment received, this has involved physiotherapy, injections and the prescription of antispasmodic, anti-inflammatory and painkilling medication as well as medication to aid sleep.
81 Currently, treatment consisted of physiotherapy (monthly), gym exercises (three times weekly), home exercises and both prescription and over-the-counter medication.
82 Medication currently taken comprised, on most days, 1-2 tablets of the pain killing medication, Panadeine Forte (or sometimes the plaintiff substituted Panadol, because he wanted, he said, to reduce his use of the stronger medication), the anti-spasmotic, Valium, nightly (this medication also aided sleep) and the sleeping medication, Stilnox, although the prescription for the latter medication had run out and the plaintiff was due to consult with his doctor after the hearing.[60]
[60] TN 62-63, 106 and 118-119
83 The plaintiff said Panadeine Forte reduced pain, but rejected the suggestion that it did so to a considerable degree.[61]
[61] TN 119
84 Under cross-examination, the plaintiff agreed that he had been referred to a pain management specialist by his current general practitioner, although he also indicated he had not pursued the referral due to the cost involved.[62] I infer from this evidence and Dr Homan’s recommendation for the plaintiff to undergo a further injection program that the plaintiff probably would have pursued additional treatments had these been affordable.
[62] TN 34
85 In all, the evidence of treatment and the extent to which the plaintiff required particularly painkilling medication, was consistent with an ongoing attempt to manage chronic and intrusive levels of pain including episodes of exacerbation.
86 As to the doctors’ evidence about the extent and intensity of pain, all have accepted the plaintiff’s complaint of chronic pain affecting particularly his cervical spine, although Dr Morris attributed the latter to the underlying degenerative pathology.
87 Generally speaking, the observations made by the plaintiff’s mother, as set out below, emphasised the contrast between her son’s functioning before and since suffering injury: [63]
[63] PCB 16h–16j
“2. Andrew has always been a live wire. Andrew played sport, went to the gym, had a million friends and did everything. He was full of life and enjoyed dancing or going out. Andrew was always busy, I used to make an appointment to talk to him…
17. I have been to Queensland to visit Andrew twice since he moved and I have stayed with him up there. I have seen Andrew have to ask for help even to move something or do something that before he would never had any problem with. He was such a fit, strong guy and could do anything…
19. Andrew is now more subdued in his personality, he is not as happy go lucky as he used to be. He has worries in every area of his life and has a much more doubtful future. He is in pain and taking medication most of the time. He doesn’t have any bright prospects for his life.”
88 The evidence as to the extent to which pain limited the plaintiff’s functioning and interfered with his enjoyment of life, with allowance for some comparison between what has been lost to the plaintiff and what has been retained, is summarised below.
89 As to the disabling effect of pain, in his affidavit and oral evidence and in statements recorded by doctors from time to time, the plaintiff described the extent to which over the long term pain and loss of function had interfered with employment, domestic, social and recreational activities and relationships.
Pain and impairment
90 These impacted on the plaintiff’s mobility, his tolerances for sitting, standing and walking and his sleep. For instance, the plaintiff, who was an active young man before the transport accident, described reduced tolerances in sitting (for long periods or working at a computer or driving for more than about 30 to 45 minutes, the latter aggravating particularly neck pain, or being driven as a passenger for more than 30 minutes), standing (for long periods, that is more than 5 to 10 minutes on a hard surface such as concrete) and walking (for long distances, such that the plaintiff must sit and rest after about 20 minutes).[64]
[64] PCB 7, 13 and 16c and TN 85-86 and 102
91 The plaintiff said his sleep was disturbed by particularly neck pain which led to the taking of medication to assist sleep. Broken sleep (he achieved about four hours of unbroken sleep nightly) apparently impacted on the plaintiff’s mood and ability to concentrate the following day. The plaintiff told the Court that Temazepam had not been effective in controlling sleep disruption. In the weeks prior to the hearing the plaintiff said he had trialled the medication, Stilnox, with which he had problems he intended to discuss with his doctor following the hearing. In short, the plaintiff and his doctor were probably in the process of identifying medication that appropriately aided sleep regularly disrupted by pain.[65]
[65] PCB 7, 12 and 16b and TN 106
92 In this case, as in many of cases for leave coming before the Court, the plaintiff relied on the evidence of his daily pain experience, in the management of which he regularly took strong painkilling medication as an indication of a likely very considerable consequence.[66]
Employment
[66]Transport Accident Commissionv Kamel [2011] VSCA 110 [68]
93 I have already summarised much of the evidence of the plaintiff’s post-injury employment and his attempt to retrain for an alternative career through further study.
94 It was common ground the plaintiff’s earnings in his employment as a fibre optic technician for the year ending 30 June 2011 were $67,777 gross.[67] Under cross-examination, the plaintiff agreed he was now paid as an electromagnetic technician at the rate of $54,625 gross per annum.[68] Currently, this situation represented both a loss of earning capacity and a loss of income. However, the plaintiff expressed an intention to complete his studies to become a Security Analyst and, once qualified, this was an alternative career path the plaintiff expected to enjoy. There was no evidence of the extent to which the plaintiff would be remunerated should he qualify through further full-time or part-time study to work as a Security Analyst.
[67] PCB 85-86
[68] PCB 16 and TN 31
95 In summary, whilst the plaintiff had persevered with his pre-injury job in the face of exacerbations of pain, the injury had likely permanently deprived the plaintiff of the capacity to continue his pre-injury work as a fibre optic technician. This was work the plaintiff said he enjoyed and preferred to his current desk job.[69] This factor, so the plaintiff submitted, not to mention an inability to combine part-time study with full-time work, the latter to fund his studies, significantly limited the range of work he could perform in the future.
[69] TN 183-184
96 The recent decision in Mazevskav Transport Accident Commission,[70] among other things, instructs that, when evaluating the consequences of injury suffered as a result of a transport accident, the Court must also consider whether the plaintiff had established pecuniary disadvantage consequences of compensable injury, which amounted to serious injury. The plaintiff also relied on the earlier decision in Croppv Transport Accident Commission.[71] Among other things, Cropp confirmed the Court must evaluate the impact of the disruption to the plaintiff’s working life.
[70] [2014] VSCA 176 [21]
[71] [1998] 3 VR 357, 361 and TN 186
97 In the present case, the plaintiff demonstrated that, by reason of injury to his spine, there was no real probability that he would return to his preferred career and the range of occupations open to the plaintiff was probably restricted over the longer-term. The plaintiff also showed that the impairment of his spine had likely caused a reduction in his ability to earn at a similar rate in an alternative position to which he was suited by his training and experience. However, I was not also satisfied that the inability to earn at the same or a higher rate; that is the loss of income, was necessarily long-term. In these circumstances, I assessed the loss of earning capacity consequence for this plaintiff as significant but not such that the pecuniary disadvantage consequence overall amounted to a serious injury.
Domestic activities
98 The plaintiff had retained the capacity for lighter domestic chores, as for example, dusting, stacking the dishwasher, cooking, some grocery shopping (he limited the weights carried) and doing his own laundry and ironing but not for activities such as vacuuming/mopping, mowing lawns or lifting weights of more than 5 to 10 kilograms when moving house.[72]
Self-Care
[72] PCB 7, 14 and 16c and TN 87-90, 118 and 102-103
99 Generally speaking the plaintiff had retained the capacity to perform most self-care tasks, although he deposed that activities such as bending to put on shoes/boots or washing his feet in the shower caused lower back and neck pain.[73]
Recreational/Social Activities
[73] PCB 7 and 13 and TN 88
100 As confirmed by his mother, the plaintiff was an active sporting type prior to the transport accident. The plaintiff still has a social life. The plaintiff said watching films was an activity he loved. However, pain and impairment impacted on this activity because the plaintiff now found sitting in cinema seats too uncomfortable. Consequently, the plaintiff has not attended a cinema in the last 18 months or so and, whilst the plaintiff acknowledged he could access and view films through other mediums, he has been deprived of the recreational experience of watching film at a cinema.[74]
[74] PCB 6, 13 and 16c and TN 101 and 188
101 Apparently restrictions on walking have limited the plaintiff’s ability to go for long beach walks and he rarely goes out to dinner because sitting through a long meal was, he said, very uncomfortable.
102 As to his sporting activities, the plaintiff deposed that prior to the transport accident he had enjoyed sports such as outdoor soccer and playing games with friends, such as cricket or football (for instance, throwing a ball caused pain) and he had particularly enjoyed jogging.[75] As I understood the evidence, the plaintiff had given up all of these activities due to pain and impairment.
Relationships
[75] PCB 7, 14 and 16c and TN 91-93
103 According to the plaintiff, limitations on his ability to socialise had strained his relationships with friends and, in the past, this factor, and the financial pressures caused by having to buy furnishings (pillows, beds and the like) to accommodate the plaintiff’s condition had strained his relationship with his then partner. Nevertheless at the date of hearing, the plaintiff said he was in the early stages of a new relationship.[76]
Sexual functioning/intimacy
[76] PCB 7, 13 and 16b-16c and TN 29
104 The plaintiff told the Court that, currently he is not involved in an intimate relationship.[77] However, I have accepted as plausible the plaintiff’s complaint that his ability to enjoy sexual intercourse during his earlier relationship had been affected by pain in his neck and back, as was his ability to be affectionate through holding and cuddling his partner.[78]
[77] TN 94
[78] PCB 7 and 16d
Conclusions
105 In conclusion, I find that as a result of the accident the plaintiff suffered long term soft tissue injury to his spine, particularly at the level of the cervical spine. The impairment consequence of the injury suffered has been broadly summarised above.
106 In assessing whether the pain and suffering consequence of the soft tissue injury met the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff, to which this injury materially contributed.
107 The evidence relating to the impact of impairment of the plaintiff’s spine on his day-to-day activities and enjoyment of life has been summarised.
108 Perhaps most significantly so far as this plaintiff was concerned, his work life had been disrupted to the extent that he was no longer fit to pursue his pre-injury career and currently worked for less remuneration in alternative employment and he must now resort to taking strong pain relieving medication regularly.
109 As mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to his spine (in this instance, measured in part by the plaintiff’s mental response to his physical impairment), when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained, applying this test involves a value judgement in which matters of fact and degree and of impression, all play a role.[79]
[79]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, [41]
110 In this application I was affirmatively satisfied that injury to the plaintiff’s spine caused by the transport accident was serious because at the date of hearing it was fairly described as serious in its pain and suffering and loss of enjoyment of life consequences for this plaintiff, and as long term because the impact, treatment and management of the plaintiff’s condition would likely persist for the long-term. In short, when compared with other cases in the range of possible impairments, the consequence so described could be fairly characterised as being more than significant or marked and at least very considerable.
111 I propose to grant the plaintiff’s application for leave.
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